PIPA Disclosure - latest developments
Sep 2011 |Introduction
Felgate v Tucker1 is the latest in a line of cases dealing with disclosure of documents pursuant to the Personal Injuries Proceedings Act (PIPA). In this decision, the Queensland Court of Appeal unanimously dismissed a claimant's request for disclosure of a statement given by the respondent to his solicitor for the purposes of defending the allegations of negligence made against him.
Facts
The claimant commenced a claim for damages against Dr Tucker, her treating anesthetist, for injuries which allegedly occurred while she underwent surgery in November 2007.
Prior to the application, the parties had participated in a compulsory settlement conference at which Dr Tucker's solicitors disclosed a document containing an interpretation of a contemporaneous medical record. Dr Tucker's solicitors had prepared the document with the assistance of a witness statement which Dr Tucker had given earlier.
The claimant's solicitors sought disclosure of the statement pursuant to ss 20(3), 27 and 30(2) of the PIPA.
The claimant's case
The claimant's arguments were that:
1. The document presented by Dr Tucker's solicitors at the conference contained information not found in the hospital notes but which was based upon a statement provided to his solicitors. The claimant contended that this made the statement discoverable pursuant to s 20(3) of the PIPA in accordance with the principles in Watkins v State of Queensland;2
2. The statement was discoverable pursuant to s 30(2) of the PIPA on the basis that although it may have been privileged, it constituted an "investigative report" within the meaning of that section; and
3. Dr Tucker had, in effect, waived privilege over the statement by presenting the note containing the interpretation of the medical record at the compulsory settlement conference.
The respondent's case
Dr Tucker resisted the application on the basis that the statement was protected by legal professional privilege pursuant to s 30(1) of the PIPA and that it was not an "investigative report" under s 30(2).
The primary judge's decision
The Judge at first instance dismissed the claimant's application on the basis that "communications between a lawyer and a client for the purpose of seeking legal advice are privileged, irrespective of whether they are given for the dominant purpose of litigation".
The primary Judge also found that the parties had agreed to conduct the negotiations at the compulsory conference on a without prejudice basis and that the respondent's solicitors had done nothing which impliedly waived privilege with respect to the statement.
The claimant appealed to the Court of Appeal.
The Court of Appeal
In dismissing the appeal, the Court of Appeal found that the statement given by Dr Tucker was given for the dominant purpose of use in anticipated legal proceedings. This was so notwithstanding the fact that the statement was also used as a tool in the pre-court procedures under PIPA.
The Court of Appeal distinguished Watkins and Allen v State of Queensland3 on the basis that those decisions concerned communications between lawyers and third parties.
The Court considered that a "clear and unequivocal" intention would be required in the legislation to remove legal professional privilege and that this was not apparent from a proper reading of the provisions of the PIPA.
The Court of Appeal further found that Dr Tucker's statement did not constitute a "report" pursuant to s 30(2) so as to override the legal professional privilege afforded by s 30(1). The court was "far from persuaded" that statements given by a client to his or her lawyer for use in litigation could be a "report".
The Court of Appeal held that there was no imputed waiver of privilege in respect of the document. The document presented at the conference contained no more information than what was contained in the hospital records themselves. It was simply a transcript of that record made with the assistance of the statement. The Court found that it was not unfair to allow the respondent to maintain a claim of privilege over the statement in those circumstances.
On these grounds, the Court of Appeal dismissed the claimant's application.
Conclusions
This decision affirms the existence of privilege in respect of client witness statements given during the PIPA process where they are provided for the dominant purpose of use in anticipated legal proceedings.
The decision arguably also provides some guidance as to what documents will constitute an "investigation report" for the purpose of s 30(2) which abrogates that privilege.
However, the decision in Allen remains under appeal. It is likely that this appeal will also deal with the still uncertain issue of when a privileged document will constitute an "investigative report" therefore making it susceptible to disclosure.
Solicitors and insurers should await the outcome of the Allen appeal with interest.
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1 [2011] QCA 194.
2 [2008] 1 Qd R 564.
3 [2010] QSC 442.