Gupta v State of SA

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GUPTA v STATE OF SA
[2024] SASC 126
Judgment of the Honourable Justice McIntyre
EQUITY – OTHER MATTERS
The applicant, Santosh Kumar Gupta, has brought a claim against the State of South Australia, alleging that Dr Polasek, a respiratory physician employed by the State, breached a duty of confidence by sharing his confidential medical information with his insurer, AIA Australia Limited (‘AIA’) in a letter dated 11 December 2014. The applicant argues that this disclosure led to AIA rejecting his Total and Permanent Disability (TPD) claim, resulting in financial loss and emotional distress. The applicant submits that he had restricted the scope of what could be provided to AIA by instructing Dr Polasek to limit any response to clinical notes only.
The respondent, the State of South Australia, denies any breach of confidence. The respondent contends that Dr Polasek acted appropriately within the authority provided by Mr Gupta to AIA. The respondent contends that the applicant's email instruction to limit disclosure was never received by Dr Polasek. Additionally, the respondent asserts that AIA's decision to reject the TPD claim was based on various sources of information, not solely on Dr Polasek's letter, and that there was no compensable loss caused by any alleged breach.
Consideration of the equitable duty of confidence in the context of the doctor/patient relationship.
Held:
1.Dr Polasek owed the applicant an equitable duty of confidence.
2.Some of the information disclosed to AIA had the necessary quality of confidentiality and was received by Dr Polasek in circumstances that imported an obligation of confidence.
3.Dr Polasek's letter to AIA was provided in accordance with the authority provided by the applicant in May 2014 and did not amount to an improper disclosure.
4.The signed authority provided by the applicant was never effectively withdrawn.
5.Dr Polasek’s letter to AIA did not constitute a breach of confidence.

Crown Proceedings Act 1992 (SA); Public Sector Act 2009 (SA) ss 3, 74; Electronic Communications Act 2000 (SA), referred to.
Gupta v The State of South Australia (Supreme Court of South Australia, Judge Dart, 25 June 2021).; Rogers v Whittaker (1992) 175 CLR 479; Breen v Williams (1996) 138 ALR 259, considered.

GUPTA v STATE OF SA
[2024] SASC 126
Civil: Trial

McINTYRE J: The applicant, Santosh Kumar Gupta, brings this claim against the respondent, the State of South Australia, under the Crown Proceedings Act 1992(SA). The applicant alleges that Dr Jonathan Polasek (‘Dr Polasek’), in writing to AIA Insurance Australia Ltd (‘AIA’) on 11 December 2014, breached a duty of confidence that he owed the applicant. The claim further alleges that the respondent is vicariously liable for the actions of Dr Polasek.
For the reasons that follow I find that Dr Polasek did not breach any duty of confidence owed to the applicant. The information disclosed in the letter to AIA was within the scope of an authority provided by the applicant, and there was no effective withdrawal of that authority. Accordingly, the applicant's claim is dismissed. Orders will be made accordingly.
Background
The applicant was born, brought up and educated in India. He moved to Australia with his family in July 2005. He is a civil engineer. His qualifications are recognised in Australia. On arrival in Australia, he worked as a civil engineer first on the Port River Expressway and then for a regional council before obtaining work as a senior civil engineer for FMG Engineering.
The applicant was referred to the Queen Elizabeth Hospital (‘QEH’) by his general practitioner in August 2007 with symptoms of daytime somnolence, general tiredness, malaise, and depressive affect.[1] One of the treatment providers at the QEH was Dr Polasek, a respiratory physician. In September/October 2008, Dr Polasek, following a series of sleep studies, confirmed that the applicant had a diagnosis of narcolepsy.[2]
[1] Exhibit A 6.
[2] Exhibit A 7; Item 28.
The applicant resigned from his position with FMG Engineering (‘FMG’) as a senior civil engineer on 1 June 2012. On 6 June 2012, the applicant purported to withdraw his resignation. On 6 or 7 June 2012, FMG indicated that it had already accepted his resignation and was not prepared to accept the withdrawal. On 14 June 2012 FMG advised the applicant that he was not required to serve out his notice and would be paid four weeks salary in lieu of that notice period. The applicant’s last day at work with FMG was 14 June 2012.
