Allen v State of Queensland [2010] QSC 442

Issues:

The applicant infant was diagnosed as suffering severe brain damage following a cardiac catheterisation procedure performed at Prince Charles Hospital (PCH) on 23 December 2003, when he was 16 months old. During the procedure he developed a heart block. On 7 January 2004 the Acting Executive Director of Medical Services for the PCH Health Service District wrote to Minter Ellison, solicitors, and stated, “We consider this matter to have medico-legal risk for The Prince Charles Hospital District.” On 9 January 2004 Minter Ellison, after a review of the material provided to it, advised:

“Given the lack of documentation in the medical record by the various medical practitioners involved, we recommend that statements be obtained from them sooner rather than later. Our recommendation is that statements be obtained from Drs Anderson, Whight, Rhodes and Pohlner.”

The main matter in contention at the hearing of the application related to the applicant’s entitlement pursuant to  s 9A(8)(b) of the Personal Injuries Proceedings Act 2002 (Qld) (“the Act” to the reports that were obtained by PCH from the medical practitioners of whom inquiries were made in accordance with the proposals contained in Minter Ellison’s letter of  9 January 2004.

Applegarth J

[14] In Watkins v State of Queensland[6] the Court of Appeal addressed the abrogation of legal professional privilege. The issue arose in connection with a report that the State of Queensland obtained to enable it to respond to a notice of claim, and which was required by s 20(3) to accompany the State’s offer or counteroffer. The application related to documents in the State’s possession connected with the report. Keane JA stated:

“ [65] The provisions of the PIPA address the issue of privilege in s 30. They do so in a context in which the intention of the legislature, as expressed in s 20(3), is that any offer or counter-offer made to resolve a claim must be accompanied by the reports on which that offeror relies to make that offer and “all … material … in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer.” Further, s 27(1)(a)(i) requires the provision of relevant “reports and other documentary material about the incident … to which the claim relates”. The legislative intention manifested by s 4(2)(a) – (c), and s 21 is that, if possible, claims should be resolved without litigation by the PIPA’s pre-litigation procedures, and that such a resolution should occur on the basis that each side is as fully informed about the strengths and weaknesses of its respective case that a fair and just resolution can be achieved without recourse to litigation.

[66] Having regard to these provisions of the PIPA, there is little reason to think that the “full implications of their unqualified meaning may have passed unnoticed [by the legislature] in the democratic process” so far as the impact on common law claims to confidentiality are concerned. Accordingly, there is no reason to read s 20 as subject to a presumption that a report obtained for its purposes is to be confidential. There is even less reason to suppose that the legislature intended that documentary material, which may aid an understanding of a report provided under s 20(3) to support an offer of settlement (and thus assist the assessment by the other party of the offer of settlement) might be withheld from a claimant as confidential between the other party and its expert.”

Jerrard JA upheld the judgment appealed from on a narrower basis, but agreed that the orders could be upheld on the broader basis found by Keane JA. Jerrard JA was in general agreement with Keane JA on those issues.[7] Mackenzie J agreed with Keane JA’s analysis of the operation of s 20 and with his analysis of the scope of legal professional privilege under the Act.[8]

[15] Watkins was not concerned with the obligation imposed by s 9A(8) to give copies of all documents held by the person to whom the initial notice is given. It was concerned with a report that was obtained in compliance with the State’s obligations under s 20. Mr Watkins sought orders pursuant to s 35 of the Act for the disclosure of documents in the State’s position connected with that report and the State resisted that application on the ground that these documents were clothed with legal professional privilege. Keane JA stated:

“[71] The crucial question is whether the communications were exempt from disclosure by virtue of s 30 of the PIPA. It is to be emphasised here that s 30(1) of the PIPA does not create legal professional privilege in any communication; indeed, the State does not suggest otherwise. Reading s 20, s 27 and s 30 together, one can see that s 30(1) is concerned to remove from the scope of compulsory disclosure, under s 20 or s 27 documents whose claim to privilege arises because they were brought into existence for reasons other than compliance with s 20 or s 27 of the PIPA.”

His Honour concluded that the communications relating to the commissioning of the report were not privileged under the general law, and observed:

“[82] The point, for present purposes, is not that the PIPA has impliedly abrogated privilege in communications associated with the production of a report to be used in litigation; the point is that the effect of s 20 of the PIPA is that the report and the associated communications were never the subject of privilege.

