White v Arbuthnot Sawmills Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT SHEPPARTON

COMMON LAW DIVISION

CIVIL CIRCUIT LIST

S CI 2016 02642

DEBORAH ANNE WHITE	Plaintiff
v
ARBUTHNOT SAWMILLS PTY LTD & ORS	Defendants

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JUDGE:	JUDICIAL REGISTRAR CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2017
DATE OF JUDGMENT:	4 August 2017
CASE MAY BE CITED AS:	White v Arbuthnot Sawmills Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 443

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PRACTICE AND PROCEDURE – Application for discovery pursuant to r29.05.1 and r29.09(2) of Supreme Court (General Civil Procedure) Rules 2015 – s28 of Evidence (Miscellaneous Provisions) Act1958 (Vic) – ss 26, 29 and 55 of Civil Procedure Act 2010 (Vic) – medical records – where medical records of deceased relevant – whether medical records are in possession of plaintiff in individual or representative capacity – whether privilege applies – whether privilege waived – unfairness to defendants if privilege maintained.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr J C Plunkett

Barker & Associates

For the First Defendant

For the Second and Third Defendant

Ms R Kaye

Wotton & Kearney

DLA Piper

JUDICIAL REGISTRAR CLAYTON:

The First Defendant’s application is granted.

The Plaintiff is ordered to make discovery of the records of:
(a)   Bendigo Health;
                (b)   Dr Gorey;
                (c)   Austin Health;
                (d)   Cohuna District Hospital;
(e)   St Vincent’s Hospital; and
(f)any other medical and hospital records relating to any treatment sought and received by Robert Peter White from the date of his injury in 1985 to the date of his death on 26 February 2014 that are relevant to the proceeding.

Introduction

This is an application brought by the First Defendant, Arbuthnot Sawmills Proprietary Limited (“Arbuthnot”), pursuant to r29.05.1 of the Supreme Court (General Civil Procedure) Rules 2015 (“the Rules”) and ss 26, 29 and 55 of the Civil Procedure Act 2010 (Vic) (“the Act”) for discovery, and pursuant to r29.09(2) to produce certain discovered documents.

The application is supported by two affidavits of Natasha Sung sworn 14 June 2017 and 28 June 2017.

The Plaintiff, Mrs White, opposes the application and has filed three affidavits of Tammy Barker sworn 28 June 2017, 29 June 2017 and 30 June 2017.

Prior to the application being heard, Counsel for Mrs White requested that the hearing of the application be adjourned on the basis that she might seek leave to amend her Statement of Claim to remove a claim on behalf of her deceased husband’s estate. This might, in turn, impact on the discoverability of certain documents. Counsel submitted that it was premature to consider the discoverability of documents in circumstances where the pleadings might change, and where Senior Counsel, Mr Monti, was overseas and unable to advise the Plaintiff.

On 29 June 2017 Ms Barker, solicitor for Mrs White swore an Affidavit (“the 29 June Affidavit”) in which she deposed that:

I am currently seeking instructions from my client in her capcity (sic) as executrix of the Estate of the late Robert Peter White, to withdraw the Estate’s claim for medical and funeral expenses and instead lodge a worker’s compensation claim for these to be paid by the worker’s compensation insurer.

Trevor Monti, senior counsel briefed in this matter from the outset, is currently in Europe. Arrangements had been made for Ian Fehring of counsel to appear at the next return date for this matter at court on 30 June 2017, but was caught in another matter and unable to appear(sic). I learned of this yesterday, 28 June 2017. Alternative arrangements have now been made for James Plunkett of counsel to appear on 30 June 2017. However, this is a very complex case, with already vast amounts of material to absorb.

Accordingly, I am seeking that these proceedings be adjourned until Mr Monti returns from his holidays so that I can discuss the future conduct of these proceedings with him in greater detail.

There was no information provided to the Court as to when Mr Monti was to return from his holidays.

The point before the Court on this application was a discrete point in relation to the discoverability of medical records relating to Mrs White and her deceased husband, Mr White. It is not apparent on any of the material before the Court that an intimate understanding of the undoubtedly complex medicine is required in order to address this discovery application.

Further, although Ms Barker indicates that Mrs White may decide to withdraw the Estate’s claim for medical and funeral expenses, the pleadings disclose that the Estate’s claim goes beyond a claim for medical and funeral expenses.

It is not clear whether Mrs White may ultimately decide to withdraw the Estate’s claim in its entirety, or only a portion of that claim. In any event, the Estate’s claim has not been withdrawn and remains on foot.

The Court determined that the application should proceed. The issue of whether these documents were discoverable and should be produced has been ventilated between the parties since at least January 2017 without resolution.[1] The correspondence exhibited to Ms Sung’s Affidavit of 14 June 2017 demonstrates that Arbuthnot made repeated requests for Mr White’s medical records and documents going to the causal relationship between the injuries he suffered and his ultimate death. On at least 14 February 2017 and 20 March 2017, Mrs White’s solicitor, Ms Barker, advised the defendants that those documents would be provided at a later date. By the time this application had been heard it appears that no progress had been made in resolving the matters between the parties.
[1] Exhibits NYS 2, NYS 4, NYS 5 and NYS 7 of the Affidavit of Natasha Sung dated 14 June 2017.

