Australia: Medical testing in litigation: explanted tissue – James v Seltsam Pty Ltd

In litigation seeking compensation for asbestos exposure, an interlocutory application was brought by the first defendant, Seltsam Pty Ltd, seeking testing of the plaintiff's explanted lung. The application required the court to consider whether the explanted lung could be classed as property and as such whether an order could be made to have the explanted lung subjected to specialised testing irrespective of the plaintiff's lack of consent.

Background

The plaintiff, Mr David James, alleged that whilst working at the Wunderlich factory in Sunshine (Victoria) between approximately 1966 and 1967, and 1970 and 1972, he had been negligently exposed to asbestos dust and fibre by reason of the defendants' conduct, which resulted in the plaintiff suffering from asbestosis.¹ Experts were engaged by both parties to determine the root cause of the plaintiff's asbestosis. However, both experts had differing opinions of the causative factor.

Report of Dr Andrew Musk, respiratory physician, dated 15 April 2017 and 21 June 2017 (instructed by the plaintiff)

Dr Musk noted the absence of asbestos bodies in a biopsy of the lung. However he suggested further tissue be submitted for "(uncoated) fibre counting".²

Dr Musk stated that he did not accept that the presence of asbestos bodies on lung pathologies was required for a clinical diagnosis of asbestosis, as not all asbestos fibres are converted to asbestos bodies.³ In his opinion, it meant there were other clinical, morphological and pathological signs that suggest it was likely that the plaintiff had asbestosis. Dr Musk stated:

... factors favouring a diagnosis of asbestosis in this case are the history of exposure and the presence of interstitial pulmonary fibrosis and I suggest it is illogical to maintain that the fibrosis is of unknown cause (ie idiopathic). ⁴

Report of Dr Andrew Gal, pathologist, dated 10 May 2017 (instructed by Seltsam)
Dr Gal came to a different opinion. His differential diagnosis was that the plaintiff had "usual interstitial pneumonia" (UIP) based on the absence of asbestos bodies in the analysed lung tissue.⁵

The application by Seltsam
The application made by Seltsam therefore relied on the plaintiff's expert medical reports of Dr Musk, which suggested further testing be performed, specifically requesting the explanted lung be submitted for (uncoated) fibre counting. Previously the parties believed there was not a facility in Australia that could conduct the test. Seltsam however found a laboratory in Western Australia that was able to conduct the fibre count. On multiple occasions Seltsam requested the lung tissue to be provided to the laboratory for testing.⁶

Subsequently, the plaintiff's solicitors sought information from Seltsam regarding the identity and credentials of the pathologist conducting the count and details regarding the technique to be used. The plaintiff's solicitors sought an assurance that the laboratory would remain independent and impartial, considering the method of this test would inevitably destroy the only specimen available to both parties, which is crucial to these proceedings.⁷ Seltsam's solicitors informed the plaintiff that Microanalysis Australia's testing protocols would meet the required criteria.⁸

The sample was still not sent to the laboratory.⁹

The interlocutory application

By summons (interlocutory application) Seltsam sought orders that:¹⁰

• the lung tissue be submitted for an asbestos fibre count to be performed by Microanalysis Australia
• the trial listed to commence on 23 August 2017 be vacated and the proceeding be fixed for trial not before 22 November 2017
• the plaintiff pay Seltsam's costs

Seltsam's submissions

Counsel for Seltsam applied for discovery of the plaintiff's explanted lung tissue on the basis of s 55 of the Civil Procedure Act 2010 (Vic) (CPA) which provides a broad power, not confined to documents.¹¹ Counsel submitted that the court has power to make any order in relation to discovery that it considers necessary or appropriate, including by expanding a party's obligation to provide discovery.¹² Counsel also asked the court to make the order pursuant to s 55 of the CPA, taking into consideration that:¹³

• it is in the interests of justice and it is required for the just determination of the proceedings
• Dr Musk recommended the testing be done
• no asbestos bodies were found by any expert on the samples analysed
• the test would narrow the issues in dispute
• the plaintiff would not be subject to prejudice if the testing was performed
• if the test was not performed, Seltsam's defence would be adversely unfavourably prejudiced
• interpretation of the test results was to be reserved as a matter for the trial

Counsel also relied on s 9(2) of the CPA, which relates to the parties' attempt to limit the issue dispute. In the circumstances of this case Seltsam argued that:¹⁴

