Surmiak v Transport Accident Commission and Anor (Ruling)
[2015] VCC 1533
•28 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-00854
| RONALD SURMIAK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | First Defendant |
| and | |
| KERRY WILLIAM FASHAM | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 September 2015 | |
DATE OF RULING: | 28 October 2015 | |
CASE MAY BE CITED AS: | Surmiak v Transport Accident Commission & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1533 | |
RULING
---
Subject: PRACTICE AND PROCUDURE
Catchwords: Application by first and second defendants to inspect plaintiff’s medical and hospital records subpoenaed pursuant to Rule 42A – objection by plaintiff on ground of “medical privilege” pursuant to s28(2) Evidence (Miscellaneous Provisions) Act 1958
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958, s28(2); County Court Civil Procedure Rules 2008, r42A; Transport Accident Act 1986, s93(4)(d)
Cases Cited:Mann v Carnell (1999) 201 CLR 1; Petkovski v Galletti [1994] 1 VR 436; Ginnity v Prefsure Life Ltd [2007] VSC 284; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Taylor (a pseudonym) v Gutierrez & Ors [21015] VCC 558; Elliott v Tippett & Anor[2008] VSC 175; Ahmet v State of Victoria & Ors (Ruling) [2014] VCC 922
Ruling: Applications granted. Defendants permitted to inspect documents with respect to plaintiff’s low-back treatment before and after transport accident.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Britbart | Robinson Gill Lawyers |
| For the Defendants | Ms F Spencer | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By an Originating Motion filed 24 February 2015, the plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to issue common law proceedings on the basis that he suffered a serious injury as a result of a transport accident.
2 In Particulars of Injury filed 3 July 2015, the plaintiff claims to have suffered serious injury to his spine in the form of:
(a) surgical spondylosis with pain, and discogenic back pain on the basis of shallow posterior annular disc bulges at L3-4, L4-5 and L5-S1 levels; and
(b) a left and right shoulder; and
(c) severe mental or severe long-term behavioural disturbance or disorder.
3 The Transport Accident Commission, on behalf of the defendants, has issued subpoenas returnable before this Court addressed to:
(1) Echuca Regional Health
(2) Bendigo Hospital
(3) Joan Ledwich, clinical psychologist
(4) Goulburn River Group Practice
(5) Rochester Medical Centre.
4 The plaintiff, through her solicitors, objects to the records from:
(1) Echuca Regional Health; and;
(2) Goulburn River Group Practice
being inspected on the basis that they are privileged.
5 The medical privilege claimed is pursuant to s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 which provides as follows:
“No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.”
6 It is submitted by the defendants in this case that it has not been established that all the material in the subpoenaed records may fall within the description of that sub-section; for example it is certainly arguable that the dates of treatment would not fall within the scope. In any event, with respect to the documents that do fall within the scope of s28(2), the defendants claim the plaintiff has waived privilege to the extent that the documents relate to:
(a) the painkilling injections for the plaintiff’s neck and low back that the plaintiff relies on having received after his transport accident in his application for leave; and
(b) the plaintiff's pre-accident low-back pain and treatment for that condition prior to his transport accident.
7 It is accepted by both parties that the principals to be applied were described by the High Court in Mann v Carnell,[1] which records as follows:
“At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. … Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. … .
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of law’. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”
[1](1999) 201 CLR 1 at paragraphs [28] and [29]
8 Here, it is submitted that there is an inconsistency between the plaintiff's conduct and the maintenance of the confidentiality that the privilege is intended to protect which affects a waiver of the medical privilege. It is submitted that as the plaintiff has suffered from a pre-existing low-back condition, the court hearing the application for leave must analyse the extent of impairment of the plaintiff’s lumbar spine before and after that transport accident and be satisfied that any additional impairment itself constitutes a serious injury.[2]
[2] See Petkovski v Galletti [1994] 1 VR 436
9 It is submitted that the onus is on the plaintiff to satisfy the Court that he has suffered an additional impairment to his lumbar spine as a result of the transport accident, and that additional impairment, itself, constitutes a serious injury.
