Riley v Australian Hospital Care Limited
[2004] TASSC 111
•5 October 2004
[2004] TASSC 111
CITATION: Riley v Australian Hospital Care Limited [2004] TASSC 111
PARTIES: RILEY, Tayne Michael
v
AUSTRALIAN HOSPITAL CARE LIMITED
ACN 072 273 931 t/as HOBART PRIVATE HOSPITAL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 450/2002
DELIVERED ON: 5 October 2004
DELIVERED AT: Hobart
HEARING DATES: 22 September 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Jurisdiction and generally – Application to stay proceedings for failure by plaintiff claiming damages for personal injuries to furnish medical practitioner appointed by the defendant with facilities and information necessary to enable the medical practitioner to ascertain fully the nature and extent of the injury – To whom the facilities and information must be provided – Whether there has been a failure to give the facilities and information - Whether the medical practitioner requires the facilities and information – Whether objectively the facilities and information required are necessary to enable the medical practitioner to ascertain fully the nature and extent of the injury.
O’Shea v Royal Derwent Hospital Board of Management (1990) Tas R 124 referred to and Simpson v Attorney-General (1997) 7 Tas R 61 applied.
Evidence Act 2001 (Tas), s196A.
Aust Dig Procedure [265]
REPRESENTATION:
Counsel:
Plaintiff: B R McTaggart
Defendant: A R Mills
Solicitors:
Plaintiff: Ogilvie Jennings
Defendant: Piggott Wood & Baker
Judgment Number: [2004] TASSC 111
Number of Paragraphs: 22
Serial No 111/2004
File No 450/2002
TAYNE MICHAEL RILEY v
AUSTRALIAN HOSPITAL CARE LIMITED ACN 072 273 931
trading as HOBART PRIVATE HOSPITAL
REASONS FOR DECISION MASTER S J HOLT
5 October 2004
The plaintiff by his statement of claim alleges that on 25 July 2001 he attended the defendant’s hospital to undergo a “facet and nerve root block” and having undergone the procedure moved to the edge of the bed to do some exercises when the bed rolled out from under him causing him to fall to the floor. The particulars of injury contained in the statement of claim are that as a result of the fall the plaintiff “suffered an aggravation of his lumbar non-radicular pain syndrome and a lesion of the right hip joint”. The defendant as part of its investigation of the claim arranged for the plaintiff to be medically examined by orthopaedic surgeon, Mr Gavin Farr, and neurosurgeon, Mr Gordon Stuart. The plaintiff attended for the examinations, but the defendant complains that the plaintiff has failed to furnish the doctors with all facilities necessary to enable the doctors to ascertain fully the nature and extent of the injury. As a consequence the defendant has applied for an order under the Evidence Act 2001 (“the Act”), staying the action until the plaintiff gives the necessary facilities to the defendant’s doctors.
The Act, s196A, is as follows:
(1) If proceedings are taken against a defendant in respect of any injury sustained by another person –
(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 –
(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 –
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.”
The provision is substantially a repetition of s25 of the now repealed Evidence Act 1910. The former provision was considered by Cox J (as he then was) in O’Shea v Royal Derwent Hospital Board of Management (1990) Tas R 124. There his Honour dealing with the meaning of the word “facilities” said at 129:
“The word ‘facilities’ is not defined in the section. The ordinary meaning of the verb ‘to facilitate’ is to make easy or easier; thus ‘facilities’ are the means or opportunities that render anything readily possible (Chambers Twentieth Century Dictionary, New Edition 1983), or opportunities for the easy or easier performance of anything (O.E.D.). In this context, they are the means or opportunities that make easier the ascertainment by the examining medical practitioner of the nature and extent of the injury. The authority to peruse existing x-rays, hospital and treatment records would normally, in my view, be such a facility, as would the supply of a sample of blood or urine.” [emphasis added]
There is no dispute that what is being sought in this case falls within the meaning of the word “facilities” as used in the Act. By its amended application the defendant has applied under the Act, s196A, for a stay of the proceedings until the plaintiff provides to the defendant’s doctors, Mr Farr and Mr Stuart, access to specified classes of documents. The classes of documents specified in the application are confined to documents relating to the plaintiff’s “lower back or hip region” and consist of:
(1) The records of general practitioner Dr John Saul; any other general practitioner usually treating the plaintiff; neurosurgeon, Mr John Liddell, and pain management specialist and anaesthetist, Dr Michael Jackson, for the period 16 August 1999 to 4 April 2002 comprising:
(a) records of any pharmaceutical treatment prescribed;
(b)records of any pharmaceutical or rehabilitation treatment recommended;
(c)reports of any radiological, nuclear, pathological or other investigations; and
(d)the doctors’ notes except insofar as they disclose doctor/patient communications for treatment purposes.
(2)Copies of any correspondence received by Dr John Saul or any other general practitioner usually treating the plaintiff between 16 August 1999 and 4 April 2002 except for those parts which disclose doctor/patient communications for treatment purposes.
