Claimant’s disclosure application fails – witness statements not required to be disclosed

Legal Directions

Mahoney v Salt [2012] QSC 43

Background

The claimant suffered injuries when she fell off the edge of the patio at her parents’ home in December 2009. She sued her parents for damages. Her parents made a claim under their home insurance policy. The insurer appointed solicitors. The instructions to the solicitors included to advise on whether indemnity should be extended to the parents and to arrange factual investigations to be completed by loss adjustors.

The loss adjustor interviewed and obtained signed statements from both parents. The loss adjustor provided these signed statements to the insurer, together with a draft statement the mother did not sign, and separately, a report.

The insurer’s solicitors disclosed the report.

The claimant requested the draft statement and the signed statements be disclosed. The insurer’s solicitors refused on the basis the statements were the subject of legal professional privilege. The claimant made an application to the court seeking orders the draft statement and the signed statements be disclosed.

Decision

Sections 30(1) and(2) of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’) provides documents protected by legal professional privilege are not required to be disclosed, with the exception of investigative reports, medical reports and rehabilitation reports, which must be disclosed, but which can be disclosed with passages consisting only of statements of opinion omitted.[1]

The claimant argued the statements must be disclosed because they were not protected by legal professional privilege and properly constituted investigative reports.

Boddice J of the Supreme Court of Queensland held the statements were privileged as they were confidential communications brought into existence for the dominant purpose of the insurer obtaining legal advice.

Following the recent Court of Appeal decision of State of Queensland v Allen[2], he held the statements were not ‘reports’ and certainly were not ‘investigative reports’:

‘…a statement of a witness of an incident or a solicitor’s file note which records that person’s recollection of the circumstances of the incident and the person’s opinion about the incident for use in anticipated litigation is not an ‘investigative report.

…The statements are not in the nature of a systematic examination or enquiry.’

The claimant argued in the alternative the statements must be disclosed pursuant to s20 of PIPA which requires the respondent to make an offer of settlement accompanied by medical reports and all other material in the respondent’s possession that may help the claimant make a proper assessment of the offer. The claimant relied on the Court of Appeal decision of Watkins v State of Queensland[3] which held the Act did not intend to operate to preserve privilege in the documents described in s20.

Boddice J held the circumstances of the present case were readily distinguishable from Watkins which was a medical negligence case concerning disclosure of a medical report obtained for the pre-litigation procedures required by PIPA. He further held there was no evidence the statements were obtained for the purpose of complying with s20 of PIPA. The statements were not signed until after the s20 offer of settlement was made.

The claimant further argued privilege over the statements was waived because the contents of the statements were referred to in the loss adjustors’ report. This argument was also unsuccessful.

The insurer’s solicitors disclosed the instruction given to the loss adjustor, which asked the loss adjustor to follow specific directions to retain legal professional privilege. The claimant argued instructing the loss adjustors to deliberately engage in a course of action designed to prevent access to the witness statements was contrary to the objects of PIPA. Boddice J did not agree and held the instructions did not involve any ruse to shroud with privilege a document not properly the subject of legal professional privilege. He observed whilst the main object of PIPA is to encourage disclosure between the parties, PIPA expressly retains legal professional privilege, except in specific circumstances.

Comment

This decision sensibly recognises the principle that legal professional privilege is an important common law right which can only be abrogated by legislation which uses clear and unambiguous language.

Unlike the PIPA, section 279 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) expressly requires the disclosure of ‘written statements made by witnesses’. Accordingly, for claims to which that Act applies, signed witness statements must be disclosed.

Authored by Berren Hamilton, Senior Associate, Brisbane.

 


[1] s30(1) and(2)

[2] [2011] QCA 311

[3] [2008] 1 Qd R 564


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