The Court was not satisfied that the discovery issue between the parties would materially change or resolve, even if Mrs White discontinues her claim as Executrix of the Estate. For these reasons, the adjournment application was denied and the primary application proceeded.

Background

Mrs White alleges that her husband, Mr White, suffered a severe crush injury in 1985 whilst employed by Arbuthnot which resulted in amputation of his right leg. During his stay at a hospital run by the Second Defendant (“St Vincent’s”), he received transfusions with blood products supplied by the Third Defendant (“the Red Cross”). Mrs White alleges that the blood products were contaminated with Hepatitis C virus and that in about 2009 Mr White was diagnosed with chronic Hepatitis C infection. Mr White then developed liver failure and hepatic encephalopathy and died on 26 February 2014. Mrs White sues for damages for injuries she alleges she has sustained as a result of being exposed to the ‘extreme pain, suffering and agony suffered’ by Mr White during the course of his illness with Hepatitis C, up to and including the time of his death.

Mr White pursued a claim in this Court during his lifetime for damages for his crush injuries including the loss of his leg. At the time that his claim was determined in 1990, he had not been diagnosed with Hepatitis C.

Mrs White sues the defendants in her personal capacity for her pain and suffering, and in her capacity as Executrix of the Estate of Mr White, for funeral and burial expenses, hospital, medical, pharmaceutical and like expenses, past gratuitous care and travelling expenses.

On 1 May 2017 Mrs White swore an Affidavit (“the 1 May Affidavit”), witnessed by her solicitor, Ms Barker, in which she identified the following documents as being in her possession, custody or power (“the 1 May documents”):

(a) formal Court documents headed in this proceeding and common to all parties;

(b) letters and copy letters passing between the solicitors for the parties;

(c) Death Certificate for Robert Peter White;

(d) copy of medical records from Bendigo Health;

(e) copy of medical records from Dr Gorey;

(f) copy of medical records from Austin Health;

(g) copy of medical records from Cohuna District Hospital;

(h) copy of medical records from St Vincents Hospital; and

(i) copy of medical records from Barham-Koondrook Soldier’s Memorial Hospital.

The 1 May Affidavit was served on Arbuthnot and filed with the Court.

On 2 May 2017 Mrs White swore another Affidavit of Documents (“the 2 May Affidavit”). This Affidavit of Documents identified the following documents as being in her possession, custody or power (“the 2 May documents”):

(a) formal Court documents headed in this proceeding and common to all parties;

(b) letters and copy letters passing between the solicitors for the parties;

(c) Death Certificate for Robert Peter White; and

(d) report from Dr Epstein dated 13 April 2016.

The 2 May Affidavit was filed with the Court and served on Arbuthnot with a letter from Ms Barker that stated:

‘Please disregard the affidavit served yesterday. It was not filed with the court. Upon discussions with counsel, I understand that the hospital records are not in fact discoverable documents.’[2]

[2] Ibid Exhibit NYS-13.

On 1 May 2017 Arbuthnot requested the 1 May documents. On 2 May 2017 Arbuthnot again requested those documents and noted their 6 earlier requests for medical records and relevant documents.[3]
[3] Ibid Exhibit NYS-14.

On 5 May 2017 Arbuthnot again requested the 1 May documents and attached a Notice to Produce.

On 29 May 2017, Ms Barker wrote to Arbuthnot and advised:

With respect to the documents 4-9 sought in the Affidavit of Documents, which was not filed with the court, these documents will not be produced at this time. They are privileged documents which remain privileged. The Court does not have the power as alleged in your correspondence, to override the legislative protection of those documents. I will provide you with an amended Affidavit of Documents shortly.[4]

[4] Ibid Exhibit NYS-16.

To date no ‘amended Affidavit of Documents’ has been filed.

A further request for the 1 May documents was made by Arbuthnot on 13 June 2017 and the Summons for this application was filed on 15 June 2017.

In response to the Summons, Ms Barker filed three affidavits. The first Affidavit filed 28 June 2017 (“the 28 June Affidavit”) states that Ms Barker did not believe that the 1 May Affidavit had been filed with the Court. She notes that she had not consulted with Counsel prior to Mrs White swearing the 1 May Affidavit. She then states:

Realising the affidavit of document (sic) sworn 1 May 2017 was incorrect, on 2 May 2017 I had the Plaintiff swear another affidavit of documents, which was filed with the court and served on each of the Defendants’ solicitors on the same day. In my correspondence to each of the Defendants’s (sic) solicitors I noted that the affdiavit (sic) sworn 1 May 2017 was served erroneously and that after discussions with counsel Trevor Monti QC it was my understanding that the documents were in fact not discoverable documents. As I was also under the impression at that time that the filing of the affdaivt (sic) of documents sworn 1 May 2017 had not been filed with the court I indicated that the affidvit (sic) should be disregarded.

I expect a further affidavit of documents to be sworn by the Plaintiff asserting privilege in relation to the documents.