The applicant applied to Fair Work Australia in relation to an alleged unfair dismissal seeking reinstatement to his former position at FMG. Following an unsuccessful conciliation process there was a hearing at which evidence was received. The applicant’s application was dismissed by Fair Work Australia on 9 November 2012.[3]
[3] Exhibit R 48.
On 6 July 2012, the applicant sought assistance from Dr Polasek in relation to a claim for a Disability Support Pension (‘DSP’) from Centrelink.[4] Dr Polasek completed a Centrelink medical report form on 11 July 2012.[5] The applicant lodged his claim on 16 July 2012. His claim was declined by Centrelink on 12 September 2012. The applicant requested that Centrelink reconsider the rejection of his claim. The original decision was reviewed and affirmed by Centrelink on 5 April 2013.
[4] Exhibit A 10.
[5] Exhibit A 16.
The applicant appealed Centrelink’s decision declining his DSP to the Social Security Appeals Tribunal (‘SSAT’). The SSAT affirmed Centrelink’s decision on 15 May 2013.[6] The applicant then appealed the SSAT decision to the Administrative Appeals Tribunal (‘AAT’). The AAT heard the matter afresh and determined that the applicant did not satisfy the prescribed criteria for the DSP. The AAT published reasons for affirming the decision under review on 22 August 2014.[7]
[6] Exhibit A 14.
[7] Exhibit A 15.
The applicant was a member of a BT Business Superannuation policy which included a group salary continuance insurance policy (‘SCI’) with AIA. The superannuation trustee was BT Financial Group (‘BT’). On 30 May 2014, the applicant submitted a SCI Initial Claim Form to AIA.[8] In that claim he indicated that he ceased work on 14 July 2012 due to “narcolepsy, excessive day time sleepiness, severe depression, poor concentration, headache, eye irritation, skin irritation, weak muscle tone and automatism”.[9]
[8] Exhibit R 50.
[9] Ibid.
The applicant claimed salary for the maximum period of two years under the SCI from about July 2012 until July 2014. AIA initially rejected the SCI claim but ultimately determined to accept it in “good faith” whilst maintaining that the claim was outside the terms of the policy.[10] On 8 September 2017, AIA wrote to the applicant advising that a final payment was made to him for a benefit period of 2 September 2012 to 1 September 2014; a total of 24 months.[11]
[10] Exhibit A 28 at [10].
[11] Exhibit R 27.
It is unclear from the documents tendered in this matter when precisely the applicant made a claim for Total and Permanent Disablement (‘TPD’) under the group policy. It seems likely that he did not submit a separate claim form but rather that at some point, AIA determined to treat the SCI claim as a claim for TPD.[12] In any event, AIA wrote to the applicant on 2 January 2018 advising him that his TPD claim was likely to be declined on the basis set out in that letter and inviting him to supply further information, comments or submissions within 30 days.[13] The applicant replied on 5 January 2018. AIA wrote to the applicant on 31 January 2018 declining his claim for the reasons set out in their letter.[14] BT agreed with the decision of AIA to decline the applicant’s TPD claim.
[12] Exhibit A 26.
[13] Exhibit R 43.
[14] Exhibit A 26.
The applicant lodged a complaint with the Superannuation Complaints Tribunal. In a determination dated 15 October 2019, the Tribunal affirmed the decisions of the insurer, AIA, and the Trustee, BT, to decline the applicant’s TPD claim.[15]
[15] Exhibit A 28.
The Claim
The applicant is self-represented in this matter. There was an interlocutory application by the respondent to strike out his statement of claim. That application was granted, and the statement of claim was struck out on 25 June 2021 for the reasons set out in the decision of Judge Dart (as he then was).[16] Associate Justice Dart however granted leave to the applicant to re-plead his claim in terms of paragraphs 44 and 45 of his original claim.[17]
[16] Gupta v The State of South Australia (Supreme Court of South Australia, Judge Dart, 25 June 2021).
[17] FDN 1.
