Dowd v McCLOSKEY - [2005] WADC 99

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: DOWD -v- McCLOSKEY [2005] WADC 99

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 4 MAY 2005

DELIVERED : 25 MAY 2005

FILE NO/S: CIV 865 of 2003

BETWEEN: KATHLEEN LINDA DOWD
Plaintiff
AND
MAUREEN THERESE McCLOSKEY
Defendant

Catchwords:

Discovery and inspection of documents - Legal professional privilege - Documents provided to expert

Legislation:

District Court Rules 1996

Rules of the Supreme Court 1981

Result:

Defendant ordered to provide inspection of document

Representation:

Counsel:

Plaintiff: Mr J Criddle
Defendant: Mr J Brooksby

Solicitors:

Plaintiff: Bradford & Co
Defendant: Greenland Brooksby

Case(s) referred to in judgment(s):

Attorney General (NT) v Maurice & Ors (1986) 161 CLR 475
Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
Boyes v Collins (2000) 23 WAR 123
Dingwall v Commonwealth of Australia (1992) 39 FCR 521
Doubikin Holding Pty Ltd v Grail Pty Ltd (1991) 5 WAR 563
Lenehan & Ors v International Network Travel Pty Ltd & Ors, unreported; SCt of WA; Library No 980362; 26 June 1998
Lloyd v Centurion Shutters Pty Ltd (1994) 10 SR WA 202
Meninga v R (1992) 66 A Crim R 199
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

Case(s) also cited:

Interchase Corporation Limited v Grosvenor Hill (QLD) Pty Ltd (No 1) [1999] 1 Qd R 141
Mann v Carnel (1996) 74 ALJR 378
Rozmus v Illawarra Area Health Service, unreported; SCt of NSW; BC 9605086; 23 December 1996

PRINCIPAL REGISTRAR GETHING: This action is a claim for damages arising out of a motor vehicle accident in November 2001. The defendant has admitted negligence and so the dispute at trial will centre on the appropriate award of damages.
By a chamber summons dated 6 April 2005, the plaintiff sought an order pursuant to O 26 r 9 of the Rules of the Supreme Court that the defendant provide inspection of a report of a Mr R C Edibam, an orthopaedic surgeon, dated 5 July 2005 ("the Edibam Report"). The Edibam Report was provided by the defendant's solicitors to a Dr McCarthy, a psychiatrist, as part of the background materials for use by Dr McCarthy preparing a report on the plaintiff. Dr McCarthy's Report is dated 23 November 2004 ("McCarthy Report"). It is annexed to the affidavit of Angus Castley dated 6 April 2005, sworn in support of the plaintiff's application.
The defendant has refused to provide inspection of the Edibam Report on the ground of legal professional privilege. The plaintiff asserts that legal professional privilege has been waived by the manner in which the Edibam Report was used by Dr McCarthy.
In submissions before me, counsel for the defendant advised the Court that the Edibam Report contains Mr Edibam's comments on a surveillance video of the plaintiff. At this stage, the surveillance video has not been made available to the plaintiff for inspection.
The defendant appears to have provided the plaintiff with a copy the McCarthy Report as part of its ongoing discovery obligations, indicating an intention to rely on it at trial. It has thereby waived legal professional privilege in relation to that report. This intent is confirmed in the index of experts' reports which the defendant filed pursuant to O 5 r 8 of the District Court Rules 1996. This index states that the defendant proposes to rely on the McCarthy Report at trial. It also refers to a report of Mr Edibam dated 25 June 2005.

McCarthy report

The McCarthy Report begins with the following paragraph:
"Thankyou for your request for a psychiatric report on this lady who I interviewed for that purpose on Wednesday 29 September 2004. I have also read the documents that you sent with your letter of request. This report is based on those sources."
There is then a heading "Documents Provided" with a numbered list of documents. Document 6 on that list is the Edibam Report, with the specific reference being:
"6. Report of Mr R C Edibam, orthopaedic surgeon, dated 5 July 2004."
The McCarthy Report then sets out the social and emotional history of the plaintiff, the history of the motor vehicle accident, the history of the plaintiff's psychiatric symptoms, some notes as to her recent progress, her medical history and then a section entitled "mental state examination" which contains Mr McCarthy's observations of the plaintiff on the day of review. Dr McCarthy then reviews in detail a number of medical reports which he was provided. This review does not include any report by Mr Edibam. Finally, Dr McCarthy provides his opinion. At the foot of p 15 and top of p 16 of the McCarthy Report, Dr McCarthy states the following:
"I do not believe her day to day functioning at home or her ability to work does indicate a high level of impairment and I am afraid I am unable to emulate [another doctor's] uncritical and unsupported evidence that she is suffering from organic pain at a very high level. I do not necessarily suggest that this lady is malingering or deceiving deliberately, however I think we have to accept that she does not appear to have a physical injury commensurate with her complaints of pain."
There is no reference to Mr Edibam nor to the Edibam Report in the McCarthy Report.

