Pinner v Mancala Pty Limited & Anor
[2007] TASSC 37
•21 June 2007
[2007] TASSC 37
CITATION: Pinner v Mancala Pty Limited & Anor [2007] TASSC 37
PARTIES: PINNER, Julie
v
MANCALA PTY LIMITED (ACN 056 204 267)
RENISON LIMITED (ACN 004 490 304)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1056/2001
DELIVERED ON: 21 June 2007
DELIVERED AT: Hobart
HEARING DATE: 7 June 2007
DECISION OF: Master S J Holt
CATCHWORDS:
Procedure - Discovery and interrogation – Production and inspection – Grounds for resisting production - Legal professional privilege – Waiver of privilege.
Clark v Boden [2004 – 2005] 13 Tas R 198 applied.
Aust Dig Procedure [449]
REPRESENTATION:
Counsel:
Plaintiff : R J Phillips
Second defendant: F V Moore
Solicitors:
Plaintiff: Phillips Taglieri
Second defendant: Archer Bushby
Judgment Number: [2007] TASSC 37
Number of paragraphs: 26
Serial No 37/2007
File No 1056/2001
JULIE PINNER v MANCALA PTY LIMITED and RENISON LIMITED
REASONS FOR DECISION MASTER S J HOLT
21 June 2007
The plaintiff has brought an action under the Fatal Accidents Act 1934. The action is on behalf of herself and her children. The plaintiff is the administratrix of the estate of her late husband. She alleges that due to the negligence of the defendants her husband suffered injuries including psychological injury in a mining accident in 1995 and as a result of the injuries he committed suicide in November 1998.
Psychiatrist, Dr Ian Sale, saw the plaintiff's husband at the request of his solicitors. This was about seven months before he committed suicide. On 21 April 1998 Dr Sale provided a report to the solicitors in which he detailed a number of the husband's psychological symptoms which Dr Sale said were typical of post traumatic stress disorder.
Following the suicide the husband's solicitors acted for the wife. They requested a further report from Dr Sale which he provided on 19 March 2007. In the latter report Dr Sale expressed the following opinion:
"… I believe that the deterioration in Mr Pinner's mental health is related to the accident of 1995. I believe that he developed a Posttraumatic Stress Disorder as a consequence of this accident, and then went on to develop a Major Depression with psychotic features during the latter stages of 1998."
The Supreme Court Rules 2000 make provision in relation to the reception of expert opinion evidence. Rule 516 provides that a party intending at trial to adduce the oral evidence of a person as an expert witness is to serve on the other parties a statement containing the substance of the evidence that it is proposed to adduce. The rule goes on to provide that the statement is to be served at a time fixed by order and if there is no order within a reasonable time before the commencement of the trial.
Here, an order was made putting the plaintiff on time for the delivery of expert witness statements. As a consequence the two reports from Dr Sale have been delivered.
In the 21 April 1998 report Dr Sale recites that he had available to him documentation including a document which he described as "Proof of Evidence of Julie Maree Pinner". In his report of 19 March 2007, Dr Sale refers to "further documentary material" and "further information regarding the nature of Mr Pinner's psychotic symptoms in other documents, eg, that from Ms Joyce".
As a result of the delivery of these reports the second defendant made an application in terms:
"The Secondnamed Defendant applies for the following directions:
That the Plaintiff produce to the Defendants the following documents referred to in the report of Dr Ian Sale dated 21 April 1998:
(i) Report of Dr U Rossi dated 23/2/98.
(ii) Proof of evidence of Julie Maree Pinner."
…
We apply also for an order pursuant to Rule 388 that the plaintiff make, file and serve an Affidavit stating whether the following document or documents are or have been in her possession, custody or power and if not now in her possession, custody or power, when she parted with it or them and what has become of it or them.
(i)The 'other documents' referred to by Dr Ian Sale in his report of 19th March 2007 being documents containing further information regarding the nature of Mr Pinner's psychotic symptoms.
(ii)A document from Ms Joyce containing information regarding the nature of Mr Pinner's psychotic symptoms, referred to by Dr Sale in his report of 19th March 2007."
At the hearing the second part of the application was amended to add a third class of documents, namely:
"(iii)'the further documentary material' referred to by Dr Sale in the first paragraph of the second page of his report of 19th March 2007."
I deal firstly with the production application.
Counsel for the second defendant advised that since filing the application he has received from the plaintiff's solicitors the report of Dr Rossi. Accordingly, the application is now confined to a request for an order requiring production of the proof of evidence of the plaintiff, Julie Maree Pinner for inspection.
Counsel for the plaintiff claimed that the proof was the subject of legal professional privilege. I inspected the document as requested by the parties pursuant to the authority to do so contained in r395. It appears to be an unsigned proof of evidence of the plaintiff brought into existence for the dominant purpose of facilitating the provision of legal advice or legal services to the plaintiff's husband concerning proceedings or contemplated proceedings in respect of the husband's mining accident. Counsel's assertion that "the document described as a proof of evidence has not been distributed to anyone other than to Dr Ian Sale" was not disputed. I proceed on the basis that the document is protected from production by legal professional privilege unless it is shown that the privilege has been waived by the delivery of Dr Sale's report.
