Plaintiff v Defendants

Supreme Court of Victoria|2008-05-28|Before: JUDD J

Medical Privilege - Production of plaintiff's medical records - Evidence Act 1958 s 28(2) - Implied waiver of privilege by commencing proceeding - Implied waiver of privilege by selective disclosure - Appeal Allowed

1 The plaintiff, Emily Elliott, was born on 7 July 1994 in difficult circumstances. Her mother, Robyn Elliott, gave birth at the Jessie McPherson Hospital by an emergency caesarean section after an attempted forceps delivery had failed. The plaintiff suffers from cerebral palsy. The plaintiff sues through her mother as litigation guardian. The first defendant was her mother's obstetrician and gynaecologist. The second defendant operates the Jessie McPherson Hospital where Emily was born.

2 By her statement of claim the plaintiff alleges that her cerebral palsy was a result of birth asphyxia during the course of her mother's labour. It is alleged that she suffered an injury at birth caused by the negligence of the first defendant in the management of her mother's labour and that, as a consequence, she has suffered loss and damage. The first defendant, by her defence, denies the allegation of negligence and that the plaintiff has suffered loss and damage as a consequence of any negligence or breach of duty on her part.

3 This matter comes before the court as an appeal from a master who upheld the plaintiff's claim to "medical privilege" under s 28(2) of the Evidence Act 1958 (the Act). The plaintiff relies upon a claim of medical privilege to justify her refusal to produce two letters in her possession. The plaintiff's treating medical practitioners, Dr Lindsay Smith and Dr Edwin Lowther also claim medical privilege in relation to their files, disclosed in affidavits of documents made by them following successful applications for third party discovery. The plaintiff seeks to maintain the confidentiality of the files held by her treating doctors.

4 The issues raised by the appeal concern the application of s 28(2) of the Act to the disclosure obligation of the plaintiff and her treating doctors and whether the plaintiff has expressly or impliedly consented to the disclosure of her confidential information contained in the documents now sought by the first defendant. The plaintiff has not expressly consented to disclose the information. Therefore, the inquiry is whether the plaintiff has, by her conduct, waived any privilege she may have in her confidential information contained in the documents.

5 An affidavit of documents sworn on behalf of the plaintiff disclosed three categories of documents said to be "privileged from production in accordance with doctor/patient privilege and/or pursuant to s 28(2) of the Evidence Act 1958". The documents are enumerated and described in the first schedule, second part, of the plaintiff's affidavit of documents sworn 25 August 2006 as follows:

Copy correspondence from treating medical practitioners, hospitals and radiologists.
Copy of the plaintiff's medical records from the Monash Medical Centre.
10 MRI films of the plaintiff's brain dated 2 August 2002 performed by MRA Frankston.

6 Applications were made on behalf of the first defendant for third party discovery from the plaintiff's treating medical practitioners, Dr Smith and Dr Lowther. Both medical practitioners had been involved over a number of years in the treatment or assessment of the plaintiff's condition. Third party discovery was ordered and an affidavit of documents sworn and filed by each practitioner. Dr Smith, in his affidavit of documents sworn on 10 August 2007, disclosed the existence of "medical records of Emily Elliott of April 1996 to June 1997". He objected to production on the grounds that the documents were "privileged because they relate to the treatment of the plaintiff". In his affidavit of documents sworn on 7 August 2007, Dr Lowther disclosed "medical records of Emily Elliot, from October 1995 to December 2006", and objected to production on the same grounds as Dr Smith.

7 On 1 June 2007 the first defendant issued a summons in which she sought production of the documents enumerated in the first schedule, second part, of the plaintiff's affidavit of documents. A supporting declaration was sought to the effect that the documents were not the subject of legal professional privilege or the doctor/patient privilege and/or pursuant to s 28(2) of the Act. The plaintiff does not assert or no longer asserts legal professional privilege as a basis to resist production. It is common ground that the objection to production is based solely upon the so-called medical privilege arising under s 28(2) of the Act.