Ms Barker was not at the hearing of the application and Counsel for Mrs White was unable to explain what Ms Barker meant when she said that the 1 May Affidavit was incorrect and was unable to explain in what way that Affidavit had been erroneously served.

On 30 June 2017, Ms Barker swore a third Affidavit in which she stated that:

It is the Plaintiff’s case that the documents are not discoverable as they are not in the “possession, custody or power” of the Plaintiff.

Arbuthnot’s Arguments

Arbuthnot submitted that the 1 May documents appear to largely be Mr White’s medical records.

The medical report of Dr Epstein discovered in the 2 May Affidavit refers to Mr White’s treatment at Barham Hospital, St Vincent’s, with Dr Gorey and at Cohuna District Hospital. He notes:

At about 7.45 her husband’s employer arrived and told her that her husband had been seriously injured in an accident at the saw mill. He had been taken to Barham Hospital in New South Wales on the other side of the Murray River from Koondrook.

She was eight months pregnant at the time. She went to the Barham Hospital but did not get to see her husband. He had already been sent to St Vincent’s Hospital in Melbourne via Helicopter Emergency Medical Service/Road Ambulance.

She, her father and her children drove to St Vincent’s Hospital in Melbourne that night.

Dr Epstein notes that Mr White remained at St Vincent’s for some months and was then transferred to Cohuna Hospital where he remained for a further month. He was diagnosed with Hepatitis C after becoming ill and was referred to a consultant physician, Dr Gorey. Dr Epstein notes:

Dr Gorey suggested a program that might reverse the effects of Hepatitis C but after further testing it was decided that his liver function was not sufficient for him to participate.

In late 2011 her husband was referred to a specialist at the Austin Hospital in the liver transplant department. It was there that he was told that he probably only had two years to live and that a liver transplant was not possible because his liver was too damaged and he could not have surgery because of clotting issues. He was referred back to Dr Gorey in Bendigo.

Dr Epstein reports on Mrs White’s reaction to her husband’s deteriorating health, noting:

She was increasingly depressed watching her husband’s suffering. She began to experience anxiety and panic attacks from early 2013. She helped him to toilet, with medication, drying him and sponge bathing him. He spent much of his time sleeping. He was rambling at times, He had a number of periods of hospitalisation at Cohuna for a week or two to have IV fluids….She was exhausted and physically and emotionally depleted…Her husband continued to be hospitalised on numerous occasions. She provided intensive attendant care for him and watched his slow and painful death.

Her husband became incontinent of faeces and urine, soiling himself in bed….she was increasingly distressed and had difficulty sleeping. She had nightmares about her husband dying, although she did not think it would happen.

She was so occupied in dealing with her husband that she had little time to dwell on the cause of his infection. She said that even prior to his last admission she did not think he would die. He was admitted to the Cohuna Hospital for the final time in early February 2014. She was with him every day. Near the end she stayed overnight. She began to realise that he was dying.

Arbuthnot says that the records of Mr White are clearly relevant to both the claim by Mrs White in her personal capacity and her claim as Executrix of the Estate in that they are the records of Mr White’s medical condition and treatment which forms the foundation of Mrs White’s claims against the defendants.

In relation to the Estate, the claim is for medical and like expenses, as well as funeral and burial costs, travelling costs and gratuitous care. Mr White’s medical records are essential for Arbuthnot to understand the case made against it and whether the claim brought by the Estate can be substantiated on the evidence.

In relation to the personal claim of Mrs White, Arbuthnot states that she claims for psychiatric injury arising from the circumstances of Mr White’s death and, in particular, from being exposed to Mr White’s ‘extreme pain, suffering and agony’.

Mr White’s medical records are crucial evidence of the extreme pain, suffering and agony that he endured and that Mrs White alleges she was exposed to.

Arbuthnot submitted that the documents are clearly relevant and are in the actual possession of Mrs White and were therefore appropriately discovered in the 1 May Affidavit.

Furthermore, no satisfactory explanation as to why they were not discoverable had been provided.

Although Mrs White has not formally made an argument that the documents are privileged, and instead has maintained that they are not discoverable, letters flowing between the parties suggest that Mrs White may intend to assert a claim of privilege over those documents.

Arbuthnot says that, in relation to a potential claim of privilege, no privilege can attach to the estate claim by the operation of s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (“Evidence (Miscellaneous Provisions) Act”) because of the operation of s28(5) of that Act, which specifically excludes claims brought under Part III of the Wrongs Act 1958 (Vic) (“Wrongs Act”). Although nothing in Mrs White’s claim specifically refers to Part III of the Wrongs Act, Arbuthnot presumes that this is the basis upon which she claims in her capacity as Executrix of the Estate.

In relation to any claim Mrs White might personally make over the records of Mr White, Arbuthnot says that any such privilege that might exist has been waived by Mrs White putting in issue the following matters:

(a) the nature and scope of Mr White’s illness;

(b) when his illness commenced;

(c) how it was caused;

(d) the causal link between Arbuthnot as Mr White’s former employer, and his illness with Hepatitis C; and

(e) the nature and extent of her husband’s Hepatitis C infection as a cause of her own distress.

