Pierides (a minor who sues by his Litigation Guardian Emile Pierides) v Monash Health (formerly known as Southern Health)
[2017] VSC 342
•16 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2012 06888
| JAMIE PIERIDES (a minor who sues by his Litigation Guardian EMILE PIERIDES) | Plaintiff |
| v | |
| MONASH HEALTH (formerly known as SOUTHERN HEALTH) | Defendant |
---
JUDGE: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 June 2017 |
DATE OF JUDGMENT: | 16 June 2017 |
CASE MAY BE CITED AS: | Pierides (a minor who sues by his Litigation Guardian Emile Pierides) v Monash Health (formerly known as Southern Health) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 342 |
---
PRACTICE AND PROCEDURE – Discovery – Application of Orders 33 and 44 of Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Application of ss 119, 122(2) and 126 of the Evidence Act 2008 (Vic) – whether notes of conference between medical expert and solicitor constitute a report – whether notes of conference are required to be provided - client legal privilege - whether privilege waived or lost.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Clements QC Ms J Cowen | Lennon Mazzeo Lawyers |
| For the Defendant | Mr A Pillay | Minter Ellison |
JUDICIAL REGISTRAR CLAYTON:
The defendant’s application for an unredacted copy of a file note of conference with Professor Werther on 30 September 2016, and file notes of conferences with Professor Baker, Professor Colditz, Dr Harbord, Professor Werther and Ms White, is granted in part.
The plaintiff is to provide the following documents to the defendant within seven days of this order:
(a) An unredacted copy of the notes of conference with Professor Werther dated 30 September 2016; and
(b) A copy of the undated notes of conference with Dr Harbord headed with the initials LW/CH and a phone number commencing with the digits (08), and the following five pages numbered from 2 to 6 to be served in accordance with r 44.03.
Introduction
This is an application by the defendant, Monash Health for copies of files notes of conversations with various expert witnesses engaged by the lawyers acting for the plaintiff, Jamie Pierides (“Jamie”). Although the Summons dated 19 May 2017 included the notes of Ms White in the orders sought, the submissions filed by Monash Health did not include any claim in respect of the notes of Ms White, a speech pathologist whose report was relevant to the quantum of the claim. The Court was not provided with Ms White’s expert report or any details about any conferences with Ms White. Lawyers for Jamie submit that there are no notes of any conferences with Ms White. Neither Counsel addressed the Court in relation to Ms White.
The application is supported by an affidavit of Ms Lisa Ridd, sworn 18 May 2017 and written submissions dated 1 June 2017.
Monash Health argues that it is entitled to the documents sought under Order 33 or Order 44 of the Supreme Court (General Civil Procedure) Rules 2015 (“the Rules”), or alternatively that those documents are discoverable and that any privilege that attaches to the documents has been waived or lost by reason of s122(2) or s126 of the Evidence Act 2008 (Vic) (“the Evidence Act”).
Counsel for Jamie argues that the documents are privileged, that privilege has not been waived and that the documents sought do not have to be provided under Order 33 or Order 44 of the Rules. One document, the file note of a conference with Professor Werther on 30 September 2016, has been provided in redacted form. Counsel for Jamie submits that the redacted portion of the notes record a ‘separate privileged communication made to Professor Werther regarding the circumstances under which his amended report was requested’ and that the unredacted portion was disclosed on the basis that it was the only record of the communication that led to Professor Werther’s amended report.
Background to the Case
This case concerns a claim for damages arising out of the circumstances of Jamie’s birth. Jamie was born at less than 28 weeks gestation at Monash Medical Centre after his mother, Mrs Seoud, went into premature labour.
The Amended Statement of Claim dated 12 May 2017 alleges that, as a result of the management of Mrs Seoud’s labour and delivery, Jamie has suffered:
(a) birth asphyxia;
(b) global hypoxic ischaemic insult leading to intellectual disability with autistic behaviours;
(c) global developmental delay;
(d) central diabetes insipidus;
(e) renal impairment requiring renal transplant and nephrectomy; and
(f) hypopituitarism.
Monash Health have not yet filed an amended defence, however they have previously denied all allegations of negligence and causation. That is, they deny that they were negligent in the management of Mrs Seoud’s labour and delivery and they deny that Jamie’s injuries were caused by the events surrounding his birth.