The applicant filed revision one of his claim in line with Dart AsJ’s orders on 2 November 2021.[18] The applicant filed a further revision of his claim on 24 August 2023.[19] In summary, the second revision of the applicant’s statement of claim alleges that:
·the applicant was at all material times a patient of Dr Polasek at the Queen Elizabeth Hospital and that Dr Polasek was an employee of a public sector agency and therefore a public sector employee in accordance with ss 3(1) and 74(1) of the Public Sector Act 2009 (SA).
·Dr Polasek owed the applicant an equitable duty of confidence.
·on 13 October 2014, the applicant sent an email to Dr Polasek asking Dr Polasek to provide only clinical notes, not any separate report to the applicant’s insurer, AIA; and
·on 11 December 2014, Dr Polasek wrote a letter to AIA regarding the applicant which contained confidential information relating to the applicant’s personal health and medical history that was not in the public domain. It is said that this information was disclosed to AIA without the applicant’s consent and in breach of the equitable duty of confidence owed to the applicant (“the breach”).
[18] FDN 23.
[19] FDN 66.
The applicant alleges that the breach has caused him to suffer detriment in the form of loss of privacy over the confidential information. He further alleges that the breach resulted in AIA considering the confidential information and, as a consequence, the insurer rejected the applicant’s TPD claim. The applicant says that the breach of privacy and confidentiality and loss of TPD has also caused him emotional distress and suffering. He seeks equitable compensation for the economic loss arising from the rejection of his TPD claim, his emotional distress and suffering and for such further order or other relief as the Court deems appropriate.
The issues for determination are:
1.Whether Dr Polasek owed the applicant a duty of confidence.
2.Whether, in writing a letter to AIA on 11 December 2014, Dr Polasek breached that duty of confidence. Determination of this issue involves consideration of the following matters:
·whether Dr Polasek was entitled to rely on the authority enclosed in the letter from AIA on 9 December 2014;
·whether Dr Polasek received, or was aware of, an email from the applicant dated 13 October 2014 and if so, how to reconcile this with the authority provided; and
·whether in responding to the request from AIA there was a breach of confidence by Dr Polasek.
3.If there was a breach of confidence, whether this occurred in Dr Polasek’s capacity as an employee of the respondent; and
4.If there was a breach of confidence, and this breach occurred in the course of Dr Polasek’s employment with the respondent, whether there is any compensable loss suffered by the applicant attributable to the breach and, in particular, whether the outcome of the applicant’s TPD claim would have been any different.
The hearing
The hearing in this matter took place over three days, with a subsequent half-day for closing submissions. The applicant gave evidence and tendered a large quantity of material in support of his application. He did not call any other evidence. Throughout the hearing the applicant attempted to widen the issues to include those that formed part of the original claim struck out by Dart AsJ. In particular he sought to challenge Dr Polasek’s opinion. He was reminded throughout about the limits of his claim. Notwithstanding this he sought to tender some material and filed written submissions which sought to import issues raised by his original claim that were struck out by Dart AsJ. I received the material de bene esse as exhibits A 39, A 40 and A 42. Having considered those documents and the submissions of the parties I decline to admit those exhibits. They are not relevant to the issues in this matter.
The only witness for the respondent was Dr Polasek. Various documents were tendered during the course of the respondent’s case including an affidavit of Eddie Koon Kwok Cheung, a Senior Manager Security Services of Digital Health SA sworn on 15 March 2024,[20] which sets out the evidence that he would have given had he been called to give evidence. The applicant did not object to the tender of this document, nor did he ask that Mr Cheung be made available for cross examination.
[20] Exhibit R 61.
The matter was adjourned for closing submissions. On the adjourned date, the applicant sought to tender some additional documents. There being no objection he was permitted to do so despite having previously closed his case. Both parties filed written submissions[21] and closing oral submissions were made to supplement these. Following this the applicant contacted the Court indicating that he wished to make a further submission on the topic of the email that he sent to Dr Polasek with particular reference to the Electronic Communications Act 2000 (Cth). He was permitted to provide further written submissions on that topic and did so on 6 May 2024.[22] The respondent filed responding submissions.[23] The applicant sought permission to provide a response to those submissions and did so on 24 May 2024.[24] The respondent declined to file a further response in the interests of bringing this matter to a conclusion.