All these matters require examination of Mr White’s medical records to be made out.

Dr Epstein’s report identifies aspects of Mr White’s treatment at various hospitals and with Mr Gorey and it would be inconsistent for Mrs White to maintain a privilege over those records when she relies on Dr Epstein’s report.

Arbuthnot argues that the onus is on Mrs White to make out the privilege which she has not done. She has not even asserted a privilege except in a vague sort of a way.

Arbuthnot also says that any of her own medical records are also both discoverable documents and documents over which privilege has been waived and should be discovered forthwith.

Mrs White’s Arguments

Mrs White argues that Mr White’s records are not in her possession, custody or power. Although she admits that she has those records, she says that she has them only as Executrix of Mr White’s Estate.

She says that, as Executrix of the Estate, the documents are discoverable, and concedes that no claim for privilege could be maintained by the Estate. However she might decide to discontinue her action on behalf of the Estate, and those documents would not then be discoverable by her in her individual capacity.

She argues that, if they are in her possession, custody and power, and are therefore discoverable, then s28(2) of the Evidence (Miscellaneous Provisions) Act would apply.

She asserts that privilege is not waived simply because the documents are relevant to matters in issue between the parties. To find that privilege has been waived in those circumstances would be inconsistent with the policy underpinning the legislative provisions.

Mrs White further says that she is not in possession of any of her own medical records and they are therefore not discoverable. She concedes that, should she obtain those records, they would be properly discoverable, although a claim of privilege might be made over them.

Are the records of Mr White discoverable?

It is conceded by both parties that the records of Mr White are in the possession of Mrs White, are relevant to the proceedings, and are therefore discoverable. I note here that the discussion during the hearing related only to those documents discovered in the 1 May 2017 Affidavit. Arbuthnot seeks in its Summons ‘any other medical and hospital records relating to any treatment sought and received by Robert Peter White from his date of birth until his death on or about 26 February 2014’. Nothing was put to me as to how medical records that pre-date Mr White’s industrial accident in 1985 are relevant to the proceeding. Nor was it put that those records are in Mrs White’s possession. In the absence of any evidence about those medical records I am unable to determine whether they are discoverable. For the purposes of this decision, the medical records referred to are those discovered in the 1 May Affidavit and any other medical records of Mr White in Mrs White’s possession from the time of his industrial accident to the time of his death.

Whilst Mrs White has indicated that she may decide to discontinue her claim on behalf of the Estate, at the time of this hearing she had not done so. It was put no higher than a possibility that she would do so. Therefore those documents are discoverable, regardless of whether Mrs White has them in her individual or representative capacity.

Having regard to the provisions of the Act and the need for timely, cost-effective and efficient disposal of matters, the Court considered that it was appropriate to hear argument and determine what the situation would be if Mrs White does indeed decide to discontinue her claim on behalf of the Estate.

There is nothing in the affidavit material before me, and nothing on the face of the 1 May Affidavit or the 2 May Affidavit sworn by Mrs White to indicate that she came into possession of the medical records of Mr White in her capacity as Executrix of the Estate rather than in her personal capacity. There is no information as to when or how she came into possession of those records.

In the absence of any evidence on this point, it is not possible to determine whether Mrs White came into possession of those records in her personal capacity or in her capacity as Executrix of the Estate. For the purposes of this application, I do not consider that it matters. Even if she did come into possession of those records as the Executrix of the Estate, for the reasons set out below, they are still discoverable documents.

In Buchanan-Michaelson v Rubinstein,[5] the Plaintiff brought an action against the deceased’s Estate. The executors of that Estate were the deceased’s widow and solicitor. The Plaintiff sought discovery against the executors. The relevant documents were said to have been passed to the widow in her personal capacity, not as Executrix. The solicitor acted for the widow, and said that he knew where the documents were as a result of that lawyer-client relationship, but not in his capacity as Executor.
[5][1964] 3 All ER 850.

Pennycuick J recounted the argument of the defendants as follows:[6]

Where … persons are sued in a representative capacity then for all the purposes of the action each of those persons is to be treated as if he were two distinct persons, that is, one in the representative capacity in which he is sued and the other as an individual; and he says that no order can be made in the action against the defendants in their individual capacities.

[6]Ibid at 853.

His Honour rejected these claims and ordered discovery. His Honour noted that although the rules of court recognised that a party may appear in a representative capacity:[7]

I do not think it follows that … for all the purposes of the action, including discovery, they must be treated as though there were a cleavage of personality between them in their representative capacity and them in their individual capacity, as if they were two distinct persons. The fact is that the party to the action is a human person¾I am not talking here of corporations¾he is one person, and, although the claim must be made against him in one or other capacity, or both, he is not, so to speak, two distinct persons, one of whom is not before the court at all.

[7]Ibid at 854.

Pennycuick J went on to note that the defendants’ submissions would lead to absurd results. His Honour held that it could not be the case, for example, ‘that executors were not bound to disclose documents handed over to them by the testator while he was still alive, with a view to their administration of his Estate.’[8]
[8]Ibid.