It is clear from the expert evidence obtained in this case that there are two major contested issues:
(a) whether the management of Mrs Seoud’s labour and delivery was reasonable in all the circumstances; and
(b) what caused Jamie’s injuries.
As in many medical negligence claims, negligent conduct does not necessarily or invariably result in the injuries sustained.
In this case, the Amended Statement of Claim sets out the particulars of negligence at paragraph 48. These can be summarised as allegations that Monash Health failed to deliver Jamie earlier and that Monash Health used Syntocinon (a synthetic hormone to stimulate labour) when it was inappropriate to do so.
Even if a Court was satisfied that Monash Health was negligent in the management of the labour and delivery, Jamie will still need to prove that earlier delivery and/or a reduction or absence of Syntocinon would have avoided the injuries he has sustained.
Applicable Law
Numerous experts have been retained by the parties to provide opinions about both negligence and causation. It is apparent from the expert reports that have been provided and that are the subject of this application, that the relevant expertise of an expert is confined to either the negligence or causation case. An expert obstetrician, for example, can comment on whether Monash Health managed the labour and delivery appropriately, but lacks the relevant expertise to comment on whether Jamie’s injuries arose from an hypoxic ischaemic insult. Similarly, a paediatric neonatologist can comment on the likely cause of Jamie’s injuries, but cannot opine on whether the use of Syntocinon or the timing of the delivery was reasonable management in all the circumstances.
Both negligence and causation are required for liability to attach to Monash Medical Centre and an opinion on either negligence or causation is an opinion on the liability of the defendant.
Order 33 applies to a proceeding in which the plaintiff claims damages for bodily injury. Rule 33.07 requires the plaintiff to serve on each other party in the proceeding any hospital or medical report:
(a) which the plaintiff intends to tender or the substance of which the plaintiff intends to adduce in evidence; or
(b) which otherwise the plaintiff intends to use at the trial.
However r 33.09 provides that:
Unless the Court otherwise orders, a party who is required to serve a copy of a hospital report or medical report under this Order may exclude from the copy served;
(a) any expression of opinion in the original report on the question of liability; and
(b) if the original report contains any statement with respect to the facts on which the opinion is based, any statement with respect to a fact which relates only to the question of liability.
Rule 44.02(3) provides that:
With respect to the opinion of a medical practitioner, in a proceeding for medical negligence in which the plaintiff claims damages for or in respect of bodily injury, this Order applies to an opinion on the liability of the defendant (emphasis added) but does not otherwise apply to a medical report to which Order 33 applies.
Therefore the rule governing the service of expert reports in medical negligence claims depends on whether the expert is providing an opinion on the liability of the defendant or not.
As I understand it, Ms White’s opinion only goes to quantum, therefore is not a liability opinion and Order 33 would apply. All the other experts the subject of this application do provide an opinion on one or other aspect of liability and therefore Order 44 applied.
Supplementary Reports
Rule 44.03(3) provides that:
If the expert provides to a party a supplementary report, including a report indicating that the expert has changed the expert’s opinion on a material matter expressed in an earlier report –
(a) that party shall forthwith serve the supplementary report on all other parties; and
(b) in default of such service, the party and any other party having a like interest shall not sue the earlier report or the supplementary report at trial without the leave of the Court.
Order 33 provides a different approach, so that a party cannot simply withhold service of a supplementary report and decide not to rely on that witness at trial.
Rule 33.08.1 provides that:
Where after a party has served a medical report under Rule 33.07 or Rule 33.08 the medical expert who made the report makes another medical report to the party, then, notwithstanding that the party –
(a) no longer intends to tender the medical report so served or to adduce its substance in evidence or to otherwise use it at the trial; or
(b) does not intend to tender the other medical report or to adduce its substance in evidence or to otherwise use it at the trial –
the party shall serve the other medical report forthwith on each other party who has an address for service in the proceeding.
Both r 33.08.1 and r 44.03(3) apply only to reports of the expert made after the original report.
This application concerns whether either of those orders require service of file notes of conferences held between the various experts and Jamie’s solicitors and, if neither order applies, whether Jamie nevertheless is required to discover those file notes as relevant documents.
It does not appear to be an issue between the parties that the file notes of those conferences would likely be relevant documents for the purposes of the litigation.
Jamie claims client legal privilege over those documents pursuant to s119 of the Evidence Act and claims that there has been no loss or waiver of privilege pursuant to ss122 or 126 of the Evidence Act.