[21] FDN 96; FDN 98.
[22] FDN 102.
[23] FDN 103.
[24] FDN 107.
Witness Observations
Dr Polasek was a clear and cogent witness. He had an independent recollection of many matters regarding his involvement with the applicant but otherwise relied upon the documents. Dr Polasek said that his letters to the applicant’s general practitioners reporting upon his consultations with the applicant were dictated immediately after the consultation and reflected his understanding of what he was told by the applicant.
It was plain that Dr Polasek has come to regard the applicant with a degree of animosity. Dr Polasek formed the view that the applicant was attempting to manipulate him to change his genuinely held medical opinion. Further, the evidence was that the applicant sees Dr Polasek as the author of his misfortunes. He has, in view of that belief, been convicted of criminal offences arising from his conduct towards Dr Polasek and has been subject to an intervention order in favour of Dr Polasek. In addition, the applicant has made several complaints to various authorities including to the Australian Health Practitioner Registration Agency (‘AHPRA’) about Dr Polasek none of which has been upheld. Notwithstanding these issues I do not consider that Dr Polasek allowed his antipathy to affect his evidence. Dr Polasek struck me as a fair and measured witness who was attempting to do his best to assist the court. I have no hesitation in accepting his evidence.
The applicant, on the other hand, was a most unimpressive witness. The evidence he gave was in many respects contradicted by his conduct of the hearing. For example, he claimed to have a very poor memory and yet was able to recall specific dates, documents, and occasions without apparent difficulty; he claimed to have poor concentration but was able to follow the proceedings over an extended period of time with limited breaks and with a focus on relevant issues. The applicant is clearly an intelligent man but the overwhelming impression I formed was that he was prepared to be economical with the truth if it was in his perceived interests to do so. I further formed the view that he was attempting to manipulate the Court by threatening to self-harm if his claim is rejected. I do not accept the applicant’s evidence unless independently corroborated.
The equitable obligation of confidence
The applicant submits that Dr Polasek owes him an equitable duty of confidence. The basis of the claim is in conscience. Equity protects confidences, whether personal or commercial, on the basis of “good faith” which fastens on the conscience of the person who owes the duty of confidence. Justice Gummow, in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health[25] considered the concept of the obligation of confidence and in particular the obligation in circumstances where the information was imparted in confidence.[26] He noted that different considerations might apply in circumstances where the parties were linked by a pre-existing fiduciary relationship or where there were contractual obligations. In that matter neither situation existed.
[25] (1990) 95 ALR 87 (‘Smith Kline’).
[26] Ibid at 101.
It has been suggested that the doctor/patient relationship is a type of fiduciary relationship. This question was considered by the High Court in Breen v Williams.[27]Gaudron and McHugh JJ said:[28]
As the law stands, the doctor-patient relationship is not an accepted fiduciary relationship in the sense that the relationships of trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company and partners are recognised as fiduciary relationships. In Hospital Products, Mason J pointed out that in all these relationships “the fiduciary acts in a ‘representative’ character in the exercise of his responsibility”. But a doctor is not generally or even primarily a representative of his patient.
However, the categories of fiduciary relationship are not closed, and the courts have identified various circumstances that, if present, point towards, but do not determine, the existence of a fiduciary relationship. These circumstances, which are not exhaustive and may overlap, have included: the existence of a relationship of confidence; inequality of bargaining power; an undertaking by one party to perform a task or fulfill a duty in the interest of another party; the scope for one party to unilaterally exercise a discretion or power which may affect the rights or interest of another; and a dependency or vulnerability on the part of one party that causes that party to rely on another.
Some aspects of the doctor-patient relationship exhibit characteristics that courts have used to find a fiduciary relationship. For example, from the most mundane consultation with a general practitioner through to the most complicated surgical procedure by a specialist surgeon, a patient is invariably dependent upon the advice and treatment of his or her doctor. Patients also invariably confide intimate personal details about themselves to their doctors. In some circumstances, the dependency of the patient or the provision of confidential information may make the relationship between a doctor and patient fiduciary in nature. But that does not mean that their relationship would be a fiduciary for all purposes.