• the plaintiff no longer had any use for the removed lung
• the test available is non-invasive to the plaintiff
• if Seltsam was denied access to the lung, it would amount to a denial of justice
• access to the lung was a reasonable endeavour to resolve the dispute for the just resolution of the proceedings

Counsel for Seltsam also argued that, if the court was not minded to make an order pursuant to s 55 of the CPA, the court could make the order pursuant to r 34.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules).¹⁵ In the alternative, counsel for Seltsam submitted that the court could make such an order on the basis of the subpoena powers under r 40.12(1) of the Rules. ¹⁶

Plaintiff's submissions

The plaintiff's counsel submitted that, in circum- stances where the court had not been told what the test was for, where it goes to, the consequences if the fibre count is low or high and who was going to undertake the test,¹⁷ then the court would be unable to determine the benefit of the test in resolving the issues in dispute.¹⁸ It was argued that, unless the court could be informed of the medical expert providing the opinion, the results themselves would be of no forensic or evidentiary relevance to the court.¹⁹ Counsel also submitted that the power that Seltsam argued was required for the production of the explanted lung for testing was not a discovery power.²⁰

The plaintiff submitted that, because both experts were of the opinion on the basis of the plaintiff's exposure history, this indicated that a possible cause existed from signs of exposure on the lungs and that there was no need to look any further for a definitive answer.²¹ In this respect counsel for the plaintiff argued there was no obvious forensic purpose given for undertaking the test and denied it was going to advance the interest of justice of the case or make it easier for the court to rule on diagnosis.²²

Section 55 of the CPA

Zammit J asked two questions: firstly, whether there can be discovery of something which is not a document; secondly, whether there should be discovery where the thing discovered will be destroyed as a result.²³

In answer to the first question, her Honour found that s 55 does not apply to chattels. Her Honour applied the principle of ejusdem generis and stated that s 55 must take its character from the specific examples given and must be taken to be concerned with documents.²⁴ Her Honour highlighted that counsel was unable to point to recent examples of non-documentary discovery.²⁵ With the presence of r 37.01 of the Rules, and the extent that there is power for "discovery" of chattels, her Honour noted that there has been no call for the use of that power since the middle of the 19th century.²⁶ Her Honour stated that it is more likely that the power in s 55 of the CPA was intended to refer to the power to discover documents, which is consistent with the specific powers provided in that section.²⁷

Zammit J also mentioned r 40.12 of the Rules. Whilst discussing s 55 of the CPA, her Honour stated that whilst r 40.12(1)(c) appears wider than the documentary dis- covery permitted under s 55, it does not afford the court any wider power than it would otherwise enjoy. Thus, another source of any such power had to be found. The rule was found not to extend the power available under s 55.²⁸

Rule 37.01

It was held that this rule provided the court with the power to make the order sought by Seltsam.²⁹ However, the question that remained to be answered was whether the explanted lung was "property" for the purposes of r 37.01 and the court held it was. ³⁰

Zammit J examined the case law on the issue of whether body parts can be classified as property, and noted as follows:

• Doodeward v Spence³¹ (Doodeward) was a case about detinue — whereby the body of a child with two heads was capable of being considered as property due to in part, the work and skill involved in preserving the specimen.³²Griffith CJ held that:

• ... the fact that a particular thing was not capable of being the subject of a charge of larceny did not mean that it was incapable of being the subject of an action in detinue.³³

• Roche v Douglas³⁴ (Roche) was a case concerning DNA analysis of a tissues sample removed from the body of a deceased person to determine paternity relating to a claim under the deceased's will.³⁵ Sanderson M held that it was proper to hold that the human tissue is property.³⁶
• Pecar v National Australia Trustees Ltd³⁷ — in this case Bryson J held in relation to an equivalent rule to r 37.01 in NSW that permitted testing of tissue, that such tissue could be considered property "whether or not there were rights of owner- ship vesting in a particular person."³⁸ Tissue may be property "whether or not it was possible to definitively identify who held the relevant rights."³⁹
• S v Minister for Health (WA)⁴⁰ where Simmonds J upheld the decision of Roche and added that one "should not distinguish between the taking of samples of tissue taken from a body before death and the taking of a sample of tissue from a body after death."⁴¹
• Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C,⁴² in this case, then Edelman J stated that:

• The principle that a human body cannot be the object of a property right does not apply in relation to tissue or body parts once they are removed from a human body. It is now clear that things which are removed and separated from the living human body, such as human tissue, can sometimes be the object of property rights.⁴³

Having reviewed these authorities, Zammit J con- cluded that the explanted lung tissue is property for the purposes of r 37.01. Her Honour highlighted that the principle stated in Doodeward is important as it indicates that whether or not something is property may vary between different legal settings. In this case, the explanted lung was held to be property.⁴⁴

Who holds the rights in that property?

