Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Other matters arising before trial - Application for stay of proceedings for failure to submit to medical examination - Authorisation for treating medical practitioners to release information to defendant's consultant practitioner not medical examination.

O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124; Oakley v Green [1969] Tas SR 90, followed.

Simpson v Attorney-General [1997] TASSC 89; (1997) 7 Tas R 61, referred to.

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Other matters arising before trial - Application for stay of proceedings for failure to submit to medical examination - Authorisation for treating medical practitioners to release information to defendant's consultant practitioner a facility that the plaintiff is required to supply.

O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124; Oakley v Green [1969] Tas SR 90, followed.

Simpson v Attorney-General [1997] TASSC 89; (1997) 7 Tas R 61, referred to.

Evidence - Facts excluded from proof - On grounds of privilege - Medical profession - Communications from a patient to a physician or surgeon in his or her professional character - What constitutes a communication.

Lucena v The National Mutual Life Association of Australasia (Limited) (1911) 31 NZLR 481; McDougall v Henderson [1976] 1 NZLR 59, followed.

Judgment Number: [2000] TASSC 124

1 By this application, made pursuant to the Evidence Act 1910 ("the Act"), s25(2), the defendant seeks an order that the plaintiff's action against it for damages for personal injury be stayed until the plaintiff gives certain facilities and information to a Dr David Barraclough.

2 The plaintiff suffered an injury at the defendant's supermarket on 18 November 1994. It appears that an employee of the defendant negligently pushed a row of supermarket trolleys into the plaintiff. Liability is not in issue. The plaintiff's claim is that as a result of this accident she now suffers from a somewhat unusual condition known as osteitis pubis with features of pelvic instability. Osteitis pubis is apparently a very painful condition. It is the plaintiff's case that she is severely disabled, in constant pain, has to use a wheelchair outside the house and is obliged to take prescribed drugs to control pain, to enable her to sleep and to manage depression.

3 The defendant disputes that any disability that the plaintiff might now have is causally related to the accident at the supermarket at the end of 1994.

4 The plaintiff's present treating medical practitioner is Mr Hilton Francis, a rheumatologist. The defendant has retained the services of Dr David Barraclough, a rheumatologist practising in Melbourne.

5 Mr Walker of Dobson Mitchell & Allport, solicitors for the defendant, filed an affidavit in support of the application. In it he deposed that he had inspected the plaintiff's medical records at St John's Hospital, Hobart. He said:

"Under the medical records section dealing with the plaintiff's first admission on 19th September 1995, there appeared a physical assessment including a notation concerning the plaintiff as 'an anxious, nervous woman, chronic pain for 20 years, Sjogrens syndrome'. The referring Doctor was Dr Visagie, general practitioner and the attending surgeon was Dr Turner, orthopaedic surgeon.

There was no other reference in the plaintiff's medical records which explained her chronic pain for 20 years."

6 The defendant's solicitors referred this information to Dr Barraclough. In his affidavit, Dr Barraclough said, in effect, that in order to properly advise the defendant's solicitors with respect to the causal link between the plaintiff's claimed disabilities and the 1994 accident, he needs access to the notes made by Dr Hilton Francis and Dr Visagie.

7 The defendant's solicitors accordingly requested an authority to obtain access to the notes. The plaintiff's solicitors responded by saying that it was "not appropriate" to provide Dr Barraclough with access to notes of the plaintiff's treating doctors.

8 The defendant made an application to the Master for a stay of proceedings until the requested notes were made available or, more accurately, until the necessary authority to make them available had been provided. The Master dismissed the application. See Papson v Woolworths (Victoria) Pty Limited [2000] TASSC 41. In substance, the application was dismissed on the basis that it would be unreasonable to make the order sought because it would be likely to render nugatory the privilege conferred on the plaintiff by the Act, s96.