Legal framework

The legal framework in which is application falls to be decided is conveniently summarised in the judgment of Lindgern J in Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438, at 441 – 442, in the following terms:
"[21] I will apply the following principles which I did not understand to be in dispute:
(1) Ordinarily the confidential briefing or instructing by the prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Merchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No.1) [1999 ] 1 QD R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J.
(2)Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 (Propend); Interchase, per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4)(222) 50 ATR 70 at [17].
(3)Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-2 per Thomas J.
(4)Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481; 69 ALR 31 at 34 per Gibbs CJ, CLR 487-8; ALR 38-9 per Mason and Brennan JJ, CLR 492-3; ALR 42-3 per Deane J, CLR 497-8; ALR 46-7 per Dawson J; Goldberg v NG (1995) 185 CLR 83 at 98; 132 ALR 57 at 66 per Deane, Dawson and Gaudron JJ, CLR 109; ALR 75 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; BC9506842; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 (ACCC v Lux) at [46].
(5)Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148-50 per Pincus JA, at 161 per Thomas J.
(6)It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No. 2) (1998) 83 FCR 397 at 400; 156 ALR 364 at 366; ACCC v Lux at [46].
The key question for present purposes is whether the Edibam Report could be said to have influenced the content of the McCarthy Report. An affirmative answer would mean that it would be unfair for the defendant to rely on the McCarthy Report without disclosure of the Edibam Report. An implied, or perhaps more accurately, imputed, waiver of legal professional privilege would follow.

Adjournment application

At this point it is convenient to refer to an application made by counsel for the defendant at the hearing of this matter on 4 May 2005 that it be adjourned in order to allow him to make enquiries of Dr McCarthy as to whether or not he relied on the Edibam Report. I refused to the adjournment application on the basis that it did not seem desirable to embark on a line of enquiry that could quite easily led to Dr McCarthy being brought down to court, placed on oath and cross-examined by counsel for the plaintiff as to the extent of his reliance on the report.
In Dingwall v Commonwealth of Australia (1992) 39 FCR 521, Foster J adopted a similar approach. His Honour commented that "it would have been a very unfortunate use of court time and the doctor's time for such a procedure to be followed" [at 524]. In that case, his Honour directed that enquires be made of the doctor by the respondent's solicitor in the form of three precise questions. The third question was: "Have you relied upon any of the above-mentioned information in expressing your opinion as set out in the report?" The answer given by the doctor to that question, which was conveyed to his Honour, was "No".
The effect of my decision not to adjourn the hearing of the matter was to deprive the defendant's solicitor of the opportunity to even ask that "precise" question and report the answer to the Court. In my view, the question of privilege falls, at this stage in the proceedings, to be determined on the face of the document in question, being the McCarthy Report.
If it turns out from the materials on the face of the report that I am unable to conclude that privilege has been waived, that is not the end of the matter. It is open to the plaintiff in this case to raise the matter again when Dr McCarthy is giving evidence in respect of the McCarthy Report (see Dingwall, [at 525]).