8 By two further summonses, both dated 10 August 2007, the first defendant sought production from Dr Smith and Dr Lowther respectively of the documents disclosed in their affidavits of documents. All three summonses were dismissed by a master on 14 November 2007 and the first defendant now appeals from that order. The medical practitioners have not participated in this appeal. That is not surprising as the issue concerns the plaintiff's right to protect her confidential information and an examination of her conduct on the question of waiver.

9 The copy correspondence referred to as item 2 in the first schedule, second part, of the plaintiff's affidavit of documents is now said to comprise two letters - the first being a letter from the Royal Children's Hospital to Dr Lowther and the second, a letter from Dr Smith to Dr Lowther. Although the plaintiff has possession of these letters, the dates have not been disclosed. These are the only remaining undisclosed documents in the possession of the plaintiff. Thus, by her appeal, the first defendant seeks production of the two letters in the possession of the plaintiff and the medical files of Dr Lowther and Dr Smith as described in each in their respective affidavits of documents.

10 The objection to production by the plaintiff and the two medical practitioners is based upon a claim for "medical privilege" under s 28(2) of the Act which provides:

(2) 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.

11 In the course of the discovery process the plaintiff and the first defendant reached agreement under which some material for which a claim to medical privilege had been made, was provided to the first defendant. The material disclosed under the agreement was as follows:

(1) The plaintiff's medical records from the Monash Medical Centre.[1]

(2) MRI films of the plaintiff's brain dated 2 August 2002. [2] The MRI was performed at the Frankston Hospital.

(4) A file produced by the Royal Children's Hospital to the plaintiff's solicitors, presumably after the plaintiff's affidavit of documents had been prepared.

12 The agreement under which this material was made available to the first defendant is to be found in an exchange of correspondence between solicitors. By letter dated 14 November 2006, the plaintiff's solicitors informed the solicitors for the first defendant that:

Whilst the plaintiff claims privilege over the records of Monash Medical Centre and the MRI films (i.e. Items 3 and 4), the plaintiff does not object to the defendant having access to those documents on the following basis:

(1) access of the records is not to be construed as a waive of privilege over the records;

(2) access to each set of the records is not to be construed as consent by the plaintiff but the defendant can speak to the author or authors of the documents contained in the records in respect of which the medical privilege applies.

We understand that the documents may be given to your expert. If this conditional release of the documents is not acceptable to you please indicate the grounds on which our position is not acceptable.

We note that you have already been provided with a copy of the Monash Medical Centre records by the hospital's solicitors. Please advise on what basis these records were obtained by you.[4]

13 The first defendant's solicitors responded by letter dated 17 November 2006 in the following terms:

We refer to your letter dated 14 November 2006. We were provided with a copy of the notes from the Jessie McPherson Hospital concerning the plaintiff and her mother by Phillips Fox, solicitors for the first defendant.

We consent to the conditions set out in your letter dated 14 November 2006 for access to the records of Monash Medical Centre and the MRI films.

14 On 1 December 2006 the plaintiff's solicitors wrote to the solicitors for the first defendant noting the first defendant's agreement to the conditions for production of the records of the Monash Medical Centre and the MRI films. The letter continued:

We understand that you already have a copy of the records of Emily Elliott from the Monash Medical Centre.

In respect of item 2 of the first schedule of the second part we note that you now seek access to that documentation. We have only three documents within that category as follows:

(1) an MRI report dated 26/4/96 performed at the Melbourne Diagnostic Group;

(2) two letters to Dr Lowther the plaintiff's paediatrician.

In respect of document (1), we will provide you with the report on the same terms as the other documents. Please advise if you agree and we will fax the document through.

