Douglas v Morgan

Ms Douglas appealed to the Full Court of the Supreme Court of South Australia against a decision concerning the discoverability of an investigator's report. The dispute arose from a motor vehicle collision on North Terrace, Adelaide, on 9 December 2012, in which Ms Morgan, a pedestrian, was struck by a car driven by Ms Douglas. Ms Morgan subsequently lodged a claim with Ms Douglas's compulsory third-party insurer, Allianz Australia Insurance Limited. Allianz engaged Verifact Investigations Pty Ltd to prepare a report on the circumstances of the collision. Ms Morgan sought production of this report, but Allianz resisted on the grounds of client legal privilege.

The central legal issue before the Full Court was whether the investigator's report was commissioned by Allianz for the dominant purpose of submission to lawyers for use in anticipated legal proceedings. This required the court to consider the criteria for establishing client legal privilege, particularly in the context of an insurer commissioning an investigation into a motor vehicle accident claim. The court had to determine if the evidence demonstrated that the primary motivation for obtaining the report was its use in litigation, rather than for general claims management or assessment purposes.

The court reasoned that for client legal privilege to apply to the investigator's report, it must have been created for the dominant purpose of obtaining legal advice or for use in litigation. While the insurer's claims consultant, Ms Dunham, stated it was her practice to commission external investigations for claims that appeared "tricky" or unlikely to settle, and that such evidence would be preserved for court, the court found that Allianz had failed to establish the requisite dominant purpose. The court noted that while there was a reasonable anticipation of litigation, this alone was not sufficient. The appeal was dismissed, upholding the decision that the Investigation Report was not privileged.