(3)The records and notes of any medical specialist who treated the plaintiff prior to his fall on 25 July 2001.
If orders are made in terms of the application the stay will apply until the plaintiff gives to the defendant’s doctors, Mr Farr and Mr Stuart, permissions addressed to each of the various doctors referred to in the application authorising them to release all documents within the specified classes.
Before the stay can be granted the defendant must satisfy the court that there has been a failure to give facilities to a medical practitioner appointed by the defendant; that the facilities are required by that medical practitioner and that the facilities required are objectively necessary to enable the medical practitioner to ascertain fully the nature and extent of the plaintiff’s injury. In considering the equivalent provision under the Evidence Act 1910, Zeeman J in Simpson v Attorney-General (1997) Tas R 61, in dealing with an application, not unlike the present application, for an authority from the injured plaintiff for access to “all medical records held by treating medical practitioners … relating to the injury …”, said at 64:
“An injured person is not required to give any facilities and information to an examining medical practitioner unless objectively the particular facility or information sought is necessary to enable the practitioner to ascertain fully the nature and extent of the injury. Subject to that objective test being satisfied, it is a matter for the judgment of the appointed medical practitioner as to what facilities and information he or she requires for that purpose. The jurisdiction to order a stay conferred by s25(2) only arises if the injured person either fails to submit to an examination or fails to provide. to the medical practitioner appointed, the relevant facilities and information. Whilst submitting to a diagnostic procedure carried out by a person other than that practitioner may be a facility which the injured person must provide (see O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124), there is no warrant for importing into s25 any requirement that an injured person provide information to the party at whose instance the examination is to be carried out.”
Counsel for the plaintiff Mr McTaggart submits that rather than the appointed doctors, it is really the defendant who is seeking the information which would be forthcoming if the facilities referred to in the application are provided. As pointed out in Simpson the provision cannot be used to compel an injured plaintiff to provide facilities or information to the defendant. In this regard it can be noted from the affidavits read on behalf of the defendant in support of the application that:
h Mr Farr examined the plaintiff as long ago as April 2003.
h Mr Stuart examined the plaintiff in April 2004.
hNone of the affidavits contain evidence that the doctors have asked the plaintiff for the facilities.
hThe only document exhibited with the affidavits in support of the defendant’s application is a letter from the defendant’s solicitors to the plaintiff’s solicitors dated 11 August 2004 which contains the requirement that the plaintiff authorise “our access” to “all … treatment records”.
hThe application as originally filed on 16 August 2004 seeks an order that the action be stayed until the facilities are provided to “the defendant”.
hThe application seeks a stay pending provision of facilities enabling access to the records of certain doctors for the period 16 August 1999 to 4 April 2002, but neither of the defendant’s doctors have said in their affidavits that the records sought are confined to this period. Instead their affidavits assert that all pre and post-injury medical records relating to the plaintiff’s spine and right hip are required.
It seems to me that if the defendant’s doctors had issued a request to the plaintiff, or for transmission to the plaintiff, for facilities they would have said so and also, as precisely as possible, stated the content of the request; when the request was communicated, to whom it was communicated and the manner of communication. If the request was in writing it would normally be expected that a copy of the relevant correspondence would have been exhibited with the affidavits read into evidence on behalf of the defendant.
The position is that on or shortly after 11 August 2004 the plaintiff’s solicitors were in receipt of a letter saying that the defendant’s solicitors required access to the treatment records. The position was not altered when the defendant’s application was filed on 16 August 2004 as that application sought a stay pending provision of the facilities to “the defendant”. The position was still not altered when the defendant’s doctors’ affidavits sworn on 3 September 2004 were served, as those affidavits although asserting that the facilities are needed by them, contain no evidence of any request by them. It was not until the day of the hearing of the application, namely, 22 September 2004, when the defendant filed an amended application seeking a stay pending provision of the specified facilities to “Dr Stuart and Dr Farr” that it was apparent that the defendant wanted the facilities supplied to the appointed doctors, rather than to it.
Until the plaintiff knew that it was the defendant’s doctors who wanted the facilities and that the facilities were required to be provided to them rather than the defendant, there could be no failure on his part. On the evidence that state of knowledge cannot be imputed to the plaintiff prior to his counsel receiving the amended application on the day of the hearing. Counsel for the plaintiff, however, did not seek an adjournment following the amendment of the application to obtain instructions. He participated in the hearing making submissions against the granting of a stay. I infer that the plaintiff will not provide the facilities to the defendant’s doctors unless he has to in order to proceed with his action.
Accordingly, although I am not satisfied that prior to the day of the hearing there had been any relevant failure on the part of the plaintiff, I am satisfied that at the time of the hearing there was a sufficiently communicated requirement to the plaintiff for supply to the defendant’s doctors of the specified facilities and a failure to comply.
