Lawson v Scavarelli No. DCCIV-96-916 Judgment No. D141

[1999] SADC 141

LAWSON V SCAVARELLI
[1999] SADC D141

Judge Anderson
Civil

1. In these proceedings the plaintiff seeks damages for injuries sustained in a collision between a motor vehicle driven by the first Defendant and a pushbike.  The pushbike carried both the Plaintiff and the second Defendant.  There is a dispute between the Plaintiff and the Defendants as to who was riding the pushbike and who was a passenger on the handlebars at the time of impact.  The collision occurred on 24 October 1990.  The proceedings were issued on 19 July 1996.  In paragraph 11 of the statement of claim the Plaintiff seeks an extension of time pursuant to s48 of the Limitations of Actions Act 1936.

2. By an application of 31 August 1998 the Plaintiff sought that the first Defendant produce for inspection documents numbered 10 to 12 in the List of Documents dated 28 August 1996.  Those documents are described, as to item 10, as a “report of investigator dated 6 February 1991 (and subsequent reports) prepared for the purpose of obtaining legal advice and for use in legal proceedings”; and, as to item 12, as a “statement of the second Defendant Robert Wayne Allen dated 26 June 1991”.

3. This application was first heard by a Master of  this Court on 11 September 1998 and argument ensued on various dates until the Master delivered his written reasons on 29 August 1999 when he refused the application with costs.

4. The Plaintiff appeals from that decision.  The Notice of Appeal relates only to item 10 on the List of Documents - what is referred to as “the assessors report of 6 February 1991”.

5. The appeal proceeds upon two bases.  Firstly, as to legal professional privilege, in that it has not been shown that the report was brought into existence for the sole purpose of being submitted to legal advisers for advice or for use in legal proceedings in accordance with the principle in  Grant v Downs (1976) 135 CLR 674. Secondly, that if legal professional privilege does exist then the action of disclosing the report to experts and then providing “by way of continuing discovery” a copy of their report to the Plaintiff’s solicitor constitutes a waiver, either express or implied, of that privilege.

6. Mr Stanley of counsel appeared for the Plaintiff and Mr James for the Defendant.

7. I turn to the issue of whether legal professional privilege has been made out.  The law on this topic has been accurately set out by the Master.

8. Mr Stanley submitted that there was no basis upon which the Master might be satisfied that the ordering of the report by the Defendant’s insurers was for the sole purpose of obtaining legal advice or to take part in legal proceedings.  He was critical of the contents of the first affidavit of Ms Millikan, the Claims Management Officer, who swore two affidavits for the purpose of this application for not asserting positively as to her sole purpose.

9. However, in my opinion such a positive assertion is to be found in paragraph 3 of her affidavit sworn on 23 October 1998.  That paragraph is in these terms:

   “I can say however that it has always been my practice, particularly in cases involving serious or significant injury to instigate early investigation of the claim either in anticipation of legal proceedings being issued or in anticipation of seeking legal advice from SGIC’s solicitors.”

10. The plain meaning of that paragraph is that the report sought was either for one purpose or for another, either or both of which purposes are sufficient to satisfy the test set out in Grant v Downs.  There is no real basis, despite the remarks of the Master about re insurance, to conclude that there was some other and unprivileged purpose.

11. Mr Stanley was also critical of the procedure of Ms Millikan in that she deposed as to the invariable practice in matters involving serious injury.  This, he said, was a resort to “ritual” by the insurers and as such could not be conclusive of the privilege sought.

12. It is difficult to accept criticism of an insurer for having a standard practice when notified of serious injury likely to result in a claim.  In my opinion such a formulated approach to an investigation as is asserted by Ms Millikan in her affidavit invokes the protection offered by Grant v Downs in this circumstance, accepting, as the majority said, that that is not always “necessarily or conclusively” so. (P 689)

13. I am not persuaded that the Master has been shown to have been incorrect in his conclusion in this regard.

14. There is no doubt, despite the assertion in paragraph 12(a) of the Plaintiff’s outline of submissions on appeal, that the provision of a privileged  report to an expert for the purpose of the preparation of an expert’s report for use at trial does not constitute an express or imputed waiver of the privilege attaching to the report.  That is what occurred in this matter.

15. The complete experts report so obtained was sent to the Plaintiff’s solicitors as is required by the Rules of Court.  It was sent under cover of a letter from the first Defendant’s solicitors which asserted that it was provided “by way of continuing discovery”.  Plainly, as the Master said, this was wrong.  It was provided pursuant to the requirements of District Court Rule 38.  It was not to be merely discovered and then subsequently inspected, should the Plaintiff’s advisers so choose.  There is nothing beneficial to the Plaintiff in the Defendant’s solicitors misdescription of their obligation to provide a copy of their expert report to the Plaintiff’s solicitor.

16. The preparation of the report may, of necessity, involve the revelation of some portion of the privileged document in order that the basis of the report may properly be understood.  Such disclosure does not give rise to an imputed waiver of the whole of the privileged material as a matter of fairness in all of the circumstances of this case: see Cole v Dwyer (1999) 203 LSJS 356. It may have been preferable if the expert had been instructed other than by being given a copy of the privileged document but in this matter it is not unfair for the Defendants to maintain the legal professional privilege attaching to the original document.

17. Mr Stanley asserted that the Master was in error in his analysis of the effect of the decision in Cole v Dwyer.  I am unable to agree.  In my opinion the conclusions reached by the Master upon this topic were clearly open to him upon his assessment of the facts. I am not persuaded that in the particular circumstances of this case unfairness to the Plaintiff arises from such a conclusion.

18. The appeal is refused.  The first Defendant is to have his costs to be agreed or taxed.