Lampson & 2 Ors v McKendry & Anor

G W Moore (Second Defendant)

Macquarie Area Health Service formerly known as Castlereagh Area Health Service formerly known as Orana and Far West Region Health Service (Third Defendant) JUDGMENT OF : Master Harrison

Mr D K Jordan (Plaintiffs) COUNSEL : Mr Simon Davis (First & Second Defendants)

Pye Rogers Fairfax & Patterson (Plantiffs)

Blake Dawson Waldron SOLICITORS : (First & Second Defendants)

Mr D Brooks of GIO (Third Defendant)

CATCHWORDS : Whether defendants' statements should be provided to plaintiffs LEGISLATION CITED : Schedule K Practice Note 104 Evidence Act Esso v Commissioner of Taxation [1999] HCA 67 Mann v Carnell [1999] HCA 66 Telstra Corp v Australia Media Holdings (No 1) (1997) 41 NSWLR 277 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 Akins v Abigroup (1998) 43 NSWLR 539 Attorney General v Maurice (1986) 69 ALR 31 Goldberg v Ng (1995) 132 ALR 57 Dingwall v Commonwealth (1992) 39 FCR 521 CASES CITED : Robinson v Adelaide International Raceway Pty Ltd & Ors (1993) 61 SASR 279 Sevic v Roarty [1998] NSWSC 462 Cole v Dyer & Anor [1999] SASC 272 Woollahra Municipal Council v Westpac (1992) 33 NSWLR 529 British Coal Corporation v Dennis Tye Ltd (No 2) [1998] 1 WLR 1113 Giannarelli v Wraith (No 2) (1991) 171 CLR 592 James Hardie v Yeomans [2000] NSWSC 539 Instant Colour Pty Ltd v Canon Australia Pty Ltd (unreported, Federal Court of Australia, 30 October 1995) Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 Bourns Inc v Raychem Corporation [1999] 3 All EWR 154 DECISION : (1) The plaintiffs' notice of motion filed 3 April 2001 is dismissed; (2) The plaintiffs are to pay the defendant costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20477/96 - JUSTIN ADAM LAMPSON by his tutor JOHN DOUGLAS JONES & 2 ORS v ANTHONY T McKENDRY & ANOR