9 Accordingly, the present application was brought. The only material difference between this application and the one made to the Master is that the information now sought from the treating doctors is much more restricted than that formerly sought. Mr Walker contends that the restrictions are such that the order sought would not now affect the privilege conferred on the plaintiff by the Act, s96.

"25 - (1) Where proceedings are taken against a person (in this section referred to as 'the defendant') in respect of any injury sustained by another person (in this section referred to as 'the injured person'), a medical practitioner appointed by the defendant shall be entitled, on demand of the defendant, to examine the injured person, and the injured person and all other parties (if any) to the proceedings shall give to that medical practitioner all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury.

(a) to submit himself to an examination by a medical practitioner appointed by the defendant for the purposes of this section; or

(b) to give to a medical practitioner so appointed all such facilities and information as he is required by this section to give to that medical practitioner -

the court in which any proceedings are taken by the injured person against the defendant (whether the proceedings are commenced before or after making of a demand under subsection (1)) may, on the application of the defendant, order that those proceedings shall be stayed under the injured person submits himself to the examination, or gives the facilities and information, as the case may be."

* what is the meaning of "all such facilities and information as may be necessary ..."?

* will the making of the order sought infringe the provisions of the Act, s96?

* apart from the Act, s25, does the Court have an inherent power to stay the proceedings and, if yes, should it be exercised in the circumstances of this case?

12 With respect to the meaning of the word "examine" as enacted in the Act, s25, the learned Master said in his reasons for dismissing the application made to him at par9:

"The words 'examine' or 'examination' as used in s25, do not indicate that the examination must take the form of a physical examination of, or personal consultation with, the injured person. In its ordinary meaning, 'examination' includes investigation and scrutinisation. The medical practitioner appointed by the defendant is not obliged to see the injured person, if he does not need to do so, before becoming entitled to obtain x-ray or pathology reports or information which the injured person is able to provide. In my view, an examination, within the meaning of the section, can consist solely of a scrutinisation by the appointed medical practitioner of the medical records and the like which are made available, if that is all that the defendant requires."

13 With great respect, I find that I have reached a different conclusion. The first general proposition to bear in mind when construing the words of any statute is that those words take their meaning from the context in which they appear. As was said by Gibbs J (as he then was) in Avondale Motors (Parts) Pty Ltd v Commissioner of Taxation of the Commonwealth [1971] HCA 17; (1971) 45 ALJR 280 at 283:

"The meaning of the phrase ..., like that of any other ambiguous expression, depends on the context in which it appears."

14 The Act, s25, was first enacted by the Limitation of Actions Act No 46 of 1944, s3, Sch2. This short statutory enactment repealed a number of sections in a number of Acts, such as the Hydro-Electric Commission Act 1944, s51. This provision required that notice of any claim against the Commission must be given to the Commission in a specified form. The 1944 Act also repealed the Railway Management Act 1935, s78. This section was almost certainly the precursor of the Act, s25. It provided:

"When any person claims damages or compensation from the Commissioner in respect of any alleged personal injury not resulting in death, such person shall, if so required by the Commissioner, submit himself for examination by a medical practitioner, or medical practitioners, appointed by the Commissioner, at all such reasonable times as the Commissioner may require, and, if he refuses to submit himself for examination or in any way obstructs the same, his right to damages or compensation and to take or prosecute any proceedings in relation thereto, shall be suspended until such examination has taken place."

15 It is undoubtedly the case that the expression "submit himself for examination" meant submit himself to an examination of his person.

16 The Act, s25 only has operation in cases where proceedings have been commenced in respect of an injury. The terms of the section make it clear that injury means personal injury, ie, physical or mental injury to the person of the plaintiff. The statutory obligation of the plaintiff, imposed by s25(1), is illuminated by the provisions of subs(2) which prescribe, as a condition precedent to the obtaining of an order staying proceedings, that there has been a failure "to submit himself to an examination ...". The word "submit" connotes a submission by the injured person of his injured body or mind to the duly appointed medical practitioner for the purpose of having it examined physically or by some other means.

