Esso Australia Resources Ltd v Plowman

Chin and Comcare [2017] AATA 634

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Home Office v Harman [1983] 1 AC 280

Oliver and Comcare (Compensation) [2018] AATA 1964

Warner and Comcare [2017] AATA 2709

Safety, Rehabilitation and Compensation Act 1988 - Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Consolidation 1)

1. Mr Adrian Walsh (the Applicant) made a claim to the Respondent for permanent impairment and non-economic loss in relation to his accepted injury of fractured right tibia and fibular (primary right foot injury). The application was resolved by way of a decision of this Tribunal, made on 29 November 2021, with the consent of the parties.

2. The Respondent subsequently sought a release from the implied undertaking in relation to certain medical reports provided as part of the Tribunal proceedings.

3. The Applicant objects to the release from the implied undertaking.

4. Both parties filed submissions and a telephone Interlocutory Hearing was held on

5. Aside from the claim made by the Applicant in relation to his primary right foot injury, the Applicant also subsequently requested the Respondent recognise or reclassify, in accordance with the International Classification of Diseases and Injuries, several complications/conditions arising from his primary right foot injury.

6. On 22 November 2021, the Respondent formally requested that the Tribunal release it from the implied undertaking in respect of all medical reports obtained by the Respondent in the course of the proceedings including, but not limited to, the reports of Dr Journeaux, dated 17 August 2020, 29 March 2021 and 11 October 2021, to assist in the consideration of the complications/conditions arising from the Applicant's primary right foot injury. The Respondent submitted that those reports provided detailed explanations of the Applicant's clinical presentation over the past 15 months, particularly, with regards to his symptomology in respect of his primary right foot injury.

7. The Respondent had earlier written to the Applicant seeking his agreement to the release from implied undertaking in relation to Dr Journeaux's report dated 11 October 2021. The Applicant objected to this release. In his submissions received on 18 November 2021, the Applicant stated that he had not requested that the Respondent assess any additional complications/conditions secondary to his primary right foot injury, but rather to classify the complications that exist as a direct result of his primary right foot injury, that are currently only referenced globally by the descriptor "fractured right tibia/fibula", so that they are classified according to the International Classification of Diseases and Injuries.

8. The Applicant stated that his primary right foot injury was "the immediate cause of a plethora of complications and impairments that are the core source of [his] compensable condition encompassed within the descriptor Fractured right tibia/fibula."

9. The Applicant further provided that his preference was for any subsequent classification by the Respondent be made in consultation with his local orthopaedic surgeon, as well as the orthopaedic surgeon who performed the triple arthrodesis on his right foot.

10. On 23 November 2021, the Applicant provided the following further submissions in support of his objection to the Respondent's request for release from implied undertaking:

Even though the Respondent has put forward their case that they 'remain of the view that the abovementioned medical reports would assist the Respondent in ongoing claims management concerning the primary right foot injury', I have several concerns regarding this request:

1. The remit of Dr Journeaux's clinical examinations and medical reports were specifically in relation to my Permanent Impairment application with the Respondent. There was no request for Dr Journeaux to classify my complications/conditions as per ICD-9, ICD-10 or ICD-11. In that regard, the focal point of the examinations and their conclusions are not related to my classification request, and furthermore there are no designations contained therein with reference to the World Health Organisation's International Classification of Diseases (ICD-9, 10, or 11).

2. The Respondent has requested that 'all medical reports obtained by the Respondent in the course of the matter, including but not limited to the reports of Dr Journeaux...' are released from the implied undertaking. The Respondent's original request from 20 October 2021 was for just the supplementary report of Dr Journeaux dated 11 October 2021 to be released. Now the Respondent requests 'all medical reports' be released. The exact rationale and reasons for the change in the request are not elucidated beyond generic comments in assisting in 'ongoing claims management'. My presumption is that the Respondent would like to use these reports in perpetuity with regards to any 'additional claims' and 'ongoing claims management', which is extending my request to the Respondent beyond the implied assistance in classifying the complications/conditions of my primary injury as per ICD-9, 10 or 11.

3. My presumption is that the final supplementary report of Dr Journeaux dated 11 October 2021 has superseded the clinical examination and conclusions of the first two reports dated 17 August 2020 and 29 March 2021. If that is the case, what would be the utility of those reports, especially given that the supplementary report of 29 March 2021 had no clinical examination associated with it and the fact that the information contained in the prior reports was superseded?

