Australia: Public Liability: 'Consequential Incongruities'- PIPA developments

Insurance update

Section 30(2) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) provides that specific types of 'report' must be disclosed even though otherwise protected by legal professional privilege. In respect of that provision:

The absence of any discernable rationale for the types of information or documents selected for loss of privilege means that whatever the meaning given to the provision, there will be consequential incongruities (State of Queensland v Allen [2011] QCA 311 at [84]).

The section has proved particularly problematic in relation to witness statements and file notes taken by solicitors in the course of 'pre-court' procedures. The case of Watkins v State of Queensland [2007] QCA 430 (Watkins) gave rise to some difficulties about existence of privilege and whether a file note by a solicitor could be a 'report'. In the two recent cases of State of Queensland v Allen [2011] QCA 311 (Allen) and Felgate v Tucker [2011] QCA 194 (Felgate), the Court of Appeal has provided some much needed clarification.

The Legislation

Section 30(2) of the PIPA provides:

30(1) A party is not obliged to disclose information or documentary material under division 1 or this division if the information or documentary material is protected by legal professional privilege.

30(2) However investigative reports, [and] medical reports...must be disclosed even though otherwise protected by legal professional privilege...

Watkins v State of Queensland

In Watkins, the Court of Appeal doubted the application of 'litigation privilege' and if privilege applied, suggested a solicitor's file note was a 'report'.

The claimant served a notice of claim under s 94 of the PIPA in respect of a medical incident. The respondent gave the claimant written notice liability was denied under s 20 of the PIPA. In support of that denial, a medical report was provided to the claimant. Section 20(3) of the PIPA provides:

(3) An offer, or counteroffer of settlement must be accompanied by a copy of medical reports...and all other material, including documents relevant to assessing economic loss, in the offerer's possession that may help the person to whom the offer is made make a proper assessment of the offer.

The respondent offered nil. The claimant sought:

  • Letters from the respondent's solicitors to the author of the report; and
  • File notes, minutes or memoranda created by the solicitors recording a telephone conference with the expert.

The Court held the report which the respondent disclosed (and which the subsequent file note addressed) was not privileged. The Court held the report was obtained for the dominant purpose of complying with s 20(3), not anticipated litigation. The liability response expressly stated the report was being provided as the basis for the offer made in the letter (at [69]). Because the report was not privileged, either at general law or under s 30 of the PIPA, it would be anomalous if the communications underlying it were, so they were not privileged (at [81-2]).

The affidavit material did not depose to the dominant purpose for which the disclosed report was obtained as opposed to the purpose of the letter of instruction and the communication contained in the file note (at [41]). With respect, this was not terribly surprising where the obligation to disclose the report was not in dispute. The solicitor swore an affidavit that the letters of instruction and file note 'were brought into existence for the dominant purpose of anticipated litigation'. Keane JA noted:

... the accuracy of the Affidavit's assertions of fact was accepted on Mr Watkins' behalf at first instance even though the deponent did not swear that she believed that the pre-proceeding processes were doomed to fail and that litigation would ensue. (at [69]).

The suggestion evidence was required that the pre-court proceedings were doomed to fail raised questions about making out a claim for 'litigation privilege', where the 'dominant' purpose of the PIPA was that there should be no litigation at all (at [67-68]).

The Court also suggested the file was a 'report'. Jerrard JA said:

... A note recording information about the circumstances of the claimant child's birth is a report about the incident alleged to have given rise to the personal injury to which his claim related. It therefore falls within the class of documents which the State is obliged to give the claimant...(Watkins at [24]).

Following Watkins, parties could no longer proceed on the basis that a file note was not by definition a report, and it was unsurprising that the issue arose again.

After Watkins - Allen & Felgate

In Allen, the claimant suffered severe brain damage following a procedure. The claimant sought production of 'investigative reports, file notes and other documents, that report on the provision of medical services provided to the claimant'.

Shortly after the procedure, the Acting Executive Director of the Medical Services for the relevant Health Service District wrote to solicitors identifying potential medico-legal risk. The solicitors advised statements should be obtained from various medical practitioners 'sooner rather than later'. The solicitors framed a list of questions to each doctor and asked each doctor to prepare a written 'report' marked privileged and confidential.