15 The documents subject to the agreement are in the possession of the plaintiff. The medical records from the Monash Medical Centre relate to the plaintiff's birth. The other documents contain information relating to the plaintiff's ongoing treatment. By reference to markings on the documents it would seem likely that at least some of them were obtained by the plaintiff under the Freedom of Information Act. The first defendant relies upon the disclosure of these documents as conduct by the plaintiff said to impliedly waive her right to maintain the confidentiality of the information in the two letters and the files held by her treating doctors. The plaintiff submits that her conduct in giving access to the documents cannot be employed as a basis upon which to imply waiver of her confidentiality in the material sought by the first defendant in her summonses.

16 It is relevant at this stage to mention one other category of material. The first defendant came into possession of medical records relating to the plaintiff and her mother described as "notes from the Jessie McPherson Hospital". This material was apparently obtained by the solicitors for the second defendant and provided to the solicitors for the first defendant. It is not submitted on behalf of the plaintiff that the Jessie McPherson Hospital documents were provided unlawfully or in breach of any confidentiality obligation owed to the plaintiff. I will proceed on the basis that insofar as the plaintiff's consent was required for the production of this material it was given, expressly or impliedly.

17 The first defendant submits that any privilege which the plaintiff may have had to protect the confidential information contained in the documents now sought by the first defendant has been waived. The waiver is said to be implied from the conduct of the plaintiff, falling into two categories: by commencing this proceeding in the terms alleged; and/or, by the selective release of documents that fall into the same class as that which are now sought.

18 In my view, the description "medical privilege" tends to distract from a correct interpretation and application of s 28(2) of the Act. Under s 28(2) a physician or surgeon is prohibited, without the consent of his patient, from divulging in any civil suit, action or proceeding or an investigation 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". 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.

19 The High Court in National Mutual Life Association of Australasia Ltd v Godrich[5] held that a prohibition in similar terms to that found in s 28(2) extended to prohibit disclosure of anything which comes to the knowledge of the physician or surgeon with regard to the health or physical condition of the patient as well as anything said by the patient while the relationship of medical advisor and patient continues provided that it was reasonably necessary for the stated purpose.[6]

20 Although the range of protected information is broad, it may not include everything known to a medical practitioner about a patient or everything contained in a patient's file held by a hospital or medical practitioner. There is no evidence before me addressing that matter. The plaintiff has not established the factual basis for her claim. The affidavits contain no more than a formulaic assertion of the claim. No point is taken, however, by the first defendant that the material sought to be produced does not all fall within the description of "information" in s 28(2) of the Act. I will, therefore, proceed on the basis that all of the material falls within that description, although I very much doubt it.

21 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). Nonetheless there may be circumstances in which the principles may be usefully employed.

22 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. As appears from decided cases,[7] it is common for parties to have the court resolve a dispute concerning a claim for medical privilege on the basis that the principles which govern waiver of legal professional privilege also govern consent to the disclosure of protected information. The parties have continued that tradition in this case.

23 The rationale for the existence of medical privilege found expression in Fitzgerald v Munroe[8] in which the plaintiff discovered hospital records and claimed medical privilege. Beach J said:

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.

This approach reflects the acceptance of a general privilege owned by the patient which may be exercised independently of the medical practitioner in relation to material in the patient's possession. I propose to proceed on this basis notwithstanding my reservations.

24 The first defendant submits that by commencing this proceeding the plaintiff impliedly waived any privilege she may have in the documents sought by the first defendant because she alleges that her injury was caused by the negligence of the first defendant in the management of her mother's labour and as a consequence she has suffered loss and damage. The plaintiff claims that she will not in the future lead an independent existence and will require attendant care, intensive medical treatment and the use of medical aids and assistance in order to maximise the potential in her life. The first defendant submits that the allegations of causation and the plaintiffs claim for loss and damage based in part on her requirement of ongoing management are inconsistent with the maintenance of the confidentiality of the information contained in the two letters and the files of Dr Smith and Dr Lowther.