[citations omitted]
[27] (1996) 138 ALR 259.
[28] Ibid at 284 – 285.

In Smith Kline, Gummow J summarised the four elements that ought be satisfied to establish that an equitable duty of confidence is owed in the circumstances of that case as follows:[29]
A general formulation apt for the present case of an equitable obligation of confidence has four elements: (i) the plaintiff must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information, without the consent of the plaintiff.
[29] Smith Kline at 102.
Arguably if confidential information is exchanged in the course of a doctor/patient relationship such as existed between the applicant and Dr Polasek this may render at least that aspect of the relationship fiduciary in nature. However, notwithstanding there was no fiduciary relationship present in the Smith Kline matter, it is my view that the elements identified by Gummow J are equally apposite to this matter and that the applicant must satisfy each of those elements.
The impugned letter
On 9 December 2014, the applicant’s insurer AIA sent a letter by facsimile to Dr Polasek at Ashford Specialist Centre requesting medical information concerning the applicant. The letter enclosed a patient medical authority signed by the applicant.
The letter from the insurer advised Dr Polasek that the applicant had lodged a claim for salary continuance insurance with his super fund and requested a medical report addressing specific questions posed by AIA and details of the applicant’s full medical record including any test results and reports.[30] The questions included a request that Dr Polasek provide:
·a full description of the mechanism and circumstances of the applicant’s condition;
·his diagnosis and the objective findings that support it;
·the applicant’s symptoms and how they are being treated, current management plan;
·the applicant’s compliance with the treatment plan, any factors complicating the applicant’s recovery;
·the applicant’s capacity for work in either a partial or full time basis and whether that had changed since Dr Polasek’s assessment in 2012; and
·whether a gradual return to work would be suitable.
[30] Exhibit R 59.
The letter writer also requested any other comment that Dr Polasek considered relevant together with a copy of Dr Polasek’s clinical notes, specialist reports and investigations.
The authority enclosed with that facsimile was signed by the applicant on 30 May 2014. On 11 December 2014, Dr Polasek wrote a letter in response to that request.[31] A fair reading of the whole of Dr Polasek’s 2014 letter makes it plain that Dr Polasek wished to convey that he was unable to provide a comprehensive report to the applicant’s insurer. In the letter Dr Polasek briefly outlines his involvement with the applicant and concludes by saying that, in view of the matters that had occurred since his last assessment in 2012 he was unable to answer the specific questions posed by AIA.
[31] Exhibit A 24.
In his pleadings, the applicant says that this letter contained confidential information relating to his health and medical history that was not in the public domain. That information is set out in paragraph 11 of the third revision of his claim as follows:
The 2011 (sic) letter contained the following confidential information relating to the applicant’s personal health and medical history that was not in the public domain (Confidential Information)
a)“He has never been seen at Ashford Specialist Centre, the salient investigations and treatment being undertaken at the Queen Elizabeth Hospital (QEH) while I was seeing him until 2012. He was subsequently being cared for by Dr Zafar Usmani, who likewise no longer sees this gentleman. I doubt he has a new sleep physician.”
b)“[The applicant] was diagnosed at the QEH with narcolepsy on a MSLT in about 2008. He subsequently had a mean wakefulness test in 2014 that showed, on treatment, that the sleepiness identified on the initial tests had been abolished. He was taking a very minimal does of modafinil, about 100-200mg a day.”
c)“In 2012 he applied for a disability pension, and I supported him with this, however my feelings that he could work 15-22 hours a week was strongly disputed by [the applicant] as this opinion resulted in a disability pension being rejected. Apart from Dr Usmani, I believe he saw another sleep physician at the Royal Adelaide Hospital and both did not feel that he had any claim to disability.”
During the course of the hearing, the applicant also appeared to complain about the fact that Dr Polasek included in his letter details of the incident in which the applicant threatened Dr Polasek that resulted in the applicant being convicted of criminal offences. This is not raised in the pleadings nor is it, in my view, confidential information. The applicant was charged and dealt with in the District Court of South Australia in open court. His conviction is a matter of public record.