Analysis of relevant cases

In his submissions, counsel for the defendant drew the Courts attention to the following quote from the judgment of Deane J in Attorney General (NT) v Maurice& Ors (1986) 161 CLR 475, at 493:
"Where [the party] does no more than make use of privileged material (e.g. legal advice, expert opinion or statement of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an front to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he waived his legal professional privilege in relation to such material."
Counsel for the defendant went on to submit that, at its highest, all that can be said in the present case is that Dr McCarthy "merely used" the Edibam Report.
To my mind, this submission takes the comment of Deane J out context. The decision in Maurice (supra) concerned a document entitled a "claim" which was filed with the Aboriginal Lands Commissioner by the traditional owners of certain land. The Attorney General for the Northern Territory sought disclosure of certain documents that provided the source material for the Claim Book. The claimants resisted disclosure on the grounds of legal professional privilege, a claim that was upheld by the High Court. The documents in question were not specifically mentioned in the Claim Book. No passages from the documents were set out in the Claim Book [see Maurice, at 480]. The Claim Book was seen as "somewhat analogous" to a pleading at [at 483]. Accordingly, the decision on the facts of Maurice can be distinguished to the facts in the present case.
It falls then to apply the general principle from the decision in Maurice, which is seen in the passage from the judgment of Justices Mason and Brennan [at 487-488]:
"A litigant can of course waive his privilege directly through intentionally disclosing protected materials. He can also lose that protection though a wavier by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of protected communication. Professor Wigmore explains: '[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remained'…
In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to rest of the communication on the subject matter."
Similar comments are found in the judgments of the Gibbs CJ [at 481], Deane J [at 492-493] and Dawson J [at 497-498].
There are a number of cases that deal with the question of imputed or implied waiver of legal professional privilege in the context of the materials provided to an expert witness. For present purposes, a convenient starting point is the decision in Lloyd v Centurion Shutters Pty Ltd (1994) 10 SR WA 202. In that case, the plaintiff sought an order that the defendant provide inspection of various videos and surveillance reports which the defendant had obtained for the purposes of the action. The plaintiff also sought an order for inspection of a medical report produced by a doctor retained by the defendant, who the defendant did not propose to call as a witness. Barlow DCJ reiterated that surveillance videos are subject to legal professional privilege. The doctor retained by the defendant had viewed one of the video recordings. On that basis the plaintiff submitted that by allowing the doctor to view the video recording, the defendant had waived its privilege. Barlow DCJ held that the supply of the video to the doctor did not operate as a waiver of legal professional privilege.
The decision in Lloyd (supra) is may be distinguished from the facts of the present case in that the defendant in Lloyddid not propose to call the doctor in question. Accordingly, the defendant had not disclosed a copy of the doctor's report prior to trial pursuant to the usual pre-trial disclosure provisions. Hence, the question of waiver arose in the context of a medical report that retained the benefit of legal professional privilege.
In Jessup v Gorjup, unreported; SCt TAS; Crawford J; 20 November 1997, the plaintiffs sought discovery and inspection of documents relied on by an expert retained by the defendant. The issue arose in the context of a damages claim for personal injuries received in a motor vehicle accident. The expert, one Mr Enkelman, was an engineer involved in motor vehicle accident investigations and reconstructions. The relevant documents included transcripts of interviews with the plaintiffs and the defendant. In his proof of evidence, the expert said that "my opinion is based the following" then listed a number of documents including the documents in question. Crawford J inspected copies of the documents and then included in the following terms [at p 3]:
"Having perused the documents I have concluded that the defendant has impliedly waived his privilege with respect to all of them and that they should be produce by him for inspection by the plaintiff's solicitor. I am naturally influenced by Mr Enkelman's statement in his proof of evidence that his opinion was based on all of those documents."
Accordingly, Crawford J made orders that the defendants produce the documents for inspection by the plaintiff's solicitors.
This case is relevant for present purposes as it suggests that the Court should place weight on a statement by an expert in his or her report that the expert based his or her opinion on the information asserted to be privileged.
Another case relevant for present purposes is the decision of Forster J in Dingwall v Commonwealth of Australia (1992) 39 FCR 521. In that case, a subpoena had been against a Dr Bryant which required production of what amounted to his entire file relating to the appellant. Dr Bryant had been retained as an expert by the respondent who claimed legal professional privilege in relation to some of the documents falling within the scope of the subpoena.
Forster J made comments as to the process the Court could adopt for dealing with an application of the kind in question in both that case and the present case, which I have referred to above. His Honour then summarised the general proposition in the following terms [at 524]:
"I have come to the view, upon a close consideration of the judgments in Maurice's case that it cannot be regarded as authority for a wide principle that, whenever documents are sent to a potential witness as part of material being placed before him in order that he may provide a report of a expert kind to be used as evidence in a case, that those documents, ipso facto, although they had the protection of legal professional privilege, necessarily would lose it because the doctrine of waiver. Maurice's case does not go as far as that. It requires, certainly, that they be an indication that the documents were used in the preparation of the evidentiary document in a way that could be said to influence the content of those documents."
His Honour went on to draw a distinction between cases in which documents are used in the preparation of the expert report in a way that could be said to influence the content of the document and documents which are simply provided to the doctor as part of the material put to him for the purpose of obtaining his expert opinion.
As I have noted above, the Court had been informed that the doctor had expressed a view that he did not rely upon the documents informing his opinion. His Honour declined to examine the documents for himself and declined to require production in response to the subpoena of the documents.
In Meninga v R(1992) 66 A Crim R 199, the trial judge in a murder trial had allowed a medical witness called by the defence, one Dr Mulholland, to be cross-examined about a report supplied to him by another medical witness, one Dr Walsh, who had been engaged by the defence. The Queensland Court of Appeal, in a joint judgment, held that the trial judge was correct in allowing cross-examination to proceed. For present purposes, the key passage in the judgment of the Court is in the following terms [at 203].
"It seems clear that the judge's ruling was correct. The appellant called Dr Mulholland to give an opinion which relied upon material obtained from another doctor the defence had consulted for the purposes of the case. In adducing evidence of Dr Mulholland's opinion, so based, the appellant waived the privilege in respect of the medical opinions and tests on which Dr Mulholland relied. It is true that, on Dr Mulholland's evidence the material in question was not of central importance to the formation of his opinion, but that cannot matter: the same question would arise if Dr Mulholland's opinion were based wholly upon privilege materials. To adopt the language of Gibb CJ A-G (NT) v Maurice (1986) 161 CLR 475 at 481, it would have been unfair to allow the appellant, by the witness Dr Mulholland to use the material obtained from Dr Walsh as the basis of his case, but yet asserted that it was privileged from production."

