Black v Dalby Hospitals Board
[1996] QDC 254
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- Unreported Judgment
- Black v Dalby Hospitals Board[1996] QDC 254
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Black v Dalby Hospitals Board[1996] QDC 254
Black v Dalby Hospitals Board[1996] QDC 254
BLACK v DALBY HOSPITALS BOARD
District Court at Brisbane, Queensland
His Honour Judge M G Morley QC
3/90 (Dalby)
23 August, 3 September 1996
Counsel: | Magee; Hoare |
Solicitors: | Moynihan & Callinan; Carvosso & Winship |
Discovery and inspection - disclosure of documents - medical reports referring only to liability - reports on how the plaintiff sustained the injuries - whether reports must be disclosed - DCR r 149A(1), 149A(4)
3 September 1996
JUDGE MORLEY QC: The submissions raise what is the correct interpretation and true construction of DCR rr 149 A(1) and 149A(4).
The plaintiff is the next friend of a young infant. The cause of action pleaded for the infant is damages for negligence. The relevant relationship alleged is that of medical practitioners having rendered medical services at and for the infant's birth. The damage alleged is alleged injury caused to the infant plaintiff at birth. The negligence alleged is want of due care in rendering those medical services. The defendant is the Hospitals Board employing the practitioners The defendant's pleading denies negligence.
At Chambers, the plaintiff has applied for directions that the defendant Board disclose, consistently with DCR r 149A(4), certain medical reports. The application was opposed on the ground not that the defendant had no reports of the type alleged but that the relevant reports were not required to be disclosed under r 149A(4).
At the hearing of the application I required that the defendant produce the reports to the Court. Counsel for the plaintiff dispensed specifically with the need for the production to be on oath and the reports were furnished and the further custody of the reports produced will be provided for in orders yet to be made. I have considered closely each of the reports produced in that manner That measure was taken as a measure necessary to secure the performance of the statutory functions of this Court to hear and determine this action and this application in it - as exemplified by Alister v The Queen 1984 154 CLR 404, particularly at 468-469.
To expose my reasoning the relevant parts of rr 149A(1) and 149A(4) must be reproduced. DCR r 149A(1) reads: This rule applies to actions for damages for personal injury or death. DCR r 149A(4), in its relevant parts, is thus: The defendant shall... file and serve on the plaintiff a written statement of expert and economic evidence disclosing the names and addresses of all of the hospitals, doctors, and other experts who have given the defendant reports on the plaintiff's injury, loss (including economic loss) and treatment and without limiting the generality of the defendant's obligation the statement shall disclose - (a) hospital and medical reports.
Upon this application Miss Magee, Counsel for the plaintiff, made a submission that the reports in question were within the meaning of the above reproduced words of r 149A(4). The ordinary sense of those reproduced words is such that the subject reports are within their meaning - that is, the reports are medical reports, and are reports on the plaintiff's injury given by a doctor within the meaning of those expressions extracted from the text of r 149A(4).
Counsel for the defendant, Mr Hoare, made a number of submissions, as I apprehended them to be, that the interpretation of r 149A(4) was much governed both by its context and by the purpose of this delegated legislation. So understood, his submission became, as I assimilated it, that the entirety of DCR r 149A, which necessarily includes r 149A(4), is directed to compelling, only in any action for damages for personal injuries or death, a disclosure of much otherwise privileged evidence and materials - but evidence and materials only of and relating to damage and not to issues of liability.
Underlying this submission, as I apprehended it, is a proposition that this delegated legislation must be interpreted against a background that a basic and constitutional right of legal professional privilege is being diminished and that it ought not to be held to have been diminished except to an extent where the true interpretation and construction of the measure warrants a clear conclusion that such a diminution is to be sustained.
To be applied is that interpretation of r 149A(4) which best achieves its purpose. See Acts Interpretation Act 1954 (Q) s 14A.
Rule 149A(4) is one of the rules the subject matter of which is noted by a heading Callover, such a heading being part of those rules - see Acts Interpretation Act 1954(Q) ss 6, 7, 14(1), and 35C. Provisions under that heading include, in addition to r 149A(4), measures relating to entry for trial, certificates of readiness for trial, provisions for speedy trial of actions or matters, the appointment of hearing dates, and entries upon and removals from a call over list That context indicates that the object and purpose of r 149 A is associated with a readiness for trial or hearing.
