Lloyd v Department of Education [2018] NSWDC 472

District Court New South Wales

Medium Neutral Citation: Lloyd v Department of Education [2018] NSWDC 472 Hearing dates: 13 August 2018 Date of orders: 13 August 2018 Decision date: 13 August 2018 Jurisdiction: Civil Before: Neilson DCJ Decision: I grant access to both parties to the documents produced on subpoena by Jane Enter, consultant psychologist, of the entity known as Retreat South at Oceanside Place, Byron Bay. The only copies of the documents to be made by the defendant's solicitor are one copy for its file and copies may be made to be given to counsel and to any psychiatrist qualified by the defendant but no further copies are to be made and I require the defendant to treat the copy documents in a confidential manner. Catchwords: EVIDENCE - PRACTICE & PROCEDURE – Request by treating psychologist that access to her records be refused – Records relevant to work injury damages claim – Access granted – Limited copying – Confidentiality imposed on defendant's solicitor Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Ms Jane Enter (Non-Party Applicant) Department of Education (Respondent) Representation: Solicitors: No Appearance (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/00128881 Publication restriction: Nil

Judgment 1. HIS HONOUR: The defendant in these proceedings has served upon Ms Jane Enter, a psychologist, a subpoena for production. Ms Enter objects to the production of her documents for reasons provided to me by her in a letter dated 29 June 2018. 2. The plaintiff alleges this in par 4 of the statement of claim: "Between a date in 2004 and 6 August 2008 the Plaintiff, in the course of performing her work duties, was exposed to stressors including bullying, harassment and other ongoing abusive behaviours. The Plaintiff alleges that, as a consequence of being exposed to these stressors, she sustained significant injury, loss and damage." 1. According to par 3 of the statement of claim the plaintiff was at all material times employed by the Department of Education as a visual arts teacher at the Lismore High School. Unfortunately, the statement of claim does not contain any particulars of injuries or disabilities but merely refers to a statement filed pursuant to UCPR 15.12. Unfortunately, any such document is not in the file. However, I am told by the solicitor for the plaintiff that her claim is for psychological or psychiatric injury. 2. Furthermore, the claim can be described as a "Work injury damages claim." The only damages recoverable are loss of earnings and loss and future loss of earning capacity. Therefore, the plaintiff is claiming that at least since 6 August 2008 she has been losing wages as a result of the psychological or psychiatric injury she sustained whilst working for the defendant as a school teacher. 3. Ms Enter commenced treating the plaintiff on 5 November 2010, the plaintiff's having been referred to her by a general practitioner under cover of a letter bearing date 19 November 2010. That referral letter refers to the general practitioners previously treating the plaintiff for anxiety and depression and also "WorkCover", which is not yet a certified illness, although the general practitioner believes that it may be. The reason for the referral was not because of that problem of itself but because of a supervening non-compensable stress of great moment to the plaintiff. However it is clear from the covering letter addressed to me by Ms Enter that thereafter, commencing in 2012, she has, from time to time, had mentioned to her problems relating to the work that the plaintiff had been doing in 2008 and prior thereto and as to the effect of that work upon her. 4. Although Ms Enter has not charged WorkCover for any such consultations the psychologist did write a letter to one of the plaintiff's treating doctors to discuss treatment options and recommendations concerning such options. Clearly, the psychologist's records are relevant and probably very important both as to the progress of and genesis of the plaintiff's psychological/psychiatric problems. It would cause injustice to the defendant were I to deny the defendant access to the documents produced on subpoena by Ms Enter. 5. However, Ms Enter points out the very personal nature of the stressor which caused the plaintiff to be referred to her in late 2010 and the delicacy of the matter there involved. In the circumstances I grant access to both parties to the documents produced on subpoena by Jane Enter, consultant psychologist, of the entity known as Retreat South at Oceanside Place, Byron Bay. The only copies of the documents to be made by the defendant's solicitor are one copy for its file and copies may be made to be given to counsel and to any psychiatrist qualified by the defendant but no further copies are to be made and I require the defendant to treat the copy documents in a confidential manner.