17 In this case, the medical practitioner appointed by the defendant does not want to see the person of the plaintiff. According to his affidavit, he wants information about the plaintiff concerning treatment that she may have received, drugs that she may have been prescribed and tests and investigations that she may have undergone in the past with respect to any complaint of chronic pain.

18 I am clearly of the view that the obtaining of this information or, more accurately, the obtaining of an authority from the plaintiff to enable Dr Barraclough to obtain that information, does not constitute an examination of the injured plaintiff within the meaning of the Act, s25. It may well be part of the plaintiff's history, but a failure to give the requisite authority to the treating medical practitioners does not constitute a failure to "submit [her]self to an examination by a medical practitioner appointed by the defendant ...".

19 The scheme enacted by the Act, s25 is to be found in most other Australian jurisdictions. See, eg, Rules of Court (NSW), Pt25, r4; Rules of Court (NT), r33.04; Rules of Court (SA), r61.04; Rules of Court (Vic), r33.04. Although the words of the statutory provisions vary from jurisdiction to jurisdiction, the words "submit" and "medical examination", or the like, are common to all. So far as I have been able to ascertain, there is no equivalent statutory provision or Rule of Court in the United Kingdom, but the obligation to submit to a medical examination is enforced in that jurisdiction by ordering a stay in the event of an unreasonable refusal to submit to a medical examination in the exercise of the court's inherent power to prevent an abuse of its process.

20 In Cordwell v Austral Stevedoring & Lighterage Co Pty Ltd [1962] NSWR 571, Richardson J held that a reasonable medical examination was one which will give the defendant "the opportunity of being fully apprised of the nature of the case he is called upon to meet". There are quite a number of cases dealing with the issue of whether submission to tests and examinations such as a myeolography fall within the concept of a reasonable medical examination. See, eg, Pucci v Humes Ltd (1970) 92 WN (NSW) 326; Wilson v Cutovic (1979) 23 SASR 77; Aspinall v Sterling Mansell Ltd [1981] 3 All ER 866. However, I have been unable to find any authority that even faintly suggests that a medical examination may consist of simply obtaining an authority from the plaintiff authorising another to disclose certain information to the defendant's consultant medical practitioner.

21 During the course of argument, I put to Mr Walker that this information could be obtained by way of interrogatories, but his response was that such information would be likely to be unreliable if it came from the plaintiff's memory, rather than from notes made by her medical advisers. Whether this is so, is purely speculative.

22 The Act, s25(1) entitles the defendant's medical practitioner to examine the injured person and, at the same time, imposes on the injured person, and all other parties (if any) to the proceedings, an obligation to give the defendant's medical practitioner, "all such facilities and information as may be necessary to enable him to ascertain fully the nature and extent of the injury".

23 In this respect, the Act departs from the language commonly used in other jurisdictions and to which I have referred, although it is interesting to note that the Rules of Court (NSW), r25.5, after conferring a power to make orders for the medical examination of a person on terms, provides:

(2) Where the Court orders that a person concerned submit to examination by a medical expert, the person concerned shall do all things reasonably requested and answer all questions reasonably asked of him by the medical expert for the purposes of the examination."

24 The Act, s25, is in terms considerably wider than those used in the New South Wales rule. Section 25(2) empowers the court to order a stay of proceedings upon the happening of one or other or both of the following events:

* the failure by the plaintiff to submit himself for examination by the relevant medical practitioner; or

* the failure by the plaintiff to give the relevant medical practitioner "all such facilities and information as he is required by [s25] to give that medical practitioner".