Then, by its own text, r 149 A is disclosed as applying, by r 149A(1), only to actions for damages for personal injury or death; and r 149A(3) requires the plaintiff in such an action to file and serve... a written statement of loss and damage disclosing... the names and addresses of all hospitals, doctors, and other experts and all other persons who have examined the plaintiff or who have given reports on the plaintiff's injury, loss (including economic loss) and treatment... [and] all documents in the plaintiff's possession or power relating to the plaintiff's injury, loss (including economic loss) and treatment relating to the plaintiff's injury, loss (including economic loss) and treatment and without limiting the generality of the plaintiff's obligation, the statement shall disclose... hospital and medical reports... and... documents concerning any other head of the plaintiff's claim for damages.
Other measures in r 149A require the production and inspection of statements and materials revealed in the statements required to be provided. Sub-rule 149A(5) provides that an insurer who is defending an action in the name of the defendant is bound by r 149A. Nothing in r 149 A requires any party to disclose the existence or nature of legal advice given to that party : see r 149A(6).
That context discloses the purpose of r 149A(4) to be to promote readiness for trial by negativing but to a significant extent legal professional privilege only in actions where the claim is for damages for personal injury or death and only upon the issue of damage or damages; and not in relation to any other issue of fact in such an action. The manner in which that is done is to deny a plaintiff a trial unless and until the r 149A disclosures are made.
No submission was made during this application that a legislative measure such as r 149A is beyond the competence of the State Legislature's legislative function which is restricted, as it is, to making laws for the peace, order and good government of the State without negativing basic democratic principles or deeply embedded common law rights, one of which legal professional privilege would seem to be. See United Steamship v King 1989 166 CLR 1, at 10, my decision in Smith v Smith & VACC Insurance Co Ltd, Brisbane 885/1992, 17 February 1994, and my obiter comments in Pavich v Carrol-Walden, unreported, Brisbane 115/1995, 27 March 1996, and Carter v Northmore 1995 183 CLR 121.
Such an issue I should not pursue without detailed submissions, that is to say without the assistance of considered opposing submissions and thus my conclusions proceed upon the basis that r 149A is constitutionally valid delegated legislation. Similarly, no submission was made that r 149A is not within the rule making power conferred by the District Courts Act 1967, s 126 (as renumbered).
I uphold the submission made by Mr. Hoare on the ground that the complete interpretation and true construction of r 149(4) is restricted to evidence and materials relating to issues of damage or damages. The ground upon which I uphold that submission is that reference to the purpose of r 149A(4) reveals the interpretation which I uphold to be that which best promotes its purpose
I have examined the reports which have been produced but to the Court in the manner indicated earlier in these reasons. There are two reports and in respect of them I might make a couple of comments without destroying the privilege which, for the reasons stated, I must uphold. The two reports are made by the one maker. That maker is a medical specialist The content of the reports, when both reports are read together, make it manifest that the maker of the reports has received materials from which he has drawn a series of facts which he has assumed and which are manifestly beyond his personal knowledge. With those assumed facts before him, the maker has expressed, in the two reports, his opinions based on his skill and experience and learning about whether or not care was or was not taken of and in relation to the confinement for and the birth of the infant plaintiff. Both reports relate to the issue of liability. The assumed facts include reference to the infant plaintiff's injury, but do so only in the context of discussing and opining whether appropriate care was or was not taken and exercised. Quite plainly, after having examined these reports, it is that they are not reports dealing with the infant plaintiff's claim for damages, but deal exclusively with the issue of whether there was or was not the negligence asserted and denied in the pleadings.
In Australia it has been accepted that the standard of care to be observed by one with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill; and the opinions upon the issue of whether that care was observed or not by one expert witness of that skill and competence are not conclusive of the standard of the notional ordinary skilled person mentioned. See Rogers v Whittaker 1992 175 CLR 479. The statements contained in the reports which I have considered are of the assumed facts and the opinions based on the assumed facts of one such person asserted by the contents of the reports to be a medical specialist and presumably able to be qualified as an expert witness. The reports deal not with the issue of damage or any head of the infant plaintiff's damages but with the issue of negligence.
Consistently with that stated during the hearing of the application I propose to make directions securing the reports produced.
The need to hear and determine this application has identified the issues in this action and generally the subject matter and parameters which will fall for decision. This is an action in which a notice under DCR r 390 should be given.
Counsel accepted that the costs of this application should follow the event, with a stay of execution of any such order.
The following orders and directions are to be entered and effected:
- (a)that this application be dismissed; and
- (b)that the plaintiff pay the defendant's taxed costs of and incidental to this application;
- (c)that the execution of the preceding order be stayed until further order;
- (d)that the Registrar give written notice to each of the parties in accordance with DCR r 390(1); and
- (e)that the two reports delivered to the Court be placed forthwith in a sealed envelope and filed, the envelope to bear an external marking that it contains privileged medical reports and that the envelope is not to be opened without the order of a Court or a Judge.