The respondent contends that Dr Polasek’s letter to AIA does not contain information that is confidential for a number of reasons. Specifically, it is contended that this was because it is a letter not a report rather it is contended to be a personal account by Dr Polasek and a general response to questions. It is further said that the information disclosed was not confidential, but a medical opinion based on Dr Polasek’s experiences with the applicant and, finally, it is said that some material in the letter was qualified.[32] I do not agree. The distinction between a letter and a report is not relevant to a consideration of whether the contents are confidential. Dr Polasek’s medical opinion was based on the whole of his doctor/patient relationship with the applicant including letters of referral, medical tests, and the history provided by the applicant. Part at least of the material identified in paragraph 11 of the applicant’s statement of claim is confidential information obtained by Dr Polasek in the context of his doctor patient relationship with the applicant.
[32] FDN 96.
Accordingly, I am satisfied that the applicant has been able to identify with specificity the confidential information as that contained in the letter authored by Dr Polasek on 11 November 2014. I am further satisfied that information contained within Dr Polasek’s letter is information which was obtained by Dr Polasek in the circumstance of a doctor and patient relationship. A doctor patient relationship is a relationship where there is a plainly an obligation of confidence. Further, the information divulged in this relationship, being medical history and treatment information, is information that is not common, or public knowledge.
Did the authority signed by the applicant on 30 May 2014 permit the disclosure of the confidential information?
There was, in my view, no actual misuse of the confidential information contained within Dr Polasek’s letter, if the release of that information was permitted by the applicant.
The authority signed by the applicant was part of his claim form, Section L. That section contained a declaration that the information in the claim form was true, correct, and complete. It further confirmed the applicant’s consent for AIA or its representatives to use his personal and sensitive information as outlined in that declaration to investigate, assess, and manage his claim. The authority to obtain information relevantly provided:[33]
I, hereby, authorise any medical practitioner, medical provider, health professional, hospital, dentist, or other person who has attended me, to release AIA Australia or its representatives all information with respect to any sickness or injury, medical history, consultations, prescriptions, or treatment and copies of all hospital or medical records.
[33] Exhibit R 59.
The claim form, completed by the applicant,[34] identifies Dr Polasek as his respiratory physician and his General Practitioner. Dr Polasek’s involvement in the applicant’s diagnosis and treatment was clearly highlighted in the application. The claim form further identified a number of other medical practitioners including Dr Usmani, a respiratory physician and Dr Mehdi Abiyat, a psychologist. It is my view that the authority unambiguously permits the disclosure of the information sought from Dr Polasek and provided by him in the 2014 letter.
[34] Exhibit R 15.
Did the applicant withdraw the authority prior to the 2014 letter?
The applicant gave evidence that he did not communicate withdrawal of the authority to his insurer, rather he says that he sent an email to Dr Polasek on 13 October 2014 withdrawing the authority (‘the October 2014 email’). The email relevantly provides:[35]
This is Santosh and wish to advise you that I have claimed salary continuation insurance from my super company. Recently, I was advised that the super company, BT, has requested a report and clinical notes from you. The reports are already provided to them by other doctors and I have not authorised to get a separate report from you except clinical notes.
Please do not provide any report to them and provide a copy of the notes to me as well what you provide them.
[35] Exhibit A 10.
The email then went on to describe the applicant’s current treatment and circumstances. It may be a poor choice of words, but the email is not strictly accurate as plainly the applicant had signed an authority that permitted AIA to obtain a report from Dr Polasek. What is plain from the email is that the applicant directed Dr Polasek not to provide a report to AIA.
The October 2014 email was sent to Dr Polasek at an email address that was hosted by SA Health. The applicant gave uncontroversial evidence that he had previously communicated with Dr Polasek using that address. The issue arises because Dr Polasek said that he did not receive the October 2014 email. Dr Polasek also gave evidence that he blocked the applicant’s email address, [email protected] (‘the Yahoo address’), and advised the applicant of that fact, on 5 November 2013. Dr Polasek described how he did this by creating a rule that he understood blocked the email. Dr Polasek understood that this rule prevented an email from the blocked address from going through his inbox but rather deleted it. He further understood that any emails sent from the Yahoo address would not be received by him.[36] Dr Polasek said that he was surprised to receive another email from the applicant after he did this. He then noted that it was from an alternate email address where the provider was something like ‘Rediff’. Dr Polasek said that he did exactly the same thing to block that address.[37] Dr Polasek was not sure precisely when this was.