4. In addition to point 3, the whole person impairment (WPI) assessment changed from 12%WPI to 27%WPI, then to 30% WPI between the first and last medical reports of Dr Journeaux. What would be the exact use of these superseded reports? I can only conclude that, if used in the context of my 'ongoing claims management' and 'additional claims', they would only serve to confuse any future analysis.

5. In addition to, and as an example of point 4, when I objected to the Respondent's Reconsiderations Team in a series of comprehensive emails regarding the medical report of the 17 August 2020 and its conclusions that I was 12% WPI (in direct contravention of s 3. Application of this guide, of the Safety, Rehabilitation and Compensation Act 1988 - Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 {Approved Guide}) the Respondent 'assisted' my ongoing claims management by dismissing my concerns in the space of a single A4 sheet of paper and resorted to incorrect conclusions based on a very superficial analysis, without any attempt to address my concerns with the seriousness they deserved. In terms of the utility of the 17 August 2020 medical report, it served a specific purpose for the Respondent at that time. I do not want the medical reports of Dr Journeaux (17 August 2020, 29 March 2021, 11 October 2021) to serve a purpose in perpetuity for the Respondent that I am not currently privy to and for which confusion and misinterpretation is a real possibility.

6. If the Respondent is to use any of Dr Journeaux's medical reports in the context of the ICD-9, 10 or 11 classification of my right limb complications and conditions, my presumption is that further consultation with Dr Journeaux would be required, as the medical reports do not specifically categorise any of the clinically-observed sequelae as per ICD-9, ICD-10 or ICD-11. I would prefer any consultations regarding my conditions and complications to be with Dr Bryceson or Dr Grujic, for reasons previously stated. I do not think it unreasonable to be empowered with making these sorts of decisions in regard to my disabilities.

7. Most importantly, however, is the fact that my application to the Respondent for Permanent Impairment, which was signed and dated on 17 January 2020, almost two years ago, has during that time morphed into an extremely mentally fatiguing and stressful series of events, culminating with the ongoing claim before the Administrative Appeals Tribunal. For someone like myself who suffers disabilities that cause extreme physical pain and daily difficulties with mobility that are hard to articulate to able-bodied people, it is a simple fact that I do not desire any extra stress regarding my medical conditions. Unfortunately, at least the last 14 months of my life have been antithetical to this desire. In that regard, I would like this period of time put behind me, without any reminders or triggers to the stress I have experienced. Unfortunately, Dr Journeaux's medical reports are a key part of this negative experience, and they are a constant reminder to me of the exhausting effort, both mental and physical, that I have had to endure to fight for what I believe in. The only consolation to this endeavour, is that I have at least been partially successful in proving my impairments far exceeded that initial 12% WPI rating, and now I desire more than anything to move on and to not have any reminders of this exhausting process. This is why I respectfully request that the Tribunal deny the Respondent's request to release the medical reports of Dr Journeaux.

11. On 3 December 2020, the Respondent provided the following submissions in reply:

1. The Respondent acknowledges that litigation in the Tribunal can be stressful. However, the Respondent considers it necessary that the Claims Managers attending to the Applicant's classification request, as well as any future request which may arise, have access to all medical assessments undertaken to date in relation to the Applicant's accepted 'fractured right tibia and fibular' injury (primary right foot injury). This includes having regard to the three comprehensive assessments undertaken by Dr Journeaux, which contain relevant details of the Applicant's current symptomology.

2. The Respondent does not intend to rely upon the conclusions as to whole person impairment ratings in Dr Journeaux's reports dated 17 August 2020 and 29 March 2021. However, these earlier reports evidence the progression in Dr Journeaux's clinical assessment and opinion and are referred to by Dr Journeaux in his final report of 11 October 2021. They should therefore be read in conjunction with Dr Journeaux's final report.

3. Finally, while it is accepted that the reports obtained by the Respondent in the course of these proceedings are subject to an implied undertaking, it is the Respondent's view that the use of such reports for claims management concerning the primary right foot injury is not an ulterior or collateral purpose to the current Tribunal proceedings, such that consideration of those reports would not be in breach of the undertaking. The Respondent relies on the decision of Re Oliver and Comcare [2018] AATA 1964 in this regard.

