Turpin v Allianz Australia Insurance Ltd

[2001] QSC 299

SUPREME COURT OF QUEENSLAND

CITATION:

Turpin v Allianz Australia Ins Ltd [2001] QSC 299

PARTIES:

DAMIEN TURPIN
(applicant)

v
ALLIANZ AUSTRALIA INSURANCE LIMITED
ACN 000 120 850
(respondent)

FILE NO:

5216 of 2001

DIVISION:

Trial Division

DELIVERED ON:

17 August 2001

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2001

JUDGE:

Mullins J

ORDER:

1. The respondent must disclose to the applicant pursuant to s 47 of the Motor Accident Insurance Act 1994 copies of the statements of Faakki, Cullen and Carey referred to as attached to the loss assessor’s report of Special Intelligence Services dated 4 September 2000.

2.      The respondent must pay the applicant’s costs of the application to be assessed.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – LEGAL PROFESSIONAL PRIVILEGE – disclosure of documents pursuant to Motor Accident Insurance Act 1994 – whether witness statements attached to investigation report obtained by insurer should be provided to claimant – whether statements disclosable pursuant to s 47(1) of Act – whether statements fall within s 48(2) of Act

Motor Accident Insurance Amendment Act 2000
Motor Accident Insurance Act 1994
WorkCover Queensland Act 1996

Baker v Campbell (1983) 153 CLR 52
Cockerill v Collins [1999] 2 QdR 26
Crabtree v Smith (unreported, Maroochydore Dist Ct, 29 June 1998)
James v WorkCover Queensland [2000] QCA 507 (14 December 2000)

COUNSEL:

JB Rolls for the applicant
KF Holyoak for the respondent

SOLICITORS:

Carter Capner for the applicant
McInnes Wilson for the respondent

1. MULLINS J:  At approximately 11pm on 27 May 2000 the applicant was crossing Leichhardt Street at Spring Hill when he was struck by a taxi registration number T37503 and injured.  The respondent is the CTP insurer of the taxi.

1. By originating application filed on 12 June 2001 the applicant seeks a declaration that the respondent disclose pursuant to s 47 or s 48(2) of the Motor Accident Insurance Act 1994 (“the Act”) copies of the statements of Faakki, Cullen and Carey, referred to as attached to the loss assessor’s report of Special Intelligence Services dated 4 September 2000. Mr Faakki was the driver of the taxi. Messrs Cullen and Carey were witnesses to the accident.

1. The applicant completed a Motor Accident Personal Injury Notice of Claim which was received by the respondent on 27 July 2000.  The notice of claim was initially processed by the respondent’s CTP claims officer, Mr RT Rigney, who raised a claims estimate, indicated the appropriate letters to be sent out and allocated the file to claims officer Mr CM Roeder. 

1. Mr Roeder sent a notification of accident form for completion to the insured owner of the taxi and sent a letter to the applicant’s solicitors acknowledging receipt of the applicant’s notice of claim and advising that the respondent was satisfied with the notice. This fulfilled the respondent’s obligation under s 39(1) of the Act. That letter also informed the applicant’s solicitors that the respondent would respond within the time stipulated in s 41 of the Act in due course.

1. Under cover of letter dated 10 August 2000 the insured owner provided the respondent with a copy of the police report in respect of the accident and Mr Faakki’s description of the accident given to his employer in addition to the completed accident report. 

1. Mr Roeder engaged Special Intelligence Services on 14 August 2000 to conduct a full factual inquiry into the circumstances of the accident, obtain a statement from the insured and any other witnesses and supply names, addresses and telephone numbers of all eyewitnesses and a diagram and photographs of the scene.  When that report was received on 22 September 2000, the respondent decided to deny liability for the accident.  Mr Roeder sent a letter to the applicant's solicitors referring to the investigation into the accident and that the respondent considered that the insured would not be held responsible for the injuries sustained by the applicant and denying liability on behalf of the insured.

1. By letter dated 22 November 2000 the applicant’s solicitors requested the respondent to provide copies of the investigator’s reports pursuant to the respondent’s obligations under the Act. On 23 November 2000 the respondent provided a copy of the report of Special Intelligence Services without the statements of the three witnesses which were attached to that report. Within the body of the report reference is made to the interviewing of these three witnesses and the fact that the statements were attached.

1. Relying on the decision of the Court of Appeal in James v WorkCover Queensland [2000] QCA 507 (14 December 2000), the applicant’s solicitors requested the respondent to disclose the statements of witnesses referred to in the loss assessor’s report. The respondent relied on the decision of His Honour Judge Dodds in Crabtree v Smith (unreported, Maroochydore Dist Ct, 29 June 1998) as supporting the respondent’s refusal to provide the statements. 