10 I should note that the test laid down in Petkovski v Galletti,[3] in interpreting the statutory definition, is to be contrasted with the duty of a jury when hearing the common law damages claim that the injury sued upon need only be a cause of the loss and damage.
[3]Supra
11 The plaintiff, in this case, has sworn an affidavit and relies upon an affidavit sworn by his wife which contains multiple assertions about the state of his low-back condition prior to the transport accident and the treatment he received for that condition. At paragraph 14 of his affidavit, sworn 27 October 2014, he deposes:
“I had had some back pain for years which got worse when I started to have bowel problems. In 2005/2006 my low back pain and abdominal pain became very bad and I found that many activities aggravated it. I was prescribed medication such as OxyContin and Tramal and I underwent a pain management program through Bendigo Health. By early 2007 I was managing to control the pain much better, and able to do a lot more around the house. I stopped attending the pain management program at around this time.”
12 It is submitted by the defendants that the plaintiff has chosen to depose to those matters because it was considered in his interest to do so, having regard to the need for him to satisfy the Court that he has suffered additional impairment to his lumbar spine as a result of the transport accident, that, itself, constitutes a serious injury. Accordingly, so the argument goes, the evidence about pain and treatment are directly relevant to impairment said to be extant prior to the transport accident which occurred on 24 July 2009.
13 It is further submitted by the defendants that the plaintiff's actions are inconsistent with the maintenance of medical privilege with respect to records relating to his pre-accident low-back condition and treatment received for that condition. It is submitted the inconsistency is informed by the forensic unfairness of allowing the plaintiff to rely on the asserted state of his low-back condition, pre the transport accident, and treatment received for that condition in order to satisfy the Court that he has suffered additional impairment to his lumbar spine as a result of the transport accident, which would, itself, constitute a serious injury, without disclosure of records relating to his low-back condition and the treatment received for that condition prior to the transport accident.
14 It is further submitted that the same applies to documents relating to the plaintiff's alleged post-accident treatment in the form of injections into his neck and back. The plaintiff relies on this treatment and has chosen to depose to it in support of his application for leave. It is said that his actions are inconsistent with the maintenance of medical privilege over records relating to that treatment.
15 As to that post-accident treatment, the plaintiff deposed as to the fact of painkilling injections into his neck and low back, the results of a CT scan in 2010, the fact of pain affecting his sleep, his treatment at the hands of Dr McCallum and Dr Fang, and the prescription of pain-relieving medication, together with referral to a consultant in rehabilitation medicine, Dr David Murphy.[4]
[4]See paragraphs 8 to 11
16 Dr Murphy, in turn, has reported back to the treating general practitioner, Dr Nigel Fang, in a report dated 19 June 2012. This document has been released to the defendants’ solicitors. As part of the history taken by Dr Murphy therein, he records, as to the plaintiff's post-accident condition:
“He is troubled by pain in the base of his skull and the back and has periods of pain which radiate into the hips. He has had some episodes of severe pain and presents to Echuca Hospital where he is given an injection which he was told would ‘fix things straight away’. The injections help, but do not get rid of the pain completely.”
17 It is submitted specifically, with respect to the post-accident treatment with respect to the application of the injections and their results, that it would be unfair to allow that evidence to be adduced without the ability of the defendants to test it and see if there is any further evidence which would amplify that assertion.
18 The parties referred me to the decision of her Honour Hollingworth J in Ginnity v Prefsure Life Ltd,[5] where her Honour was satisfied that there had been an issue waiver in respect of documents of the plaintiff’s treating psychiatrist subpoenaed by an insurer in the context of a claim under the insurance policy that the plaintiff was disabled from work. It would appear that underpinning her Honour’s decision were notions of unfairness in the plaintiff maintaining the privilege in circumstances where the psychiatrist, whose records had been subpoenaed, had treated the plaintiff during the period she claimed to be disabled from work, and it was difficult to see how the plaintiff's case could proceed with respect to the period without the plaintiff giving some evidence as to her treatment by the doctor. It should be noted that in the High Court decision of Attorney-General (NT) v Maurice,[6] that the Court cited with approval the proposition:
“… where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice to its real weight or meaning being misunderstood.”