12. At the Interlocutory Hearing, the parties made submissions that were consistent with those provided to the Tribunal in writing.

13. The Respondent confirmed that, in the present proceedings, the only medical reports that it seeks a release from the implied undertaking were those of Dr Journeaux dated

29 March 2021 and 11 October 2021, as Dr Journeaux's report dated 17 August 2020 had been obtained during the claim process, prior to the commencement of the current Tribunal proceedings.

14. The Applicant drew the Tribunal's attention to the High Court's decision in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 and the principle that "the party obtaining the disclosure cannot, without the leave of Court, use it for any purpose other than for which it is given." The Applicant submitted that the sole purpose of obtaining Dr Journeaux's reports was to assess his whole person impairment with reference to the Guide to the Assessment of the Degree of Permanent Impairment.[1] The Applicant contended that "ongoing claims management" or the assessing of his request for classification of complications arising from his primary right foot injury is "categorically" not the same purpose of the request to use the report to elucidate his whole person impairment.

15. There is a large volume of cases dealing with implied undertakings. In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36, Brennan J, in relation to implied undertaking said that:

The underlying principle ..... is that a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a "collateral or ulterior purpose". That phrase is not used in a pejorative sense, as Lord Diplock said in Home Office v Harman, but it is used "merely to indicate some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, (the solicitor for a party) was accorded the advantage, which she would not otherwise have had, of having in her possession copies of other people's documents."

16. The implied undertaking principle was further outlined by Hayne, Heydon and Crennan JJ in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [96] as follows:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.

17. There is a considerable number of Tribunal decisions that also consider release from an implied undertaking. In this matter, both parties referred the Tribunal to the decision in Oliver and Comcare (Compensation) [2018] AATA 1964 (Oliver). The Respondent sought to rely on that decision in regard to its contention that the use of Dr Journeaux's reports for ongoing claims management concerning the primary right foot injury is not an ulterior or collateral purpose to which the reports had been sought and provided during the proceedings, such that consideration of those reports, would not be in breach of the undertaking. As such, the Respondent's contended that a release from the implied undertaking that exists in relation to the reports of Dr Journeaux is not required for the purposes of ongoing claims management in relation to the Applicant's primary right foot injury.

18. The Applicant sought to distinguish the Oliver case by contending that the use of

Dr Journeaux's reports by the Respondent, in relation to his request to have the complications/conditions arising from his primary right foot injury classified, is not the same purpose as that for which the reports had been sought and provided during the proceedings - to assess his whole person impairment.

19. In Oliver, in relation to implied undertaking, the Tribunal provided at [53]-[59]:

53. The Tribunal will deal firstly with an interlocutory issue. Ms Oliver took objection to the Tribunal using the reports of Prof Youssef. It was said that Prof Youssef's opinion was formed using documents produced in other proceedings before the Tribunal, such that their use constituted a breach of the implied undertaking not to use such material for any purpose other than that for which it was given. Comcare told the Tribunal that Prof Youssef's reports were produced as part of the claims management of her compensable conditions, and that the Tribunal had previously released Comcare from the implied undertaking for such purposes.

54. Ms Oliver submitted that her claim for a condition affecting her right limb was a different condition to her compensable conditions, and documents produced for claims management of the latter could not be produced in respect of the former without the granting of a release by the Tribunal.

55. In Warner and Comcare [2017] AATA 2709 an orthopaedic surgeon wrote a report on the claimant who suffered from an aggravation of a lumbar spine condition. Some of that report was informed by, or reproduced information from, material that had been produced under summons in proceedings in the Tribunal. The Tribunal considered the question of whether the implied undertaking that was held to apply in respect of the summonsed material prevented its use by the surgeon in the absence of a release. It held that Comcare required a release from that implied undertaking before it could use the material or the report in the management of the claimant's other claims for compensation under the Act. That was because those other claims related to different injuries than the injury that was the subject of the proceedings in the Tribunal. The management of those other claims was a purpose collateral or ulterior to the purpose for which the material was produced under summons.

