Leonhardt v Apthomas

[2005] QDC 273

[2005] QDC 273

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD2977 of 2005

FREDERICK JOHN LEONHARDT

Applicant

and

DR ELEN APTHOMAS

and

STATE OF QUEENSLAND

and

DR ANDREW RONALD GALL MacMILLAN

and

MATER MISERICORDIAE HEALTH SERVICES BRISBANE LIMITED (ACN 096 708 922)

and

DR MICHAEL WHITBY

and

DR MALCOLM KING

First Respondent

Second Respondent

Third Respondent

Fourth Respondent

Fifth Respondent

Sixth Respondent

BRISBANE

..DATE 25/08/2005

ORDER

CATCHWORDS: Personal Injuries Proceedings Act 2002 s 27 - oppressive request by claimant for information from respondent - claimant's application to require a response by statutory declaration adjourned to allow claimant to refine the request.

HIS HONOUR:  As between the plaintiff and the third respondent the application is adjourned to be brought on on three days' notice by the plaintiff or the third respondent to the other.  Costs reserved.

...

HIS HONOUR:  Order as per 1 and 2 of Exhibit 1.

.,.

HIS HONOUR:  There will be an order as per the initialled draft, which is a consent order, signed by the plaintiff's solicitors and the fifth and sixth respondents' solicitors.

...

HIS HONOUR: This is an originating application filed on the 10th of August 2005 seeking relief against respondents under section 27 of the Personal Injuries Proceedings Act 2002 (PIPA). Of the respondents, only the third respondent appeared. It may be, as Mr Lee suggests, although it is not entirely clear, that the order I made in Klarich v Tiger Moth Joy Rides Pty Ltd [2004] QDC 571 extended to such relief. The section provides:

"27 Duty of respondent to give documents and information to

claimant

(1)  A respondent must give a claimant—

(a)  copies of the following in the respondent’s

possession that are directly relevant to a

matter in issue in the claim—

(i)  reports and other documentary material

about the incident alleged to have given

rise to the personal injury to which the

claim relates;

(ii) reports about the claimant’s medical

condition or prospects of rehabilitation;

(iii) reports about the claimant’s cognitive,

functional or vocational capacity; and

(b) if asked by the claimant—

(i)  information that is in the respondent’s

possession about the circumstances of, or

the reasons for, the incident; or

(ii) if the respondent is an insurer of a

person for the claim, information that can

be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.

(2) A respondent must—

(a)  give the claimant the copies mentioned in

subsection (1)(a) within the period prescribed

under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent’s possession later, within 7 days after it comes into the respondent’s possession; and

(b)  respond to a request under subsection (1)(b)

within the period prescribed under a regulation

or, if no period is prescribed, within 1 month after receiving it.

(3)  If the claimant requires information provided by a

respondent under this section to be verified by

statutory declaration, the respondent must verify

the information by statutory declaration.

(4)  If a respondent fails, without proper reason, to

comply fully with this section, the respondent is

liable for costs to the claimant resulting from the failure."

Mr Leonhardt suffered from an aggressive, invasive disease which unfortunately led to facial tissue having to be removed, and loss of sight in an eye.  He is perhaps uncertain as to where blame, if any, lies but has sought to claim damages against six defendants.  The most detail the court has relates to the third respondent, who was represented by Mr Luchich.  He was a dentist who apparently extracted a wisdom tooth on 23rd of March 2001 and took a sample for histopathological analysis.  There seems to be an assertion that the analysis should have been more immediate than it was and, more importantly, that Dr MacMillan ought to have read the report much earlier than the 30th of March 2001 by which time he had had it for three days.

The pre-litigation procedures mandated by PIPA could not be complied with within the periods limited.  In 795 of 2004 leave was obtained under section 43 of the PIPA for the commencement of proceedings.  Pursuant to that, claim 1039 of 2004 was filed on the 18th of March with a statement of claim attached.  There is a statutory stay in relation to that action until PIPA requirements have been satisfied.  It seems to be something of a reproach to the system that it is incumbent on Mr Leonhardt to commence a third proceeding to complain of deficiencies by all six respondents (who now face their third proceeding in the court) in complying with the PIPA requirements.  Originating application 795 of 2004 has, I suppose, been completed.  Judge Rackemann's order of the 17th of March 2004 did not grant liberty to apply or otherwise invite the parties to come back.