[5][2007] VSC 284
[6][1986] HCA 80, (1986) 161 CLR 475
19 In my view, the fact that the plaintiff has deposed to receiving the injections and has released that material, not only in his own affidavit, but through the auspices of Dr Murphy, that it would be unfair to not allow the fact and the circumstances surrounding the injections said to have taken place at the Echuca Hospital, not to be inspected by the defendants.
20 I was also referred to the County Court decision of her Honour Judge Hogan in the matter of Taylor (a pseudonym) v Senior Constable Gutierrez & Ors.[7] In that matter, her Honour was of the view that the defendants had otherwise a reasonable opportunity of defending themselves using information that had already been made available, and that there was no inconsistency between the plaintiff having commenced the proceeding and maintaining confidentiality over the records of her mental health treatment between approximately 1998 and 2002, some eight to twelve years prior to the subject incident. At paragraph 44 therein, her Honour stated:
“It would be a different situation if the records in respect of which the plaintiff claims privilege were those of practitioners who had treated the plaintiff for injuries following and (alleged to be caused by) the subject incident. Indeed, it is difficult to imagine how the plaintiff could conduct her claim without calling evidence of such treatment. That is not the case here. It was the case in both Ginnity[8] and also with treating doctor who had organised the MRI scan and diagnosed cerebral palsy in Elliott’s[9] case.”
[7][2015] VCC 558
[8]Supra
[9]Elliott v Tippett & Anor [2008] VSC 175
21 I was also referred to the County Court decision of his Honour Judge Misso in the matter of Ahmet v State of Victoria & Ors (Ruling)[10] which concerned the release, or the attempted release, of documents concerning treatment of the plaintiff post the alleged tortious act. His Honour said, at paragraph 18:
“If the plaintiff had been treated by medical practitioners at that medical centre and there was some inevitability that he would give evidence about that treatment, then that would amount to an implied waiver or issue waiver. … .”
[10][2014] VCC 922
22 Here, clearly, as already stated, there is evidence at least of the injections, and also as to the other treatment both post and prior to the subject injury. In this particular instance, the defendants’ counsel submits that where here the plaintiff has deposed on affidavit to his pre and post-accident treatment, it would be unfair to allow the plaintiff to maintain the medical privilege over records relating to his pre and post-accident low-back treatment, in circumstances where he makes assertions about the nature of such treatment in support of his application for leave.
23 The plaintiff’s counsel submits that the information concerning treatment and impairment is available from other sources, in particular, the documents that have already been released, and that the defendants are not disadvantaged by the plaintiff claiming the privilege to which he was prima facie entitled under s28(2) of the Evidence (Miscellaneous Provisions) Act 1958.
24 As already stated, this proceeding does have a different character from that of a damages claim, in that the specific test is different from a common law test, in that the plaintiff is obliged to adduce evidence of the pre-accident impairment where a situation pertaining to Petkovski v Galletti[11] is extant. Further, the plaintiff has deposed as to specific treatment with respect to the low-back condition both before and after the accident which is clearly relevant to impairment, which is in turn an essential ingredient of his claim before this Court.
[11]Supra
25 In all the circumstances, I consider it would be unfair not to allow the defendants access to the Goulburn River Group practice and Echuca Regional Health documents, but only insofar as those documents are relevant to treatment received for the injuries pleaded, before and after the accident.
26 In those circumstances, it appears to me, as I anticipate that both parties have agreed, that the documents should be released to the plaintiff's counsel in order to assess material, if any, which would come within s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 and to either then release documents in accordance with this ruling, or alternatively, I reserve liberty to apply for either party to make further submissions should it be necessary.
- - -
0
8
0