Papson v Woolworths (Victoria) Pty Limited - [2000] TASSC 41

[2000] TASSC 41

CITATION: Papson v Woolworths (Victoria) Pty Limited [2000] TASSC 41

PARTIES:  PAPSON, Kathleen
  v
  WOOLWORTHS (VICTORIA) PTY LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1040/1996
DELIVERED ON:  3 May 2000
DELIVERED AT:  Hobart
HEARING DATES:  14 December 1999, 4 April, 1 May 2000
JUDGMENT OF:  The Master

CATCHWORDS:

Evidence - Doctor/patient communications - Statutory privilege.
Evidence Act 1910 (Tas), s96.
Causton v Mann Egerton (Johnsons) Ltd [1974] 1 All ER 453, referred to.
Aust Dig Evidence [77]

Procedure - Stay pending submission to medical examination.
Evidence Act 1910 (Tas), s25.
O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124; Weedon v Green [1978] Tas SR 117, referred to.
Aust Dig Procedure [67]

REPRESENTATION:

Counsel:
             Plaintiff/Respondent:  A R Mills
             Defendant/Applicant:  A B Walker
Solicitors:
             Plaintiff/Respondent:  Piggott Wood & Baker
             Defendant/Applicant:  Dobson Mitchell & Allport

Judgment Number: [2000] TASSC 41
Number of Paragraphs: 14

Serial No 41/2000
File No 1040/1996

KATHLEEN PAPSON v
WOOLWORTHS (VICTORIA) PTY LIMITED

REASONS FOR JUDGMENT THE MASTER

3 May 2000

The plaintiff has sued the defendant for damages for personal injuries suffered by her at the defendant's supermarket in November 1994. The defendant's solicitors now seek an order, pursuant to the Evidence Act 1910 ("the Act"), s25, that the action be stayed until certain notes of the plaintiff's medical advisers are made available to a Melbourne based rheumatologist appointed by the defendant.

The purpose of the defendant's request is set out in a letter from the defendant's solicitors to the plaintiff's solicitors dated 11 August 1999 which says, in part:

"We have now been advised by Dr David Baraclough [sic], Rheumatologist, who has been asked for an opinion on the nature and extent of your client's injuries, the surgery performed upon her and the relationship between her pre-existing conditions and her current symptoms.
Dr Baraclough [sic] has advised that he is not able to provide that opinion without access to the notes of Dr Hilton Francis and Dr Visage [sic]. There is mention in the nursing notes from St Johns Hospital of chronic pain going back 20 years. There is no reference to this in other reports. Dr Baraclough [sic] requires access to the notes of Dr Francis and Dr Visage [sic] particularly with reference to around the time of the incident in November 1994 but also prior to that before he can conclude his opinion.
We would expect Dr Baraclough [sic] to also require access to the notes of Mr Papson's earlier general practitioners if Dr Visage [sic] has not been treating her for an extended period.
Would you please advise if Dr Baraclough [sic], who consults from the Royal Melbourne Hospital, can have access to those notes."

The plaintiff's solicitors responded by letter dated 24 August 1999 in the following terms:

"We note your request in relation to Dr Baraclough [sic]. It is not appropriate that we provide him with access to the notes of our client's treating doctors. We will provide you…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Papson v Woolworths (Victoria) Pty Limited

Details

AGLC: Papson v Woolworths (Victoria) Pty Limited [2000] TASSC 41
Case: [2000] TASSC 41
Decision Date: 3 May 2000

CaseChat Overview and Summary

Kathleen Papson initiated proceedings against Woolworths (Victoria) Pty Limited in the Supreme Court of Tasmania, seeking damages for injuries sustained at the defendant's supermarket in November 1994. The defendant, in response, sought an order to stay the proceedings until certain medical notes of the plaintiff were made available to a Melbourne-based rheumatologist, Dr. David Barraclough, for evaluation. The defendant argued that these notes were necessary to determine the nature and extent of the plaintiff's injuries, their relationship to pre-existing conditions, and whether the incident in question contributed to the plaintiff's current symptoms.

The central legal issues revolved around whether the plaintiff was obligated to provide the defendant's medical practitioner with access to her medical records and whether such an obligation could override the statutory privilege protecting patient-doctor communications under the Evidence Act 1910 (Tas), s96. The court had to interpret the scope of section 25 of the Act, which allows a defendant to demand an examination by a medical practitioner appointed by them, and the plaintiff's rights under section 96, which protects privileged communications between a patient and their doctor.

The court determined that section 25 of the Evidence Act does not require a physical examination by the appointed medical practitioner as a prerequisite to obtaining necessary information from the plaintiff. Instead, the term "examination" encompasses a scrutiny of available medical records. However, the court found that compelling the plaintiff to disclose privileged information, which may include patient-doctor communications, would be unreasonable and potentially oppressive. The statutory privilege under section 96 protects the patient from being forced to disclose such communications unless they choose to waive it voluntarily. Therefore, the application to compel the disclosure of the plaintiff's medical notes was dismissed, respecting the plaintiff's right to maintain the confidentiality of her medical history.

Orders