56. Conversely, in Chin and Comcare [2017] AATA 634 Comcare was compelled to produce documents to the Tribunal and the applicant. It then proposed to use those documents for what it considered were claims management purposes. It was held to be subject to an implied undertaking in relation to those documents. Moreover, the Tribunal found that it did not require a release from that implied undertaking before it could use the documents for the purposes of making future decisions about the applicant's entitlement to compensation under the Act for her accepted injuries. That is because those purposes are not collateral or ulterior to the purpose for which the documents were produced in this review.

I agree that claims management purposes are not collateral to the proceedings in this review. The Tribunal, in conducting merits review of Comcare's decision, stands in the shoes of the decision maker. The Tribunal's decision (when it is made) will be more than just closely connected with claims management purposes: it will be - like the decision under review - a claims management decision. This is not a situation where documents are proposed to be used "in one action for the purposes of another action", the Tribunal's decision will be one decision amongst several made during the management of the same claim.

58. The factual situation facing the Tribunal in the present circumstances fall somewhere between those encountered in Warner and Chin. Prof Youssef's reports were not produced in respect of a condition unrelated to Ms Oliver's compensable conditions, nor were they, on one reading, strictly related only to claims management in respect of the compensable conditions. On balance, however, I consider that it is fair to view the reports as having been produced in respect of claims management for her compensable conditions, and as such they do not require release from the implied undertaking.

59. If I am mistaken in this assessment, however, I would be prepared to grant that release at this stage of the proceedings. It is to be remembered that Ms Oliver asserts that her right limb condition is the direct outcome of suffering from the compensable conditions; material produced in connection with the latter it seems has a direct relevance to the assessment of a claim for compensation for the former.

20. The Tribunal considers that the factual situation before it sits well within the realm of the Chin and Oliver cases.

21. The reports of Dr Journeaux were produced under compulsion to the Tribunal and are, therefore, subject to an implied undertaking (noting that the report dated 17 August 2020 was obtained during the initial claims management process and, as such, does not fall under the same implied undertaking as the two subsequent reports dated 29 March 2021 and

22. In accordance with the decisions in Chin and Oliver, on balance, the Tribunal considers it fair to view the reports of Dr Journeaux as having been produced in respect of claims management of the Applicant's ongoing eligibility for compensation (of which, includes eligibility for permanent impairment and non-economic loss) in relation to his primary right foot injury. The Tribunal agrees that the assessment of the Applicant's request to classify complications/conditions that arose as a direct result of his primary right foot injury in accordance with the International Classification of Diseases and Injuries falls within the scope of ongoing claims management of the Applicant's primary right foot injury.

23. The Tribunal considers this to be the case as the complications/conditions that the Applicant is seeking to have separately or appropriately classified have largely, from his own admissions, been considered or treated up until this point as part of his primary right foot injury.

24. Consequently, the Tribunal finds that the Respondent does not require a release from the implied undertaking in relation to the reports of Dr Journeaux in relation to the ongoing claims management for the Applicant's primary right foot injury. If the Tribunal is mistaken in this assessment, however, the Tribunal, following the principles of the Oliver case, would be prepared to grant the sought release.

25. In this instance, it should be remembered that the Applicant asserts that he had not requested that the Respondent assess any additional complications/conditons secondary to his primary right foot injury, but rather to classify the complications/conditions that exist as a direct result of it, in accordance with the International Classification of Disease and Injuries.

26. The Tribunal notes that should the Applicant disagree with the decision that is made by the Respondent in relation to his request to classify/recognise the conditions/complications arising from his primary right foot injury, it would be open to him to seek a review of that decision.

27. An implied undertaking does not apply in relation to the report of Dr Journeaux, dated

17 August 2020, as that report was produced prior to the commencement of the Tribunal proceedings in this matter.

28. An implied undertaking applies to the Respondent in relation to the reports of Dr Journeaux dated 29 March 2021 and 11 October 2021.

29. The Respondent does not require a release from that implied undertaking before it can use the reports of Dr Journeaux in the assessment of the Applicant's request that it classify the complications/conditions that exist as a direct result of his primary right foot injury in accordance with the International Classification of Diseases and Injuries. Such a claims management purpose is not collateral or ulterior to the purpose for which the reports had been sought and provided during the proceedings.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

[1] Safety, Rehabilitation and Compensation Act 1988 - Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Consolidation 1).