Defendant’s Arguments
Monash Health submits that the relevant principles to be applied to this case are those set out by Associate Justice Derham in Matthews v SPI Electricity[1] and that it is appropriate for the Court to examine the documents over which privilege is claimed to make its own determination.
[1] [2013] VSC 33 [31]-[56].
Before even considering whether privilege has been waived, however, Monash Health argues that the documents sought are required to be served pursuant to the Rules.
Under Order 33 of the Rules, a medical report:
(a) means a statement on medical matters concerning the Plaintiff whether in writing, or oral, made by a medical expert; and
(b) includes any document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which the expert obtained or caused to be brought into existence subsequently.
Monash Health argues that during a conference between an expert and a solicitor, the expert may provide an oral report to the solicitor. The written report subsequently served by that solicitor would then in fact be a ‘supplementary report’ after the first oral report has been provided to the solicitor. Therefore notes of the conference in which any such report was given must be provided pursuant to r 33.08.1 where the expert is not providing a liability opinion, and pursuant to r 44.03(3) where the expert is providing a liability opinion.
Counsel for Monash Health submitted that the relevant test was whether the expert, in any conference, provided a ‘report’. In his submission housekeeping matters such as; whether or not the expert could take on the case, general discussion about the expert’s particular area of expertise, the expert’s opinion on general issues relating to, for example, management of labour and delivery but not specific issues relating to the case at hand, would not constitute a ‘report’ under the Rules.
However, if the expert expressed an opinion about the specific facts of the case at hand, then, in the submission of Monash Health, that opinion would constitute a ‘report’ under the Rules and, consequently a file note of such a conference should be served as a written record of ‘the report’.
In the alternative, Monash Health argues that, if the file notes of conference do not have to be provided pursuant to Order 33 or Order 44, they are discoverable and any privilege in them has been lost or waived.
Monash Health says that privilege has been lost in one of two ways - either because, by serving the reports, Jamie has acted in a way that is inconsistent with maintaining the privilege pursuant to s122(2) of the Evidence Act, or because the notes are ‘reasonably necessary’ to enable a proper understanding of the written reports pursuant to s126 of the Evidence Act.
Section 122(2) of the Evidence Act is the legislative adoption of the approach taken by the High Court in Mann v Carnell[2] and relevantly provides that:
Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
[2] (1999) 201 CLR 1.
Section 126 of the Evidence Act provides that:
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
Plaintiff’s Arguments
Counsel for Jamie provided a folder containing the expert reports of Professor Baker, Professor Colditz, Professor Werther and Dr Harbord, as well as the handwritten notes of conversations with those experts.
Counsel submitted that the relevant rule to apply was Order 44 and that Order 44 was relevant only to the extent that it related to file notes of conferences after the service of the original report.
Counsel submitted that Order 44 sets out a procedure for providing a ‘supplementary’ report at r 44.03(4) which provides that:
Any report provided by the expert pursuant to this Rule –
(a) shall be signed by the expert; and
(b) shall be accompanied by clear copies of any photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter to which the report refers.
Counsel submitted that the only conference that occurred with an expert after the service of the original report was a conference with Professor Werther, and redacted file notes of the conference had been provided. He submitted that the redacted section did not contain any record of a communication that influenced or underpinned Professor Werther’s amended report, but rather a separate privileged communication made to Professor Werther regarding the circumstances under which his amended report was requested.
Counsel argued that Order 44 had no application to any of the other files notes of expert conferences because they were all conferences that occurred prior to obtaining and serving written reports and therefore could not be considered ‘supplementary reports’ for the purposes of r 44.03(3). None of the file notes had been provided to the experts for their review or signature.
Counsel submitted that the documents were subject to privilege pursuant to s119 of the Evidence Act and that the onus was on Monash Health to establish that privilege had been waived. Counsel contended that, in respect to the application of s122(2) of the Evidence Act to this case, the question for the Court was whether the notes of conference influenced or underpinned the experts’ reports in respect of substantial matters. As none of the notes had been provided to the experts it could not be said that they had influenced or underpinned the expert reports.
Counsel submitted that, in respect to s126 of the Evidence Act, the question of whether disclosure is reasonably necessary to enable a proper understanding of the document is to be determined objectively by the Court, having regard to the written reports and the notes of conference.