The decision in Rubinstein was followed in this Court in Szental v Szental.[9] Balmford J stated that the decision was ‘founded on common sense’ and should be followed.[10]
[9][2001] VSC 42.
[10][2001] VSC 42, [14].

The Plaintiff is not to be treated as if she were two distinct persons, sometimes holding documents in one capacity and sometimes in another. The documents are therefore discoverable, whether the action is brought on a representative basis or personal basis.

Do the records of Mr White attract a claim of privilege?

The records of Mr White have, in fact, been discovered in the 1 May Affidavit. Whilst Mrs White’s solicitor submits that this Affidavit was filed in error, there is no explanation of what that error is, other than her belief, following a discussion with Counsel, that they were not in fact discoverable.

The 1 May Affidavit does set out a claim of privilege over certain documents. At paragraph 2 of that Affidavit Mrs White states “the documents enumerated in Part 2 of Schedule 1 are privileged, and I object to produce them. The documents are privileged on the ground that they are confidential communications between me and my advisors in their professional capacity and are solely for the preparation of my case in this proceeding”.

Part 2 of Schedule 1 identifies “File of papers and briefs comprising instructions to my Solicitors and Counsel, memoranda, drafts, notes, letters, notices, correspondence, certificates, and other reports of enquiries and sundry documents made or obtained by me, my servants and agents and legal advisors for the dominant purpose of obtaining and giving legal advice (as the case may be) or for the dominant purpose of these legal proceedings.”

Mrs White has sworn this Affidavit and she, or at least her solicitor, has turned her mind to what documents exist over which a claim of privilege should be made. The records of Mr White are not included in that list.

However, Mrs White’s solicitor has indicated in correspondence to the defendants and also in this Court at a directions hearing held on 4 May 2017 that if those documents are in fact discoverable, then they are ‘privileged’.

Without saying it directly, it appears that Mrs White’s submission is that the documents should have been included in the list of documents in Part 2 Schedule 1 and that it was an error that they were not put in that list.

It is expedient to deal with the issue of whether those documents are privileged so as to avoid a subsequent hearing on the issue in the event that Mrs White was to file, as foreshadowed, a further Affidavit of Documents claiming such a privilege.

The claim for privilege is said to rest on s28 of the Evidence (Miscellaneous Provisions) Act, which relevantly provides as follows:

(2)No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.
(3)Where a patient has died, no physician or surgeon shall without the consent of the legal personal representative or spouse of the deceased patient or a child of the deceased patient divulge in any civil suit action or proceeding any information which the physician or surgeon has acquired in attending the patient and which was necessary to enable the physician or surgeon to prescribe or act for the patient.
(4)Subsection (3) shall cease to have any application to or in relation to any civil suit action or proceeding at and from the time at which there is no legal personal representative spouse or child of the deceased patient.
(5)Subsections (2) and (3) do not apply to or in relation to—
(a)an action brought under Part III of the Wrongs Act 1958 to recover damages for the death of the patient;
(b)proceedings brought under the Workers Compensation Act 1958 or the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013 to recover compensation for the death of the patient; or

….

Arbuthnot says that the Mrs White’s case on behalf of the estate is brought under Part III of the Wrongs Act and, as such, privilege is barred by s28(5)(a).

The pleadings do not set out the statutory basis upon which the claim by the Estate rests, however it must be pursuant to Part III of the Wrongs Act.

Counsel for Mrs White accepted that a claim for privilege over the documents in the Estate claim cannot be maintained pursuant to s28(5)(a) of the Evidence (Miscellaneous Provisions) Act.

As the Estate claim is still on foot, there is no privilege in those documents.

Mrs White maintains that in her personal claim, she is entitled to claim privilege over the medical records of Mr White. In the event that Mrs White does discontinue her claim on behalf of the Estate it is expedient to consider whether a privilege could be claimed by Mrs White in her personal capacity.

I do not think that s28(2) provides privilege in this case. Section 28(2) provides that ‘[n]o physician or surgeon shall … divulge … any information which he has acquired in attending the patient’. It says nothing about whether a patient (or the patient’s representative) may divulge that information.

This may be contrasted with s32C of the same Act. That section is contained in Division 2A of Part II and deals with medical records in cases of sexual violence. Section 32C provides as follows:

(1)In a legal proceeding—
(a)a party cannot seek to compel another party to produce a document containing a confidential communication;
(b)a document is not to be produced if it would disclose a confidential communication;
(c)evidence is not to be adduced if it would disclose—
(i)a confidential communication; or
(ii)the contents of a document recording a confidential communication—

unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention.

What is notable about this provision is that sub-s (1)(c) states that ‘evidence is not to be adduced’. This is similar language to that in ss 118 and 119 of the Evidence Act 2008 (Vic) (“Evidence Act”), governing legal professional privilege. The prohibition on adducing the evidence is expressed to be absolute, and is not bounded by who is producing the evidence.

This is in contrast to the opening words of s28(2), which state that ‘[n]o physician or surgeon’ shall divulge evidence. There is no absolute prohibition on the evidence being adduced, but only a prohibition on its being adduced by medical professionals. This language must be taken to have some meaning if the difference in wording between s28(2) and s32C is to be intelligible.

