A recent NSW Case, Inspector Anthony Nicholson (WorkCover Authority of NSW) v Waco Kwikform Ltd1 ('the Waco case'), has again highlighted the importance of legal professional privilege (also known as client legal privilege) in the OHS setting.
What is legal professional privilege?
The aim of the privilege is to protect the confidentiality of communications made for the dominant purpose of giving or obtaining legal advice or in anticipation of legal proceedings. The rationale behind the privilege is that people should be able to freely seek and obtain legal advice, or legal assistance for anticipated litigation, without fear that their communications will be disclosed later on. In the OHS context, the privilege allows companies to investigate an incident without 'fear or favour' and use that information to obtain full and frank legal advice or prepare for anticipated legal proceedings.
How was the privilege applied in the Waco case?
The Waco case considered whether internal investigation materials and reports produced by a construction company, following an incident where a worker was fatally injured, were privileged. The report was commissioned by Waco's external lawyers. However, WorkCover NSW argued that the investigation documents were created for 'multiple purposes' including to achieve compliance with a Waco policy document requiring all accidents and injuries to be recorded and reported.
Ultimately, the Court held that the documents were privileged and did not need to be provided to WorkCover NSW. The Court found that the documents were created for the dominant purpose of obtaining legal advice and relied on the fact that the report was commissioned by external lawyers whose letter to Waco commissioning the report stated that the only purpose for producing the report was so that they could provide legal advice. The documents were intended to be kept confidential (indicated by the lawyers' direction to mark the documents "privileged and confidential") and the mere existence of the Waco reporting policy, did not point to a competing purpose.
How can your business manage privilege following an OHS incident?
One way to manage OHS incidents and questions of privilege, is for each business to consider the circumstances in which they could require legal advice or legal assistance. These circumstances might be categorised as 'critical incidents'. We recommend that businesses treat incidents that are notifiable to the enforcement authority under the relevant OHS Act as 'critical incidents'. This is because notifiable incidents are most likely to give rise to involvement by the enforcement authority and a reasonable anticipation of future litigation.
Once the business has decided which incidents will be 'critical incidents', it should consider putting into place certain steps to assist in establishing privilege for any of its communications which are created for the dominant purpose of obtaining legal advice or in anticipation of litigation. The key to establishing whether a communication (including an investigation report) was brought into existence for the dominant purpose of obtaining legal advice or in anticipation of litigation, is the intention of the person who created the document or commissioned its creation.
Therefore, careful consideration should be given to identifying the right person to commission or undertake the incident investigation. Involving lawyers in the immediate aftermath of a critical incident will assist in establishing privilege for communications arising from the investigation.
If you would like to discuss privilege and OHS incidents, or any other OHS issues affecting your business, please contact one of the members of Deacons National OHS team.
Footnote
1. 2009] NSWIRComm 123 (30 July 2009)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
