Privacy related class action to be issued in New South Wales tomorrow; alleging sale of paramedics medical records to personal injury solicitors

November 19, 2017 |

The development of privacy related actions in either common law or equity in Australian courts has been glacial at best.  It has been marked by hesitation and wariness heavily seasoned by a major case of conniptions by decision makers.  Efforts to have the courts here do what is effortlessly done in other common law countries, recognise a tort of an invasion of privacy have come to nought.  As for Tribunals’ decisions on privacy, the less said the better.  The legislature, irrespective of which party occupies the treasury benches, has been equally languid, when not down right resistant, in legislating for a statutory tort of privacy. The need for an actionable tort of privacy has been consistently recommended by whichever law reform commission has looked at the issue. The main opponents these days are media lawyers for news outlets, governments who don’t want a fight with media outlets over such a reform and some of the more conservative commentators who see any such right as being a bill of rights by stealth or some such nonsense.

In the weekend Sydney Morning Herald reports on a class action which may test privacy law in Paramedics launch class action over the sale of their medical records to personal injury solicitors.  The breaches are egregious.  That however is not the beginning and the end of the issue.  One question is whether the the court is prepared to develop the law.

The article provides:

Ambulance staff whose medical records were sold to solicitors will launch a class action against NSW Ambulance in the Supreme Court on Monday in an action that will test privacy law.

NSW Ambulance contractor Waqar Malik was convicted of unlawfully disclosing personal information last year after he sold the worker’s compensation files of 130 former and current employees to personal injury lawyers.

The files included medical records such as psychiatric assessments and details of injuries.

Current and former ambulance employees who have joined the class action argue this sensitive information should have been more strictly managed, in a statement of claim that alleges breach of confidence, invasion of privacy, breach of contract and misleading and deceptive conduct.olicitor George Newhouse of Centennial Lawyers. 

They claim NSW Ambulance was liable for their confidential information being misused because it did not adequately protect their records, and it gave Malik access to the health records of employees he was not managing.

 Class actions for data breaches have been successfully fought in Canada and the United States, with internet provider Yahoo and extramarital dating service Ashley Maddison sued by customers when their personal details were hacked.

“It’s still not settled law in Australia whether a tort of breach of privacy exists and this is an issue that will be determined by the Supreme Court of NSW if the matter proceeds to final hearing,” Mr Newhouse said.

The total damages could reach “millions of dollars”, with individuals variously claiming for pain and suffering, humiliation, psychological injuries and economic loss, Mr Newhouse said.

“Some of their medical histories are incredibly personal and if they became public would be incredibly embarrassing for the individuals involved,” Mr Newhouse said.

Lead plaintiff Tracy Evans, who worked in the emergency call centre, said she was horrified when she learned that her file had been leaked three years after she left the service.

“It’s got the deepest, most personal details in there,” she said.

“I’m furious. When I drive past an ambulance which is meant to be ‘the most trusted profession’, I find myself sticking my finger up.

“I trusted them.”

Former Australian Law Reform Commissioner Barbara McDonald said there was no legal precedent in Australia for an action based on invasion of privacy, though the High Court of Australia had left open the potential for one to be developed by the courts.

“It would need to be a brave court to do it, and then it would no doubt get appealed all the way up to the High Court,” Professor McDonald said.

“Unfortunately the occasional meritorious cases do seem to get settled, especially by the media.”

The government has not acted on a 2014 recommendation by the commission to enact a statutory cause of action for invasions of privacy, which would balance interests in privacy with matters of public interest, she said.

NSW Ambulance said in a statement it was unable to comment on any proposed civil litigation.

“The wellbeing of our staff, and the security of their personal information, is of paramount importance to NSW Ambulance,” the statement said.

“NSW Ambulance reported the rogue actions of former temporary contractor Mr Malik to NSW Police and provided every assistance to law enforcement officers during the criminal investigation and prosecution in 2013.” 


One Response to “Privacy related class action to be issued in New South Wales tomorrow; alleging sale of paramedics medical records to personal injury solicitors”

  1. Privacy related class action to be issued in New South Wales tomorrow; alleging sale of paramedics medical records to personal injury solicitors | Australian Law Blogs

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