Pigden v Metropolitan Health Service Board
[2002] WADC 135
•1 JULY 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: PIGDEN -v- METROPOLITAN HEALTH SERVICE BOARD [2002] WADC 135
CORAM: REGISTRAR KINGSLEY
HEARD: 28 MAY 2002
DELIVERED : 1 JULY 2002
FILE NO/S: CIV 4556 of 1999
BETWEEN: JUDITH CHRISTINE PIGDEN
Plaintiff
AND
METROPOLITAN HEALTH SERVICE BOARD
Defendant
Catchwords:
Practice - Discovery - Privilege - Implied waiver by reference to documents in experts' reports
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr R A Harrison
Defendant: Ms S Taylor
Solicitors:
Plaintiff: Dwyer Durack
Defendant: McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Attorney General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475
Bournes Inc v Raychem Corp & Anor [1999] 3 All ER 154
Dingwall v Commonwealth (1992) 39 FCR 521
Lenehan v International Network Travel Pty Ltd, unreported; SCt of WA; Library No 980362; 26 June 1998
Marubeni Corp v Alafouzos [1986] CA Transcript 996
Rozmus v Illawarra Area Health Service, unreported; SCt of NSW; 23 December 1996
Case(s) also cited:
Nil
REGISTRAR KINGSLEY: The plaintiff's application seeks an order the defendant do produce for inspection various documents subject to a claim of privilege.
The action is a claim for assessment of damages only for a personal injury. The plaintiff, who was a trainee specialist medical practitioner, claims damages for injuries arising out of an accident in the course of her employment. The plaintiff alleges she suffered decompression illness and pulmonary oxygen toxicity as a result of a training diving accident. The plaintiff alleges she has been left with various residual disabilities.
The plaintiff seeks inspection from the defendant of four categories of documents over which the defendant claims privilege. The categories of documents are:
(a)Proofs of evidence of seven staff members of Fremantle Hospital which were forwarded to the defendant's expert, Dr Lunn, and which are included in appendix 1 to the expert report of Dr Lunn dated 25 September 2001.
(b)Dated correspondence from the defendant's solicitors to Dr Lunn.
(c)The preliminary report of Dr Lunn of March 2001.
(d)Dated correspondence between the defendant's solicitor and Professor David Elliott.
The reports of Dr Lunn and Professor Elliott were furnished pursuant to O 36A Supreme Court Rules. The plaintiff's counsel argues that the defendant now cannot claim privilege over the documents referred to in the reports. The plaintiff's counsel argues that the four categories of documents have lost privilege by waiver.
The plaintiff's counsel refers to Attorney General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475 as authority for the proposition that the materials relied upon by Dr Lunn and Professor Elliott have become discoverable and that any privilege that might have attached to them has been waived - and this includes the proofs of evidence of the seven staff members.
It is the defendant's counsel's submission that there is no suggestion Dr Lunn, in either the preliminary report or the final report, has placed any reliance on any witness statement or proof of evidence or correspondence, save for certain parts of the proof of evidence of Dr Oxer.
The defendant's submission is that there is a distinction between privileged communications that an expert has relied on and those they have not. It is only privileged communications that the expert has relied on that there is an implied waiver of privilege. The defendant's counsel argues that there must be reliance upon the privileged documents and, if the reliance is not apparent from the subject report, then the application for waiver of privilege cannot succeed.
Legal principles
In this action there has been no intentional waiver of privilege and, therefore, the question is whether waiver should be imputed. This question depends on whether it would be unfair to allow a party to refer to, or use, material and yet assert that the material associated with it is privileged from production.
Justice Deane at 493 in Maurice's case states:
"Where, however, he (the litigant) does no more than make use of privileged material (eg legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating a statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege in relation to such material."
In Lenehan v International Network Travel Pty Ltd, (unreported; SCt of WA; Library No 980362; 26 June 1998), Master Sanderson commented that the question of fairness of allowing the claim for privilege has to do with the documents over which privilege is claimed and the use made of those documents.