25 The starting point for an analysis of waiver in the context of legal professional privilege is Mann v Carnell,[9] in which it was held:

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, 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.[10]

26 Before considering the status of the documents not yet produced and putting to one side for the moment any effect which the agreement between the parties may have, it is useful to ask whether the plaintiff's formulation of her case is inconsistent with the maintenance of confidentiality in the medical records which have already been produced to the first defendant. The plaintiff maintains her claim to medical privilege in relation to those documents as well as the two letters in her possession and the files of the treating doctors.

27 In Commissioner of Taxation v Rio Tinto Ltd,[11] the full Federal Court considered whether the Commissioner of Taxation had waived legal professional privilege in respect of documents referred to in response to a request for further and better particulars of the matters taken into consideration in reaching a conclusion that Rio Tinto had been involved in dividend stripping. The Commissioner referred to documents recording legal advice. The Full Court, having reviewed the authorities including Mann v Carnell, Thompson v Campbelltown Municipal Council[12] and Benecke v National Australia Bank[13] summarised the principles as follows:

These authorities show that, where an issue of implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.[14]

28 The facts in Abondio v The Women's and Children's Health Care Network[15] are similar to the present case, although there are some material differences. In that case, the defendants were the Royal Women's Hospital and the Royal Children's Hospital, which formed part of a hospital network. The delivery and birth had taken place at the Royal Women's Hospital and the plaintiff was subsequently admitted to the Royal Children's Hospital. After the commencement of the proceeding, the plaintiff's solicitors made available to the defendant MIR scans and CT scans of the plaintiff which were taken at the Royal Children's Hospital while the plaintiff was treated there. As occurred in the present case, a medical expert retained by the defendant requested access to medical records bearing upon the plaintiff's health and disabilities in order to provide an expert opinion.

29 On behalf of the first defendant it is submitted that the documents now sought from the plaintiff and her treating doctors are required by Dr Fraser to provide an expert opinion to determine the underlying aetiology of the plaintiff's injuries, although the provenance of the documents indicate that they probably relate more to the plaintiff's management and future prospects than the cause of her injury. The plaintiff submits that the documents are not required for that purpose, because the plaintiff's expert, Dr Harbord, did not require them. While there is a dispute in relation to this issue it is not one that I am required to resolve, although I am inclined to the view that medical records concerning the plaintiff's ongoing treatment may be of limited assistance in determining the cause of her injury.

the defendants' submission overstated the position in contending that all records must be accessible in order to enable the court to determine the issue of causation. This over-extension of the argument might, if correct, draw in the right to have all the other party's records and reports drawn in as admissible.[16]

His Honour made that observation in response to an argument advanced on behalf of the defendants that the plaintiff had impliedly waived privilege in all documents relating to all the issues necessary to be established by the plaintiff in that case.

31 In Abondio, the plaintiff's solicitors had obtained, under the Freedom of Information Act, some material from the Royal Children's Hospital. That material included the MRI scan and the CT scan. It appears that the plaintiff did not gain access to all of the records of the Royal Children's Hospital because the plaintiff's medical advisers had not found it necessary. The defendant argued that the privilege had been waived in two ways - by bringing the proceeding against the Royal Women's Hospital; and disclosing some part of the medical records to the defendant.

32 Hedigan J referred, with apparent approval, to Fitzgerald v Munroe[17] in which Beach J held that had the plaintiff chosen to sue the hospital from which records were sought she would have waived any claim to privilege. Hedigan J did not find in necessary to express any final opinion as to the first argument advanced on behalf of the defendant (issue waiver) because he was satisfied that there had been a waiver of privilege in respect of the Children's Hospital records by reason of the provision of the scans to the defendant.