Application of the Law
This case requires an assessment of the content of each report and an examination of the conference notes for each expert to determine:
(a) whether the report expresses a liability opinion or a causation opinion;
(b) the timing of any conferences;
(c) the content of the file notes;
(d) whether Order 33 or Order 44 applies;
(e) whether the documents are relevant documents for the purposes of discovery;
(f) whether the documents are privileged documents; and
(g) whether that privilege has been waived.
Professor Baker
Professor Baker is a maternal and fetal health expert who has provided a report, dated February 2017, on the management of Mrs Seoud’s labour and delivery. In that report he expresses the view that ‘the intrapartum care Mrs Seoud received failed to attain an acceptable standard which led to a delay in the delivery of Jamie. This delay is likely to have led to a deterioration in his condition at the time of the delivery’.
Professor Baker is clearly expressing a view about the liability of Monash Health and his report has therefore been provided to Monash Health pursuant to r 44.03. His report sets out the material which had been provided to him and on which he has based his opinion.
Jamie’s solicitors conferred with Professor Baker on 20 November 2016 and on 8 February 2017. The written report is dated ‘February 2017’. There was no Affidavit material before me in relation to when that report was written or received. Counsel submitted that the report post-dated the conference.
Pursuant to r 44.03(4) any supplementary report provided by the expert shall be signed by the expert. Accepting for the moment that the conference on 8 February 2017 pre-dated the report, according to Jamie’s counsel these conferences cannot amount to supplementary reports as they occurred before the report was filed.
According to counsel for Monash Health, if the expert expressed an opinion based on the circumstances of this case during the conference, then that opinion amounts to an oral report which should be provided.
If indeed Counsel for Monash Health is correct, and the conference of 20 November 2017 amounted to an oral report of the expert, then that oral report was provided, in accordance with r 44.03(4), when the signed report of Professor Baker dated February 2017 was provided. There is nothing in the conference notes of 20 November 2016 that take it outside the written report of Professor Baker, so that it could be viewed as a separate report of Professor Baker.
The conference on 8 February 2017 is of a different nature. Professor Baker does not express an opinion in the notes from that conference. Even if the conference on 8 February 2017 occurred after the provision of the report, having reviewed the notes of that conference I am satisfied that they do not record anything in the way of an expression of opinion that could be considered a report pursuant to r 44.03, nor do they record any statement on medical matters concerning the plaintiff that would amount to a medical report under r 33.03.
Waiver of Privilege
As the notes of conference do not have to be provided pursuant to Order 44 or Order 33, the Court must consider whether they are otherwise discoverable documents to which a privilege attaches and, if so, whether that privilege has been waived.
Whether they are relevantly discoverable will turn on the content of each file note. In this case, having reviewed the notes of the conference on 20 November 2016, they would be discoverable documents.
It is common ground between the parties that notes of conferences with experts are privileged pursuant to s119 of the Evidence Act which provides that:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of –
(a) a confidential communication between the client and another person, or between a lawyer acting for a client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared –
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, of was or might have been, a party.
In this case it is clear that the dominant purpose of conferring with experts was to provide professional legal services in a proceeding.[3]
[3]Ryler v Frolich [2005] NSWSC 1342 [11]-[12].
The question then becomes whether privilege has been waived or lost.
There are good reasons for all practitioners in conducting litigation of this sort to assume, as a starting point, that all communications with experts are likely to be discoverable documents in a proceeding and that the service of any expert report may result in the waiver of a client legal privilege over those documents.
It is important that the parties and the Court have confidence in the experts called to give evidence, particularly in complex medical claims of this sort where the judge and jury cannot be expected to have any knowledge about the issues in dispute and will largely depend on the experts for assessment of the standard of care provided and the cause of the injuries alleged.
For this reason there is an argument to support the proposition that notes of all dealings with experts, by any party, ought to be before the Court.
Moreover, the content of an expert report may be necessarily constrained by the questions that the expert is directed to answer, and may not reflect the full ambit of the conferences had with instructing solicitors.
Jamie’s counsel points to the Expert Witness Code of Conduct[4] and the obligation imposed by it on the expert to include all relevant matters in his or her report, to provide reassurance to the Court and all parties that the expert has not withheld any relevant information or opinion.
[4] See Form 44A of the Rules.