Zammit J dismissed this question as it was not required by r 37.01 for her to examine that point. However, in Roche, it was held that there was no need to determine who held the property rights.⁴⁵ Zammit J took the same view, stating that it was sufficient in this case to direct an order to the laboratory that holds the explanted lung, regardless of whether they did or did not hold the rights to the property.46

Second question regarding the destruction of the explanted lung

It was held that on balance, the lung should be subject to testing as the potential probative value of the test results — subject to their interpretation — was held to be likely to determine a central question in the case, which could see the case disposed of in its entirety.⁴⁷ Zammit J examined r 34.01 of the Rules and s 47 of the CPA, and held that both pieces of legislation have the overarching purpose of "just, efficient, timely and cost- effective resolution of the real issues in dispute".⁴⁸ Her Honour sought to allow the explanted lung to be examined with those principles in mind, noting at [76], that there is no evidence of any prejudice to the plaintiff in the lung being destroyed and that the heavy weight in favour of the order being granted is not counteracted by any known prejudice to the plaintiff.

Conclusion

The court held that the explanted lung was considered property and made an order for the explanted lung to be provided to Seltsam's solicitors or the laboratory to undergo analysis pursuant to r 37.01. It adds a further case precedent on the consideration of whether body parts are considered as property for various legal claims.

Footnotes

¹ James v Seltsam Pty Ltd [2017] VSC 506; BC201707544 at [1].
²Above, at [11].
³ Above n 1, at [10](a).
⁴ Above n 1, at [10](g).
⁵ Above n 1, at [8].
⁶ Above n 1, at [19].
⁷ Above n 1, at [20].
⁸ Above n 1, at [21].
⁹ Above n 1, at [22].
¹⁰ Above n 1, at [2].
¹¹ Above n 1, at [27].
¹² Above n 1, at [28].
¹³ Above n 1, at [34].
¹⁴ Above n 1, at [31].
¹⁵ Above n 1, at [32].
¹⁶ Above n 1, at [33].
¹⁷ In Stace v Commonwealth (1989) 51 SASR 391 similarly at 400, Bollen J found that the fullest information concerning the proposed test should be put before the court.
¹⁸ Above n 1, at [36].
¹⁹Above n 1, at [38].
²⁰ Above n 1, at [37].
²¹ Above n 1, at [42].
²² Above n 1, at [43].
²³ Above n 1, at [49].
²⁴ Above n 1, at [51].
²⁵ Above n 1, at [52].
²⁶ Above n 1, at [57].
²⁷ Above n 1, at [58].
²⁸ Above n 1, at [60].
²⁹ Above n 1, at [62].
³⁰ Above n 1, at [62].
³¹ Doodeward v Spence (1908) 6 CLR 406; 15 ALR 105; [1908] HCA 45; BC0800017.
³² Above n 1, at [64].
³³Above n 1, at [71].
³⁴ Roche v Douglas (2000) 22 WAR 331; [2000] WASC 146; BC200003046.
³⁵ Above n 1, at [63].
³⁶Above n 1, at [66].
³⁷ Pecar v National Australia Trustees Ltd (NSWSC, Bryson J, 27 November 1996, unreported, BC9605678).
³⁸ Above n 1, at [67].
³⁹ Above n 1, at [73].
⁴⁰ S v Minister for Health (WA) [2008] WASC 262; BC200810112. ⁴¹Above n 1, at [68].
⁴² Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [2013] WASC 3; BC201300013.
⁴³ Above n 1, at [69].
⁴⁴ Above n 1, at [71].
⁴⁵ Above n 1, at [72].
⁴⁶ Above n 1, at [74].
⁴⁷ Above n 1, at [82].
⁴⁸Above n 1, at [80].

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