Papson v Woolworths (Victoria) Pty Limited (No 2) - [2000] TASSC 124

[2000] TASSC 124

CITATION: Papson v Woolworths (Victoria) Pty Limited (No 2) [2000] TASSC 124

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

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1040/1996
DELIVERED ON:  5 September 2000
DELIVERED AT:  Hobart
HEARING DATES:  16 August 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Other matters arising before trial - Application for stay of proceedings for failure to submit to medical examination - Authorisation for treating medical practitioners to release information to defendant's consultant practitioner not medical examination.

O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124; Oakley v Green [1969] Tas SR 90, followed.

Simpson v Attorney-General (1997) 7 Tas R 61, referred to.
Evidence Act 1910 (Tas), s25.
Aust Dig Procedure [277]
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Other matters arising before trial - Application for stay of proceedings for failure to submit to medical examination - Authorisation for treating medical practitioners to release information to defendant's consultant practitioner a facility that the plaintiff is required to supply.

O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124; Oakley v Green [1969] Tas SR 90, followed.
Simpson v Attorney-General (1997) 7 Tas R 61, referred to.
Evidence Act 1910 (Tas), s25.
Aust Dig Procedure [277]

Evidence - Facts excluded from proof - On grounds of privilege - Medical profession - Communications from a patient to a physician or surgeon in his or her professional character - What constitutes a communication.

Lucena v The National Mutual Life Association of Australasia (Limited) (1911) 31 NZLR 481; McDougall v Henderson [1976] 1 NZLR 59, followed.

Evidence Act 1910 (Tas), s96(2).
Aust Dig Evidence [77]

REPRESENTATION:

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

Judgment Number: [2000] TASSC 124
Number of Paragraphs: 41

Serial No 124/2000
File No 1040/1996

KATHLEEN PAPSON v
WOOLWORTHS (VICTORIA) PTY LIMITED (No 2)

REASONS FOR JUDGMENT UNDERWOOD J

5 September 2000

By this application, made pursuant to the Evidence Act 1910 ("the Act"), s25(2), the defendant seeks an order that the plaintiff's action against it for damages for personal injury be stayed until the plaintiff gives certain facilities and information to a Dr David Barraclough.

Background

The plaintiff suffered an injury at the defendant's supermarket on 18 November 1994. It appears that an employee of the defendant negligently pushed a row of supermarket trolleys into the plaintiff. Liability is not in issue. The plaintiff's claim is that as a result of this accident she now suffers from a somewhat unusual condition known as osteitis pubis with features of pelvic instability. Osteitis pubis is apparently a very painful condition. It is the plaintiff's case that she is severely disabled, in constant pain, has to use a wheelchair outside the house and is obliged to take prescribed drugs to control…

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 (No 2)

Details

AGLC: Papson v Woolworths (Victoria) Pty Limited (No 2) [2000] TASSC 124
Case: [2000] TASSC 124
Decision Date: 5 September 2000

CaseChat Overview and Summary

In the case of Papson v Woolworths (Victoria) Pty Limited (No 2), the Supreme Court of Tasmania was tasked with determining the scope of the obligations imposed by the Evidence Act 1910 (Tas) on a plaintiff in personal injury proceedings. The defendant, Woolworths, sought an order for a stay of proceedings until the plaintiff provided certain facilities and information to their appointed medical practitioner, Dr David Barraclough. The plaintiff, Kathleen Papson, resisted the application, arguing that the information sought was protected by privilege. The court found that the Act, s25(1) required the plaintiff to submit to an examination by the defendant's medical practitioner and to give them all necessary facilities and information to ascertain the nature and extent of the injury. However, the court held that the obtaining of an authority for treating medical practitioners to release information to the defendant's consultant practitioner did not constitute an examination within the meaning of the Act, s25. Furthermore, the court found that the facilities and information referred to in s25(1) were something additional to, and different from, the medical examination. The court also held that the provision of an authority to authorise the plaintiff's treating medical practitioners to give certain information to Dr Barraclough was a facility within the meaning of the Act, s25(1). However, the court found that the making of an order in the terms sought would not affect the privilege conferred on the plaintiff by the Act, s96(2). Accordingly, the court made the order sought with the addition of certain words to ensure that the statutory privilege was not breached.

Orders