Bryce v Anderson and Anor

"(a) Statement of Doctor Mark Anderson dated the 17th March, 2003;

(b) Further Statement of Doctor Mark Anderson referring to Questions 19-29 of Statement of Claim;

(c) Response from Doctor Mark Anderson regarding Personal Injuries Proceedings Act dated the 10th January, 2003;

(d) Statement of Registered Nurse Anne Caldwell dated the 15th January 2003;

(e) Statement of Registered Nurse Leonie Gillies dated the 14th January, 2003; and

(f) Statement of Director of Nursing Joyce Roth dated the 15th January, 2005."

6. Section 27(1) of the Personal Injuries Proceedings Act provides:-

"27 Duty of respondent to give documents and information to claimant

(a) copies of the following in the respondent's possession that are directly relevant to a matter in issue in the claim -

(i) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;

(ii) reports about the claimant's medical condition or prospects of rehabilitation;

(iii) reports about the claimant's cognitive, functional or vocational capacity; and

(i) information that is in the respondent's possession about the circumstances of, or the reasons for, the incident; or

(ii) if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident."

Section 30 provides (relevantly):-

(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.

(2) However, investigative reports, medical reports and reports relevant to the claimant'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.

"investigative reports" does not include any document prepared in relation to an application for, an opinion on or a decision about, indemnity against the claim from the State."

7. The respondents have disclosed a report by Dr Shane Sondergeld dated 25 January 2004. At the commencement of that report Dr Sondergeld listed the material provided to him. It included the document subject to this application - numbered in his report as 11-16. He then went on to express opinions on various questions that had been put to him. In doing so he referred to material in some of those documents, namely numbers 11, 14 and 15 - that is (a), (d) and (e) in the application.

8. On the hearing of the application it was common ground that the documents are prima face privileged as part of the instructions given by the respondent's lawyers to an expert for the purpose of preparing an expert report; see Interchase Corporation Ltd (in liquidation) v Grosvenor Hill Qld Pty Ltd No. 1 [1999] 1 QdR 141 at 156 per Pincus JA. The issue for determination is whether the partial disclosure of their contents in the report of Dr Sondergeld which has been provided by the respondents to the applicant amounts to an implied waiver of privilege. The test is whether it would be unfair or misleading to allow a party to refer to or use part of the contents of documents without disclosing the whole: see AG (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475.

9. As I have said, Dr Sondergeld has referred only to some of the documents, namely:-

(a) Statement of Doctor Mark Anderson dated the 17th March, 2003;

(d) Statement of Registered Nurse Anne Caldwell dated the 15th January 2003;

(e) Statement of Registered Nurse Leonie Gillies dated the 14th January, 2003.

He has not referred to the contents of the following:-

(b) Further Statement of Doctor Mark Anderson referring to Questions 19-29 of Statement of Claim;

(c) Response from Doctor Mark Anderson regarding Personal Injuries Proceedings Act dated the 10th January, 2003;

(f) Statement of Director of Nursing Joyce Roth dated the 15th January, 2005.

There is no basis for a waiver of privilege in relation to documents (b), (c) and (f).

10. As to documents (a), (d) and (e), he has quoted from these rather cryptically, generally not verbatim. He has not disclosed the contexts in which the material quoted appeared. The applicant cannot tell whether the whole of the relevant material has been quoted, nor can he tell whether Dr Sondergeld has properly interpreted the material.

11. In Henderson v Low [2000] QSC 417 the plaintiff claimed damages for personal injury alleging negligence and contravention of s. 52 of the Trade Practices Act 1974 against an orthopaedic surgeon who had operated on him. His complaint was not about the performance of the operation but about failure to inform him of the risks involved. The surgeon provided his solicitors with a written report in which he described his conduct of the operation and noted his observations made during it. That report was provided by the solicitors to another doctor who was retained to furnish an expert opinion with respect to the plaintiff's allegations. The expert furnished a report which referred to the surgeon's report and reproduced part of its contents. The question arose whether there had been an implied waiver of privilege in the rest of the surgeon's report.

"The disclosure was not for a limited or collateral purpose but for a reason integrally connected to the subject matter of the litigation. The defendants cannot reveal part of their report to support their defence of the plaintiff's claim and conceal the remainder by asserting that all that is relevant has been disclosed. This in the end was the defendants' only answer to the application. ... The defendants are not the best judges of whether or not the partial disclosure is misleading. Fairness demands that the plaintiff have the opportunity of being satisfied that those parts of the first defendant's report that have been published represent all the relevant material on which the question of causation is to be debated, and that what has been reproduced does not, when put in context, take on a different complexion. It is, I think, obvious that the plaintiff's medical advisors will be distinctly disadvantaged when considering whether the operation has caused the plaintiff's complaints if they cannot read the first defendant's report. They should not be required to essay their opinions on the basis that the passages quoted by [the expert] are all that is necessary for that purpose. It would be relevantly unfair if the defendants' waiver of part of the report did not operate to all of it."

13. I am persuaded that the selective revelation of parts of the information contained in documents (a), (d) and (e), without the applicant being able to see the information contained in those statements in its entirety, is unfair. He should be able to satisfy himself that those parts of the statements relied on by Dr Sondergeld to justify his opinion represent the whole of the relevant material; that it has been given due weight by him; and that it is not in any way misleading.

14. Accordingly I order that the respondents disclose the following documents to the applicant within 7 days from the date of this order:-

(a) Statement of Doctor Mark Anderson dated the 17th March, 2003;

(d) Statement of Registered Nurse Anne Caldwell dated the 15th January 2003;

(e) Statement of Registered Nurse Leonie Gillies dated the 14th January, 2003.

15. I further order the respondents to pay the applicant's costs of and incidental to this application to be assessed on the standard basis.