However, I am not convinced that an expert will always have a full understanding of what constitutes a ‘relevant matter’ in a legal proceedings. Something of legal relevance might not strike a medical practitioner as relevant, and an expert is entitled to seek guidance from his or her instructor in determining what matters need to be addressed in the report. There is much to be said for the proposition that transparency in dealings with an expert provides the greatest reassurance that that expert come to the court as impartial witnesses.
Waiver under s122(2) of the Evidence Act
This view is in keeping with the notion that service of a report constitutes a waiver of privilege under s122(2) in that it is inconsistent to maintain privilege in file notes of conferences with experts when the report of that expert is relied on. The expert can certainly be cross examined at trial on the content of any conferences with the solicitors by whom he or she was retained and it is inappropriate that the content of any such conference be ventilated for the first time during the trial.[5]
[5]Roads Corporation v Love [2010] VSC 581.
It is widely accepted that disclosure of an expert report will involve an implied waiver of privilege with respect to the brief of instructions and documents provided to experts.[6]
[6] See Australian Securities and Investment Commission v Southcorp Ltd (2003) 46 ASCR 438 at pp. 441-442; Attorney General (NT) v Maurice (1986) 161 CLR 475 [481]; Goldberg v Ng (1995) 185 CLR 83 [98]; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1999] FCA 870; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 [46].
In Commissioner of Federal Police v Propend Finance Pty Ltd[7] McHugh J made clear that the privilege attaches to ‘communications, either oral, written or recorded, and not with documents per se’.
[7] (1997) 188 CLR 501 [137].
As set out by Barrett J in Ryler v Frolich[8], the privilege can only attach to documents which embody communications between the expert and the litigant or the litigant’s lawyers by whom the expert is retained.[9] The documents in dispute in this case all relate to such communications.
[8] [2005] NSWSC 1342.
[9] Ibid [12].
However the authorities do not support the proposition that reliance on an expert report results in an automatic waiver of privilege in relation to all communications between the solicitor and the expert.
The cases deal at length with the circumstances in which privilege may be waived due to an inconsistency in maintaining the privilege in circumstances where there has been disclosure of the expert report (or other documents).[10]
[10] See for example New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance [2007] NSWSC 258; Intergral Energy Australia v EDS (Australia) Pty Ltd [2006] NSWSC 971; Thomas v State of New South Wales [2006] NSWSC 380; Prince Removal & Storage Pty Ltd v Roads Corporation [2012] VSC 245.
The test, as set out by Derham AsJ in Matthews v SPI[11] is whether the applicant can establish, ‘as a fact, or as a reasonable inference, that the privileged documents influenced or underpinned the expert’s report’.[12]
[11] [2013] VSC 33 [93].
[12] [2013] VSC 33 [81].
I do not accept Counsel for Jamie’s submission that this test would require that the file notes themselves must be proven to have influenced or underpinned the expert’s report. Rather it is the communications that are recorded in the file notes that must be examined to determine whether there is anything in those communications which influenced or underpinned the expert’s report.
There is nothing in the notes of the conferences with Professor Baker that indicate that the communications with Jamie’s solicitors influenced or underpinned his report. His report sets out the material upon which his opinion was based and I can see nothing in the notes that suggests that the communications recorded in those notes underpinned or influenced his opinion. Privilege has not been waived pursuant to s122(2).
Waiver under s126 of the Evidence Act
Counsel for Monash Health submits that, if the privilege has not been waived under s122(2), it has been waived under s126 in that the notes of the conferences are reasonably necessary to enable a proper understanding of the expert reports.
There is no doubt that privilege has been waived in the instructing letter or letters provided to each expert and the brief of materials provided to each expert, once the report was served. The defendant is entitled to know the questions that the expert was asked to address, the assumptions he was asked to make and with what documents he was provided.
It cannot be said that the conference notes are required to properly understand Professor Baker’s report. Privilege has not been waived on this basis.
Jamie is not required to provide the conference notes of Professor Baker and the application so far as it relates to Professor Baker is dismissed.
Dr Harbord
Dr Harbord is a paediatric neonatologist who provided two reports dated 13 March 2014 and 24 February 2017.
The first report was commissioned by Jamie’s former solicitors, Arnold, Thomas and Becker. This report expresses Dr Harbord’s opinion about the cause of Jamie’s injuries and whether they are consistent with an hypoxic event having occurred shortly prior to his birth. Dr Harbord expresses the view that ‘there was acute birth asphyxia, associated with CTG trace abnormalities for some hours before delivery. I consider that he did have evidence of this hypoxia at delivery in view of the fetal heart rate bradycardia, low Apgar scores and requirement for resuscitation.’
