On 4 November 2011 the Queensland Court of Appeal delivered its
decision in the much awaited case of State of Queensland v
Ethan Allen was aged 16 months when he suffered severe brain
damage following a medical procedure at the Prince Charles
Hospital. His lawyers applied to the Court seeking orders that the
hospital disclose two file notes (taken by a solicitor following
discussions with doctors involved in Ethan's treatment) and a
written statement or report prepared by a doctor following a
solicitor's recommendation that information be gathered to
assist in the defence of any future legal proceedings.
Documents created for the dominant purpose of legal proceedings
will generally be privileged from disclosure. In certain
circumstances however the Personal Injuries Proceedings
Act 2002 (Qld) (PIPA) removes legal professional privilege
from documents characterised as 'investigative reports',
'medical reports' or 'reports about the claimant's
Mr Allen's solicitors succeeded at first instance. The judge
considered that the file notes and doctor's statement were
investigative reports and ordered that they be disclosed. The
The Court of Appeal held that the documents were not
"investigative reports", and that the file notes were not
reports at all. However, the Court of Appeal also held that the
document prepared by the doctor should be characterised as a
"medical report" and must be disclosed on that basis.
There are implications for the disclosure of statements and
written instructions received from medical witnesses. The Court of
Appeal has confined itself to the facts of this case and the judges
do not discuss generally when a statement will be characterised as
a "medical report". However, the document in question is
described frequently by the judges as a statement. It was unsigned.
It was otherwise noted to be in form a report2.
The judgement does suggest a statement is unlikely to be
characterised as a report where it is given to a solicitor by a
medical practitioner who is a defendant rather than (as was the
case here) a witness3. However, where written statements
are obtained from medical witnesses the Court of Appeal's
decision indicates disclosure will be required.
Finally, although the Court of Appeal has made it clear that
file notes will not generally be discoverable on the basis they are
reports, in accordance with the earlier Court of Appeal decision in
Watkins v State of Queensland4, legal
professional privilege will not attach to documents that must be
disclosed in accordance with the requirement that the offer of
settlement mandated by the PIPA is accompanied by all documents
that might assist the recipient in assessing it. In certain
circumstances, this might extend to file notes.
1  QCA 311
2 Fryberg J at para 92
3 Fraser JA at para 69 and Fryberg J at para
4  QCA 430
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This article sets out the circumstances in which privilege for legal communications could be lost or waived.
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