25 It follows that the facilities and information referred to in s25 are something different from, and/or additional to, the medical examination. The facilities and information that subs(1) obliges the plaintiff to give the defendant's medical practitioner are those that are "necessary to enable him to ascertain fully the nature and extent of the injury". The facilities and information that have to be given are not those which are necessary to enable the practitioner to examine the plaintiff, but those necessary to enable him to ascertain fully the nature and extent of the injury in respect of which there is a claim for damages. The same view of the meaning of the word "facilities" was taken by Cox J (as he then was) in O'Shea v Royal Derwent Hospital Board of Management [1990] Tas R 124. In that case the issue was whether proceedings should be stayed because the defendant's medical practitioner, who was a psychiatrist, wanted the plaintiff to submit to tests by a clinical psychologist and the plaintiff refused to do so. At 129 - 130, Cox J said:

"In the present case, it is not suggested that the undergoing by the plaintiff of psychological tests administered by Dr Williams would be unreasonable, but the real question is whether it can be said to be required by the plaintiff's obligation to give Dr Sale all the facilities he needs to ascertain fully the nature and extent of her injury. 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 (Chamber's Twentieth Century Dictionary, New Edition, 1983), or opportunities for the easy or easier performance of anything (OED). 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. Although the section speaks of giving the facilities 'to that medical practitioner', I do not regard that expression as confining the giving of facilities directly or exclusively to the examining medical practitioner. Thus if an X-ray were reasonably necessary to facilitate his diagnosis, I do not think the injured person would be entitled to refuse to be X-rayed by anyone other than that medical practitioner or some other medical practitioner so long as that other person was competent to undertake the task. The same could be said for the taking of a blood sample or the examination of samples by trained pathological staff who are not medical practitioners themselves. What is sought here is not, in my view, of any different kind, even though it seems that Dr Williams will, if not determine, at least advise what particular tests will be administered and will furthermore offer an interpretation of the results. I do not think this goes beyond giving, indirectly, facilities to Dr Sale to enable him to make his assessment."

26 In Simpson v Attorney-General [1997] TASSC 89; (1997) 7 Tas R 61, a stay of proceedings pursuant to the Act, s25(2) was sought upon the basis that the plaintiff had failed to give the defendant's solicitors an authority for access to all medical records of the relevant injury held by treating medical practitioners and hospitals. The report discloses that the authority was sought to enable the solicitors to properly brief the medical practitioner who had been retained on the defendant's behalf. Zeeman J, quite rightly, in my respectful view, did not grant a stay of proceedings, holding at 64 that:

"... 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."

27 However, with respect to the meaning of the expression "facilities and information", Zeeman J, also 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."

28 Although Zeeman J referred to the facilities and information being given to an "examining medical practitioner", I do not understand him to be there deciding that there must be an examination by the medical practitioner before the requisite facilities and information have to be given. It is clear from the terms of subs(1) that the relevant medical practitioner is simply one who has been appointed by the defendant. Mrs Mills, who appeared for the plaintiff, submitted that s25(1) made an examination of the person of the plaintiff a condition precedent to the supply of facilities and information. I see no reason to read the subsection that way. There are two distinct limbs to subs(1). The first concerns the examination and the second concerns the supply of facilities and information. The person to whom the latter have to be given is not the medical practitioner who has examined the plaintiff but "that medical practitioner" ie, the practitioner "appointed by the defendant".

29 I am satisfied from Dr Barraclough's affidavit that the material he requires is necessary to enable him to ascertain fully the nature and extent of the plaintiff's injury. The contrary was not contended by Mrs Mills. However, the defendant's solicitors do not want the plaintiff to give Dr Barraclough "information that is necessary to enable him to ascertain fully the nature and extent of her injury". As I have said, Mr Walker does not seek such information from the plaintiff because he considers it likely to be unreliable. The defendant wants the plaintiff to give Dr Barraclough an authority to enable him to try and obtain information from others, viz, the plaintiff's treating medical practitioners. Such an authority is not information that the plaintiff is required to give by the terms of s25(1) for the authority will not itself enable Dr Barraclough to ascertain fully the nature and extent of the plaintiff's injury. Had Dr Barraclough asked the plaintiff, either in the course of a physical examination or otherwise, to tell him what treatment she has received, what tests she has undergone, or what drugs have been prescribed for any complaint of chronic pain in the past, the provisions of s25(1) would have required her to give that information.