33 In this proceeding the plaintiff has sued her mother's obstetrician and gynaecologist and the operator of the Jessie McPherson Hospital. I am not told of the precise relationship between the Jessie McPherson Hospital and the Monash Medical Centre, although there is obviously a close relationship. The medical records from the Jessie McPherson Hospital are those of Robyn Elliott (disclosed to the first defendant without condition) but which, on their face, appear to have been made or kept by the Monash Medical Centre, just as do the records relating to the plaintiff, which were disclosed to the first defendant pursuant to the agreement. In the circumstances, it seems artificial to distinguish between the Jessie McPherson Hospital and the Monash Medical Centre when those institutions, insofar as they may be differently owned or operated, appear to maintain a common record keeping system.

34 It has long been held that where a client institutes a proceeding against a lawyer for professional negligence the lawyer can give evidence as to the advice given to the client.[18] The client cannot maintain the confidentiality of his communications or other privileged material in the hands of the lawyer. That principle, applied to the protected information in the files maintained by the Jessie McPherson Hospital and the Monash Medical Centre, compels the conclusion that the plaintiff waived her privilege (or impliedly gave consent) to the disclosure of the protected information contained in those files by reason of her commencing this proceeding against the operators of the Jessie McPherson Hospital and her mother's obstetrician and gynaecologist who managed her delivery at that hospital.

35 While Mann v Carnell make it clear that the touchstone for determining whether there has been waiver is "not some overriding principle of fairness operating at large", considerations of fairness involving conduct of the patient and the maintenance of confidentiality inform the circumstances in which inconsistency will be found. In my opinion, it is unfair and inconsistent for the plaintiff to maintain the confidentiality of protected information in the Monash Medical Centre records relating to her birth while maintaining her proceeding against the Jessie McPherson Hospital where she was born.

36 In any event, these hospital records are all now in the possession of the first defendant. It is conceivable that the mother's records were provided without condition because it was thought that medical privilege had been waived because of this proceeding in which the operator of the Jessie McPherson Hospital is the second defendant. Insofar as it is relevant, I find that any privilege which the plaintiff had in her medical records maintained by the Monash Medical Centre was waived upon her commencement of the proceeding. This would include the records of the Jessie McPherson Hospital.

37 What of the plaintiff's protected information contained in the treating doctors' files and the two letters in her possession? The allegations made by the plaintiff put in issue her ongoing condition and future needs. It is asserted in her claim for loss and damage that her condition has not stabilised, that she will not in future lead an independent existence and that she will require attendant care, intensive medical treatment and the use of medical aids and assistance. The allegations do not, however, make any assertion about the actual contents of the medical records maintained by Dr Smith and Dr Lowther or to professional consultations with or treatment by them. Assuming (we are not told, although it seems likely) that the files of the treating doctors relate to her ongoing medical management and needs, there is no unfairness to the first defendant by the plaintiff maintaining the confidentiality of her protected information, such as would compel disclosure merely because she commenced this proceeding. The first defendant has availed herself of the opportunity to have the plaintiff examined by medical experts. The plaintiff's ongoing management and needs may be a matter in dispute, but the records of the treating doctors fall into a quite different category to records relating to her birth and the issue of causation, particularly when the hospital is a defendant. Accordingly, I find that by commencing her proceeding, the plaintiff has not waived any privilege she may have in the files of Dr Smith and Dr Lowther. The letters held by the plaintiff fall into the same category.

38 Waiver by selective disclosure is sometimes described as associated or derivative waiver. It is necessary to ask whether a person will be taken to have waived material associated with that which has been disclosed and whether the material that the party has chosen to release represents the whole of the material relevant to the same issue or subject-matter. In Attorney General (MT) v Maurice Gibbs CJ said:[19]

... Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum: Great Atlantic Insurance Co v Home Insurance Co [[1981] 1 WLR 529]. In that case Templeman LJ said:

... the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased.