The documents in issue were a report prepared by one of the doctors recording his answers to the questions and two file notes of a solicitor, recording information conveyed by a doctor in a conversation with the solicitor. The primary judge held that these documents were disclosable under s 30(2) of the PIPA. Applying Watkins, the solicitor's file note was held to be a 'report' and both documents were 'investigative reports', meaning: a ' as a result of an investigation into a medical incident' ([2010] QSC at [37]).

As to privilege, the documents came into existence for the dominant purpose of anticipated litigation. Although the applicant's family had not threatened litigation, contemporaneous documents including the letter to solicitors indicated that the matter had a 'medico-legal risk' (at [24]).

On appeal, the finding of privilege was not in issue. Remarks made by the Court suggest it might not have been the strongest example ([2011] QCA 311 per Fryberg J at [79], White JA at [68]).

All three Justices held that the solicitor's file notes were not 'reports', nor were they 'investigative'. Fraser JA held the document produced by the doctor 'might' be a report, but it was not 'investigative' or 'medical'. White JA and Fryberg J held the doctor's 'statement' (as described by Fryberg J at [92]) was both a 'report' and 'medical'.

Dealing with the proposition that a solicitor's file note was a 'report', White JA expressly disagreed (at [67]). Fraser JA distinguished the remarks on the basis the doctor in Watkins was not a factual witness (at [30]). Fryberg J did not say file notes could never be reports (at [88]) but noted there was: foundation for inferring the solicitor who was making them was making a report which has been recorded in the form of a file note (at [88]).

Nor were the documents 'investigative', applying dictionary definitions of that term. They were not produced as a result of a process of investigating or a systematic examination. Fraser JA held:

[26] I accept that the process in which PCH engaged upon the advice of its solicitor was a systematic enquiry of the doctors who might be able to provide information about the medical procedure and related matters. That overall process might be regarded as an 'investigation' within the ordinary meaning of that word, but the question is whether a particular document is itself an 'investigative report'. None of the documents in issue has that quality. None is a report of the result of the overall process recommended by the solicitor...The resulting record of information is no more 'investigative' in character than any witness statement or solicitor's file note of information within the witness' own knowledge...

[27] In my opinion, a statement by a witness to an incident alleged to have caused personal injury to a claimant, or a solicitor's file note, which records that person's recollection of the circumstances of the incident and the person's opinion about the incident for use in anticipated litigation, is not, in ordinary parlance, an investigative report.

White JA found there was not in the case of any of the documents a 'process of investigating' or a 'systematic investigation' (at [66]).

On the issue of communications to lawyers, the Court followed the earlier decision of Felgate v Tucker [2011] QCA 194. In that case, the respondent produced a document entitled 'interpretation of anaesthetic record' during the compulsory conference. The claimant sought disclosure of the statements the respondent had given to his lawyers. McMurdo P held:

To construe the Act as removing the application of legal professional privilege to oral or documented communications between lawyers and clients would be extra-ordinary, even revolutionary (at [47])...

Client's instructions to lawyers and consequential notes and statements are not ordinarily considered reports (at [48]).

On the issue of privilege, evidence was that a statement was taken after the initial notice under s 9A of the PIPA to provide legal advice about 'any anticipated judicial proceeding'. The Court held:

As the pre-court procedures mandated by the Act are an essential part of any future litigation when [solicitors] took...instructions resulting in the production of the document their dominant purpose was in contemplation of future litigation. That was so even though the instructions also concerned the more immediate issue of meeting the mandatory pre-court procedures (at [46]).

In Allen, The Court of Appeal adopted the same approach to communications between lawyers and agents of the client in respect of anticipated litigation. The dominant purpose of the PIPA might be there is no litigation, but compliance with the PIPA is a necessary pre-condition to litigation. As noted in Felgate, the objects of the PIPA would not be advanced by abolishing privilege and discouraging candour between solicitor and client (at [48]).