30 Does the plaintiff's failure to provide a "medical authority" constitute a failure to give Dr Barraclough all such facilities as are necessary to enable him to ascertain fully the nature and extent of the plaintiff's injury? In the context of s25(1), "facilities" are something that has to be given by one person to another in order to make something else easier. The obligation imposed on the plaintiff by the first limb of subs(1), is to submit to an examination by the defendant's medical practitioner. The obligation imposed by the second limb is to do or say something that will make something else easier to achieve. Facilities is a word of wide import. The subsection imposes an obligation on the plaintiff to facilitate the full ascertainment by the defendant's medical practitioner of the nature and extent of the injury in respect of which the proceedings have been taken. The only other possible matter in respect of which the subsection could impose a duty on the plaintiff to facilitate, is the medical examination. However, in my view, the concluding words of subs(1) are not linked to the examination. A failure to facilitate an examination, eg, by failing to undress or move limbs as directed by the defendant's medical practitioner, or even to undergo radiological examination, would constitute a failure to "submit" to an examination as enacted by subs(2).

31 In view of the uncontested evidence in Dr Barraclough's affidavit, the provision of an authority to authorise the plaintiff's treating medical practitioners to give certain information to Dr Barraclough is a facility within the meaning of the Act, s25(1). There is no warrant for reading down the width of the expression in the second limb of that subsection.

32 Of course, it does not follow that a failure to give a facility or information within the meaning of s25(1) will necessarily result in a stay of proceedings. The grant of an order staying proceedings involves the exercise of the judicial discretion. As Chambers J observed in Oakley v Green [1969] Tas SR 90 at 92:

"The power to stay proceedings is discretionary and I have no doubt that a court would refuse to order a stay if it were satisfied that the section was being used oppressively, vexatiously or unreasonably."

Does the Court have an inherent power to stay proceedings?

33 This Court has an inherent power to control an abuse of its process. For the history and basis of this inherent power, see The Inherent Jurisdiction of the Court , I H Jacob_,_ (1970) 23 Current Legal Problems 23. There is no fixed class or classes of circumstances that will constitute an abuse of the process of the court. See Williams & Ors v Spautz [1992] HCA 34; (1992) 174 CLR 509; Rona v District Court of South Australia & Anor [1995] SASC 4922; (1995) 77 A Crim R 16; Nicholas v Bantick [1993] TASSC 68; (1993) 3 Tas R 47 at 84.

34 It follows that if the plaintiff's failure to give the medical authority that was sought constituted an abuse of the process of the court, then the court would have a power to stay the proceedings for damages. However, it is unnecessary to explore this further in the light of the conclusion I have already reached.

Will the making of an order affect the plaintiff's privilege?

"No physician or surgeon shall, without the consent of his patient, divulge in any civil proceeding any communication made to him in his professional character by such patient, and necessary to enable him to prescribe or act for such patient unless the sanity of the patient be the matter in dispute."

36 The privilege attaches only to communications made by the patient to a physician or surgeon in his or her professional character, and then only to such of those communications as are objectively necessary to enable the physician or surgeon to prescribe or act for the patient. In this respect, the Tasmanian Act differs from the Evidence Act 1958 (Vic), s28(2) which confers privilege with respect to any information which the physician or surgeon has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient. The width of the word "information" and the contrast between that word and "communication" used by the Victorian Act, s27, with respect to communications between husband and wife, was emphasised in Hare v Riley & Anor [1974] VicRp 68; [1974] VR 577 at 582. The protection afforded by the Evidence Act 1908 (NZ), s8(2) is enacted in words indistinguishable from the Act, s96(2). In Lucena v The National Mutual Life Association of Australasia (Limited) (1911) 31 NZLR 481, Stout CJ (who was one of the majority) said, at 489:

"I am of opinion that communications must be restricted to communications oral, written, or by signs. I am of opinion that our New Zealand statute is not so wide as the Victorian provision. 'Any communications made' is a much more restricted provision that 'any information which he may have acquired'."