Similarly, the Victorian provision can be contrasted with the Tasmanian equivalent, in s127A of the Evidence Act 2001 (Tas):

(1)A medical practitioner, without the consent of his or her patient, must not divulge in any civil proceeding any communication made to him or her in a professional capacity by the patient that was necessary to prescribe or act for the patient unless the sanity of the patient is the matter in dispute.

(2) A person who has possession, custody or control of any communication referred to in subsection (1) or of any record of such a communication made to a medical practitioner by a patient, without the consent of the patient, must not divulge that communication or record in any civil proceeding unless the sanity of the patient is the matter in dispute.

Sub-section (1) is in almost identical terms to the Victorian legislation however the addition of sub-section (2) suggests that the Tasmanian legislature did not consider that sub-section (1) conferred a privilege over records in the hands of others, such as Mrs White. The Victorian legislation lacks such a provision.

There is one further indication that the Victorian legislation does not protect a patient who holds their medical records. Section 28(2) states that medical records shall not be divulged, ‘without the consent of [the] patient’. This assumes that someone other than the patient holds the record. If the patient (or their representative) holds the record, it makes no sense to require consent.

In Fitzgerald (by her Litigation Guardian Gaye Jacobsen) v Munro[11] (“Fitzgerald”), the Plaintiff sued two hospitals for negligent treatment of her depression. The Plaintiff discovered (in her Affidavit of Documents) a number of medical records from the hospitals. The Defendant then subpoenaed the registrar of one of the hospitals to produce the records. The Plaintiff objected to the subpoena on the basis that the records were privileged under s28(2) of the Evidence Act.
[11] [1998] VSC 30.

Beach J, as his Honour then was, said the following:[12]
In my opinion the entries in the St Vincent's Hospital records relating to the plaintiff and made by medical practitioners who attended the plaintiff whilst she was a patient at the hospital are privileged.
The underlying purpose of s28(2) is to preserve confidentiality to a person who has been treated by a medical practitioner. In that regard see the observations of McGarvie J in PQ v Australian Red Cross Society and Others (1992) 1 VR 19 at p24 et seq.
If a medical practitioner who has treated a patient is precluded from divulging in any civil suit action or proceeding information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient without the consent of the patient, it would make a mockery of the section if entries in the patient's medical records containing that information and made by that medical practitioner could be divulged in any civil suit action or proceeding without the consent of the patient.
Accordingly I rule that any entry in the St Vincent's Hospital records relating to the plaintiff made by any physician or surgeon who attended the plaintiff is privileged.
[12] Ibid [17]-[20].
The third paragraph is clearly the important paragraph here. The point which Beach J is making is that to allow the records to be divulged would undermine the prohibition on the information being divulged by the medical practitioner directly.

In that case the subpoena was directed to the hospital and the decision of Beach J is consistent with the plain language of s28(2). I do not believe that the decision in Fitzgerald would extend to a situation in which the medical records were in the possession of the Plaintiff.

In Elliott v Tippett (“Elliot”),[13] the Plaintiff was a child who sued the Defendant hospital for negligence by her litigation guardian, who was her mother. It was alleged that the hospital was negligent during the mother’s pregnancy, which resulted in harm to the child. The documents sought included two letters from medical practitioners which were in the hands of the Plaintiff, and the medical records, which were sought directly from the medical practitioners.
[13](2008) 20 VR 195.

Judd J considered whether s28(2) applied and said as follows:[14]
In my view, the description “medical privilege” tends to distract from a correct interpretation and application of s 28(2) of the Act…Thus, the prohibition is limited to divulging, in a civil proceeding or prescribed investigation, information of a particular kind, namely, that which has been acquired in attending the patient and then only so much of that information as was necessary to enable the practitioner to prescribe or act for the patient.
….
In my view, s 28(2) does no more than prohibit a medical practitioner divulging certain information in civil proceedings or a prescribed investigation without the consent of the patient. The prohibition may extend to prohibit the practitioner giving evidence or producing documents which contain protected information. What of protected information in the possession of the plaintiff? Does the patient enjoy an immunity from disclosure similar to legal professional privilege? I very much doubt it. The public policy considerations which underpin the protection of confidential communications between legal practitioner and client are, in my view, quite different to those which might justify the maintenance of confidentiality between the medical practitioner and patient. There are real difficulties in applying the principles of waiver, as they are applied to claims of legal professional privilege, to the notion of consent by a patient for the purpose of s 28(2). None the less there may be circumstances in which the principles may be usefully employed.
A review of the authorities would suggest that the courts have uniformly treated the prohibition contained in s 28(2) of the Act as creating a form of medical privilege, much like legal professional privilege, with the consequence that the waiver principles are commonly applied.
[14] (2008) 20 VR 195, [18] and [21]-[22].
It is clear from paragraph 21 of Judd J’s reasons that he ‘very much doubt[ed]’ that the plaintiff could resist production if she held the documents herself but accepted that s28(2) had been treated in the case law as creating a form of medical privilege. His discussion of the case law supports, in my view, the proposition that ordinary waiver principles apply, but does not support the proposition that a ‘medical privilege’ would be conferred on records in the hands of someone other than a medical practitioner .

