Riley v Australian Hospital Care Limited

[2004] TASSC 150

[2004] TASSC 150

CITATION:            Riley v Australian Hospital Care Limited [2004] TASSC 150

PARTIES:  RILEY, Tayne Michael
  v
  AUSTRALIAN HOSPITAL CARE LIMITED

HOBART PRIVATE HOSPITAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  450/2002
DELIVERED ON:  17 December 2004
DELIVERED AT:  Hobart
HEARING DATES:  6 December 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Jurisdiction and generally – Application to stay proceedings – Failure of plaintiff to give facilities to defendant's medical practitioners – Whether access to records necessary to enable medical practitioners to ascertain fully the nature and extent of the injury.

Evidence Act 2001 (Tas), s196A(1)(b).
Aust Dig Procedure [265]

REPRESENTATION:

Counsel:
           Appellant/Defendant:                   A R Mills
           Respondent/Plaintiff:                   B R McTaggart
Solicitors:
           Appellant/Defendant:                   Piggott Wood & Baker
           Respondent/Plaintiff:                   Ogilvie Jennings

Judgment Number:  [2004] TASSC 150
Number of Paragraphs:  15

Serial No 150/2004
File No 450/2002

TAYNE MICHAEL RILEY v AUSTRALIAN HOSPITAL CARE LIMITED
(ACN 072 273 931) trading as HOBART PRIVATE HOSPITAL

REASONS FOR JUDGMENT  BLOW J

17 December 2004

1. This is an appeal from an order of the Master dismissing an application under the Evidence Act 2001 ("the Act"), s196A, for the plaintiff's action to be stayed.

1. In this action, the plaintiff alleges that he was a patient in the defendant's hospital; that on 25 July 2001 he suffered an injury to his back and right hip as the result of negligence and breaches of contract; and that as a result he suffered damage including the destruction, or practical destruction, of his earning capacity when he was 39 years old.  He is claiming over $400,000 by way of damages.  According to particulars in the statement of claim, he was already suffering from a lumbar non-radicular pain syndrome at the time of the alleged injury. For the purpose of investigating the plaintiff's claim, the defendant arranged for him to be medically examined by an Auckland orthopaedic surgeon, Mr Farr, and a Queensland neurosurgeon, Mr Stuart. He underwent examinations by each of them, but did not provide either of them with authorities permitting access to the records of other doctors who had treated him. 

1. Section 196A reads as follows:

"196A¾ (1) If proceedings are taken against a defendant in respect of any injury sustained by another person ¾  

(a)a medical practitioner appointed by the defendant is entitled, on demand of the defendant, to examine the injured person; and

(b)the injured person and any other party to the proceedings is to give the medical practitioner any facilities and information necessary to enable the medical practitioner to ascertain fully the nature and extent of the injury.

(2)    If the injured person fails ¾

(a)to submit to an examination by a medical practitioner appointed by the defendant; or

(b)to give to the medical practitioner any facilities and information required under this section ¾

the court in which the proceedings are taken, whether commenced before or after the making of a demand under subsection (1), may, on the application of the defendant, order that the proceedings be stayed until the injured person submits to the examination, or gives the facilities and information, subject to such other conditions as the court may order."

1. The defendant contends that, by not giving the two doctors authorities permitting them to have access to other doctors' records, the plaintiff failed to give them facilities necessary to enable them to ascertain fully the nature and extent of the injury, within the meaning of s196A(1)(b). The plaintiff contends that such "facilities" were not necessary to enable the two doctors to ascertain fully the nature and extent of the injury.

1. The defendant's application was for the proceedings to be stayed until the plaintiff provides the two doctors with access to certain medical records and/or notes for the period from 16 August 1999 to 4 April 2002.  The evidence before me is the same as the evidence that was before the Master. 

1. It is common ground that the plaintiff was asked to supply the relevant "facilities" to the two doctors, and that he failed to comply.  The critical question is whether, in the case of each doctor, the "facilities" were "necessary to enable the medical practitioner to ascertain fully the nature and extent of the injury".  The Master dismissed the application because he was not satisfied that the giving of the requested authorities was necessary.

1. There is evidence that the plaintiff was treated by a general practitioner, Dr Saul, by an orthopaedic surgeon, Mr Bye, by a pain management specialist and anaesthetist, Mr Jackson, and by a neurosurgeon, Mr Liddell.  None of their records were available to the defendant's two experts.  Mr Stuart's affidavit revealed that he had read reports from Dr Saul, Mr Bye, and Mr Jackson.  Mr Farr's affidavit was silent as to whether he had seen those reports.  Neither Mr Stuart nor Mr Farr specified the extent of the information available to him.  Neither deposed to any particular basis for suspecting that the available information was in any respect inaccurate or incomplete.  Neither explained why the available information was or might be insufficient.