[83] It may fairly be said that the scope of the obligation of disclosure resulting from s 20, as I understand it, is far reaching in that it may require the production of communications between parties’ lawyers and third parties which, in other contexts, would be privileged; but to say that is simply to acknowledge that the broad language of s 20(3) is not to be read down by a presumption in favour of confidentiality in circumstances where a process of negotiation mandated by the statute is intended to result in agreements which will obviate the need for litigation. In such circumstances, it is hardly surprising that the legislature would require a level of disclosure necessary to ensure that claims are compromised only on the footing that each party is equally well-informed about the issues. And, in truth, for several reasons, this conclusion is not as far-reaching as it might first appear. First, communications which are not apt to help the offeree assess the offer need not be provided under s 20(3) of the PIPA. Secondly, and more importantly perhaps, reports which are obtained for the dominant purpose of enabling a respondent to a claim to take legal advice on the claim will be privileged: such reports are outside the scope of s 20(3) and, even if they fall within the descriptive words in s 27(1)(a)(i), the benefit of the privilege would be maintained by s 30(1) of the PIPA. In this case, of course, it was not suggested that Prof MacLennan’s report was obtained for the purpose of the State obtaining legal advice.” (emphasis added)

[16] The issue that I am required to determine arises in a different factual and legal context. No notice of claim has been given and the obligation upon a respondent under s 20(1) to take reasonable steps to inform itself about the incident alleged to have given rise to the personal injury has not arisen. The claimant has not made an offer of settlement in part 2 of a notice and the obligation upon a respondent to accompany an offer or counteroffer with reports and other documents in the respondent’s possession that may help the person to whom the offer is made to make a proper assessment of it has not been triggered. The reports in issue in this application were not brought into existence pursuant to the obligation imposed by s 20(1)(a). The respondent was not obliged by statute to create these documents. It created them voluntarily and in circumstances which are said by it to give rise to the category of legal professional privilege labelled “litigation privilege”.

[25] The solicitor from Minter Ellison who was engaged for this purpose confirms on oath that all information that was received from the doctors involved in the care of the applicant after his letter of 9 January 2004 was obtained in anticipation of future litigation.

[26] I conclude that the documents sought came into existence for the dominant purpose of anticipated litigation. The fact that litigation had not been threatened on behalf of the applicant is hardly the point. The nature of the incident, the consequences suffered by the applicant, the statement obtained from Dr Haas, the assessment undertaken by doctors prior to engaging Minter Ellison on 7 January 2004 and Minter Ellison’s assessment of the matter all pointed to a real, if not probable, prospect of litigation. Litigation was not a mere possibility. It was a real prospect and contemporaneous reports were sought and obtained from various medical practitioners in anticipation of it.

[27] I accept the applicant’s submission that merely involving solicitors in an investigation does not clothe communications with privilege. However, the applicant’s submissions go much further and submit that the conduct of PCH “in attempting to quarantine its investigations of the medical incident by purporting to ask its lawyers to advise it on the investigations is a sham that the Court should not sanction.” I reject this submission. There is no proper basis for it. The applicant submits that this was “merely a fact gathering exercise with no attempt to assess or advise the respondent”. This submission also misses the point. The fact gathering exercise was to obtain reports or statements from doctors in anticipation of litigation and was undertaken on the basis of a sensible and professional recommendation that those reports be obtained “sooner rather than later.” The fact that the solicitors were not asked to advise the respondent on liability after the statements were received does not alter the fact that the statements were received in anticipation of litigation. This was the dominant purpose for obtaining them. No other purpose is apparent from the contemporaneous material and I accept the respondent’s evidence concerning the purpose for which the statements were obtained.

[28] The solicitors and hospital administrators who sought and obtained the reports from doctors and medical staff in early 2004 may have assumed that the reports that were sought would attract legal professional privilege, and Minter Ellison recommended in its letter of 9 January 2004 that the doctors each prepare a written report addressing relevant queries and that the report be marked “privileged and confidential”. Any expectation or intent that the reports be the subject of legal professional privilege does not determine the issue of whether they are protected from disclosure. It depends upon the operation of s 30. I next turn to consider s 30. Before doing so I reach the conclusion that the reports received in early 2004 from the doctors involved in the care of the applicant (whether in the form of formal witness statements, informal statements, answers to questions or file notes recording their reports of events) were obtained for the dominant purpose of anticipated litigation and would be protected by legal professional privilege under the general law by reason of “litigation privilege”.

Section 30

[29] Section 30 should be read as a whole and construed so as to best achieve the purpose of the Act. Section 30 qualifies obligations to disclose information or documentary material under Division 1 or Division 2 if the information or documentary material is protected by legal professional privilege. It may apply in respect of documents that are created for the dominant purpose of obtaining or communicating legal advice. It also may apply to documents that would attract “litigation privilege” at common law. Section 30(1) removes what would otherwise be a disclosure obligation if the information or documentary material is protected by legal professional privilege, but this is subject to s 30(2), which has the effect of maintaining an obligation to disclose, amongst other things, “investigative reports”. In short, if a relevant provision obliges the disclosure of investigative reports, then they must be disclosed even though otherwise they would be protected by legal professional privilege.