The position which applies in the case of otherwise privileged documents being referred to in an expert's report delivered under r516, was considered by Underwood J (as he then was) in Clark v Boden [2004 – 2005] 13 Tas R 198.
His Honour referred to Mann v Carnell (1999) 201 CLR 1, and in particular to the joint judgment at p13 where it was said:
"'What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.'"
His Honour then said at pars16 – 19:
"16 What then is the relevant inconsistent conduct in this case? I assume that the eight statements by the hospital's nurses came into existence for the dominant purposes of enabling the solicitor for the hospital to give the hospital legal advice with respect to the litigation between it and the plaintiff, and between it and the surgeon, and/or for use in that litigation. Consistent with that purpose, the statements were sent to Professor Pearson in order to obtain his advice with respect to that litigation. In result, a proof of Professor Pearson's evidence came into existence. In it, he identifies all the documentation sent to him, including the eight statements. In the discussion and expression of opinion that appears in that document, there are six references to 'the documentation' without discrimination, two references to hospital charts and one reference each to operation notes and a medical report. Upon a fair reading of the whole of the proof of evidence, the only conclusion reasonably open is that in the formulation of his opinions, Professor Pearson relied to some unspecified extent on the eight statements.
17 Is it inconsistent to maintain a claim for legal professional privilege with respect to those statements, and at the same time send the proof of evidence to the solicitor for the surgeon with the advice that it is by way of delivery of a proof of evidence, and that the hospital is now ready for trial?
18 The hospital's conduct amounted to an assertion that it intends to adduce expert opinion evidence contrary to the case being brought against the hospital based, in part, upon these eight statements, but it is not prepared to produce these statements for inspection. It seems to me, with respect to those who take a different view, that this is inconsistent conduct and does give rise to waiver by operation of law. …
19 Preparation for trial is governed by the Supreme Court Rules 2000. Rule 516 requires a party to serve on every other party a reasonable time before trial, 'the substance of the evidence that it is proposed to adduce from the witness as an expert'. … The letter accompanying the proof, in effect, advised the solicitor for the surgeon that opinion evidence based (inter alia) on the contents of these statements was going to be adduced at trial. Given that the privilege serves to protect from disclosure eight written communications, … it is surely inconsistent with that privilege to state that in compliance with r516, there will be reliance upon the contents of these documents to support opinion evidence. …"
At par21 Underwood J made it clear that conduct which is inconsistent with the maintenance of the confidentiality of the communication and hence the waiver occurs at the moment the intent to rely on an opinion based on the privileged material is manifested. He said:
"… I have reached the conclusion that the relevant conduct is not what may or may not happen at trial. The relevant conduct is the delivery of the proof of evidence and the letter, in compliance with r516."
Here an order was made pursuant to r516, putting the plaintiff on time as to the delivery of proofs of expert evidence to be relied upon by her at the trial. The result was the delivery of the report of Dr Sale dated 21 April 1998. At par1 of the report Dr Sale said:
Thank you for asking me to assess Mr Pinnner. He attended on 20th April 1998 as arranged. He was accompanied by his wife. Documentation available included:
1 Reports of Dr R Gibbs dated 3/7/96, 7/8/96, 30/8/96 and 4/5/97.
2 Report of Dr A Maclaine-Cross dated 16/1/98.
3 Report of Dr U Rossi dated 23/2/98.
4 Proof of Evidence of Julie Maree Pinner".
As explained in Clark v Boden, if it appears that Dr Sale relied to some extent on the content of the Pinner proof then the privilege which protected the confidentiality of that document will be taken to have been waived by the delivery of Dr Sale's expert opinion statement.
Regarding Mr Pinner's post accident demeanour, emotional state and psychological symptoms Dr Sale's report contained the following:
"He remained restless and agitated. He was often irritable and became impatient with the children. His sleep was restless and he experienced numerous dreams, generally related to the circumstances of the accident. He experienced a strong compulsion to keep pacing, and again to reassure himself that he would be alright, repeated almost like a mantra.
…
His wife confirmed the marked change in behaviour and demeanour. She referred in particular to his irritability which caused domestic strains and nearly led to the breakdown of their relationship. She also complained that he continued to pace in a restless manner. She also described him as withdrawn, to socialise far less often.
…
At once [sic] stage he was seen by clinical psychologist Simon Webb. This occurred about 4 months after the accident and there were two consultations. He seems to have fallen out with Mr Webb. His wife added that her husband had become far less trusting since the accident."
