Author: Chris Murphy
STATE OF QUEENSLAND V ALLEN [2011] QCA 311
(JUDGEMENT 4 NOVEMBER 2011)
The Personal Injuries Proceedings Act 2002 (PIPA) and other pre-court regimes in Queensland significantly derogate legal professional privilege, perhaps more so than any other Australian jurisdiction. Indeed in the often cited decision of Parr v Bavarian Steak House Pincus JA said “… the cards must be on the table; and, I might add they must be face up.”
Arguably, Plaintiff lawyers have used the openness promoted by the disclosure provisions of PIPA to pursue claims where the existence of liability is speculative, in the hope that the respondent will provide the evidence needed to obtain a settlement. The Court of Appeal’s decision in Allen helps restore some balance and provides useful guidance in this difficult area.
The Facts
The Claimant was diagnosed with severe brain damage as a result of a medical procedure he underwent in a public hospital when he was 9 months old. Following the procedure the State engaged Minter Ellison to advise it in respect of future ‘medico-legal risk’. Given the lack of documentation in the medical record about the incident Minter Ellison recommended statements be obtained from the doctors involved.
Minter Ellison subsequently forwarded lists of questions to the hospital to be answered by the doctors and requested the doctors provide a “report” to be marked “privileged and confidential”. Minter Ellison also had conferences with some of the doctors and produced file notes as a consequence.
The Claimant delivered an “initial notice” to the State (a specific requirement in medical negligence cases). In response the State’s new solicitors mistakenly disclosed some of the material that had been created as a consequence of the recommendations of Minter Ellison, including a tax invoice.
The mistaken disclosure of the privileged documents caused the Claimant’s solicitors to become aware of further documents that were either mentioned in the documents or inferred to exist.
The Decision at First Instance
Justice Applegarth found that a broad range of documents were privileged because they came into existence for the dominant purpose of anticipated litigation. These documents included witness statements, reports by doctors involved in the procedure about their recollections and file notes created by Minter Ellison. However his honour ordered that the documents be disclosed nonetheless on the basis of section 30(2) of PIPA which provides that “… investigative reports, medical reports and reports relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by legal professional privilege…” (our emphasis).
The Appeal
Although the disclosure of various documents was in issue, in the initial hearing of the matter the only documents that were in contention on appeal were two file notes of conversations between the State’s solicitors and two of the doctors and a document prepared by one of the doctors.
The appeal turned on the definition of investigative and medical reports. Despite their importance to the conduct of personal injury litigation, those terms are not defined by PIPA.
The Court unanimously determined that the solicitor’s file notes were not “reports”, within the ordinary meaning of the word and hence were not required to be disclosed. It was further held that whilst file notes could be characterised as “reports” the circumstances would be unusual.
However again simply adopting the ordinary meaning of the word “report” the account of events provided by one of the doctors was found (by majority) to be a “medical report”. This document was required to be disclosed. Notwithstanding this Justice Fryberg found that a properly taken statement or “proof of evidence” by a solicitor would not be required to be disclosed.
It is noteworthy that each of the three justices provided different reasons in support of the decision. Fraser JA in dissent determined the account provided by the doctor was not a medical report. This disagreement outlines the difficulty that Respondents and their solicitors face in determining whether documents are required to be disclosed, and how to protect documents that have historically attracted legal privilege from disclosure.
Implications
1. It is now clear that statements obtained by a solicitor are not required to be disclosed. However, statements taken by factual investigators must be disclosed. Accordingly, consideration must be given to how factual investigations should be undertaken. Careful consideration to the way in which factual investigations are conducted can ensure that the right investigations are conducted and that the Respondent does not inadvertently make the Plaintiff’s case.
2. Although the account of events provided by one of the doctors was required to be disclosed this could easily have been avoided by obtaining this information in a statement or a solicitor file note.
3. It is now clear that Respondents are able to instruct operational staff to speak freely to investigating solicitors.
4. Care must be taken by solicitors in creating file notes of telephone conversations with potential expert witnesses. In Allen , although Watkins v State of Queensland (which required the disclosure of such file notes) was criticised it was not overruled.
5. Justice Fryberg criticised the State for attempting “conceal the full course of investigation”. Whilst it would be inappropriate for a respondent to conduct standard enquiries into an incident under the guise of legal privilege (for instance, as a consequence of responsibilities under the Workplace Health and Safety Act 1995), investigations conducted in response to a claim are of a different nature. The Allen decision provides limited circumstances in which investigations can be conducted under legal privilege.
Chris Murphy
Senior Associate
Queensland Law Society Accredited Specialist in Personal Injury Law