[36] T 195-196.
[37] T 197.
The “Rediff” email was received in the lead up to an AAT hearing in relation to the applicant’s appeal against the refusal to grant him a disability support pension. Dr Polasek was subpoenaed to give evidence at that hearing which occurred in early February 2014. Dr Polasek said that the ‘Rediff’ email was received sometime between November 2013 and the hearing and was likely in December 2013.
The applicant said he was aware that Dr Polasek had blocked his Yahoo email address and accordingly, he sent the October 2014 email from a different address [email protected] (‘the Rediff address’). He contends that the Rediff address was not blocked because he received an out of office automated reply to the October 2014 email, saying that Dr Polasek would be away until 27 October 2014. The applicant was under the impression that this meant that the email had been received, and that Dr Polasek would read the October 2014 email on his return to work.[38]
[38] T 99-101.
The affidavit from Eddy Koon Kwok Cheung, Senior Manager Security Services at Digital Health SA (part of SA Health), sets out Mr Cheung’s qualifications and experience.[39] I accept his expertise to comment upon screenshots of email rules taken by Dr Polasek of his SA Health issued email account, on or about 2 November 2013. These screenshots are exhibited to Mr Cheung’s affidavit as EC-1 and EC-2. Whilst Mr Cheung could not give any evidence about when these rules were created by Dr Polasek, he gave evidence of the effect of the creation of those rules as follows:[40]
9.The screenshot of the email rule in annexure EC-I shows an email rule created for the email address of [email protected]. The operation of the rule is that it will automatically route any email received by the user from [email protected] immediately upon receipt to the user's "Deleted Items" folder. The user, in this case, Dr Jonathon Polasek, would not receive a notification that an email has been received from [email protected].
10. The screenshot of the email rule in annexure EC-2 shows an email rule created for the email address of [email protected]. The operation of the rule is that it will automatically route any email received by the user from [email protected] immediately upon receipt to the user's "Deleted Items" folder. The user, in this case, Dr Jonathon Polasek, would not receive a notification that an email has been received from
11. The operation of the email rules shown in annexures EC-I and EC-2 do not block receipt of emails from the addresses itemised in the rules. They merely reroute them. This means that if the user is on leave and has created an out of Office automatic reply on their email account, the email rules shown in EC-I and EC-2 would not stop an automated out of office reply from the user's email account being sent to either or [email protected].
[39] Exhibit R 61.
[40] Ibid.
The applicant, in his further written submissions[41] takes issue with various aspects of Mr Cheung’s evidence. I reject any criticism related to the fact that this evidence was not given orally and not cross examined. The applicant consented to the tender of his affidavit and did not require Mr Cheung to attend for cross examination. To the extent that the applicant’s further written submissions contain propositions contrary to the evidence contained in Mr Cheung’s affidavit, I disregard these. If there was a genuine dispute as to the matters outlined in that affidavit, Mr Cheung ought to have been required for cross examination and these matters put to him for comment. In any event, some of the assertions are not correct[42] and some rely upon online forums as opposed to authoritative sources.[43]
[41] FDN 102.
[42] For example FDN 102 at [6].
[43] For example FDN 102 at [14].
In any event, the gravamen of the applicant’s submissions on this topic relate more to an attack on the evidence of Dr Polasek than the expert evidence of Mr Cheung. For example, the applicant contends, relying upon the well-known authority of Rogers v Whittaker[44] that the fact that Dr Polasek did not give evidence that he informed the applicant that he also blocked the Rediff address is a breach of his duty of care as a health professional contending further that:[45]
This duty of care of a doctor is also in the publication “Communicating with Patients, Advice for Medical Practitioners” by Commonwealth of Australia, National Health and Medical Research Council. It states in Section B introduction “While all health professionals communicate with patients, the document is addressed primarily to doctors for two pragmatic reasons. First it is usually doctors who carry ultimate responsibility for communication and its failure…”. Therefore, it is Dr Polasek’s responsibility in failure of communication and not of applicant.