1. There are two bases on which the applicant seeks disclosure of the three witness statements attached to the loss assessor’s report. Firstly, the applicant submits that s 48(2) of the Act compels disclosure of the investigative report dated 4 September 2000 together with its attachments. Secondly, the applicant submits that s 47(1) of the Act compels disclosure of that material as it is “about the circumstances of the accident” and that material is not protected by legal professional privilege. The respondent submits that the witness statements are subject to legal professional privilege and that s 48(2) of the Act should be construed narrowly to preclude the application of that provision to those statements.

1. Sections 47(1) and (2) of the Act provide:

“47.(1)  The insurer must cooperate with a claimant and, in particular-

(a)must provide the claimant with copies of reports and other documentary material in the insurer’s possession about the circumstances of the accident or the claimant’s medical condition or prospects of rehabilitation; and

(b)must, at the claimant’s request, give the claimant information that is in the insurer’s possession, or can be found out from the insured person, about the circumstances of, or the reasons for, the accident.

(2)The insurer must-

(a)provide the claimant with copies of reports and other documentary materials within 1 month after receiving the notice of claim under division 3 (Claims procedures) or, if the reports or materials come into the insurer’s possession later, within 1 month after they come into the insurer’s possession; and  

(b)respond to a request under subsection (1)(b) within 1 month after receiving it.”

1. Sections 48(1) and (2) of the Act provide:

“48.(1)  A claimant or insurer is not obliged to disclose information or documentary material under this division if the information or documentary material is protected by legal professional privilege.

(2)   However, investigative reports, medical reports and reports relevant to the claimant’s rehabilitation must be disclosed even though protected by legal professional privilege but they may be disclosed with the omission of passages consisting only of statements of opinion.”

1. The starting point is that s 47(1) of the Act requires the insurer to provide the claimant with copies of reports and other documentary material in the insurer’s possession “about the circumstances of the accident” and, at the claimant’s request, to give the claimant information that is in the insurer’s possession or can be found out from the insured person “about the circumstances of, or the reasons for, the accident”. Section 47(1) of the Act therefore deals with the obligation to disclose by the insurer.

1. It is only if the relevant statements are covered by s 47(1) of the Act that it is necessary to consider s 48 of the Act. The issue of legal professional privilege is directly addressed by s 48 of the Act. Section 48 of the Act regulates the application of legal professional privilege to documents where the primary obligation to disclose is found in other provisions within Div 4 of Pt 4 of the Act, such as s 47(1). Section 48(1) preserves legal professional privilege in respect of documentary material which would otherwise be disclosable under Div 4 of Pt 4 of the Act. That is subject to the exception, however, that is set out in s 48(2) of the Act.

1. The first issue is whether the statements of the three witnesses attached to the loss assessor’s report fit within the description of documents in the insurer’s possession about the circumstances of the accident or information about the circumstances of, or the reasons for, the accident. If the issue of legal professional privilege had not been dealt with expressly in s 48 of the Act, the approach to the construction of the wide provisions in s 47(1) of the Act may have required those words to be read down to avoid abrogating the common law principle of legal professional privilege: Baker v Campbell (1983) 153 CLR 52, 96-97, 116-117, 123; Cockerill v Collins [1999] 2 QdR 26, 28, 29. The presence of s 48 in the Act means that there is no need to read down s 47(1) of the Act to avoid the provision having the effect of abrogating legal professional privilege.

1. Mr Holyoak of Counsel on behalf of the respondent made submissions on how ss 47 and 48 should be construed by drawing comparisons between the scheme provided for by the Act and that provided for by the WorkCover Queensland Act 1996 (“WQA”) which was considered in James v WorkCover.  Mr Holyoak submitted that the majority decision in James v WorkCover was based on the scheme in the WQA and was underpinned by a perceived “symmetry and mutuality between disclosure of obligations of each side”. It was therefore submitted that no such symmetry or the objective of achieving settlement at the compulsory conference stage could be found in the Act, so as to justify the implied derogation from what was described as a valid claim for legal professional privilege.

1. It is apparent from the clear words of ss 47 and 48 of the Act that the Legislature has expressly dealt with how it intends legal professional privilege to be affected by the disclosure provisions which it has enacted. It is therefore not necessary to resort to the application of any presumption or perception of what the intention of the Legislature was in construing ss 47 and 48 of the Act.