In Bournes Inc v Raychem Corp & Anor [1999] 3 All ER 154 the Court of Appeal had to consider an issue of implied waiver in relation to documents produced on taxation. During the course of his judgment Aldous LJ referred to the case of Marubeni Corp v Alafouzos [1986] CA Transcript 996 and referred particularly to the comment of Lloyd LJ. In Marubeni Corp, Lloyd LJ states:
"(In relation to waiver of privilege) Mr Hamilton submitted before us that the true contrast is not between a mere reference to the document in the affidavit and reliance on the document, which is the contrast which the Judge drew, but between a mere reference to a document and the quotation of its contents. I agree with that submission. Mr Gee seeks to support the Judge's judgment on the ground that there was here more than a reference to the document. There was a reference to the contents of the document. There is no distinction, he submits, between a reference to the contents of a document and the taped verbatim quotation from the document. But I would not accept that there was here a reference to the contents of the document and there was certainly no verbatim quotation. There was a reference to the effect of the document, which is a very different thing. It may be that in some cases it will be hard to draw the line, as was recognised by Donaldson LJ in Buttes Gas and Oil Co v Hammer (No 3) (1980) 3 All ER 475 at 490. ... I am clear on which side of the line the present case falls. The reference to the effect of the document did not amount to an implied waiver of privilege." (emphasis added by Aldous LJ)
Aldous LJ went on to say, at 166:
"As stated in the Marubeni Corp case mere reference to a document does not waive privilege in that document: there must at least be reference to the contents and reliance. In the present case there was reference and no reliance therefore no waiver."
In Rozmus v Illawarra Area Health Service, (unreported; SCt of NSW; 23 December 1996), the New South Wales Court held that legal professional privilege had been impliedly waived over material relied on by an expert. It had been shown that the material had played such a part in the preparation of a report in a way which could be said to have influenced its content.
In Dingwall v Commonwealth (1992) 39 FCR 521 at 524 Foster J stated:
"I have come to the view, upon a close consideration of the judgment 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 the material being placed before him in order that he may provide a report of an expert going to be used in evidence in a case, that those documents, ipso facto, although they had the protection of legal professional privilege, necessarily would lose it because of the doctrine of waiver. Maurice's case does not go so far as that. It requires, certainly there be an indication of the documents that were used in the preparation of the evidentiary document in a way that could be said to influence the content of that document."
The reports
Dr Lunn's preliminary report dated March 2001 states it is based upon information obtained from documents presented by McAuliffe Williams & Partners. In par 2, he notes a clear difference between the plaintiff's description of her clinical state in letters to experts and the description by Dr Oxer. The plaintiff's counsel submits that no report from Dr Oxer has ever been discovered. Paragraphs 3, 4 and 5 of Dr Lunn's preliminary report refer to actions by Dr Oxer and reports of Dr Oxer and at par 15, Dr Lunn concludes that if Dr Oxer's account is accepted, there is no evidence for a neurological insult. That conclusion is a significant conclusion in the assessment of damages.
In his final report, Dr Lunn notes that information made available for the purpose of assessing the plaintiff is detailed in appendix 1 of the final report. In the declaration at the end of his report Dr Lunn states that he has set out his report from what he understands from McAuliffe Williams & Partners, by whom he is instructed, to be the issues on which his opinion as an expert is sought.
Professor Elliott, at the beginning of his incomplete report dated 4 March 2001, states:
"A statement is included in the report setting out the substance of all material instructions (whether written or oral) and summarising the facts and instructions given which are material to the opinions expressed in the report and upon which those opinions are based."
Professor Elliott then, in italics, through his report makes a verbatim quote under various headings. Importantly, there is no reference, by verbatim quote or otherwise, to any letters written by the solicitors to Professor Elliott.
Conclusion
On the authorities cited before me, I am of the opinion that, where there is reference to the contents of a document, then that document has lost any privilege attaching to it. However, if the reference is confined to the effect of the document, then there is no implied waiver.
At par 2 of Dr Lunn's preliminary report of March 2001 refers to the clear difference between the description of her clinical state, in particular to her performance on a sharpened Rhomberg and a squat test, in the letter to experts and the description by Dr Oxer. In my opinion, Dr Lunn goes beyond mere effect and is basing his comments on the content of those documents. In my opinion the material has played such a part as to influence the content of the report. The privilege attaching to the letters to the experts and the relevant positions of Dr Oxer's report, in my opinion, has been waived. In other instances, I am of the opinion that Dr Lunn has confined himself to the effect of the documents. Therefore, if the letters to experts mentioned above fall within par 2 of Pt II of Suzanne Rosier's affidavit sworn 7 March, then privilege has been waived.
In relation to the report of Professor Elliott, where Professor Elliott has made reference to the contents of a document and made verbatim quotation from that document then, in my opinion, that document has had the attendant privilege waived. But, as with Dr Lunn's report, other than those instances, Professor Elliott has referred to the effect of the document and in my opinion, that does not amount to an implied waiver of privilege.
Accordingly, I am of the opinion that the privilege claimed in respect of proofs of evidence of seven staff members of Fremantle Hospital other than any letters mentioned in the first paragraph under Conclusion, the correspondence from the defendant's solicitors to Dr Lunn as stated in par 2(b) of the plaintiff's submissions, the preliminary report of Dr Lunn of March 2001, and the correspondence between the defendant's solicitors and Professor David Elliott as specified in par 2(d) of the plaintiff's submissions has not been impliedly waived.
I will hear counsel on the orders sought and costs.
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