1. In his reasons for his decision, the Master said the following:

"I accept that the defendant's doctors require an accurate history and that the potential size of the claim warrants thorough investigation of the plaintiff's medical condition. However, as I have said, I have been given no objective basis for thinking that the information already available to the defendant and its appointed doctors gives rise to a reasonable suspicion that the history available to the doctors may have been misstated or is incomplete in a relevant respect. Without such evidence I am unable to conclude for myself that the facilities sought really are necessary. The defendant's doctors will base their opinions on the result of their own observations and findings during the examination of the plaintiff and, I assume, on what they suppose to be a reliable account of the plaintiff's medical history. Unless there is some reasonable basis for believing that the history which they have been given is unsatisfactory, I cannot see why it would be a matter of necessity that they examine for themselves all medical documents concerning the plaintiff's 'lower back or hip region' coming into existence during the extensive period covered by the application.

The defendant's doctors say that the facilities sought are necessary and that may well be so, but the evidence before me does not contain any meaningful disclosure as to why the facilities sought are in fact necessary."

1. The plaintiff's case is that he was suffering from a lumbar non-radicular pain syndrome; that the injury of 25 July 2001 aggravated it; that he had no pre-existing hip condition; that his hip was injured in the same incident on 25 July 2001; and that he has been substantially incapacitated as a result of that incident.  In my view it is a self-evident fact that, in order properly to discharge their duties as experts engaged by the defendant in this litigation, the two doctors needed to investigate the condition of the plaintiff before the incident as thoroughly as they reasonably could.  It may be that, if forced to form opinions solely on the basis of their examinations of the plaintiff and the information presently available to them, the two doctors would form perfectly accurate opinions as to all aspects of the plaintiff's claim.  However there is always a real chance that the inspection of all treating doctors' notes and records might reveal very significant information that others had overlooked, or whose significance others had not appreciated.  For example, a specialist might see something in a general practitioner's notes whose significance the general practitioner had not realised.  Since this case involves questions as to the extent of the aggravation of a pre-existing condition, and how that condition might have developed if it had not been aggravated, the old notes and records of treating doctors are likely to be of greater significance than usual. 

1. The Acts Interpretation Act 1931, s8A, requires an interpretation that promotes the purpose or object of s196A to be preferred to an interpretation that does not promote its purpose or object. In my view the object of s196A is to promote the interests of justice. By enabling a defendant to ascertain fully the nature and extent of a plaintiff's injury, it enables a defendant to secure a fair trial of a personal injuries action. It also promotes the early settlement of claims. A fully informed defendant is more likely to agree to a reasonable settlement than a defendant who is not fully informed. I think it follows that it would be wrong to take a narrow approach to the interpretation of the words "necessary to enable the medical practitioner to ascertain fully the nature and extent of the injury".

1. To adopt too strict an approach as to the interpretation of those words could result in defendants going to trial with experts whose opinions were based on inadequate material.  A doctor confronted with a significant new piece of information for the first time when under cross-examination might not be well placed to assess its significance.  He or she might be deprived of any opportunity for calm and unhurried thinking.  A doctor who needs to change an opinion as a result of learning of information previously not available might unfairly be considered somewhat unimpressive, at least by a jury.  It is therefore in the interests of justice that medical experts should, within reason, have access to all available medical information before they are called upon to express any opinions in a case as serious as this one.

1. The presence of the word "fully" in the phrase "to ascertain fully the nature and extent of the injury" in my view also supports a wide interpretation of the relevant words.  I think it must have been intended that defendant's medical experts should be permitted to investigate thoroughly the nature and extent of plaintiff's injuries.

1. I regret that this leads me to the opposite conclusion to that reached by the Master.  I am satisfied that, by failing to provide access to medical information as sought, the plaintiff failed to give the two doctors facilities that were necessary to enable them to ascertain fully the nature and extent of his injury.

1. It does not automatically follow that I should order a stay.  I have a discretion.  A stay should not be ordered if the section is being used "oppressively, vexatiously or unreasonably": Oakley v Green [1969] Tas SR 90 at 92. In this situation, one should not overlook the fact that a defendant, subject to permission being given under the Supreme Court Rules 2000, r496(6), can have a subpoena issued for the production of documents on a date prior to trial. Sometimes it might be more appropriate to obtain access to relevant documents through the use of subpoenas, rather than through a stay application. In this case the records of at least four medical practitioners are sought. It would plainly be more convenient for the plaintiff to sign a series of authorities than for a process server to have to serve a series of subpoenas. The documents to which the defendant seeks access are documents to which access could be obtained through the use of subpoenas, subject to any questions of relevance and of the protection of doctor/patient communications by the Act, s127A. Having regard to all those factors, I think it is appropriate to make the orders sought.

1. I therefore allow the appeal, quash the Master's order of 5 October 2004, and make an order in the terms of par1 of the interlocutory application dated 16 August 2004, as amended. There will be liberty to apply. That course is appropriate in case any issue arises as to relevance or s127A.