The new (old) medical report dilemma – to serve or not to serve

Legal Directions

Domenico Rinaudo v Nicholas Maurice Cleary [2012] ACTSC 5

Pre-court procedures in the Civil Law (Wrongs) Act 2002 (ACT) have continuing application after commencement of proceedings

Background

The plaintiff was injured in a motor vehicle accident at Hume in the Australian Capital Territory on 22 July 2007. The plaintiff alleged that he suffered injuries, principally to the neck and lower back.

Liability was admitted but quantum remained in issue. The insurer obtained and served a report from Dr Coyle, orthopaedic surgeon.

The plaintiff subsequently commenced proceedings. In the course of preparation for trial a refresher report was provided by Dr Coyle. The insurer elected not to serve the refresher report. The plaintiff sought access to the refresher report. The insurer refused to provide it claiming legal professional privilege.

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’), most notably Part 5.3 – Obligations of Parties to Give Documents and Information. Section 68 is included within that part and provides:

      ‘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 …’

Also of relevance was the correct interpretation of s72 of the Act:

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

1. 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 procedure contained in Chapter 5 of the Wrongs Act continued to have effect after the commencement of court proceedings. A further issue between the parties related to whether Dr Coyle’s first report attracted legal professional privilege, and if so, whether the insurer’s provision of the report to the plaintiff’s solicitor waived that privilege.

The plaintiff argued that the obligations imposed on the parties by Chapter 5 to supply medical reports continued to operate until the claim was finalised, whether by settlement or judgment.

The defendant argued that Chapter 5 had no application once proceedings were commenced.

Decision

Master Harper found that:

  • Dr Coyle’s first report did not attract legal professional privilege as the insurer commissioned the report at a time when neither side had contemplated court proceedings
  • In any event, the provision of the report to the plaintiff’s solicitor by the insurer would have waived any privilege that may have been in existence
  • 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 redact passages from a medical report which contain only statements of opinion, although the Master noted that a potential issue may arise as to what constitutes ‘only statements of opinion’.

Therefore, the insurer was ordered to provide a copy of Dr Coyle’s second report.

Conclusions

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

Firstly, it may cause insurers to reconsider the appropriateness of obtaining medico-legal reports at an early stage of a motor accident claim. This would be an unintended but nonetheless possible consequence of this decision. Certainly in the context of this case, the phrase ‘timing is everything’ comes to mind.

Secondly, the Master’s comment regarding the application of s72(4) of the Wrongs Act, namely that 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, rather than (perhaps more appropriately) to the court. Whether or not that was the legislative intention of the section, the Master has certainly highlighted a potential argument in that regard.

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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