Felgate v Tucker - [2011] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

Felgate v Tucker [2011] QCA 194

PARTIES:

WENDY FELGATE
(appellant)
v
PAUL TUCKER
(respondent)

FILE NO/S:

Appeal No 10823 of 2010
SC No 9161 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2011

JUDGES:

Margaret McMurdo P, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WAIVER OF PRIVILEGE – where the appellant sought damages from the respondent for personal injuries under the Personal Injuries Proceedings Act 2002 (Qld) after experiencing surgical awareness – where during a compulsory conference the respondent disclosed a document which was based on a statement provided by the respondent to his lawyers – the appellant sought disclosure of the statement – where the respondent claimed legal professional privilege – whether the Personal Injuries Proceedings Act 2002 (Qld) required disclosure – whether the respondent waived legal professional privilege when the document was produced at the compulsory conference

Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 9A, s 10, s 11 s 20, s 21, s 22, s 27, s 30

Allen v State of Queensland [2010] QSC 442, distinguished
Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80, considered
Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39, cited
Cockerill v Collins [1999] 2 Qd R 26; [1998] QCA 76, cited
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67, applied
Goldberg v Ng (1995) 185 CLR 83; [1995] HCA 39, considered
Grant v Downs (1976) 135 CLR 674; [1976] HCA 63, cited
James v WorkCover Queensland [2001] 2 Qd R 626; [2000] QCA 507, distinguished
Watkins v State of Queensland [2008] 1 Qd R 564; [2007] QCA 430, considered

COUNSEL:

C C Heyworth-Smith, with J P Morris, for the appellant
R Morton for the respondent

SOLICITORS:

Murphy Schmidt Solicitors for the appellant
DLA Phillips Fox for the respondent

MARGARET McMURDO P: The appellant, Ms Wendy Felgate, underwent laparoscopic surgery on 14 November 2007 at the Royal Brisbane and Women's Hospital. The respondent, Dr Paul Tucker, was her anaesthetist. During the surgical procedure, Ms Felgate experienced a phenomenon known as "surgical awareness": she was conscious but paralysed and unable to communicate her state of consciousness to medical staff. Five days later, Ms Felgate gave Dr Tucker an initial notice of her claim for damages for personal injuries arising from this incident under s 9A Personal Injuries Proceedings Act 2002 (Qld) ("the Act"). During a subsequent compulsory conference between the parties under the Act Dr Tucker produced a document entitled "Interpretation of anaesthetic record"…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Felgate v Tucker

Details

AGLC: Felgate v Tucker [2011] QCA 194
Case: [2011] QCA 194
Decision Date: 12 August 2011

CaseChat Overview and Summary

In the matter of Felgate v Tucker, the appellant, Felgate, pursued damages against Tucker for personal injuries sustained during a surgical procedure where she experienced awareness. The appellant's claim was brought under the Personal Injuries Proceedings Act 2002 (Qld). The dispute centred on the discovery and inspection of documents, specifically whether the appellant was entitled to access a statement made by Tucker to his legal representatives, which was later disclosed during a compulsory conference. The appellant argued that the Act required the disclosure of the statement, while Tucker maintained that legal professional privilege protected the document and that no waiver of this privilege had occurred.

The central legal issues addressed by the court were whether the Personal Injuries Proceedings Act 2002 (Qld) mandated the disclosure of the statement and, if so, whether Tucker's production of the document at the compulsory conference constituted a waiver of legal professional privilege. The court had to navigate the balance between the appellant's right to access relevant documents and the respondent's entitlement to maintain the confidentiality of communications with legal counsel.

The court concluded that the Personal Injuries Proceedings Act 2002 (Qld) did not impose an obligation on Tucker to disclose the statement. Furthermore, the court found that the mere production of the document at the compulsory conference did not amount to a waiver of legal professional privilege. Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs associated with the proceedings. This decision underscores the importance of legal professional privilege in personal injury litigation and the circumstances under which such privilege may be waived.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Felgate v Tucker [2011] QCA 194
PARTIES:	WENDY FELGATE (appellant) v PAUL TUCKER (respondent)
FILE NO/S:	Appeal No 10823 of 2010 SC No 9161 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2011
JUDGES:	Margaret McMurdo P, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WAIVER OF PRIVILEGE – where the appellant sought damages from the respondent for personal injuries under the Personal Injuries Proceedings Act 2002 (Qld) after experiencing surgical awareness – where during a compulsory conference the respondent disclosed a document which was based on a statement provided by the respondent to his lawyers – the appellant sought disclosure of the statement – where the respondent claimed legal professional privilege – whether the Personal Injuries Proceedings Act 2002 (Qld) required disclosure – whether the respondent waived legal professional privilege when the document was produced at the compulsory conference Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 9A, s 10, s 11 s 20, s 21, s 22, s 27, s 30 Allen v State of Queensland [2010] QSC 442, distinguished Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80, considered Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39, cited Cockerill v Collins [1999] 2 Qd R 26; [1998] QCA 76, cited Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67, applied Goldberg v Ng (1995) 185 CLR 83; [1995] HCA 39, considered Grant v Downs (1976) 135 CLR 674; [1976] HCA 63, cited James v WorkCover Queensland [2001] 2 Qd R 626; [2000] QCA 507, distinguished Watkins v State of Queensland [2008] 1 Qd R 564; [2007] QCA 430, considered
COUNSEL:	C C Heyworth-Smith, with J P Morris, for the appellant R Morton for the respondent
SOLICITORS:	Murphy Schmidt Solicitors for the appellant DLA Phillips Fox for the respondent