As I have said I have read the proof. The irresistible inference is that the proof was provided to Dr Sale for him to read and take into account. Much of the detail which I have quoted from Dr Sale's report could have been taken from the proof without reliance on anything which Mr Pinner or the plaintiff might have said at the consultation. Even if at the consultation the contents of the proof were confirmed or repeated in whole or in part by the plaintiff that would not mean that there ceased to be reliance on it by Dr Sale. All it would mean would be that the document was not the sole source of the information about Mr Pinner's behaviour which Dr Sale used in formulating his opinion. If there was no reliance on the proof Dr Sale could have said so in evidence (as he did in the case in Atkinson v T & P Fabrications Pty Ltd (2001) 10 Tas R 57), but no such evidence was given. Counsel for the plaintiff pointed out that Dr Sale had specifically referred to various medical reports in the course of his analysis, but made no such reference in relation to Mrs Pinner's proof. However, when weighed against all of the other features which I have mentioned I do not regard this latter matter as sufficient to displace the strong inference that there had been reliance by Dr Sale on the contents of the proof. I find that Dr Sale did read the proof, take it into account, and to some unspecified extent rely upon it.
It follows from my finding that Dr Sale relied upon the proof in the expert opinion statement which was delivered and from the decision in Clark v Boden that there must be an order that the proof of evidence of Julie Pinner be produced for inspection.
I now turn to the second part of the application which is for an order under r388. That rule is as follows:
"(1) If it appears to the Court or a judge that there are grounds for a belief that a document or class of document relating to any question in a proceeding may be or may have been in the possession of a party, the Court or a judge may order that party to make, file and serve an affidavit.
(2) An affidavit is to state –
(a) whether that document or any document of that class is, or has been, in his or her possession, custody or power; and
(b) if the document is not in his or her possession, custody or power, when he or she parted with it and what has become of it.
(3) An order may be made under subrule(1), notwithstanding that the party against whom it is made has made, or has been required to make, a list of documents or an affidavit verifying a list of documents."
The part of Dr Sale's report of 19 March 2007 which precipitated the r388 application is as follows:
"It is apparent from the further documentary material provided that Mr Pinner's mental health further deteriorated during the latter half of 1998. During June 1998 Dr Hoyle observed Mr Pinner to have a depressed and anxious mood, and an SSRI antidepressant was prescribed. Mr Pinner then became psychotic, and it appears that Dr Hoyle suspected that the SSRI agent was probably responsible for this in that it was immediately withdrawn, and replaced with an antipsychotic. He settled quickly, and was referred to mental health services in Devonport where there was contact with Ms Joyce a community psychiatric nurse, and Dr Rodrigo, a psychiatrist who worked there at the time. Dr Hoyle was aware that there were further psychotic symptoms occurring during November 1998.
There is further information regarding the nature of Mr Pinner's psychotic symptoms in other documents, eg that from Ms Joyce. It appears that he developed paranoid ideas, eg a belief that his food had been tampered with. He was also obsessively and unusually concerned about health issues, eg checking his pulse. During November 1998 Mr Pinner was considered to have both persecutory and somatic delusions. In this context, somatic indicates that he developed unusual if not bizarre beliefs about what was happening to his body and its function.
…
In November Mr Pinner was assessed by Dr Rodrigo. He noted that there were persecutory delusions and strange bodily sensations, but as there was no expression of suicidal or homicidal ideas, and he had not appeared depressed, he was not seen as at risk. He was prescribed a relatively small dose of haloperidol."
It was not disputed that the documents considered by Dr Sale related to a question in the proceeding, namely, whether the suicide of the plaintiff's husband was attributable to the injuries which he had suffered in the mining accident three years earlier. The whole purpose of the report was to investigate this question. I find that the documents referred to by Dr Sale are relevant. The report having been prepared at the request of the plaintiff's solicitors there are grounds for a belief that the documents which Dr Sale had regard to may be or may have been in the possession of the plaintiff. Accordingly, the prerequisites specified in r388(1) for the making of the order sought have been satisfied.
Counsel for the plaintiff submitted that no order should be made under r388 without it first having been shown that the documents the subject of the application have not been discovered.
It was common ground that the plaintiff has produced for inspection depositions or reports from the three people specifically named by Dr Sale, being Dr Hoyle, Ms Joyce and Dr Rodrigo. Counsel said that these documents were documents within the general description of items in the plaintiff's list. For example, he said that the statement of Ms Joyce was in the list by virtue of the item described as "Copy inquest depositions". I do not think that there has been discovery in accordance with the rules of the documents provided to Dr Sale. They should have been separately identified. Rule 383(1)(b) provides that the obligation to make discovery includes an obligation to serve a list where the other party requires it. Rule 384(1) includes a requirement that the list "describe each document or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable the document or bundle to be identified". There has not been discovery in accordance with the rules.
The r388(1) prerequisites for the making of an order for the filing and service of an affidavit having been satisfied and the plaintiff not having served a sufficient list of documents and it being relevant to a consideration of Dr Sale's 19 March 2007 report to know what documents he relied upon there will be an order under r388.
These will be the orders:
(1)The plaintiff is to make available for inspection by the defendants the document described in Dr Sale's report dated 21 April 1998, as "Proof of Evidence of Julie Maree Pinner".
(2)The plaintiff is to make, file and serve an affidavit listing the documents referred to in Dr Sale's report of 19 March 2007 describing each of them sufficiently to enable identification and stating in respect of each of those documents:
(a)whether the document is or has been in her possession, custody or power; and
(b)if the document is not in her possession, custody or power, when she parted with it and what has become of it.
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