LAW REPORTS.

Dominion, Volume 5, Issue 1273, 31 October 1911, Page 3

LAW REPORTS.

ON .TELLING THE DOCTOR. OR LET HIM FIND OUT? A POINT IN LIFE INSURANCE. "OUR ENACTMENT IS SO VAGI"]' THAT THE JUDGMENT AMOUNT* TO LEGISLATION." Doctor's evidence, in relation to life insurance, formed the subject of a some what interesting ease which caino befon the Appeal Court yesterday. This was the appeal arising out of the Supreme Court action brought by Teresa Veronica Lucena against tlio National Mutual Lift Association of Australasia, Ltd. On tho bench at tho hearing wero the Chief Justice (Sir Robert Stout), _ Sir Joshua Williams, and Justices Henniston and Edwards. Mr. W. 11. D. Bell appeared for the plaintiff, and Mr. C, 11. Trcadwoll for tho defendant company. It appeared that on February 5, 1807, Arthur Ilarold Lucena had issued to him a life policy for the sum of .£IOOO, v.'ith participation in profits. lie died on February 5, 1010, and his widow, as executrix/claimed ,£1032 under the policy. The company refused to pay, and the widow then sued in the Supreme Court. As a defenca the company set out that tho policy was void on the ground that deceased had made false declarations as to his condition of health, and to prove this it was proposed to call the evidence of four medical men who had attended the deceased before the issue of the life policy. It was desired also to put in as evidence a dischargo card from the hospital, signed by a hospital surgeon, now deceased. Before admitting these the learned judge had decided that a special case should bo stated for the Court of Appeal. The decision was given yesterday. How far, if at all, was this medical evidence admissible in such a case? The Chi ?!' Justice remarked that the proposed 2vic ! ence might be resolved under certain heads:—(a) What the medical nion saw of deceased's state while attending him; (b) what was seen by one doctor in tne courso of an operation; (c) what a doctor told the deceased after he had examined him; (d) what the deceased told a doctor; (e) what a doctor, now deceased, had entered on a hospital discharge card. Tho plaintiff submitted that no cvidcnce, of any of the clones mentioned could be given. For this contention relinnco was placed on tho Evidence Act, 100S, which says:— "A physician or surgeon shall not, without the consent of his patient, divulge in any civil proceedings (unless the sanity of tho patient is the matter in dispute) any communication made to him in his professional character by such patient, and necessary to enable him to prescribe or act for such patient." There is not (continued his Honour), so far as I am aware, any other British 'state that has a like statutory provision. In the Siate of Victoria there is a similar, but not identical, provision. There are similar statutory provisions in many of tho American States and, in in 18S1, the provision conformed to tho-New I Zealand provision. It is to the cfi'ect that physicians (as to" matter communicated to" them as such by patients, in the course of their professional business, or advice given in such cases) shall not be competent witnesses. Tho questions that arise are:— 1. What is meant by communications? 2. Are communications by the doctor inadmissible ? 3. Must the communications that aro inadmissible 1)0 necessary to enable the doctor to prescribe or act for the patient? First, as to "communication," our statute deals with four kinds of these. One is the communication to a physician or burgeon—the question raised in this case. I see nothing in any of the sections to show that tho ordinary meaning of the wold "communications" is not to be followed. It means, when reference is made to knowledge, the imparting of knowledge. A physician cr surgeon may get knowledge from a patient by the patient stating something. But' if the surgeon examines a patient's body, it is not what the patient imparts to him that enables him to obtain knowledge of the patient's state or condition, but the physician's past' training and experience. If "communications" were intended to mean "information acquired" tho New Zealand statute would no doubt' have been framed in the language of almost all the laws of the United States of America, and of the State of Victoria in dealing with this subject. To prevent the knowledge acquired by examination of the body of a patient from being hold privileged there is required, in my opinion, a more explicit word than the word "communications."

Even all oral communications from a patient are not privileged. Those excluded must be "necessary to enable" the physician "to prescribe or act« for such patient'." If then a discovery was made (as in this case is stated to have been made by Dr. Collins during an operation) he could state what he found, for that was not, from an}* point of view, a communication to enable prescription or action. His Honour t'ho Chief Justice of the High Court of the Commonwealth thought that even under the Victorian statute such evidence could be admitted. As to the second question, I am of opinion that if the doctor can give information that was not the result of a statement made to him, it would be admissible. As to the third question, I am of opinion that the communications which are to bo privileged must be limited to those made that were necessary to enable tho doctor to act or prescribe for the patient. In my opinion, therefore, the part of Br. Collins's evidence dealing with what he found during tho operation is admissible. Sir Joshua Williams and Jlr. Justice Denniston concurred, but .Mr. Justice Edwards remarked that our enactment on this subject was sa vague lhat the judgment of tho Court amounted to legislation. He was of opinion that the meaning of the word "communications" should be extended, but lio deferred to flic judgment of the judges preceding him. CONCEALMENT OF BIRTH. CONVICTION AFFIRMED. Is it necessary for conviction on a charge of concealment of birth, that the body of the child must be recovered and identified? This was the question answered by the Court of Appeal yesterday in the case of the Jung versus Jlaiy Brown. Tho Chief Justice (Sir ltobcrt Stout) presided, and, sitting with him, were Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Chapman. In April last the body of a baby was found in the Avon River, C'hristcfiurch. As the result of inquiries by tho police, a woman, named Alary lirown, was charged with concealment of birth. She came up for trial in August last, when tho principal evidence against her was a confession, which she had mado to a detective. It was admitted by the Crown that tho body found in the river had not been satisfactorily identified, and, iat the closo of the case, counsel for the prisoner asked Jlr. Justice Denniston to direct the jury to acquit 011 the ground of insufficient evidence as to identification. Mr. Justice Denniston, however, refused to accept tho statement of law (as reported in that case), as a binding authority. His attitude, he said, was based on the ground that the report was only an extract of a summing up, and must be road as applicable only to the circumstances of that case, and ' not as lnyinjj down a general principal. He, therefore, directed the jury that, 011 the evidence, they might find tho prisoner guilty, and the jury did so. As, however, the dictum in Regina v. Williams had been adopted (solely on its authority) in sevoral recent English text-books, llr. Justice Denniston postponed sentence, and reserved the case for tho Court of Appeal. Tho opinion sought was whether tho direction given to the jury by Mr. Justicc Denniston was a proper one. At the hearing tho Solicitor-General (Mr. J. W. Salmond) appeared for tho Crown, arid Mr. W. J. Hunter, of C'hristchurch, for the prisoner, Mary Brown. The Chief Justice, after reviewing tho arguments of counsel and the numerous authorities on the subject, held that ab-

solute identification was not necessary in such a case. Tho conviction must be 'affirmed. The other members of the Bench wero of the samo opinion.