Counsel for the plaintiff made a submission that a stay ought not be granted as the facilities sought are broader than can be justified by the evidence. In particular the defendant wants access to pre-injury treatment records and it was submitted that there is insufficient information for a finding to be made that the plaintiff had received any treatment before the fall for either a back condition or a hip condition. With respect, I consider, that this submission misunderstands the nature of the facilities sought. The application is not for a stay pending provision of certain records. It is for a stay pending provision by the plaintiff to the defendant’s doctors of authorities allowing those doctors to obtain from the plaintiff’s doctors such documents as exist and are within their control in the specified classes, that is to say documents going to the establishment of an accurate history. It may be just as important to know that the plaintiff received no relevant treatment prior to the fall as it is to know, if treatment was administered, what it was, when it was recommended or administered and why it was recommended or administered.
The primary submission of counsel for the plaintiff was that an objective basis for a conclusion that the facilities sought are necessary has not been established. The Act, s196A, does not entitle the defendant’s doctors to any facilities and information which may be material in the investigation and full ascertainment of the nature and extent of the injury. The requested facilities and information must be “necessary”, that is to say essential. Accordingly, it is for the defendant, here, to satisfy the court that the provision of the authorities for the release of records of the plaintiff’s treating doctors to the defendant’s doctors is necessary for the appointed doctors to fully ascertain the nature and extent of the plaintiff’s injuries.
The relevant part of Mr Farr’s affidavit is as follows:
“3During my examination of the plaintiff, he described an increase in the level of his low back pain following the fall as well as the commencement of right hip pain.
4I consider that in order to determine the nature and extent of the injuries suffered by the plaintiff in the fall, it will be necessary to determine if there was a deterioration of the plaintiff’s spinal condition following the fall and whether the plaintiff had a right hip condition prior to the fall.
5I am of the opinion that this requires an accurate assessment of the plaintiff’s condition in respect of his spine both prior to and subsequent to the fall. For the purpose of formulating this opinion I require the plaintiff’s pre and post-injury medical records relating to his symptoms and signs, diagnosis and treatment of his spine and right hip.”
Mr Farr’s affidavit does not say why the facilities are needed to make “an accurate assessment of the plaintiff’s condition”. He does not say what information he already has or has available to him about the plaintiff’s history and he does not say why he considers that information to be insufficient. He makes no reference to having ever seen the reports referred to in Mr Stuart’s affidavit where Mr Stuart said at par6:
“I have perused the reports of treating general practitioner, Dr John Saul, dated 15 October 2001 and 30 November 2001 as well as the proof of evidence of treating orthopaedic surgeon Mr H W Bye dated 19 August 2003, the proof of evidence of Dr John Saul dated 23 April 2004 and the proof of evidence of pain management specialist and anaesthetist Mr Michael Jackson dated 26 April 2004.”
I do not know whether Mr Farr has seen the same reports as Mr Stuart, and if not why he cannot see them or considers, pre-emptorily, that they are insufficient for his purposes. I do not know what information he already has or which is already available to him, nor why he considers it to be insufficient for his purposes.
Mr Stuart in his affidavit does not say that he was unable to obtain an accurate history of the plaintiff’s condition and symptoms from the plaintiff or from the reports and proofs referred to in his affidavit or from any other existing available sources. If he is suspicious of the accuracy of parts of the history which he has been able to obtain or concerned that it is incomplete he has neither said so nor put forward any basis for such an opinion. Like Mr Farr, Mr Stuart does not explain why the information he already has available to him is insufficient for his purposes.
In considering the matter I have taken into account that Mr Stuart has said in his affidavit that he has not been provided with a “report or proof of evidence of treating neurosurgeon Mr John Liddell”. There being no evidence, however, to suggest that Mr Liddell may have a different or more accurate history than that which the plaintiff has been able to provide to the defendant’s doctors or that which may be contained in the reports and proofs of the plaintiff’s other treating doctors which have already been supplied to the defendant, I am unable to see why further information would be necessary just because Mr Liddell’s report or proof is currently unavailable to the defendant’s doctors.
Counsel for the defendant, Mrs Mills, accepted that the test of necessity must be objectively satisfied. She submitted that I should be satisfied that the facilities are necessary as the plaintiff claims that he injured his back and hip and there is evidence at least of a pre-existing back injury such as to justify the defendant’s doctors in seeking an accurate medical history. She submitted that the plaintiff’s claim is potentially large as the plaintiff alleges a total loss of earning capacity as a result of his fall. 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.
The Act, s196A, does not give the defendant’s doctors or the defendant through them unrestrained investigative powers. The legislation limits the facilities and information which an injured plaintiff can be compelled to provide, if he wishes to pursue his action, to that which can be objectively demonstrated to be “necessary to enable the medical practitioner to ascertain fully the nature and extent of the injury”. No objective basis for a reasoned finding of need having been made out the defendant’s application for a stay must be refused.
The application is dismissed.
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