[30] Expressed differently, the Act clearly abrogates what otherwise would be litigation privilege in respect of investigative reports. However expressed, there can be no doubt that the legislature intended that legal professional privilege should not apply in respect of investigative reports. The term “investigative reports” is not defined in the Act, save for s 30(5) which states that “investigative reports” does not include any document prepared in relation to an application for, an opinion on or a decision about, indemnity against the claim from the State.

[31] The respondent submits that if there be any doubt about what falls within the expression “investigative reports” then the expression should be read down so as to maintain privilege. It cites authorities including The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[19] and Watkins[20] that state the well-established rule that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. However, there can be no doubt that the legislature intended to abrogate legal professional privilege in respect of, amongst other things, investigative reports. I do not accept that the expression “investigative reports” should be read down so as extend legal professional privilege protection to the maximum extent possible. Instead, the expression “investigative reports” should be construed so that s 30 operates in a manner consistent with the purposes of the Act, being an Act which permits legal professional privilege to be relied upon as a basis to not disclose certain information or documents.

[32] Section 30(2) has the apparent purpose of facilitating the disclosure of, amongst other things, investigative reports for a variety of purposes, depending upon the disclosure obligation under consideration. In general terms, these disclosure obligations exist to ensure that sound claims are admitted and unsound claims are abandoned.[21] The relevant disclosure obligations and the Act’s pre-litigation procedures exist to facilitate the resolution of claims on the basis that “each side is as fully informed about the strengths and weaknesses of its respective case that a fair and just resolution can be achieved without recourse to litigation.”[22]

[33] In the context of s 9A(8)(b) an evident and immediate purpose of the obligation to disclose documents is to enable a claimant to equip a medical specialist to assess the medical incident and to state the medical specialist’s opinion about the matters required by s 9A(9)(d) on an informed basis. Given the interest in informing the medical specialist about the medical services provided at the time the medical incident happened, there is no apparent reason why the expression “investigative reports” should be read down. Reading down the expression has the potential to preclude sound claims from being brought and to encourage the bringing of unsound claims, contrary to the purpose of the Act.

[34] The purpose of s 9A(9) apparently is to act as a filter against unmeritorious claims for medical negligence. The purpose of s 9A(9), and the Act’s more general purpose of ensuring that sound claims are admitted and resolved on a fully informed basis, would not be served by a narrow interpretation of “investigative reports”. To illustrate the point by reference to the facts of this matter, an interpretation which did not include contemporaneous reports created as a result of the kind of investigation undertaken in early 2004 would deprive a claimant and a medical specialist approached to prepare the report required by s 9A(9)(d), of contemporaneous reports into the incident. In this case the reports were sought in circumstances in which PCH’s solicitors remarked upon the lack of documentation in the medical record by the various medical practitioners involved in the treatment of the applicant, which gave rise to a need to investigate the matter by making inquiries of them and obtaining reports from them. If a medical specialist who is approached to give the report required by s 9A(9)(d) does not have access to those reports he or she may:

(a) be unable to provide the required report, thereby preventing the applicant from advancing what might be a sound claim if the documents had been available; or

(b) be forced to provide an opinion about the matters required by s 9A(9)(d) without the benefit of contemporaneous reports about the facts.

As to (b), an opinion based on incomplete information may erroneously conclude that there was a failure to meet an appropriate standard of care in providing medical services, and thereby encourage the claimant to advance a claim, only to be provided at a later stage (possibly pursuant to obligations imposed by s 20 or s 27) with the contemporaneous investigative reports that were held by the respondent at the time of the initial notice. This may prompt the claimant to revise matters and possibly abandon what subsequently emerges to be an unmeritorious claim, which can no longer be supported by the specialist opinion earlier obtained. Another possibility is that a report requested by a claimant from a medical specialist with a view to satisfying the requirements of s 9A(9)(d) may reach the conclusion, based on incomplete information, that there was not a failure to meet an appropriate standard of care when, if investigative reports were available, a different opinion would be expressed. Such an outcome is apt to prevent sound claims from being advanced and subsequently resolved in a fair and just manner. One should not assume that the legislature intended such outcomes, which are at odds with the Act’s purposes.

[35] The terms of the Act and its purposes do not support the conclusion that the expression “investigative reports” in s 30(2) should be given a narrow interpretation, for example, confining it to a loss adjuster’s report or an official report following a formally constituted investigation. The expression “investigative reports” should not be given an expansive meaning that the language of the Act does not support. However, the adoption of a narrow interpretation of the expression does not advance the purposes of the Act, being an Act which clearly abrogates legal professional privilege in certain circumstances in order to place parties in an informed position about the strengths and weaknesses of their respective cases.