JUDGMENT (Whether defendants' statements should be provided to the plaintiffs) 1 MASTER: By notice of motion dated 3 April 2001 the plaintiffs seek that the first defendant Dr Anthony T McKendry provide his statement dated 26 May 1999 and the second defendant, Dr G W Moore provide his statement dated 20 October 1997 to the plaintiffs within 7 days. The first plaintiff is Justin Adam Lampson, the second plaintiff is Cindy Lee Lampson and the third plaintiff is Joshua John Lampson. The plaintiffs relied on the affidavit of their solicitor Geoffrey Patterson affirmed 30 March 2001. The defendants relied on the affidavit of their solicitor Janice Tully sworn 10 April 2000. There is some urgency in giving this judgment as there is a forthcoming mediation on 16 May 2001. 2 The first defendant is a general practitioner practising in Mudgee. The second defendant is a general practitioner and visiting anaesthetist at Mudgee district hospital. The plaintiffs allege that on 1 May 1993 the second plaintiff was pregnant at term with her first child the first plaintiff. The pregnancy was managed throughout by the first defendant. On or about the morning of Sunday 16 May 1993 the second plaintiff's amniotic membranes spontaneously ruptured. The second plaintiff was admitted to the hospital under the care of the first defendant for management of labour by the first defendant and the hospital staff. The labour proceeded on to Monday 17 May 1993. The first plaintiff was delivered at around 2023 hours as indicated by the hospital records. The second plaintiff to the best of her recollection recalls the time of the birth at 2055. 3 The plaintiffs allege that the labour was so mismanaged at the hospital by the first defendant and hospital staff in breach of their duties to the plaintiffs that the first plaintiff was born moribund and in consequence has sustained permanent and irreversible brain damage which has caused the plaintiffs injury, loss and damage. In the course of the labour the second defendant administered to the second plaintiff epidural anaesthesia in a manner which breached his duties to the plaintiffs and which materially contributed to the plaintiffs injury, loss and damage. There is an additional claim that the plaintiffs further allege that the labour was so mismanaged it caused permanent and irreversible damage that has caused the second and third plaintiffs injury, loss and damage. 4 The defendants have served a report of Dr James Wilkinson, a specialist anaesthetist in relation to the anaesthetic management of Cindy Jones (second plaintiff) by Dr Moore, the second defendant. The plaintiffs submitted that in order to properly meet the matters raised in the report of Dr Wilkinson which has been served on behalf of the first and second defendants, it is vital that the plaintiffs have access to all documents from which the report was prepared. The defendants' solicitor deposed that the statements of the first and second defendants were prepared by Blake Dawson Waldron, lawyers of the court and for the sole purpose of this litigation. They were prepared after the statement of claim was filed. Client legal privilege is claimed and maintained over the statements of the first and second defendants. 5 It is common ground that these statements of the defendants have never been provided to Dr Wilkinson. He did not use these statements to prepare his report. The defendants have answered interrogatories and provided particulars. However, a statement of assumptions and a chronology were provided to Dr Wilkinson (Ex 2) and copies of these documents have been provided to the plaintiffs (see Ex 2). Dr Wilkinson relied on these documents to prepare his report. 6 The chronology provides a breakdown of the second plaintiff's antenatal consultations and from 16 May 1993 details of the second plaintiff's labour and of the anaesthetic administered are given. For each entry the source of the information is cited. There are some entries in the chronology where the hospital notes conflict with that of the doctor. Both versions are reproduced in the chronology. The information concerning the doctors was derived from the statement of assumptions. These conflicts are factual ones. For example there is a conflict as to whether Dr McKendry was actually present at the hospital at 1900 hours on 17 May 1993. This particular conflict becomes apparent because of the discrepancy between the hospital and the doctors' answers to interrogatories. These factual disputes are ones which can only be resolved by the witnesses giving evidence, or if not, by a judge resolving the factual dispute in his or her judgment. 7 The plaintiff submitted that the case law does not apply because those cases have not taken into account the effects of Schedule K Practice Note 104. Further the plaintiffs submitted that to fail to serve the statements is inconsistent with the spirit of Schedule K. The plaintiffs' experts reside in England and it is submitted that they may have to make two trips, firstly, to give evidence and then be recalled after the defendants have given their evidence. Of course, if this comes to fruition they could give evidence on the second occasion via video link. 8 The relevant part of Schedule K which took effect from 28 January 2000 is as follows: "Application of code 1. This code of conduct applies to any expert engaged to: (a) provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings; or (b) give opinion evidence in proceedings or proposed proceedings. General Duty to the Court 2. An expert witness has an overriding duty to assist the Court impartially on matter relevant to the expert's area of expertise. 3. An expert witness's paramount duty is to the Court and not to the person retaining the expert. 4. An expert witness is not an advocate for a party. The Form of Expert Reports 5. A report by an expert witness must (in the body of the report or in an annexure) specify: (a) the person's qualifications as an expert; (b) the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed); (c) reasons for each opinion expressed; (d) if applicable - that a particular question or issue falls outside his or her field of expertise; (e) any literature or other materials utilised in support of the opinions; and (f) any examinations, tests or other investigations on which he or she has relied and identify, and give details of the qualifications of, the person who carried them out. …" 9 Paragraph 18 of Practice Note 104 relates to expert witnesses. It generally states that a party engaging an expert must provide a copy of Schedule K to that witness. 10 The defendants submitted that firstly they have not impliedly waived legal professional privilege on their statements, and secondly, that it would not be fair to compel them to waive their claim for legal professional privilege when those reports have not been supplied to the expert. The defendant has helpfully provided written submissions. The defendant has expressed some uncertainty as to whether the Evidence Act or the common law is applicable. Both parties referred to the common law and in my opinion, it is correct to confine the arguments to the common law.

