Papson v Woolworths (Victoria) Pty Limited (No 2)

(2000) 9 Tas R 261; [2000] TASSC 124

Supreme Court of Tasmania

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Interrogate

Catchwords

1. Practice and Procedure
2. › Stay of proceedings
3. › Personal injury proceedings
4. › Failure to submit to medical examination or provide facilities and information
5. › Whether authorisation for treating doctors to release records to defendant's medical practitioner constitutes 'examination'
6. › Whether such authorisation constitutes 'facility'
7. › Evidence Act 1910 (Tas), s 25
1. Evidence
2. › Privilege
3. › Medical privilege
4. › Communications from patient to physician or surgeon
5. › What constitutes a 'communication'
6. › Whether disclosure of treatment records necessarily reveals privileged communication
7. › Evidence Act 1910 (Tas), s 96(2)
1. Practice and Procedure
2. › Stay of proceedings
3. › Inherent jurisdiction
4. › Abuse of process
5. › Power to stay proceedings for failure to cooperate with defendant's medical examination

Quick Take

In personal injury proceedings in Tasmania, a defendant may obtain a stay under s 25(2) of the Evidence Act 1910 (Tas) where the plaintiff refuses to provide an authority for treating medical practitioners to release records to the defendant's consultant, as such an authority is a 'facility' within s 25(1). However, the obtaining of such an authority does not constitute a 'medical examination' under s 25. The two limbs of s 25(1) — examination and facilities/information — operate independently, so a physical examination is not a condition precedent to the obligation to provide facilities. Any order must include a carve-out preserving the plaintiff's medical privilege under s 96(2), which protects only 'communications' made by the patient to the doctor, not all information acquired by the doctor in attending the patient.