Judgment Number: [2001] TASSC 95

1 The plaintiff has instituted proceedings against the defendants claiming damages for negligence against the consultant in charge of the surgery ward at the Launceston General Hospital and against the State by virtue of the obligations and liabilities of the Boards administering the Launceston General Hospital and the Royal Hobart Hospital being now vested in the Crown. The statement of claim alleges that the plaintiff had been admitted to the surgery ward of the Launceston General Hospital on 20 May 1983 for observation and treatment of a condition suspected to be an infection at the points of incision made in the course of leucotomy surgery performed at the Alfred Hospital in Melbourne some eight days earlier. A further eight days after admission to the Launceston General Hospital, the plaintiff was transferred and admitted to the Royal Hobart Hospital where her condition worsened. It is alleged that the consultant and the hospitals were negligent in failing to provide proper care and treatment prior to 30 May 1983.

2 The defendants have made discovery, verified by affidavit, of a series of reports between April 1987 and October 1989 from the late Mr G Duffy, a neurosurgeon described in the medical records of the Royal Hobart Hospital as the "attending physician", of one report dated 30 June 1989 by Mr A P Polgrain, a neurological surgeon therein described as the "specialist" and of one report dated 27 April 1989 from Mr A W Hunn, then a senior neurosurgical registrar. The Royal Hobart Hospital records show that Mr Polgrain and Mr Hunn carried out surgery on the plaintiff on 30 May 1983 to drain bilateral cerebral abscesses. As I understand it, the plaintiff's case against the defendants alleges failure to diagnose or appreciate the presence of these abscesses and to take appropriate remedial action at an earlier time, thereby obviating the plaintiff's serious injuries. No negligence is alleged against any of the three doctors mentioned. The defendants claim privilege in respect of these documents on the basis that "they are privileged having been obtained by or of the defendants its [sic] servants or agents or its practitioner or at the direction of its practitioner dominantly for the purpose of defending the plaintiff's claim and of enabling the practitioner to advise the defendants". The deponent was not cross-examined and Mr Gunson for the plaintiff does not contend that the defendants have not made out a prima facie case of legal professional privilege on this basis. The documents were produced for my inspection and I am satisfied that on their face they so qualify. I note that the writ was issued on 7 May 1986.

3 The plaintiff now seeks an order that the documents be produced for inspection by her solicitors pursuant to Supreme Court Rules 2000, r392. Affidavit material by the solicitor having the conduct of the case on the plaintiff's behalf claims that the plaintiff has never given authority either personally or by her solicitors (including former solicitors) for any of the three doctors to disclose to the solicitors for the defendants information obtained by virtue of the provision by them of treatment or advice to the plaintiff. I accept for the purposes of the application that the three doctors were involved to some extent in treating the plaintiff and that no such authority was given by the plaintiff.

4 The submission of counsel for the plaintiff is that the relationship of doctor/patient is such that any information received by the doctor in the course of treating a patient must be kept confidential unless its disclosure is authorised by the patient. He cited Slater v Bissett (1986) 85 FLR 118 and W v Edgell [1989] 1 All ER 1089. Both cases support that general proposition, but involved, not questions of legal professional privilege, but questions of whether the disclosure of such material could be restrained by injunction (cf Lord Ashburton v Pape (1813) 2 Ch 469 where an injunction was granted to restrain the use of privileged (non-medical) documents in respect of a bankruptcy matter, which documents had been improperly obtained).

5 I know of no authority for the proposition that legal professional privilege is lost or cannot be claimed if the document, though created dominantly for the purposes of litigation, involve some breach of an obligation of confidentiality. No doubt, in some circumstances its publication may be restrained, but the application here is for it to be produced for inspection. As there is no warrant for doing so, the plaintiff's application must be dismissed.