Henderson v Low

[2000] QSC 417

SUPREME COURT OF QUEENSLAND

CITATION:	Henderson v Low & Ors [2000] QSC 417
PARTIES:	ALLAN HENRY HENDERSON (plaintiff) v BRUCE LOW (first defendant) AND BRUCE LOW (MEDICAL) PTY LTD (ACN 058 660 2090 (second defendant) AND STATE OF QUEENSLAND (third defendant) AND NORTHERN REGIONAL HEALTH AUTHORITY (fourth defendant)
FILE NO:	SC No 829 of 1998
DELIVERED ON:	22 November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 November 2000
JUDGE:	Chesterman J
ORDER:	1. That the defendants disclose to the solicitors for the plaintiff the report of the first defendant dated 2 September 1999 within 7 days of this order
2. That the defendants pay the plaintiff’s costs of the application to be assessed on the standard basis
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GENERALLY – OF WHAT PARTICULAR DOCUMENTS
PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WAIVER OF PRIVILEGE - personal injury litigation arising from medical procedure – defendant doctor provided report to his solicitors – solicitor sent report to specialist for expert opinion – expert report reproduced parts of defendants report – expert report disclosed to plaintiffs – whether defendants report privileged – whether should be disclosed
Trade Practices Act 1974, s 52 Uniform Civil Procedure Rules, r 212(2)
(1986) 161 CLR 475, followed British Coal Corporation v Dennis Rye Ltd No. 2 [1988] 1 WLR 1113, considered Goldberg v Ng (1995) 185 CLR 83, considered Goldman v Hesper [1988] 1 WLR 1238, considered Gotha City v Sotheby’s [1998] 1 WLR 114, considered Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, considered Mann v Carnell (1999) 74 ALJR 378, considered Nea Kateria Maritime Co Ltd v Atlantic and Great Lakes
Attorney-General for the Northern Territory v Maurice considered
COUNSEL:	GR Mullins for the plaintiff/applicant RJ Lynch for the first, second, third and fourth defendants/first, second, third and fourth respondents
SOLICITORS:	Quinn Scattini for the plaintiff/applicant McInnes Wilson Lawyers for the first, second, third and fourth defendants/first, second, third and fourth respondents

1. CHESTERMAN J: The plaintiff claims damages for personal injury alleging negligence and, a little incongruously, contravention of s 52 of the Trade Practices Act 1974 on the part of the first defendant who is an orthopaedic surgeon practising in Townsville. It is not easy to understand from the statement of claim what causes of action are alleged against the second, third or fourth defendants. The third defendant is said to be vicariously liable for the negligence of the first defendant but, presumably, that allegation and others directed against the third defendant should really be addressed to the fourth defendant. Be that as it may the present application may be disposed of by reference only to the action against the first defendant.

2. It is pleaded that in November 1994 the plaintiff was experiencing back pain. He consulted the first defendant who diagnosed a condition of spinal stenosis and advised a lumbar laminectomy. The plaintiff underwent the procedure in January 1995 in the Townsville General Hospital. It is then alleged that as a result of the operation the plaintiff suffered nerve root damage which has caused permanent localised pain and paralysis, urinary incontinence and impotence. Nothing is said about the first defendant’s performance of the operation. The complaint is that the first defendant failed to inform the plaintiff “of any consequence, risk or complication of the laminectomy procedure”, and this omission is categorised as negligence or misleading and deceptive conduct in trade or commerce.

[3] An essential element of the plaintiff’s claim is that it was the surgical procedure
which has occasioned his present plight.

1. On 2 September 1999 the first defendant provided his solicitors with a written report in which he described his conduct of the operation and noted his observations made during it. The report was provided by the solicitors to Dr Peter Boys who was retained by them to furnish an expert opinion with respect to the plaintiff’s allegations. Dr Boys furnished a report dated 23 November 1999 which refers to the first defendant’s report and, indeed, reproduces part of its contents.

2. The plaintiff’s application is for an order that the defendants disclose the first defendant’s report of 2 September 1999. The defendants resist the application on the basis that it is subject to legal professional privilege.

3. The report was given by the first defendant to his solicitors to enable them to conduct his defence of litigation commenced against him. It was given by the solicitors to Dr Boys so that he could provide an expert opinion for the same purpose. The report is clearly the subject of the privilege which, unless it has been waived, is an answer to the plaintiff’s application.

4. The plaintiff argues that the privilege has been lost by the circumstance that parts of it have been disclosed in the report of Dr Boys which was given to him, as it had to be, by virtue of UCPR 212(2).

[8] The extracts of the first defendant’s report appear in the section headed “opinion” in
Dr Boy’s report. He wrote:

“It is my opinion that (the plaintiff) suffers a chronic regional pain syndrome referrable to the lumbar spine . . . the documented operative record is not detailed but I note (the first defendant’s) report of the 2/9/1999 in which he states at the time of laminectomy;

no damage to nerve roots occurred, no dural tear occurred, the pars and facet joints were not violated thus making the back unstable, no ventral dissection of the dura was performed and a discectomy was not required . . . no excessive force was used in handling the dural tissue when the decompression was performed. No correction deformity that could possibly cause some traction to the dural nerve roots was required.