Nor do the cases cited assist the Plaintiff in this matter. In Ginnity,[15] Hollingworth J made the following statements in relation to s28(2):[16]
It is long established that the common law does not recognise any privilege attaching to doctor-patient relationships….
[Her Honour then quoted s28(2) and continued]
Section 28(2) applies to prevent the divulging of confidential information which is in either oral or written form.
Section 28(2) is the modern embodiment of a provision which was first introduced into Victorian law in 1857. Whether s 28(2) should, strictly speaking, be described as imposing a prohibition or granting a privilege may be debated; however, it is convenient to refer to it, as many of the cases do, as medical privilege.
Medical privilege under s 28(2) is not as broad a privilege as legal professional privilege. For example, section 28(2) only applies to the disclosure of information in civil, not criminal, proceedings. Save for the specific exception in the case of accident compensation investigations, it also does not apply to investigative procedures, such as investigations by the Medical Practice Board.
It seems that the underlying policy behind s 28(2) is to preserve confidentiality to a person who has been treated by a doctor. Confidentiality is obviously a far more limited public policy basis than that which underlies legal professional privilege. Nevertheless, the section must be given full effect, even if the effect may be to keep the court in ignorance of the true facts (as indeed is the case with all rules which fetter the giving of evidence).
Section 28(2) prohibits disclosure without the patient’s consent. It was not disputed that a patient’s consent may be express or implied. Both parties also proceeded on the basis that the principles which govern the implied waiver of legal professional privilege would also govern the implied waiver of medical privilege, in particular, the principles of waiver by disclosure and issue waiver.
[15]Ginnity v Prefsure Life Ltd [2007] VSC 284.
[16] Ibid [9]-[13].
Again, this case establishes that ordinary principles of waiver would apply. It does not establish the proposition that s28(2) operates as an ordinary privilege. Indeed, doubt is cast upon such a proposition.

Importantly, the documents in Ginnity were still held by the treating medical practitioner. The situation was not the same as that in this case or, indeed, that before Judd J in Elliott.

In Abondio v Women’s and Children’s Healthcare Network[17] the Plaintiff brought a claim against a hospital. Medical records were relevant to the dispute and sought by the Defendant. The Plaintiff resisted this on the basis of s28(2).
[17] [2000] VSC 51.

At paragraph 7 of that decision, Hedigan J noted that it was unclear whether the Plaintiff held the documents or not. His Honour noted that third-party discovery would be necessary if the Plaintiff did not have those records. At paragraph 23, Hedigan J concluded that it may be the case that the Plaintiff does not have the documents, but that the Court’s reasons obliged the Plaintiff to waive privilege (i.e. consent to release of the records) in any application to the hospital.

As it was unclear whether the Plaintiff held the documents, his Honour proceeded on the basis that third-party discovery would be necessary and was concerned with the waiver of any privilege in such discovery, rather than whether such privilege would attach to documents in the Plaintiff’s possession.

These cases in my view therefore establish that, where a so-called ‘medical privilege’ exists under s28(2), ordinary principles of waiver will apply. They do not establish that medical privilege exists over records in the plaintiff’s own possession, and indeed a plain reading of s28(2) would indicate that no such privilege exists.

Has any privilege been waived?

I have found that Mrs White cannot claim privilege in the medical records of Mr White in her possession.

However, if I am wrong in that conclusion, it is useful to consider whether any such privilege that would attach to those documents has been waived.

The leading statement on waiver comes from Mann v Carnell:[18]

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. Thus, in Benecke v National Australia Bank - FTN.39, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.

[18](1999) 201 CLR 1, 13 [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

These principles are applied in the context of medical records in Ginnity.[19] There, the Plaintiff claimed payments from her insurer when she was no longer able to work because of a depressive illness. The insurer claimed that the Plaintiff had wrongly failed to disclose previous illnesses before the insurance was issued. The Defendant sought medical records on the basis that the Plaintiff had waived privilege under the doctrine of issue waiver. Hollingworth J said that issue waiver:[20]
[19][2007] VSC 284.
[20]Ibid [15].

arises where the privilege holder has put the contents of an otherwise privileged communication in issue for the purpose of mounting their case, with the consequence that an inconsistency or unfairness arises between the making of the assertion and the maintenance of the privilege. The most obvious way in which the communication may be put in issue is by the privilege holder’s pleadings. In each case it is necessary to consider the extent to which the privileged communication has been put in issue, and the extent of any unfairness or inconsistency caused thereby.

100In Ginnity itself, Hollingworth J held that the Plaintiff’s Statement of Claim had put her mental state in issue.[21] While the Plaintiff may not have intended to call the treating psychiatrist as a witness, her Honour said that ‘it is difficult to see how the plaintiff’s case could proceed … without the plaintiff giving some evidence as to her treatment by [the psychiatrist]’.[22] Her Honour found that privilege was waived.[23]
[21]Ibid [25].
[22]Ibid.
[23]Ibid [28].