1. For the same reason, it is not necessary to resort to the alternative argument of the respondent that the construction of ss 47 and 48 of the Act for which the applicant contends should apply only after the amendments made by the Motor Accident Insurance Amendment Act 2000 took effect on 1 October 2000, as those amendments, particularly the amendments to s 45 of the Act, have provided for the necessary symmetry of disclosure and obligations.    

1. Subject to the application of s 48 of the Act, I find that the statements of the three witnesses attached to the loss assessor’s report are documentary material in the respondent’s possession which relate to the circumstances of the accident and must prima facie be disclosed by the respondent.

1. As the applicant’s first submission, addressed to the application of s 48(2) of the Act, proceeded on the assumption that the relevant witness statements were subject to legal professional privilege, I will deal with the application of s 48 of the Act on the same basis.

1. On that assumption, the witness statements are protected from disclosure by s 48(1) of the Act and it is then necessary to determine whether the witness statements fall within the exception set out in s 48(2) of the Act. The first issue in respect of this provision is whether “investigative reports” apply to reports dealing with the liability for the accident rather than being limited to reports applying to the quantum of damages. The expression that is used of “investigative reports, medical reports and reports relevant to the claimant’s rehabilitation” corresponds with the three types of reports or documentary material referred to in s 47(1) of the Act which must be “about the circumstances of the accident or the claimant’s medical condition or prospects of rehabilitation”. The use of the words in s 48(2) of the Act of “relevant to the claimant’s rehabilitation” do not qualify “investigative reports”. There is no basis to read down the reference to “investigative reports” as being reports relevant to the quantum only rather than the liability in respect of the accident.

1. The next issue is whether the statements attached to the subject loss assessor’s report should be considered part of the report.  The applicant relies on the conclusion of the majority in James v WorkCover.

1. The relevant facts in James v WorkCover were that the employee had served a notice of claim for damages under s 280 of the WQA. A compulsory conference pursuant to s 293 of the WQA was arranged. That compulsory conference was required to be held within 3 months after WorkCover had given the employee a written notice under s 285 of the WQA in response to the employee’s notice of claim. In anticipation of that conference WorkCover sent the employee’s solicitors a loss adjuster’s report which referred to a statement by one witness, Lampard, being attached, but this was detached and not sent to the employee’s solicitors. The question for determination by the Court of Appeal was whether the statement of Lampard should have been sent to the employee’s solicitors as part of the report.

1. Sections 288(1) and (2) of the WQA provide:

“288.(1)  A party is not obliged to disclose information or a document if the information or document is protected by legal professional privilege.

(2)However, investigative reports, medical reports and reports relevant to the worker’s rehabilitation must be disclosed even though otherwise protected by legal professional privilege, but they may be disclosed with the omission of passages consisting only of statements of opinion other than expert opinion.”

1. Pincus JA in James v WorkCover pointed out at para [11] that:

“... it is odd if a distinction is to be drawn between a statement which is included in the body of the report and one which is attached to the body of the report and referred to in it.”

and at para [12] concluded:

“In my opinion the investigative report included the witness statement and whether or not this statement would, considered separately, otherwise have been privileged, the whole was a document obliged to be disclosed under s 288(2) of the Act.”

1. On this issue, Byrne J agreed with Pincus JA and stated at para [49] that:

“The ‘attached’ Lampard statement was, in my opinion, as much a part of the report as if the information it contained had been set out in the body of the report.”

1. Thomas JA dissented in James v WorkCover.  He found that the statement of Lampard was the subject of legal professional privilege and that, even if the statement was regarded as an integral part of the report, its exclusion from the copy of the report sent to the employee’s solicitors was equivalent to obliteration or sealing up of part of a document which a party asserting legal professional privilege was entitled to do.

1. If follows that the majority decision in James v WorkCover authoritatively determines that the three witness statements attached to the loss assessor’s are part of that report and must be disclosed by the respondent.  Although a different result was reached in Crabtree v Smith, that was prior to the decision in James v WorkCover. 

1. As the applicant must be successful on this application, even if the witness statements attracted legal professional privilege (before the application of ss 47 and 48 of the Act), it is not necessary to determine the issue of whether the statements were so privileged.

1. I therefore make the following orders:

1.The respondent must disclose to the applicant pursuant to s 47 of the Motor Accident Insurance Act 1994 copies of the statements of Faakki, Cullen and Carey referred to as attached to the loss assessor’s report of Special Intelligence Services dated 4 September 2000.

2.The respondent must pay the applicant’s costs of the application to be assessed.