Some issues remain - 'medical reports'

The picture is getting clearer but some issues remain. In defining 'reports' the Court has occasionally drawn a distinction between 'solicitor-client' communications and 'third party' communications:

Watkins, Allen and James are also of little assistance in determining the issues in this case. They each concerned whether legal professional privilege attached to third party communications, not whether legal professional privilege attached to communications between clients and lawyers. Any statements as to the interpretation of the Act in those cases must be construed in that context (Felgate at [41]).

Section 30(1) does not distinguish 'third party' communications once the threshold question of privilege is satisfied.

In Allen, a majority (White JA and Fryberg J) held the document produced by the doctor was a 'medical report'. The appellant contended that the PIPA should not be construed to specifically deprive medical practitioners of privilege in their witness statements. In answer to that submission, the majority held that a medical practitioner respondent to a PIPA claim would not be deprived of privilege, because any statement given by a potentially liable medical practitioner to his or her solicitor could not sensibly be described as a 'medical report' for the purposes of the Act (at [69] per White JA, [99] per Fryberg J).

Fryberg J observed that a 'report' was not a 'proof of evidence' (at [97]). In comparing this to a statement taken by a loss adjuster (which in his Honour's view would not attract legal professional privilege) His Honour presumably had in mind a statement taken by a solicitor.

The construction adopted by the Court of Appeal leads to an emphasis on whether the person giving the statement is a party: 'They themselves were not the likely subjects of possible litigation. Their employer was' (at [69] per White JA). Similarly, Fryberg J observed:

[98] In the present case the appellant is not a medical practitioner. It is the State of Queensland. It claims that the statement is privileged in its hands because it was obtained for its solicitors for use in anticipation of litigation against the hospital. That was the basis, and the only basis, on which privilege was found to exist. At the time the statement was provided those solicitors were not acting for the doctor who made the statement. Privilege is not being claimed by the author of the statement. Indeed there is nothing in the evidence to suggest any likelihood of liability on the part of that doctor.

With respect, the majority potentially misses the point in cases where indemnity is provided by the State. A doctor may not be a party, but might conceivably provide a statement in respect of activities within the scope of duties as an employee of the State. The communication is given as agent of a party: see for example Algar v Queensland [2011] QSC 200, where notes of conferences between solicitors and a doctor engaged by the defendant were privileged as solicitor-client communications for the purposes of advice.

In Allen, Fraser JA held that a 'statement by a witness to an incident' did not fall within s 30(2). Fryberg J referred to a 'proof of evidence' citing s 37 (2)(b) of the PIPA which refers to 'witness statements from persons other than expert witnesses, the party intends to call as witnesses at the trial'. As his Honour held such a 'proof of evidence' is not a report within s 30(2) (at [97]), it seems that witness statements are not 'reports'. And they are probably not investigative to the extent they simply record matters within the witnesses own knowledge.

Such reasoning does not answer the question for a witness who is a medical practitioner (and might provide a 'medical report'). This is because a 'medical report' does not have to be 'investigative' so a document which does no more than record the doctor's own knowledge is caught (see Allen at [66] per White JA). Despite the suggestion by Fryberg J that a 'proof of evidence' is outside s 30(2), it may be difficult to determine the difference between a 'proof of evidence' and a document the subject matter of which is: the '[claimant's] condition and the doctor's involvement with him' (the description of the document in Allen at [95]).


Recent developments in the Court of Appeal have done much to remove uncertainty caused by the obiter statements in Watkins. With the exception of respondents in medical liability claims, it appears solicitors acting for respondents in PIPA claims can obtain their client's evidence in respect of the claim with the protection of legal professional privilege (with most certainty in cases where they are engaged to provide advice). In Allen, the majority was at pains to point out this was also the case for medical practitioner respondents, although this is not clear. In fact, the majority referred to policy reasons for disclosure. Fryberg J remarked:

In cases where a doctor is a defendant, he gets the benefit of the special report at a very early stage of proceedings. The loss of legal professional privilege in respect of medical reports (whether by the defendant or others) can be seen as a trade off for the benefit (at [100]).

Arguably the Court has defined 'reports' to protect solicitor-client communications.

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.

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