Knight v Kluver
[2001] QDC 66
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- Unreported Judgment
- Appeal Determined (QCA)
- Knight v Kluver[2001] QDC 66
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Knight v Kluver[2001] QDC 66
Knight v Kluver[2001] QDC 66
DISTRICT COURT | Indictment No 291 of 2001 |
CIVIL JURISDICTION
JUDGE BOULTON
GLADYS LADNER KNIGHT Applicant
and
ELAINE LILLIAN KLUVER Respondent
BRISBANE
DATE 19/04/2001
JUDGMENT
HIS HONOUR: This is the matter of Gladys Ladner Knight and Elaine Lillian Kluver. I heard this matter in Chambers on Tuesday and have had an opportunity to read the material in more detail and I intend to simply read some reasonably brief reasons.
This is an application for non-party discovery pursuant to rule 247 of the Uniform Civil Procedure Rules. The applicant who was born on 19 April 1927 underwent knee surgery at the respondent's private hospital on or about 12 May 1998. She has made a claim filed 23 January 2000 for damages for personal injury arising out of the negligence of the defendant.
The defendant, according to the statement of claim, filed the same day was the anaesthetist attending the plaintiff during and after the surgery. According to the statement of claim the defendant administered an epidural and post-operative medication which has caused subsequent symptoms in the form of tremors, paranoia, a lack of concentration and hallucinations.
Through her solicitors the plaintiff has requested discovery of her medical records relating to the admission. The respondent has refused to do so. In the outline of submissions, the respondent's counsel relies on a number of grounds:
“the notice has been issued prematurely;
the respondent cannot determine the relevance of the documents sought;
the issuing of the notice amounts to a fishing expedition;
the description of the documents sought is too wide and lacking in particularity;
the plaintiff has available to her other reasonably simple and inexpensive ways of proving the matter sought to be proved by the documents; and
the notice has not been served on other persons affected by it.”
The uniform rules came into operation on 1 July 1999 and apply to the next step taken in litigation following that date. Quite obviously they apply to this action which, as I have said, was commenced on 23 January 2001 and the present application which was filed on 30 March 2001.
The principal ground advanced on behalf of the respondent is to the effect that the direct relevance test is now applied to “an allegation in issue in the pleadings”, in contrast to the wording of the former, Order 40 rule 38A of the Rules of the Supreme Court which referred to “a document that relates to the matter in question in the cause”.
The respondent contends that it can only be satisfied of the direct relevance test when the defendant has been served and has filed the defence. Reference is made to the decision of Lee J. in Uthmann and Ipswich City Council [1998] 1 Qd.R. 435 @ 450 in enunciating certain general principles that apply to such applications and the comments the same Judge the epidural and subsequent medication. The hospital records that are sought are confined to that one admission.
There is nothing remarkable about discovery before particulars in particular cases as is observed in Halsbury 4th edition volume 13 on Discovery, Inspection and Interrogatories at paragraph 28:
“When the circumstances are such that a party ordered to give particulars does not know the facts necessary to enable him to do so, but his opponent does or ought to know them, he may frequently obtain discovery before giving the particulars. Again, where it appears in the nature of things that the pleading or particulars will be of the sketchiest possible character and will almost certainly require amendment and possibly substantial amendment, discovery may be ordered before particulars. There is no fixed rule, the question depending on the circumstances of each case, and being one for the discretion of the court.”
In the present case this cannot be regarded as a fishing expedition nor is the request too wide. The request plainly relates to an issue in the case in that the hospital reports that are sought are likely to bear upon the procedure adopted, its actual performance, the existence of warnings as to hazards et cetera. The term “issue” when applied to litigation is susceptible of many and varied applications. It may be applied to very broad concepts such as negligence or fraud or damages or in some instances be confined to very narrow instances where perhaps a close examination of the pleadings may be required.
A good instance of a broad issue namely damages occurs in Hoare and Spork Supreme Court No 641 of 1994 unreported, a decision handed by Justice Wilson on 29 July 1999. She made in Lebon and Lake Placid Resort Pty Ltd [1995] 1 Qd.R. 24 @ 27:
“Notwithstanding that a proposed statement of claim has now been exhibited, the requirement that a specified document must ‘relate to the matter in question in the cause’, is ordinarily only capable of determination by examination of the pleadings and particulars, including the defence, when the pleadings are closed and the issues remaining in the action are identified: Halsbury's Laws of England, 4th ed., vol. 13, para. 27, although there may be cases where a matter in question in the cause can be determined at an earlier stage or in some other way.”
Lebon was a particularly weak case where no proceedings whatever had issued and the defendant company was no longer in existence. Furthermore, inquiries were being made not only concerning the existence of particular insurance in relation to certain specified entities, which was plainly irrelevant, but went on to require certain documents relating to financial dealings over an extensive period causing Lee J. to comment at page 36:
“There is no evidence of any such financial dealings and nothing to demonstrate that any such dealings could, if they existed, relate in any way to a matter in question in the action between the plaintiff and the defendant. No such documents are identified. Furthermore, the period embraced by the writ is too wide. The only question (if it was otherwise relevant), is whether there was an insurance policy in force on 29 December 1990 in favour of the entity carrying on the business of recreational activities at the resort where the plaintiff claims she was injured.”
