Breen v Williams (1996) 186 CLR 71

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  • In 1977, Ms Breen underwent breast enhancement surgery.  She subsequently endured severe pain.
  • Dr Williams performed a corrective procedure on Ms Breen, but did not remove the existing implants or insert new ones.
  • Ms Breen asked Dr Williams about removing the implants entirely but this did not occur.  It was found later that her left breast’s imlants had leaked silicon.
  • Ms Breen later sued the implants’ US manufacturers and required her medical records from Dr Williams.
  • She asked Dr Williams for the records but he refused to provide the records to her on acceptable terms.
  • Ms Breen initiated proceedings claiming a qualified right to her own medical records.
  • Ms Breen appealed to the High Court from a decision of the NSW Court of Appeal, which had dismissed her appeal. Ms Breen’s appeal was based on four grounds:
    • an implied contractual term between patient and doctor;
    • a patient’s proprietary right in the information in the medical records;
    • a fiduciary relationship between patient and doctor; and
    • a patient’s ‘right to know’ all necessary information concerning his or her medical treatment.


  • Was Ms Breen entitled the her medical records on either of her four grounds of appeal?


  • All of Ms Breen’s arguments were rejected by the High Court.
  • The High Court held that under the common law a patient does not have a right of access to inspect and or obtain copies of his or her medical records.
  • In respect to the contractual term – the High Court acknowledged that there was a contract between patient and doctor for medical treatment, but that there was no implied term for the provision of medical records.
  • The High Court held that there was no proprietorship in information as information.
  • The High Court unanimously refused to expand the notion of fiduciary obligations in Australia to accomodate a duty for a doctor to provide a patient access to their medical records.
  • The High Court concluded that any duty of access could only be imposed where public policy necessitated it.  The legislature should be addressing this issue, not the courts.


“…it would be to stand established principle on its head to reason that because equity considers the defendant to be a fiduciary, therefore the defendant has a legal obligation to act in the interest of the plaintiff so that failure to fulfil that positive obligation represents a breach of fiduciary duty.”

(Gummow J at page 83)

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