[36] I conclude that s 30 should be interpreted in the context of the disclosure obligation imposed by s 9A(8)(b) so as to equip the medical specialist with reports obtained as a result of an investigation into to the incident. Such an interpretation facilitates the medical specialist being informed of the facts and providing an informed opinion. Section 30(2) permits such investigative reports to be disclosed to the claimant and provided to the medical specialist in a form that omits passages consisting only of statements of opinion. This tends to reinforce the conclusion that s 30 should be interpreted so as to equip a claimant with essential facts in a case that is subject to the initial notice requirements of s 9A. Such an interpretation facilitates the preparation of specialist medical opinion on an informed basis about the circumstances of the incident and, more generally, encourages sound claims to be advanced and resolved and unsound claims to be abandoned.

[37] I interpret the term “investigative reports” in the present statutory context to mean a report that is made as a result of an investigation into a medical incident. I see no basis in the text of s 30 or its statutory context to confine the expression to a report which assembles other reports and documents, such as an official report of an investigator.

[38] The respondent submits that file notes or statements of evidence do not fall within the expression “investigative reports”. However, the respondent’s counsel fairly directed me to the observations of Jerrard JA in Watkins which do not support this submission. His Honour was concerned with a submission that file notes, minutes and memoranda do not fall within the description of “reports and other documentary material” in s 27(1)(a)(i) of the Act. Jerrard JA stated:

“The problem with that submission is that a note recording information about the circumstances of the claimant child’s birth is a report about the incident alleged to have given rise to the personal injury to which his claim related. It therefore falls within the class of documents which the State is obliged to give the claimant, in accordance with s 27(1) of the PIPA, and the legislation makes legal professional privilege in such documents irrelevant to the obligation to disclose them.” (emphasis added)[23]

I respectfully adopt the opinion expressed by Jerrard JA that file notes may constitute a report.

[39] The respondent relied upon Smale v Sprott[24] which concerned the notice of claim provisions of the Motor Accident and Insurance Act 1994 (Qld). Section 48 of that Act contained a non-disclosure provision in essentially the same terms as s 30 of the Act. The case concerned certain witness statements that were taken by the plaintiff’s solicitors in August 2000, a substantial period after the litigation had been commenced. The second defendant submitted that because the plaintiff was required to provide the information apparently contained in the statements in order to satisfy his pre-litigation obligations under s 37 of the Motor Accident and Insurance Act 1994, but did not do so, he could not claim privilege in respect of it. In other words, the second defendant submitted that the privilege in the witness statements had been abrogated by s 37 and that once it had been abrogated, there was no privilege to be preserved by s 48 of that Act. This argument was rejected. Wilson J observed that the obligations of the plaintiff under s 37 were to be satisfied at the time the notice of claim was given. They could not extend to the disclosure of statements subsequently obtained for the purpose of the litigation. The section could not be read as containing any expression of legislative intent to abrogate privilege in statements subsequently obtained. The witness statements were held to not fall within the rubric “investigative reports” in s 48(2).

[40] I do not understand the decision to be authority for the proposition that witness statements that are obtained by a party before a pre-proceeding disclosure obligation arises are incapable of being “investigative reports” that must be disclosed pursuant to the statutory disclosure obligation even though otherwise protected by legal professional privilege. The decision is Smale v Sprott turned upon the fact that the statements in question were obtained after the litigation had commenced. I do not interpret the decision as authority for the proposition that a witness statement is incapable of constituting an investigative report. This is not to say that every statement made by a potential witness constitutes an investigative report. However, I am unable to accept the respondent’s submission that statements of evidence and file notes which record witnesses’ accounts of a relevant incident are incapable of being investigative reports. Following the statement of Jerrard JA in Watkins, I conclude that a witness statement or a file note recording information about the circumstances of a medical incident involving a claimant is a report about the incident. If the report is produced in the course of an investigation into the incident then I see no reason why it should not be found to be an investigative report.

[41] In this case the documents that were sought were anticipated by Minter Ellison’s letter of 9 January 2004 to be “reports”. The documents that were obtained as a result of considered inquiries made of the doctors should be treated as reports whether they be in the form of formal statements, informal statements, answers to the questions posed of the doctors or file notes taken of what they reported. Applying the interpretation which I have given to the term “investigative reports” in the context of s 30, I conclude that the reports obtained from the doctors in early 2004 were “investigative reports”. They were documents “about the medical services” mentioned in the initial notice.[25]

[42] The consequence of this conclusion is that they must be disclosed even though otherwise protected by legal professional privilege, but they may be disclosed with the omission of passages consisting only of statements of opinion.

Brisbane Barrister – David Cormack

NB: Appeal – State of Queensland v Allen [2011] QCA 311

Solicitor file notes were not considered to be “reports” and hence privileged.

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