I note (the first defendant’s) comments concerning this man’s peri- operative course;

He did not develop any complications such as epidural abscess formation or epidural haematomas. Subsequent x-rays did not show any sign of iatrogenic instability. He did not develop a disc space infection, meningitis or any other disastrous complication all of which neurogenic bladder could be linked to.

(The first defendant’s) comments . . . would therefore indicate no potential surgical mishap as identified by him which might explain (the plaintiff’s) poor post-operative result.”

1. To succeed the plaintiff must prove that his condition was caused by the operation. He has obtained reports from medical practitioners to discharge that onus. Dr Boys suggests a reason, other than the operation, for the plaintiff’s symptoms. The plaintiff’s experts are disadvantaged in that the expression of their opinions is necessarily made in ignorance of what was done and observed by the first defendant. That disadvantage is itself insufficient to abrogate the privilege attaching to the first defendant’s report but the partial reproduction of that report in Dr Boy’s communication which the defendants were obliged to show the plaintiff is a significant factor affecting the question.

2. The most recent pronouncement by the High Court on this topic is Mann v Carnell (1999) 74 ALJR 378 in which Gleeson CJ, Gaudron, Gummow and Callinan JJ said:

   “. . . a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. . . . it is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. . . . Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. . . . the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.” (p 384).

3. The court held that disclosure of a privileged communication to a third party for a limited and specific purpose and upon terms of the third party would treat the information disclosed as confidential did not result in a complete or general waiver of privilege because there was no inconsistency between the retention of privilege and the limited disclosure. The court referred, with apparent approval, to a number of recent English decisions to a like effect: British Coal Corporation v Dennis Rye Ltd No 2 [1988] 1 WLR 1113; Goldman v Hesper [1988] 1 WLR 1238 and Gotha City v Sotheby’s [1998] 1 WLR 114. The court appears to have obliquely criticised the result in Goldberg v Ng (1995) 185 CLR 83 in which a limited disclosure for a particular purpose on the basis that the party shown the document would respect its confidentiality was held to be inconsistent with the retention of privilege. There was, however, no criticism of the principles expressed in Goldberg nor in the earlier case of Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475.

4. Both these cases recognised, and approved, a line of authority which has consistently held that the revelation of part of a privileged document to an opponent in litigation does amount to an implied waiver of privilege with respect to the whole document. In Maurice Gibbs CJ said (481-482):

   “It is not difficult to see that where a document deals with a single subject matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence . . . similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum.”

   This last mentioned incident occurred in Great Atlantic Insurance Co v Home
   Insurance Co [1981] 1 WLR 529 in which Templeman LJ said (538-539):

   “ . . . the rule of privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possess the document is clearly not the person who can decide whether a partial disclosure is misleading or not . . . once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased.”

[13] Gibbs CJ (Maurice at 483) expressed the opinion that the rule is not limited to the
partial disclosure of a privileged communication in evidence. His Honour said:

“The question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material.”

1. His Honour also quoted (at 482) with approval the judgment of Mustill J in Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) [1981] Com LR 138 at 139:

   “Where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question.”

[15] The author of Wigmore on Evidence (McNaughton Revision 1961 vol 8 para 2290)
said, in a passage approved by Gibbs CJ in Maurice:

“He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final”.

Writing with respect to this passage Mason and Brennan JJ said in their joint judgment in Maurice (487-488):

“In order to ensure that the opposing litigant is not mislead 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 the rest of the communication on that subject matter.”

1. The present application is an instance of this category of case. It is dissimilar to Mann in that the partial disclosure was to the opponent in litigation and not to a third party. The disclosure was not for a limited or collateral purpose but for a reason integrally connected to the subject matter of the litigation. The defendants cannot reveal part of their report to support their defence of the plaintiff’s claim and conceal the remainder by asserting that all that is relevant has been disclosed. This in the end was the defendants’ only answer to the application. The concerns expressed in the judgments are entirely applicable. The defendants are not the best judges of whether or not the partial disclosure is misleading. Fairness demands that the plaintiff have the opportunity of being satisfied that those parts of the first defendant’s report that have been published represent all the relevant material on which the question of causation is to be debated, and that what has been reproduced does not, when put in context, take on a different complexion. It is, I think, obvious that the plaintiff’s medical advisors will be distinctly disadvantaged when considering whether the operation has caused the plaintiff’s complaints if they cannot read the first defendant’s report. They should not be required to essay their opinions on the basis that the passages quoted by Dr Boys are all that is necessary for that purpose. It would be relevantly unfair if the defendants’ waiver of part of the report did not operate to all of it.

2. Accordingly I order that the defendants disclose to the solicitors for the plaintiff the report of the first defendant dated 2 September 1999 within 7 days of this order. I further order that the defendants pay the plaintiff’s costs of the application to be assessed on the standard basis.