[emphasis removed]
[44] (1992) 175 CLR 479.
[45] FDN 102 at [12].
The applicant then makes some comments about Dr Polasek’s credibility and quotes the Electronic Communications Act 2000 (sic) before contending:[46]
Since it was the applicant who signed the authority to release the information, he could only clarify what applicant allowed insurer to obtain from his treating doctors. Applicant’s email dated 13 October 2014 remains valid communication to Dr Polasek under the above Act. It was breach of duty of care of Dr Polasek in failure of communication and applicant must not suffer for the breach of duty of care of this doctor.
[46] FDN 102 at [18].
Dr Polasek did not say that he told the applicant he had blocked the Rediff address; indeed, I gather from his evidence that he likely did not. I do not regard this as a breach of any duty owed by Dr Polasek to the applicant. It is most certainly not a breach of the duties outlined in Rogers v Whittaker which relate to a medical practitioner’s duty to inform patients of risks of medical treatment and procedures. Furthermore, the applicant had not been a patient of Dr Polasek for some time. The applicant had engaged in increasingly hostile email correspondence with Dr Polasek seeking to gain the Doctor’s support for his various claims. It can be seen from that correspondence that Dr Polasek attempted to dissuade the applicant from further emails of this nature before blocking his Yahoo address. He told the applicant that he blocked the Yahoo address. This did not dissuade the applicant from attempting further contact by use of the Rediff email address. In the circumstances it was not unreasonable for Dr Polasek to block the Rediff address. Dr Polasek was under no obligation to advise the applicant of this particularly in circumstances where he had made his views about further contact plain.
The applicant’s submissions outlined above suggest that it was somehow necessary for him to explain or limit the scope of the AIA authority by direct communication with Dr Polasek. I do not accept that this was the case. The more appropriate course would have been to communicate any such issue to the insurer. The applicant conceded that, at no time did he correspond with AIA to withdraw or modify the authority that he had provided. I infer that the reason the applicant did not do so was because he had told AIA that Dr Polasek had been one of his treating specialists but was aware that Dr Polasek’s opinion was unlikely to be supportive of his claim. The applicant was, in effect, seeking to limit the information to be provided by Dr Polasek without notice to AIA.
I accept Dr Polasek’s evidence that he blocked the Yahoo address on or about 5 November 2013 and subsequently the Rediff address between 5 November 2013 and early February 2014. I also accept Dr Polasek’s evidence about the process that he adopted in order to do that. Mr Cheung’s evidence indicates that the process described by Dr Polasek would have been effective in preventing Dr Polasek seeing emails sent from those addresses. Further, Mr Cheung’s evidence establishes that the email rules created by Dr Polasek did not block receipt of the emails rather they rerouted them to the deleted items folder. Accordingly, the fact that the applicant received an out of office automatic reply does not establish that Dr Polasek saw the email.
I accept that Dr Polasek never saw and was not aware of the applicant’s email dated 13 October 2014.[47] There was further nothing in the correspondence from AIA to Dr Polasek that would lead Dr Polasek to consider that he was not entitled to rely upon the authority as a legitimate authority to provide the information requested by AIA. The applicant never told AIA that he revoked the authority.[48]
[47] T 207-208.
[48] T 159.
The authority was valid and not effectively withdrawn. The release of information by Dr Polasek was in accordance with the authority. He responded appropriately to the questions he was asked based upon his medical knowledge and treatment of the applicant. There was no improper disclosure of confidential information. Dr Polasek’s letter to AIA did not constitute a breach of confidence. In those circumstances, the applicant’s claim must fail. It is unnecessary to determine whether Dr Polasek was acting as an employee of the respondent. It is further unnecessary to determine whether there is any compensable loss. I do however observe that the evidence shows that AIA’s decision to reject the TPD claim was based on a range of information and not solely Dr Polasek’s letter. The rejection was grounded in AIA’s assessment of the applicant’s overall medical condition and work capacity which involved a range of medical information to be viewed in the light of the policy conditions.

[2024] SASC 126

31 October 2024