Dr Harbord expresses an opinion about the cause of Jamie’s injuries and therefore the service of this report is governed by the provisions of Order 44.
Dr Harbord was subsequently asked by Jamie’s current solicitors to examine Jamie and prepare a report setting out his findings on examination. That examination occurred on 6 September 2016, although the report of that examination is dated 24 February 2017.
On 30 September 2016, Jamie’s solicitors had a conference with Dr Harbord. Counsel for Jamie submitted that that conference was a conference before the supplementary report was filed and as a result could not be considered a ‘supplementary’ report pursuant to r 44.03(3).
However the notes of the conference of 30 September 2016 were, in fact, reduced into a written report which was served. That report of 24 February 2017 is ‘the supplementary report’ and was served in accordance with r 44.03(4).
I accept that this is so, as far as the file notes record Dr Harbord’s observations about his examination of Jamie. If I am wrong about the application of Order 44 and I am required to examine whether privilege has been waived in these notes, I find that nothing in those notes records any matter that has influenced or underpinned Dr Harbord’s report. Rather, Dr Harbord is reporting his findings as set out in his written report. Nor are those notes necessary to understand the content of Dr Harbord’s report of 24 February 2017. Therefore I find that privilege has not been waived in those notes.
However, it is clear that either on 30 September 2016 or at another unknown time, a conference was held by Jamie’s current solicitors with Dr Harbord in relation to his earlier report of 13 March 2014. The notes of this conference are in the same handwriting as the notes of the 30 September 2016 conference, although they start on a separate page and are headed by a the initials LW/CH, and a phone number, presumably Dr Harbord’s phone number. The pages after the first page are numbered 2 through to 6, suggesting that this is a separate conference from the conference relating to the medical examination, even if it occurred on the same date.
There is no supplementary report dealing with the matters addressed during that conference and no typed up notes of conference provided to Dr Harbord for him to adopt.
It is clear in my view that these six pages of notes do constitute ‘a supplementary report’ pursuant to r 44.03(3) and, given that no formal supplementary report appears to have been sought in relation to this conference and signed notes of conference have not been provided, these notes should be signed by Mr Harbord or converted into a report and served on Monash Health.
There is one further file note dated 27 February 2017. This is said to have occurred prior to the provision of Dr Harbord’s report dated 24 February 2017 and it is clear from the content of the note that it does pre-date that report, notwithstanding the date on Dr Harbord’s supplementary report.
This file note deals with housekeeping matters. It does not constitute a ‘report’ that needs to be served under Order 44. Nor is it a relevant document for the purposes of discovery and therefore, in my view, does not need to be discovered and the issue of whether privilege has been waived does not arise.
Professor Colditz
Professor Colditz is a neonatal paediatrician who has provided a report dated 26 August 2016 and a supplementary report dated 16 March 2017. He was asked to express his opinion on whether Jamie has Acute Tubular Necrosis and the likely cause or causes of such a diagnosis.
After Professor Colditz provided his first report Jamie was diagnosed with central diabetes insipidus and Professor Colditz was asked to provide an opinion about this diagnosis, the cause of this diagnosis and whether his earlier opinion had changed.
Professor Colditz provided his opinion in relation to causation and his reports were served pursuant to Order 44.
Solicitors for Jamie had three conferences with Professor Colditz prior to the service of his first report on 26 August 2016. Those conferences were on 20 July 2016, 15 August 2016 and 24 August 2016. To the extent that it is possible to decipher and comprehend the fairly extensive file notes, the written report is effectively the report of those conferences.
Counsel for Monash Health submits that any opinion expressed by an expert in a conference amounts to a report and must be provided. Even though these conferences pre-date the written report, Counsel for Monash Health submits that service of the written report requires these earlier ‘reports’ to be served pursuant to r 33.08.1.
Under this argument, a conference would in fact constitute an oral report. The oral report would not have to be served until and unless some other report was relied upon. Then, by virtue of another report having been served, the earlier oral report effectively becomes the first medical report and the written medical report becomes ‘another medical report’.
I do not think that this logic holds. The section clearly sets out that it is where, after, a party has served a medical report and that medical expert makes another medical report to the party, that the latter medical report is required to be served.