The present application seeks orders "that each of the respondents comply with section 27 of PIPA by providing to the applicant a statutory declaration responding to a request for information delivered by the applicant to each of the respondents on 8 July 2005".

Section 27(3) entitles the applicant to require a statutory declaration.

Representative of the communications of 8th July 2005 is the following:

"Claims Manager
Mater Health Services Brisbane Ltd.
Raymond Terrace
SOUTH BRISBANE  4101

Dear Sir,

Re:  Frederick Leonhardt

We refer to the above matter. Pursuant to the provisions of s.27 of the Personal Injuries Proceedings Act we require from each of the doctors involved in any way with our client, the information requested hereafter, as to the circumstances of, or the reasons for the incident. Such information is to be in the form of a Statutory Declaration by the doctor answering the following questions:

1.   State your full professional qualifications and

experience and provide documentary proof of same.

1. State when and how you first had contact with Mr

   Leonhardt and provide any document relevant to that

   contact.

2. If Mr Leonhardt was referred to you, provide full

   details of the referral including from whom it

   came, what the referral was for, and provide any documents relating to that referral.

3. State in full all contacts or consultations you had

   with Mr Leonhardt setting out in relation to each

   contact:

   
   
   

   (i)  when it occurred;

   (ii) where it occurred;

   (iii)how long it lasted for;

   (iv) the symptoms described by Mr Leonhardt at the

   time of that contact;

   (v)  the tests conducted by you with respect to Mr

   Leonhardt;

   (vi) the treatment given by you at each contact;
            (vii)the outcome of such treatment;
            (viii)opinion provided by you to Mr Leonhardt or any

   of his other medical advisers;

   (ix) your view of his prognosis at that stage;
            (x)  provide any documents relevant to the above.

1. With respect to any document coming to you or being

   sent from you with respect to Mr Leonhardt:

   (i)  identify the document and provide a copy of

   same;

   (ii) how did it come to you;
            (iii)when did it come to you;
            (iv) from whom did it come.
            (v)  with respect to documents sent to you describe:
                (a)  when they were sent;
                (b)  how they were sent;
                (c)  to whom they were sent."

Other respondents have reached agreement with the applicant's solicitors on the terms of an adjournment of the application to a date to be fixed and appropriate orders in most cases by reference to initialled drafts or an exhibit have been made.

...

HIS HONOUR:  The response of the fourth respondent came from its "Legal Counsel, Clinical Safety and Quality Unit" advising that the fourth respondent would not be appearing, with a request that the plaintiff's advisors have respected to provide a copy of the correspondence to the court "as it will be relevant to any costs-related considerations".  The letter is fairly detailed, referring, inter alia, to changes in personnel, which would obviously make it difficult to provide responses by particular doctors.  It is but the latest in a series of letters exhibited to Mr Scott's affidavit sworn today.

I share the difficulties apparently formulated by the solicitors on the respondents' side about the width of the request contained in the letter of 8 July 2005.  It is obvious that provision of the details sought could be extraordinarily

burdensome.  A medical person's "experience" for purposes of item 1, for example, may be vast and little of it may be relevant.  It would seem to me likely to be irrelevant how long "all contacts or consultations" lasted for for the purposes of 4(iii), for example.

I would have thought that a simple request for copies of documents as referred to in section 27(1)(a) and of all records containing information of the kind referred to in subsection (1)(b) would be sufficient. Mr Lee is not able to refer the Court to any authorities on section 27 which indicate just how oppressive a request under it may be. The
scattergun approach attributable to the applicant's uncertainty about which, if any, of a large cast of practitioners exacerbates the situation.

It seems to me appropriate, as Mr Lee suggested on being confronted with my disapproval of the wide and oppressive nature of the present request, to adjourn the application so that, as is happening in relation to other respondents, further consideration can be given to the matter and the request can be refined.

I would expect hospitals to come to a stop if, in respect of every potential claimant under the PIPA, they were required to respond to the extent demanded here.  So I will adjourn the application against the fourth respondent to a date to be fixed and, as Mr Lee requested, reserve the costs.

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