Recent Cases: Victoria

Davis v Central Clinic Warragul (Human Rights)[2023] VCAT 1328,  A Smith, Senior Member

Mr Davis (“complainant”) sustained a workplace injury.  He signed a consent form for certain limited medical records to be sent to third parties, stipulating in writing and verbally that only the records related to the individual workplace injury be sent.  The Central Clinic Warragul (“Clinic”) subsequently disclosed the complainant’s full medical history to both his employer and a conciliation service.  The full medical history included results of tests, treatments and health issues unrelated to the workplace injury, including information of a family member.  Following this incident, the complainant made a complaint to the Health Complaints Commissioner, which was referred to the Victorian Civil and Administrative Tribunal (“Tribunal”). 

At the commencement of the hearing, the Clinic admitted to breaching Health Privacy Principle (“HPP”) 4.1.  It had previously offered an apology for inconvenience after being notified of the disclosure and an unqualified apology, along with implementing systems improvements.  The Tribunal was required to assess the injury and its consequences as established by evidence, and make a proportionate award of compensation, under s 78 of the HR Act.  

Section 78: damages for breaching HPPs

The Tribunal considered the complainant’s evidence as to his redundancy, assignment to lesser roles and post-redundancy loss of income, and found it was insufficient to show a causal link between the disclosure and those issues.  The complainant could not say that these issues arose from the disclosure, other than a belief.   Further, some claims made were insufficiently detailed. 

The Tribunal assessed the injury and its consequences as established in the evidence to make a proportionate award.   The Tribunal undertook a global assessment for general damages, as there was a lack of evidence.  It did not consider special damages for loss of income.  The Tribunal was not persuaded that the complaint warranted aggravated damages because the breach arose from administrative oversight or human error. 

In relation to the general damages, the Tribunal noted some recent decisions had made low awards.  Here, two major factors led to a higher award. 

First, while the breach was inadvertent, it was serious, particularly as the respondent held the special position of trust as a medical practice, with such breaches eroding community confidence. 

Secondly, many other cases involving the HR Act relate to disclosure of a single document or single detail from health records.  Here, the applicant’s conditional consent was overridden and his entire medical data was transmitted to third parties, which would understandably cause distress, which would be acute taking into account the complainant’s underlying mental health issues. 

Decision

The Tribunal considered only HPP 4.1, on the basis it more accurately reflected the complaint. It ordered the Clinic to pay $20,000 in general damages.