The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2] Mustill J dealt with this question and suggested the following test:

... 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 through its real weight or meaning being misunderstood.[20]

Dawson J discussed the authorities and said:[21]

In Geo. Doland Ltd v Blackburn Robson Coates & Co [[1972] 1 WLR 1338] waiver of privilege with respect to a conversation between solicitor and client, which took place before litigation was contemplated, was held to extend to any other communications in relation to the subject-matters of the conversation, although the implied waiver was held not to cover similar documents which came into existence for the purpose of prosecuting the litigation. This decision was not followed in General Accident Ltd v Tanter [[1984] 1 WLR 100] where a distinction was drawn between the waiver of privilege before a trial and the further waiver of privilege by calling evidence in a trial. In the latter situation the waiver was held to extend to the transaction constituted by the privileged communication but not to the subject-matter of that communication arising upon other privileged occasions. General Accident Corporation Ltd v Tanter has been criticized for the distinction which it draws between waiver by the disclosure of the communication in some other way and for the restriction which it places upon the extent of associative waiver: see Phipson on Evidence, par 15-20. In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2], a broader view was taken by Mustill J that "... where a party chooses to deploy evidence which would otherwise be privileged the court and the opposition must, in relation to the issue in question, be given the opportunity to satisfy themselves that they have the whole of the material and not merely a fragment". This view was approved by the Court of Appeal in Great Atlantic Insurance Co v Home Insurance Co. In the United States it has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege with respect to all other such communications upon the same subject-matter: Weil v Investment/Indicators, Research and Management and the cases there cited; Diotima Shipping Corp v Chase, Leavitt & Co; United States v Aronoff; In re Sealed Case.[22]

39 The first defendant points to the release of the Jessie McPherson Hospital records relating to the plaintiff's mother, and the Monash Medical Centre records relating to the plaintiff, both of which concern the circumstances of her birth, and to other material including the MRI films and Report and the Royal Children's Hospital records, all of which concern the plaintiff's on-going treatment and assessment, as inconsistent with her maintaining her privilege in the two letters in her possession and medical files of Dr Smith and Dr Lowther. There is substance in this submission. The records of the Royal Children's Hospital contain correspondence passing between the hospital and Dr Lowther in 2002, 2003 and 2007 and from Dr Lowther to the Mt Eliza Village Clinic in 2003, from Dr Lowther to Dr Hope in 1998 and from Dr Lowther to the Royal Children's Hospital in 2002. It is possible that one of the letters to Dr Lowther corresponds with a letter in the plaintiff's possession. We do not know. If so, then subject to the effect of the agreement in relation to the disclosure of the Royal Children's Hospital material, the letter should be produced. Even if the letters in the plaintiff's possession do not correspond precisely with the correspondence included in the Royal Children's Hospital records, the non-disclosure by the plaintiff of the two letters in her possession would make the class of material constituted by correspondence with Dr Lowther incomplete. I would place the whole of Dr Lowther's file in the same category and, subject to the effect of the agreement under which the Royal Children's Hospital material was disclosed, find that Dr Lowther's file should be produced in order to ensure that the first defendant has the whole of the material relevant to Dr Lowther's involvement in the care of the plaintiff.

40 The file of Dr Smith is in a different position, although I note that the plaintiff does have in her possession a letter from Dr Smith to Dr Lowther which, depending on the effect of the agreement between the parties, should be produced as material associated with Dr Lowther's file. The hospital records do not disclose any obvious involvement of Dr Smith in the management of the plaintiff. On the other hand, there is a report from Dr Michael Hayman dated 10 April 2006. Dr Hayman was engaged on behalf of the first defendant to provide a report on the plaintiff's health and expectations for the purpose of this litigation. There was a consultation between Dr Hayman, the plaintiff and her mother on 4 April 2006. In the course of that consultation, the plaintiff's mother informed Dr Hayman that the plaintiff had been referred to Dr Smith, a consultant paediatric neurologist; that Dr Smith had organised an MRI scan; that the plaintiff's mother could not recall the details of the report of the scan other than that it did not show any evidence of congenital brain malformation; and that Dr Smith had diagnosed the plaintiff with spastic quadric paretic cerebral palsy. The substance of Dr Smith's assessment has been disclosed. It is also apparent that he arranged for the MRI scan which has been made available to the first defendant under the agreement mentioned above. This consultation was not, of course, a privileged occasion. Evidence may be given of what was said and the results of the examination. The plaintiff, through her mother, having identified Dr Smith, his role and his diagnosis must now disclose his file. To do otherwise would make the information provided by her as part of her examination incomplete and perhaps misleading.

