Disclosure of Medical Reports – ACT claims

Motor Vehicle Directions

Domenico Rinaudo v Nicholas Maurice Cleary [2012] ACTSC 5

Pre-court procedures compelling parties to disclose medical reports have continuing application after commencement of proceedings

July 2007. The plaintiff claims that he suffered injuries, principally to the neck and lower back.

A breach of duty of care was admitted by the insurer. The insurer then arranged for the plaintiff to be examined by Dr Coyle, orthopaedic surgeon. Upon receipt of the report, the insurer forwarded a copy to the plaintiff’s solicitor.

The plaintiff then commenced proceedings in May 2010.

In November 2010, the insurer’s solicitors obtained a refresher medico-legal report from Dr Coyle. The plaintiff’s solicitor requested a copy of the report. The insurer’s solicitors elected not to provide a copy of the report, claiming legal professional privilege.

The plaintiff applied to the ACT Supreme Court for an order compelling the defendant’s insurer to serve a copy of the supplementary report.

Relevant Law

The determination of the application turned on the construction of Chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT) (‘the Wrongs Act’), which is entitled ‘Pre Court Procedures’.

Part 5.3 of Chapter 5 (‘Obligations of Parties to Give Documents and Information’) contains the following section:

Section 68 – respondent to give documents etc to claimant

1.   The respondent must give a claimant –

(a)   copies of the following in the respondent’s possession that are directly relevant to a  matter in issue in the claim:

(i)    reports and other documents about the accident claim to have given rise to the personal injury to which the claim relates

(ii)   reports about the claimant’s medical condition and all prospects of rehabilitation …’

Part 5.4 of Chapter 5 (‘Other Provisions – Pre Court Procedures’) contains the following section

Section 72 – non-disclosure of documents etc – client legal privilege

A party is not obliged to disclose a document or information under this Chapter if the document or information is protected by legal client privilege.

2.     However, an investigative report, medical report or report relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by client legal privilege.

…….

4.     If a report mentioned in sub-section (2) is required to be disclosed, it may then be disclosed with the omission of passages containing only statements of opinion.’

Arguments

The major issue between the parties was whether the pre-court procedures contained in Chapter 5 of the Wrongs Act continued to have effect after the commencement of court proceedings. There was a side issue about whether the first report from Dr Coyne was protected by legal professional privilege (the Court determined it wasn’t, but even had it been, that privilege was waived by the insurer giving a copy of the report to the claimant’s solicitors).

Senior counsel for the plaintiff submitted that the obligations imposed on the parties by Chapter 5 remained imposed upon them until the claim was resolved, whether by agreement between the parties or a decision of the court.

Counsel for the defendant, on the other hand, argued that the provisions of Chapter 5 had no application once an originating process was filed in court.

Decision

Master Harper found that:

  • Chapter 5 of the Wrongs Act continued to have application once legal proceedings were instituted, an interpretation which the Master considered was consistent with the purpose of the Chapter, being that settlement of personal injury claims should occur as early as practicable, with the secondary objective of reducing costs and litigation
  • Section 72(4) allowed the disclosing party to omit from a medical report passages containing only statements of opinion, although the Master noted that a potential conflict may arise as to what constitutes ‘only statements of opinion’.

Therefore, the insurer’s solicitor was ordered to provide a copy of Dr Coyle’s second report to the plaintiff’s solicitor within seven days.

Conclusions

The Master’s decision in Rinaudo will have wide implications in ACT motor accident claims.

Firstly, it may cause insurers to reconsider whether it is appropriate to obtain medico-legal reports at an early stage of a motor accident claim (i.e. before proceedings are commenced), if they are compelled to provide copies of them to the claimant. This could frustrate attempts to resolve claims early, although it does seem that Master Harper favours an interpretation which would compel disclosure of reports obtained even after proceedings were commenced. It may encourage insurers to seek out legal advice early on in the life of claims, to enhance the prospects of arguing that reports obtained before proceedings are commenced attract legal professional privilege.

Secondly, the s72(4) issue, namely determining precisely what amounts to ‘only statements of opinion’ in the context of medico-legal reports, will likely be the subject of considerable debate. This section seemingly gives the power of that determination to the disclosing party, although presumably there will be scope for the receiving party to contest that determination.

Thirdly, this decision may have flow on consequences for the equivalent provision (s109(4)) in the new CTP legislation, the Road Transport (Third-Party Insurance) Act 2008 (ACT) (‘the Road Transport Act’). The omission of statements of opinion in medical reports is inherently problematic given that the medical experts provide opinions that are admissible as evidence, and arise from a number of sources, including findings on examination, study, training and experience. It remains to be seen how the ACT Supreme Court will interpret the section on the background that full and open disclosure is one of the corner stones of the Road Transport Act.

 Authored by Liam Casey, Lawyer, Canberra.


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