101In Elliott Judd J considered waiver in respect of records relating to the Plaintiff’s birth, which was said to have been conducted negligently by the Defendant doctor. Judd J found that the contents of the records had been put in issue by the pleadings and that any privilege had therefore been waived.

102The pleadings in Elliott related to the Plaintiff’s birth. However, the pleadings also made a claim on the basis that the Plaintiff would be unable to lead an independent existence into the future. Her treatment had been considered in two letters and in medical records which were sought by the defendants. Judd J considered that there was no waiver in respect of these documents, because their contents had not been put in issue.

Have Mr White’s records been put in issue?

103In the present case, Mrs White’s claim rests on her ability to prove that she sustained an injury as a result of being exposed to the ‘extreme pain, suffering and agony suffered’ by Mr White as a consequence of the negligence of the defendants, including Arbuthnot.

104Arbuthnot was Mr White’s employer at the time of the industrial accident which lead to the amputation of his leg at St Vincent’s, which in turn required blood transfusions provided by the Red Cross from which, it is alleged, he contracted Hepatitis C.

105The causal connection between Mrs White’s injuries and Arbuthnot’s alleged negligence is by no means clear cut. Arbuthnot has no way of knowing whether and when Mr White contracted Hepatitis C, whether that was from contaminated blood products, and whether such contaminated blood products were required by reason of Arbuthnot’s conduct.

106Further, Arbuthnot has no means of ascertaining what pain and suffering Mr White experienced.

107Mrs White has put squarely in issue the consequences of Mr White’s leg amputation, including his contraction of Hepatitis C, and all the ramifications of that infection.

108However, not in issue is any medical condition or treatment that Mr White may have experienced or undergone prior to his industrial accident on 12 May 1985. I cannot see that these documents have been put in issue in this case and any privilege that attaches to them would not have been waived.

Is there unfairness to the defendant if privilege is maintained?

109Further, there is a high degree of unfairness to Arbuthnot if privilege is maintained in Mr White’s medical records.

110It is not said by Mrs White that those records include irrelevant matters, or matters that do not relate to this cause of action. Indeed, it is conceded by Mrs White that the records are relevant.

111Some of those records are the records of St Vincent’s Hospital, a Defendant to this proceeding, which must be in the possession of that Defendant. St Vincent’s Hospital would be precluded from providing those documents to Arbuthnot and the Red Cross by virtue of the operation of s28(2) without the consent of Mrs White pursuant to s28(3).

112It would be manifestly unfair for St Vincent’s to have available to it documents relating to Mr White upon which it could prepare its case and ascertain the strength or weakness of its defence, but for Arbuthnot and the Red Cross to be denied those records on the basis that they are privileged.

Would it be inconsistent to maintain the privilege?

113Finally, it is inconsistent to maintain privilege in the documents when the medical report of Dr Epstein has been discovered and is presumably to be relied upon in support of Mrs White’s claim.

114Much of Dr Epstein’s report deals with the medical condition and treatment of Mr White as the foundation of Mrs White’s psychiatric condition. He gives a reasonably thorough history of the hospitalisations and procedures that Mr White underwent and the state of his health as it declined.

115This account of Mr White’s decline and ultimate death forms the basis of Dr Epstein’s assessment of Mrs White’s the psychiatric response. He says that Mrs White ‘has developed symptoms of a Post-Traumatic Stress Disorder characterised by recurrent intrusive thoughts about her husband’s life-threatening infection and his subsequent deterioration and death, together with Panic Disorder and Agoraphobia and a Major Depressive Disorder of moderate severity, all of which have arisen as a consequence of the Hepatitis C infection and her husband’s subsequent death, all of which she witnessed first-hand.’

116Dr Epstein has not reviewed Mr White’s medical records. He states in his report that he has had available copies of the death certificate of Mr White and a letter of instruction. It is clear that the medical history of Mr White that he has recorded has been recounted to him by Mrs White. Without reviewing the medical records themselves, Arbuthnot is unable to determine to what degree the medical history reported by Dr Epstein is accurate and therefore to what degree Mrs White’s medical condition can be attributed to witnessing first hand her husband’s deterioration and death.

117It would be inconsistent for Mrs White to rely on Dr Epstein’s report whilst denying Arbuthnot the opportunity to review the underlying medical records upon which much of Dr Epstein’s conclusion rests. If it transpired that the medical records did not disclose that Mr White suffered from a protracted illness with increasing deterioration, then Dr Epstein’s conclusion about the cause of Mrs White’s psychiatric condition may be open to challenge.

Mrs White’s own medical records

118Counsel submitted that Mrs White is not in possession of any of her own records.

119I accept that medical records not in her possession are not discoverable. In the event that she obtains those medical records, her ongoing obligations of discovery would require her to discover those records, to the extent that they are relevant to her claim.

120For the reasons set out above, I do not accept that those medical records, were they to come into her possession, would attract a ‘medical privilege’. However if I am wrong about this, the extent to which any such privilege has been waived would depend on the extent to which those medical records related to matters put in issue by Mrs White in her claim.

[2017] VSC 443

4 August 2017