JUDGE1
OLSSON J In this action the plaintiff sues the defendants
for damages in
relation to personal injuries sustained by him as a consequence of an accident
which occurred whilst he was competing
as a rider in a motor cycle race
conducted at the Adelaide International Raceway on 5 July 1987. He alleges
that the defendants,
or some or one of them, were negligent in various
respects as to the condition of the Raceway on the occasion in question.
2. One
of the issues arising in the proceedings is as to precisely what
caused the admittedly serious injuries sustained by the plaintiff,
when he
came off his bicycle whilst rounding a bend in the circuit and eventually came
into contact with a concrete safety wall.
3. It is the plaintiff's case that his major injuries were caused by the
ultimate impact of his body with an uncushioned concrete
wall and were - it is
said - thus the product of the negligence of one or more of the defendants.
4. On the other hand the defendants
are seeking to establish that the initial
impact of the plaintiff's body with the circuit surface, when he lost control
of his bicycle,
was probably the cause of the injuries in question - and thus,
it is argued, not the responsibility of any of the defendants.
5.
In getting up their case for trial the defendants sought a medical report
from Mr H R Schaeffer, a specialist neurosurgeon, as to
the likely cause of
the relevant injuries. A copy of that report ("the Schaeffer report") has been
supplied by the defendants to
the plaintiffs in conformity with the mandatory
requirement of SCR 38.01.
6. A perusal of the Schaeffer report indicates that the
opinions expressed in
it are based upon factual scenarios emerging from a series of what I take to
be eye witness proofs obtained
by the solicitors for the defendants for the
purposes of the present litigation. It is assumed, for present purposes, that
these
would, in the normal course, have been the subject of legal professional
privilege, although that question may need to be explored,
at some future
time, in more definitive fashion.
7. The defendants rejected a request that copies of the witness proofs
referred
to be produced for inspection, claiming that they remain subject to
legal professional privilege, despite the reference to them in
the medical
report. This prompted an application, by notice for further directions filed
by the plaintiff, for an order that the
proofs be produced for inspection.
Having heard submissions in relation to that application I declined to make
the order sought and
intimated that I would publish reasons for my decision at
a later date. I now proceed to do so. In essence the contention of Mr Webb
QC,
of senior counsel for the plaintiff, was that the situation above outlined,
falls within the common law principle discussed by
the High Court in
Attorney-General for the Northern Territory v Maurice and Ors [1986] HCA 80; (1986) 161 CLR
475.
8. That case focused on the common law principles applicable to situations in
which reference is made in a non-privileged document
to other source material
from which that document was compiled; and which would normally attract legal
professional privilege. The
High Court held that, in a situation in which
there is no intentional waiver of privilege, the question whether waiver
should be
inferred or imputed depends on whether it would be either unfair or
misleading to allow a party to refer to or use material, but,
nevertheless,
assert that the material, or material associated with it, is privileged from
production.
9. In the instant case Mr
Webb QC argued that the specific references in the
Schaeffer report rendered it clear that, without recourse to the source proofs
adverted to, it was not possible to appreciate and understand the factual
premises upon the basis of which the opinions expressed
were arrived at and,
in turn, this would both render cross examination more difficult and
protracted and also inhibit procurement
of independent assessments as to the
validity of those opinions. So it was, he submitted, that, within the
principles espoused in
the Maurice Case, considerations of fairness demanded
production of the relevant source material.
10. Leaving aside any question
of the provisions of SCR 38.01, that argument
does, with respect, have considerable force.
11. However, the reasoning in the Maurice
Case stems from the premise that,
when a voluntary waiver occurs in relation to a principal document then, in
the circumstances postulated,
what has been termed an imputed or inferred
waiver also necessarily flows through to relevant source material. In such a
situation
the critical touchstone in the whole process of reasoning is the
original voluntary waiver. The very notion of waiver connotes a
voluntary act
or concession coming from the party said to be giving the waiver.
12. Such a scenario is totally absent in relation
to a SCR 38.01 production
of an expert's report. As King CJ pointed out in Wilson v Porter and Anor
(1988) 46 SASR 547, that rule impinges on the common law rule of privilege by
requiring mandatory production to an opponent of reports prepared for
the
purposes of litigation and which would, therefore, but for SCR 38.01, be
protected from inspection by operation of the principle
of legal professional
privilege. No question of voluntary waiver is involved. For reasons of sound
procedural policy and to aid the
smooth preparation for and conduct of the
trial without interruption, parties are compelled to make early disclosure of
material
which, at common law, would be the subject of absolute privilege and
would not normally be produced (if at all) until the relevant
expert witness
was called during the trial.
13. Mr Webb QC sought to argue that the decision in Wilson v Porter and Anor
was restricted
to a consideration of the proper meaning of the word "report",
as employed in SCR 38.01 and did not extend to a review of the status
of
source materials giving rise and referred to in any report. It did not, he
contended, erect a general proposition that such materials
remained subject to
legal professional material in a manner which ousted operation of the
principles canvassed in the Maurice Case.
14. In my view that submission cannot withstand substantial scrutiny. It
seems to me that the fundamental reasoning underpinning
the decision arrived
at necessarily implies a concomitant conclusion that source materials giving
rise or adverted to in an expert
report, which came into being in
circumstances which would normally attract legal professional privilege, do
not lose that protection
simply because the procedures of the court demand
production of a report based on them which, itself, would otherwise have been
privileged.
15. As I read his judgment Legoe J expressly made that point.
16. The judgment of the Chief Justice (which was concurred in by
Prior J), by
necessary implication, accepts such a situation as a given, in arriving at the
decision actually come to.
17. With
respect, it is difficult to see how any logically contrary view can
fairly be arrived at. In producing the report here in question
no waiver of
privilege ever occurred at the hands of the defendants. They produced the
report solely because that was demanded of
them by SCR 38.01. They would
properly have been the subject of appropriate procedural discipline had they
failed to do so.
18.
It follows that the essential pre-condition for any consequential imputed
or inferred waiver of source material in question was never
satisfied. Indeed
any contrary conclusion would fly directly in the face of what was obviously
in the contemplation of the Full Court
in Wilson v Porter and Anor. It would
be a strange situation if, having been denied direct access to the relevant
source material
by reason of that decision, a party could then gain production
of it by resort to a common law side wind, the force of which derived
from a
concept inherently inconsistent with the reasoning of the Full Court.
19. It was for those reasons that I declined to accede
to the application for
an order that the subject proofs be produced for inspection.