Beerens v Biggs [2019] NSWSC 1707

Supreme Court New South Wales

Medium Neutral Citation: Beerens v Biggs [2019] NSWSC 1707 Hearing dates: 26 November 2019 Date of orders: 26 November 2019 Decision date: 26 November 2019 Jurisdiction: Common Law Before: Fagan J Decision: Motion granted Plaintiff pay defendant's costs Catchwords: CIVIL PROCEDURE – personal injury litigation –declaration sought by defendant that it is permitted to interview plaintiff's former treating doctors – resisted by plaintiff on basis of doctor-patient confidentiality – where no relationship of confidentiality between the doctor and the plaintiff existed at the relevant time –defendant entitled to interview doctors – where such interviews vital to efficient conduct of proceedings – declaration made TORTS - Negligence PROFESSIONS AND TRADES – health care professionals – medical practitioners – privilege Cases Cited: Coffey v Murrumbidgee Local Health District [2018] NSWSC 1538 Richards v Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328 Category: Principal judgment Parties: Steven Bereens (plaintiff) Michael Biggs (defendant) Representation: Counsel: G Gemell (plaintiff) M Windsor SC (defendant)

Solicitors: Schreuders Compensation Lawyers Avant Law Pty Ltd (defendant) File Number(s): 2017/381793 Publication restriction: No

Judgment 1. On 26 November 2019 the defendant moved the Court on a notice of motion filed 25 June 2019, claiming a declaration that he is not prevented from interviewing, through his legal representatives, three former treating doctors of the plaintiff. At the conclusion of the hearing on 26 November a declaration was made as sought and the plaintiff was ordered to pay the defendant's costs. These are the reasons for that decision. 2. On 20 January 2014 the plaintiff was involved in a motorcycle accident and sustained serious injuries including an avulsion (that is, tearing) injury to his right brachial plexus. He was left with a right flail arm, meaning that the muscles by which the limb might be activated and controlled were no longer innervated and it was incapable of purposeful movement. 3. The defendant is a neurosurgeon. The plaintiff consulted him from 6 March 2014. On 4 June 2014 the defendant together with Drs Richard Lawson and David Stewart performed a brachial plexus reconstruction. This involved utilisation of one of the phrenic nerves. The right and left phrenic nerves originate at the C3 level of the spinal column and pass downward between the lungs and the heart to the diaphragm. They transmit motor information to the diaphragm and receive sensory information from it. The reconstruction involved a division of the right phrenic nerve and a graft from it onto the severed nerves supplying muscles of the right arm and shoulder. 4. The plaintiff has brought this action for damages in negligence, alleging that as a result of the operation he has developed diaphragmatic palsy. The paralysis of the diaphragm impairs his breathing. The plaintiff alleges that the defendant was negligent with respect to the reconstructive surgery in respects discussed below. The defendant wishes to have his legal representatives interview Dr Lawson, who assisted in the operation, and also Prof Michael Tonkin and Dr Ralph Mobbs. The plaintiff consulted Drs Tonkin and Mobbs with respect to the proposed procedure during the two months before it was undertaken. The plaintiff asserts that all communications between himself and Drs Lawson, Tonkin and Mobbs were confidential. He objects to the defendant's lawyers interviewing them.