Redacted medical reports – protecting client legal privilege

Legal Directions

Leanne Best v Mathew Bardsley & Insurance Australia Limited [2012] ACTSC 144

The requirement that each party provide documents relevant to the motor accident claim to each other before compulsory conference pursuant to s139 of the Road Transport (Third Party Insurance) Act 2008 (ACT) (the Act) does not abrogate client legal privilege.

Background

The plaintiff was involved in a motor vehicle accident on 2 January 2009. The first defendant was the driver of the vehicle at fault and the second defendant the relevant CTP insurer.

As part of the disclosure requirements under Part 4.3 of the Act, the plaintiff’s solicitor provided a medico-legal report obtained from an orthopaedic surgeon with portions of the report redacted in accordance with s109(4) of the Act. The relevant aspects of s109 (found in Part 4.3 of the Act) state:

Section 109 – Exception to obligation – client legal privilege

(1)   A party is not obliged to give a document or information to another party under this part if the document or information is protected by client legal privilege.

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

………

(4)   If a report mentioned in subsection (2) must be given, the report may be given with the omission of passages containing only statements of opinion.

The second defendant requested that the plaintiff provide a full copy of the report at least seven days prior to the compulsory conference arranged between the parties, in reliance on s139(1)(a) of the Act (found in a different part of the Act, Part 4.7), which states:

Section 139 – Procedures before compulsory conference

(1)   At least 7 days before the compulsory conference is to be held, each party for the motor accident claim must give each other party for the motor accident claim the following:

(a)   a copy of each document that is relevant to the motor accident claim that has not yet been given to the other party.

The plaintiff declined to provide a full copy of the report. Accordingly, an application was filed in the ACT Supreme Court by the second defendant, seeking orders that the plaintiff provide a full copy of the report.

The key issue for determination was the interpretation of ss109 and 139 of the Act, and in particular whether s139 required the provision of a full copy of a report previously provided, but redacted in reliance upon s109(4).

Second defendant’s submissions

In sub-section 109(1), the words ‘under this part’ are used. The second defendant submitted that ‘part’ was used deliberately by the legislature, rather than using the word ‘Act’. As such, the second defendant submitted that s109 did not apply the entirety of the Act, but only in the context of the obligation to provide documents under that Part. This view was taken because wording of s139(1)(a) described above.

The lack of a definition of ‘document which is relevant to the motor accident claim’ in s139 meant that the ordinary grammatical meaning of the word document should be applied. Thus, the proper meaning of ‘document’ is the full document, and not a document that has been redacted. With reference to the decision of Baker v Campbell (1983) 153 CLR 52, the second defendant submitted that client legal privilege should be revoked in circumstances where a party has to disclose a document under s109. Further, by necessary intendment, the documents referred to in s139 should be restricted to those categorised by s109(2), i.e.:

‘…investigative report, medical report or report relevant to the plaintiff’s rehabilitation must be given even though otherwise protected by legal client privilege’.

Therefore, the second defendant submitted that the plaintiff’s solicitor was compelled to provide a full copy of the report at least seven days prior to a compulsory conference.

Plaintiff’s submissions

The plaintiff submitted that s139 did not impose an obligation on a party that was additional or higher than the earlier obligation outlined in Part 4.3. Given that s102 and s103 (within Part 4.3) contained definitions of ‘required document’ and ‘relevant claim information’, and given that Part 4.7 provided no further definition of the ‘required document’ or ‘relevant claim information’, the plaintiff submitted that in order to identify what documents are required to be given by virtue of s139, it was appropriate to refer to s102 and s103 in that regard.

Therefore, as the plaintiff released the report omitting statements of opinion pursuant to s109(4), in the absence of a definition or requirement created in s139 to create a separate class of higher disclosure, the plaintiff argued that one must accept there was no requirement for the plaintiff to provide a full copy of the report at least seven days prior to a compulsory conference.

The Decision

The Master considered whether, in drafting the wording of s139, the legislature intended to deprive parties of the protection of client legal privilege in relation to documents required by that section to be disclosed.

Whilst s109 specified what documents must be provided, s139 contained no such definition of what was intended to be encompassed by the words ‘each document that is relevant to the motor accident claim’. The Master considered that the section must be read down, so as not to abrogate client legal privilege or require a party to disclose privileged documents. This followed from the reasoning that if s139 was intended to be read literally, it would then encompass, for example, solicitor-client communications and communications from barristers. The Master considered that if it had been the intention of the legislature to abrogate legal professional privilege in respect of certain categories of documents, then it would have expressly stated those categories in the legislation.

The application was dismissed with costs.

Implications

This decision could have potentially far-reaching consequences in respect of motor accident claims in the ACT. Parties now effectively have the power to ‘pick and choose’ any statement of opinion from a document disclosed under s109 that it does not find favourable, and redact it. The ability to do so now extends to documents required to be provided under s139.

This in itself could result in a significant shift in the legal landscape, as redacted reports may well become common place. This may in turn result in applications to the court disputing whether a redacted statement of opinion was just that. The court would be required to analyse in detail the elements of ‘opinion’ against say a statement of fact.

Section 79 of the Evidence Act 1995 (Cth) (the Evidence Act) also contains a specific exception to allow for opinions of an expert witness, relying upon specialised knowledge in their chosen field, to be admissible as evidence at hearing.

It is arguable that the Master’s recent decision opens the door for applications seeking clarification from the court as to the elements of ‘opinion’, against a statement of fact, especially given that an expert’s opinion is formulated from a number of sources, including findings upon examination, and:

  • Experience
  • Specialised knowledge
  • Training, study or experience.

Other possible flow-on effects may be:

  • An inability to accurately assess quantum where medical reports have been significantly redacted
  • An undermining s141, which deals with the provision of a ‘mandatory final offer’ at the conclusion of a compulsory conference should the matter fail to resolve, given a party may be forced into a situation where the mandatory final offer is prepared without the benefit of fully disclosed medical material
  • Costs implications upon a defendant that was not aware of the content of the medical case to be presented at hearing at the time when the mandatory final offer was formulated.

The second defendant has appealed the ruling.

Authored by Lawyers Liam Casey and Amanda Gilkes, Canberra.


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