41 The plaintiff submits that the agreement with the first defendant under which documents were produced prohibits the use of that material when considering whether she has waived any privilege in the documents not yet disclosed. The plaintiff submits that the agreement preserves her privilege over the disclosed material, preventing the first defendant from relying upon that disclosure to justify the further disclosure of the treating doctors' files and the two letters in the plaintiff's possession.

42 Conduct of the plaintiff in this proceeding, if amounting to waiver of privilege in confidential material, does not deny the validity of a claim, only the right to maintain confidentiality in this proceeding.[23] Thus, the obligation imposed under s 28 (2) of the Act would protect her confidential information in other proceedings. The status of the protected information remains unchanged.

43 The documents handed over by the plaintiff to the first defendant were given on condition, accepted by the first defendant, that access would not be construed as a waiver, although the documents could be used in the proceeding including for the briefing of experts. Thus, the plaintiff knew and intended that when the first defendant sought expert advice, assistance or evidence the information contained in the material would, or at least could be employed.

44 By disclosing material to an opposite party on the understanding that it would be used to brief experts and for use in evidence, the plaintiff has, in my opinion, waived any privilege she may have had in the contents of the documents for the purpose of this proceeding. It is unrealistic to limit the way in which those documents may now be employed by the defendants in this proceeding. To the extent that the agreement between the plaintiff and the first defendant may have been thought to limit the use which may be made of the material in this proceeding it fails in its objective. That is not to say that the plaintiff's right to protect her confidentiality outside this litigation is necessarily compromised. The waiver operates only for the purpose of this proceeding.

45 I interpret the agreement between the plaintiff and the first defendant concerning access to documents containing protected information as one in which the first defendant has agreed that disclosure is not a waiver for all purposes, although the utility of such an agreement is doubtful because the documents would, in any event, have the protection of the implied undertaking given in respect of discovered documents.

46 The first defendant was expressly authorised to make use of the disclosed material. Accordingly, she may also rely upon it to support her case of implied waiver of the associated material. It follows, in my opinion, that the plaintiff has waived her medical privilege in respect of her confidential information contained in the documents now sought by the first defendant in her summonses.

[1] Item 3 of the first schedule, second part, of the plaintiff's affidavit of documents.

[2] Item 4 of the first schedule, second part, of the plaintiff's affidavit of documents.

[3] Part of item 2 of the first schedule, second part, of the plaintiff's affidavit of documents.

[6] Ibid Headnote, 8, 19, 20, 27-29, 31 and 36.

[7] Ginnity v Prefsure Life Limited [2007] VSC 284; Abondio v The Women's and Children's Healthcare Network [2000] VSC 51.

[14] Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 at 356 para 52. See also BHP Billiton Petroleum (Bass Strait) Pty Ltd v Esso Australia Resources Pty Ltd [2007] VSC 281 paras 18-24.

[15] [2000] VSC 51 (29 February 2000).

[16] [2000] VSC 51 at para [14]. Emphasis added.

[18] Lillicrap v Nalder & Son (a firm) [1993] 1 WLR 94; Benecke v National Australia Bank (1993) 35 NSWLR 110; Secretary to the Department of Justice v Osland [2007] VSCA 96 paras 11-28.

[23] Re Stanhill Consolidated Ltd [1967] VicRp 92; [1967] VR 749, 592; Minter v Priest [1930] AC 558; Giannarelli v Wraith [1991] HCA 2; (1991) 98 ALR 1, 7.

Compensation Act 1985

At a glance

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Judgment (95 paragraphs)

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Legislation Cited (1)

Cases Cited (6)