In the present case a statement of claim has been issued and served on the respondent though not on the defendant. It is based on the emergence of mental symptoms which logically cannot be ascribed to aspects of her knee surgery other than dealt with a writ of third party discovery involving an action for damages for professional negligence. Her Honour considered the present rule 242 but ultimately held that the earlier rule applied, that is, Order 40 rules 38A to 38F of the Rules of the Supreme Court.
The application was made by the defendant in that instance against the plaintiff seeking detailed information of the plaintiff's financial affairs. Her Honour observed at page 6 of the unreported judgment:
“The plaintiff is claiming damages for the cost of rearing the child and that those damages should be quantified by reference to the particular social and economic status which he apparently now enjoys. Assuming such damages are recoverable (see the discussion in Fleming, The Law of Torts, 9th ed, LBC Information Services, Sydney, 1998 at pp 184-85), it will be for the Court to assess the likelihood of that level of child support continuing into the future. In other words, the source and likely continued availability of the funds used for his family's living expenses, and in particular for the support of the child, are relevant to the assessment of the damages.”
She then goes on to observe:
“In my view the documents are sufficiently described in the Writs of Non-Party Discovery and they are relevant to the issue of damages. Were the test under the Uniform Civil Procedure Rules the applicable one, I would be of the view that the documents were directly relevant to that issue.”
It seems equally obvious in the present case where the issue of liability for negligence will require consideration of the procedures adopted by Dr Kluver. There is a strong probability that the hospital records will directly bear upon that issue. The remainder of rule 242 subparagraphs (b) and (b) are obviously made out.
I am satisfied that there is not available to the plaintiff another reasonably simple and inexpensive way of proving the matter sought to be proved by the document. The plaintiff does not seek information about another person or other persons other than the defendant. The danger of leakage or misuse of information by a party who obtains discovery of documents is well recognised.
Justice Lee refers to that aspect in Uthmann at page 448:
“The concern expressed as to a breach of confidentiality and invasion of privacy of a customer or patient is understandable. As pointed out in Lebon v. Lake Placid Resort Pty Ltd, a person affected by unauthorised production may derive little comfort from the rule that documents obtained on discovery must be used only for the purposes of litigation in question...
This concern is perhaps understandable if documents are produced without a court order and if there was any leakage or misuse of information by the party who obtained the documents. However, as already indicated, these concerns as well as other concerns mentioned above, may be alleviated if an application is brought to the Court. In an appropriate case, the Court may examine the documents in question. An order can be made limiting the extent of production and conditions can be imposed and perhaps undertakings extracted.”
In the present case it is clear that all of the other doctors involved, with the exception of a Dr Osbourne and Dr Kluver, have consented to the production of the documents. No particular basis of concern has been advanced by or on behalf of Dr Osborne. However, I propose to grant a liberty to apply within seven days of this order during which time I will entertain any further submissions as to limiting the disclosure in so far as it may concern Dr Osbourne. If necessary, I will examine the hospital reports on such a consideration.
I order then the production of the plaintiff's hospital records by the respondent within seven days. Now, I am going to move on to the issue of costs and I am proposing not, of course, to order that the respondent pay the actual costs of production of the documents or, indeed, of the application which may have brought this matter before the Court because it would seem appropriate for a respondent hospital to put the matter in the hands of the Court.
I take the view though that in coming along and arguing very strenuously against production the respondent should pay the plaintiff's costs of the actual hearing on 16 April. Do either of you want to make any submissions about that?
...
HIS HONOUR: If the respondent though had merely brought the matter along to Court and had abided the order of the Court it would have been in the situation, and I have already recognised that in what I have just proposed, but to come along and strenuously argue the matter and then, in effect, to significantly increase the ambit of the matter really puts that aspect of the matter in my view in a different situation and it seems to me to be appropriate in such a circumstance that the respondent bear that part of the application.
It is well recognised that applications of this kind involve an imposition on a respondent and it is well recognised that the costs of production of the documents should be borne by the particular applicant and it is well recognised that in certain circumstances a respondent will wish to protect itself against possible claims by persons affected by bringing the matter and putting them into the hands of the Court to determine.
Mr Justice Lee, in the cases to which I have referred, adverts to those aspects but it is in relation to the strenuous arguing of the issue that I am, of course, directing these comments. Do you want to make any further comment on that aspect?
MR HENSLER: I simply say, your Honour, that it is of assistance to the Court that these matters are properly and fully ventilated before it rather than some party coming along and simply taking no interest in the proceedings.
HIS HONOUR: Yes, thank you. The plaintiff should pay the costs of the respondent in producing the particular documents. I order though that the respondent pay the plaintiff's costs of the actual hearing of 16 April 2001.