I do not consider that, by virtue of serving a written report, all prior conferences have the potential to be ‘other medical reports’ requiring service under the Rules.
In any event, the operative rule is Order 44. Conference notes that are effectively reduced into written format and served as a report would, in my view, fulfil the requirements of r 44.03(3).
Prior to the service of Professor Colditz’s supplementary report on 16 March 2017, Jamie’s solicitors had a further conference with him on 16 March 2017. This conference was reduced to a supplementary report dated the same day reflecting the substance of that conference. Therefore there has been compliance with r 44.03(3) in that the ‘supplementary report’ has been provided.
The question then raised is whether the service of the two reports of Professor Colditz amounts to a waiver of the privilege in the file notes of the conferences he had with Jamie’s solicitors.
For the same reasons as applied to the file notes of conferences with Professor Baker and Dr Harbord, I do not find that privilege is lost or waived.
Professor Werther
Professor Werther is a paediatric endocrinologist who provided a report dated 23 September 2016. His report sets out Jamie’s medical problems, being end-stage renal failure, growth hormone deficiency and central diabetes insipidus. He expresses an opinion as to the likelihood of these conditions being secondary to an hypoxic-ischaemic event in the perinatal period, but does not give an opinion about the liability of Monash Health. Consequently his report is served pursuant to Order 33.
Apparently Professor Werther initially provided Mrs Seoud with this report. Indeed the report is addressed ‘To Whom It May Concern’. Jamie’s solicitors then conferred with Professor Werther on 30 September 2016 and apparently, as a consequence of this conference, Professor Werther provided an amended report which was also, albeit incorrectly, dated 23 September 2016. The original report of 23 September 2016 has not been provided to the Court.
Jamie’s solicitors provided to Monash Health a redacted copy of the notes of the 30 September 2016 conference. Counsel for Jamie submitted that it was ‘appropriate’ to release the unredacted portion of the Werther note because it was the only record of the communication that led to Professor Werther’s amended report.
The redacted portion of the note is said to record a separate privileged communication made to Professor Werther regarding the circumstances under which his amended report was requested.
If indeed this note essentially represents the ‘brief of instructions’ Professor Werther received, then it is my view that privilege has been waived pursuant to s122(2) of the Evidence Act. It is inconsistent to brief an expert to provide a report and then provide only a portion of the questions or assumptions to the defendant and claim privilege over the remainder. Further, pursuant to s126 of the Evidence Act, it is necessary for understanding the basis upon which the expert report is provided, for the defendant to have access to those questions and assumptions.
Having reviewed the redacted portion of the note, it is not clear whether this was a communication made to Professor Werther or a record of a communication from Professor Werther. There is no affidavit material before me relating to this. However accepting for the moment that it was a communication made to Professor Werther, the redacted portion is, in my view, an assumption that was provided to Professor Werther and which may have influenced or underpinned his report. On that basis, I find that privilege has been waived and the unredacted note should be provided forthwith.
On the other hand, if the redacted portion is a record of a communication from Professor Werther, it is not a communication reflected in the report and it is inconsistent for Jamie to rely on the report without this opinion or assumption by Professor Werther being known to Monash Health. I therefore find that privilege has been waived in that communication pursuant to s122(2) of the Evidence Act. Further if this is an opinion or assumption by Professor Werther, then I find that disclosure of the statement is reasonably necessary to a proper understanding of his report and therefore privilege is lost pursuant to s126 of the Evidence Act.
Summary of Decision
Because this case involves the interaction between two Orders under the Rules, the operation of the Evidence Act, and numerous file notes of conferences with four experts, I have summarised my decision in a table format set out below.
This shows which Order applies to each expert and whether a file note is required to be provided pursuant to that Order, or alternatively whether a file note is required to be provided because it is discoverable and privilege has been lost or waived.
Expert Area of expertise Opinion Relevant Order
Documents to be provided pursuant to rules Privilege waived or lost Professor Philip Baker Maternal and Fetal Health Liability Order 44 No No Michael Harbord Paediatric Neurologist Causation Order 44 Yes, 6 pages of file notes dated 30 September 2017 No Professor Paul Colditz Neonatal Paediatrician Causation Order 44 No No Professor George Werther Paediatric Endocrinologist Causation Order 44 No Yes, unredacted version to be provided
0
11
0