The issue of waiver of privilege over materials referred to in experts reports was also considered by Master Sanderson in Lenehan & Ors v International Network Travel Pty Ltd & Ors, unreported; SCt of WA; Library No 980362; 26 June 1998. In that case, the defendant sought an order that the plaintiff allow inspection of documents referred to in an expert accounting report. The plaintiff resisted the application on the grounds of legal professional privilege. In his report, the expert said that two of his "principal sources of information" were a statement of one of the plaintiffs (Ms Lenehan) and discussion with an accountant connected with the plaintiffs regarding financial protections and other information prepared by him. Master Sanderson applied the general test from the decision in Maurice, at one point phrasing it in the following terms: [at p 11]
"What must be considered is once the report has been disclosed whether pursuant to the Rules or pursuant to a procedural order of the Court or otherwise, it is unfair to a party not to require disclosure of source materials."
Master Sanderson ultimately dismissed the application holding that "in this case fairness does not require that they be an imputed waiver of privilege otherwise attaching to the plaintiff's source documents" [at p 11]. In coming to this conclusion, the learned Master placed weight on the following three factors:
(a)O 36 A r 3 (4) of the Rules of the Supreme Court, which deals with the exchange of expert evidence prior to trial, does not require disclosure of the source documents used to prepare an expert report. At this point, Master Sanderson followed the decision of Justice Seaman in Doubikin Holding Pty Ltd v Grail Pty Ltd (1991) 5 WAR 563, at p 585.
(b)In order for the plaintiff to rely on the expert report at trial, it would be necessary for Ms Lenehan to give evidence and for the projections of the accountant to be proven. Otherwise, the opinion of the expert would be based on hearsay evidence and would be admissible either in whole or in part (citing the decision in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370).
(c)Actions in the Supreme Court generally proceed on the basis of the parties relying on witness statements which are exchanged prior to trial. That being so, at some stage prior to the trial, the defendants would be provided with the statements of both Ms Lennerhan and the accountant.
The facts in Lenehan (supra) are distinguishable from the facts of the present cases. In the present case, the defendant did not include the Edibam Report in its index of experts reports which it intends to rely on at trial. Moreover, it is entirely arguable that the McCarthy Report is admissible, notwithstanding that the Edibam Report is not proven. The defendant does has an election to make in terms of Supreme Court Rules O 36 r 4 as to whether or not it proposes to rely on any video evidence at trial, and thereby disclose the video evidence. It may decline to do so. It cannot be said that there is any likelihood that the plaintiff will gain access to the Edibam Report prior to the trial in any event.
In coming to his decision Master Sanderson placed weight on the decision of Justice Seaman in Doubkin (supra), in particular the following passage [at 585]:
"The second question arose because the plaintiff exchanged its experts' reports together with the material upon which they based their opinion while the defendant exchanged its experts reports excluding those materials. However, in my view, the defendant's manner of exchange satisfied the requirement of O 36 A, r 3 (4).
However, the materials found in the opinion of the defendant's experts emerged for the first time in the respective evidence-in-chief. Accordingly, it was necessary to grant an adjournment so that counsel for the plaintiff could have obtained proper instructions for cross-examination.
Fortunately it was possible to hear the evidence-in-chief of each expert in sequence, and to interpose a large portion of the final address of counsel for the defendant, so that little time was lost. However, the potential difficulty of loss time could be overcome if it were thought fit to amend O 36 A, r 3 to require the exchange material to identify the facts and other materials on which the expert witness basis his opinion."
This passage alludes to the nub of the fairness issues. Fairness dictates that the plaintiff be able to test the factual basis of the McCarthy Report, and then make submissions to the trial judge on a weight to given to that report. Moreover, given that the evidence of Dr McCarthy concerns a matter on which expert opinion is allowed, the plaintiff may also wish to have its similarly qualified expert comment on the same factual matrix used by Dr McCarthy, so as to provided a positive alternative finding available on the evidence to the trial judge. In this context, the fairness question becomes:
(a)Given that Dr McCarthy has read the Edibam Report and based his opinion on sources which include the Edibam Report, should the plaintiff be entitled to inspect the Edibam Report at this stage, to enable it to seek the comments of its experts on the basis of the McCarthy Report? or
(b)Is it sufficient that the plaintiff can cross-examine Dr McCarthy (the defendant having indicated its intention to call him) about the contents of the Edibam Report and the extent to reach its contents influenced his opinion?
The fact that Dr McCarthy states that he has read the Edibam Report and based his opinion on it, on the authorities I have discussed above, leads me to conclude that it would be unfair for the defendant not to disclose the Edibam Report, and thus that legal professional privilege has been waived.
This conclusion finds support in the decision of the Full of the Supreme Court of Western Australia in Boyes v Collins (2000) 23 WAR 123. Ipp J, with whom the other member of the Court agreed, made the following comments which are apposite for present purposes [at 146]:
"[76] The position of the respondent's medical advisers is a matter of some curiosity. The medical reports provided by the respondent's medical advisers make no mention of any of them having seen the video film. The appellant's solicitors have requested the respondent's solicitors to inform them whether or not they have shown the video material to their doctors, but the respondent's solicitor's have not replied to that request.
[77] Order 36A, r 2(2) requires a party, unless the court otherwise directs, to serve on the other parties copies of all medical reports the substance of which that party intends to rely on at the trial or hearing. Order 36A, r 2(5) provides that, except with the leave or a direction of the court, or where all other parties agree, no witness may give medical evidence at the trial or hearing of a cause or matter unless the substance of that evidence has been disclosed in writing to all other parties within the time stipulated. In my view, if the medical witnesses have seen the video film or have been told about it, and that has influenced their opinions in any way (by confirming or reinforcing the opinions they have expressed, or altering or negating them), those witnesses should not, without leave, be allowed to testify as to those opinions.
Whether or not the respondent's medical witnesses have seen or been told of the video film was not revealed to Judge Groves. In my view no decision should be made under O 36, r 4 without the court knowing the truth about this aspect. If a defendant's medical advisers have seen a video film of the plaintiff that has influenced their view, and that has not been revealed to the plaintiff's medical advisers, the defendant would thereby acquire a significant and unfair advantage over the plaintiff and the basic purpose of the rules would be subverted. At the least, the plaintiff should be given the opportunity to seek an adjournment of the trial, but this may be cold comfort.
[79] Of course, there is an incentive for the medical advisers not to give an indication in their reports that the video film influenced them in their opinions as that may result in an imputed waiver of legal professional privilege: see, eg, Instant Colour Pty Ltd v Cannon Australia Pty Ltd (unreported, Federal Court Nicholson J, 24 April 1995), per Nicholson J; Jessup v Gorjup (unreported, Supreme Court, Tas, Crawford J, No 158 of 195, 20 November 1997) per Crawford J.
[80] If the respondent's medical advisers have not been shown the video film or been told what it contains, it would again follow that except with the leave of the court those witnesses would not be able to testify as to the impact on their view of the video film. Were leave to be given, it may mean that the court would be required to countenance a defendant deliberately keeping the video material from his or her medical advisers in the knowledge that the film is likely to have some influence on their opinions. Of course, were that to occur, the medical reports exchanged by the defendant's medical advisers would probably not give a complete picture of the testimony eventually to be given by them. That, in my view, would be a undesirable situation."
For these reasons, I propose to make orders requiring the defendant to provide inspection of the Edibam Report.
I will hear counsel as to the precise form of the order, and the issue of costs.