At 494, Williams J (who was also a member of the majority) said:

"I do not think that the mere fact that a patient submits his body to a doctor, to enable the doctor to ascertain what is the matter with him, is a communication within the meaning of the Act. If the patient tells the doctor what is the matter with him that, no doubt, is a communication; so perhaps if the patient, without words, points out to the doctor the part affected, and it is patent without any further investigation what is the matter with the patient, that also would be a communication. A communication implies knowledge, on the part of the person making it, of the subject-matter of the communication. If, however, the doctor on examining the patient finds out something which the patient did not know of, and the existence of which the doctor only discovered after investigation, that is not, in my opinion, a communication made by the patient to the doctor contemplated by the Act."

37 Lucena was followed in McDougall v Henderson [1976] 1 NZLR 59. In the latter case, Beattie J observed (obiter dicta) that it may be that the disclosure of certain treatment may be protected insofar as such treatment necessarily revealed the privileged communication.

38 By this application, the defendant seeks the facility of access to the following:

"(a) to the notes of Dr Hilton Francis, Rheumatologist, from the time he first saw the plaintiff in approximately October 1993 until November 1994 which comprise:

(i) records of any pharmaceutical treatment prescribed or recommended for use by the plaintiff;

(ii) records of any rehabilitation treatment recommended by Dr Francis;

(iii) reports of any radiological, nuclear, pathological or other investigations which have been conducted at the request of Dr Francis, or which have been forwarded to him by any other medical practitioner treating the plaintiff;

(iv) notations in the notes which record Dr Francis' diagnosis or other opinion held by him on the plaintiff's condition;

all or any of which relate to any sort of chronic pain.

(b) to the notes of Dr Stefan Visagie, General Practitioner, and any other of the plaintiff's usual general practitioners for the period November 1989 to November 1994 which comprise:

(i) records of any pharmaceutical treatment prescribed or recommended for use by the plaintiff;

(ii) records of any rehabilitation treatment recommended by the doctor;

(iii) reports of any radiological, nuclear, pathological or other investigations which have been conducted at the request of the doctor, or which have been forwarded to him by any other medical practitioner treating the plaintiff;

(iv) notations in the notes which record the doctor's diagnosis or other opinion held by him on the plaintiff's condition;

(v) copies of any correspondence received by the doctor or from any specialist treating the plaintiff, excluding any part of that correspondence which records communications by the plaintiff to that specialist or the doctor;

all or any of which relate to any sort of chronic pain."

39 Mrs Mills submitted that disclosure of the above material might, by implication, disclose a protected communication. However, she did not elaborate on this or provide any material from which it might be possible to infer that this might occur. Prima facie, the provision of the above material will not affect the privilege conferred by the Act, s96(2).

40 Once it is established that the plaintiff is in breach of the obligation imposed by the Act, s25(1), it is for her to show why, in the exercise of the judicial discretion, a stay should not be granted as is provided by subs(2). See Jackson v Hovitin [1999] TASSC 105. Nothing was advanced to show why the discretion should not be exercised in favour of the defendant, other than the argument that an order in the terms of the application may breach the privilege afforded the plaintiff by the Act, s96(2). No reason for not exercising my discretion in favour of the defendant is apparent to me. The material that Dr Barraclough wants is relevant to the issue of damages.

41 The order sought will be made. To ensure that the statutory privilege is not breached, the order will be in the terms of the application with the addition of the words "except insofar as such notations disclose a communication by the plaintiff to the doctor in his professional capacity and necessary to enable him to prescribe or act for the plaintiff" at the end of pars1(a)(iv) and 1(b)(iv).