11 The impact of the Evidence Act upon pre-trial gathering of evidence has been a matter of some controversy in previous decisions. However, the decision in Esso v Commissioner of Taxation [1999] HCA 67 and Mann v Carnell [1999] HCA 66 resolves the issue of the application of the Evidence Act to pre-trial ancillary proceedings. In Esso and Mann the High Court held that the applicable law was not to be found derivatively in the Evidence Act, but that the common law applies. The line of authority which applied Evidence Act provisions to pre-trial proceedings (for example, Telstra Corp v Australia Media Holdings (No 1) (1997) 41 NSWLR 277, Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 and Akins v Abigroup (1998) 43 NSWLR 539)) has been overruled. 12 Consequently, the determination of an implied waiver or privilege is governed by the same principles of fairness as set out in cases such as Attorney General v Maurice (1986) 69 ALR 31, Goldberg v Ng (1995) 132 ALR 57 and subsequent case law. Very recently an illuminating article, Expert Evidence: Legal Professional Privilege and Experts' Reports by Paul Mendelow, appearing in (2001) 75 ALJ 258 came to my attention. 13 The starting point is the principle espoused in Maurice. Mason and Brennan JJ (at 487 and 488) stated: "The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined, inter alia, by the doctrine of waiver. A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication." 14 Gibbs CJ ( at 484) put it another way: "The case is not one in which the disclosure of a document, or the giving of evidence, without the disclosure of associated material, would give a partial or misleading picture, or would otherwise prejudice or embarrass the appellant in the conduct of the case." 15 The next significant, and arguably more relevant High Court decision was Goldberg. However, before Goldberg, there were two other decisions which are helpful because firstly, they dealt with the specific question of waiver of documents associated with expert medical reports, and secondly, they are part of the development of the common law in the interim between Maurice and Goldberg. The first was a decision of Foster J in the Federal Court in Dingwall v Commonwealth (1992) 39 FCR 521. The second was a decision of Olsson J in the Supreme Court of South Australia in Robinson v Adelaide International Raceway Pty Ltd & Ors (1993) 61 SASR 279. 16 In Dingwall Foster J dealt with a claim of implied waiver of privilege over documents that had actually been supplied to the medical expert. The basis of the application seemed to have been that the mere supply of the documents to the expert was enough to set up an implied waiver, notwithstanding that the expert himself had stated that he had not relied upon those documents. In the present case, it is common ground that the statements of the first and second defendants were never supplied to the expert. At best, only some extracts were provided. Foster J in Dingwall stated that: "…[Maurice] cannot be regarded as authority for a wide principle that, whenever documents are sent to a potential witness as part of material being placed before him in order that he may provide a report … that those documents, ipso facto, although they had the protection of legal professional privilege, necessarily would lose it because of the doctrine of waiver [Maurice] does not go so far as that. It requires, certainly, that there be an indication that the documents were used in the preparation of the evidentiary document in a way that could be said to influence the content of that document." 17 Further, in a Federal Court decision Instant Colour Pty Ltd v Canon Australia Pty Ltd (unreported, Federal Court of Australia, 30 October 1995) R D Nicholson J held that a privilege had been waived in relation to a letter of instruction to an account expert. Under the heading "Sources of Information" contained in the revised report was stated that the report had been compiled from sources of information which the letter of instruction. During the course of cross examination it came critical to evaluate precisely what sources of information the expert was relying upon. The foundation of the knowledge of the expert was critical to a proper judicial evaluation of the report itself. R D Nicholson J tested the question of fairness in the following helpful day: "The question of fairness can be tested in this way. If the letter of instruction confined the expert to preparing the report in a certain way and that instruction was not apparent because the letter remained subject to legal professional privilege, it is clear that no true understanding could be arrived at in relation to the foundation of the expert's knowledge. In my view, once it is said that the letter of instruction was something from which the report has been compiled, it cannot be the case that the reference to the letter of instruction falls within the principles Buttes case … It must be a reference which calls into play the aspects of fairness and results in an unintentional and implied waiver of privilege." 18 In Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 it was held that a mere reference to document in a pleading does not waive privilege, but if it is reproduced in full then its confidentiality is gone and no question of privilege arises. 19 This line of reasoning was further supported by Aldous LJ in Bourns Inc v Raychem Corporation [1999] 3 All ER 154. In this case it was held that for there to be an implied waiver of client legal privilege, the documents cited in the expert report must not only be referred to, but must be relied upon. Aldous LJ at 166-67 stated: "The principles of law are clear. Service of a witness statement, whether it be a statement … mere reference to a document does not waive privilege in that document: there must be at least reference to the contents and reliance. In the present case there was no reference and no reliance therefore no waiver." 20 In Robinson, Olsson J also referred to Maurice and confined its application to cases where the initial surrender of privilege over the "evidentiary" documents was voluntary. His Honour considered voluntariness was an essential pre-requisite of a Maurice type waiver of associated documents more importantly Olsson J considered that voluntariness, in the relevant sense, was not present when the expert report had been disclosed pursuant to procedural compulsion in the form of a rule of court which compelled parties to serve expert reports. This approach was supported by the New South Wales Court of Appeal's decision in Sevic v Roarty [1998] NSWSC 462. 21 The final two cases relied upon by the defendants are the High Court's decision of Goldberg and the decision of the Chief Justice of the Supreme Court of South Australia, Doyle CJ, in Cole v Dyer & Anor [1999] SASC 272. Both of these decisions are applications of, and refinements of the principles of fairness in Maurice. 22 In Goldberg the privilege holders (a solicitor, Goldberg, and his wife) were sued by the applicants (the Ngs) in equity proceedings. In respect of the matters which were the subject of the equity proceedings, the solicitor Goldberg had also been reported to his professional disciplinary body, the Law Society of New South Wales. In order to further his defence to the Law Society investigation, he supplied two proofs of evidence. It was found that this was voluntary and indeed a calculated move by Goldberg to demonstrate the reliability of his rebuttal of the complaints of the Ngs. In this way, Goldberg benefited in a very real way by the disclosure of the proofs to the Law Society. The High Court concluded it was unfair in those circumstances that Goldberg ought to be able to resist production of the proofs to the Ngs in the equity proceedings. 23 Cole also concerned the supply of documents by a defendant's solicitor in a personal injury action to a medical expert for use in connection with the preparation of a report. Doyle CJ at para 55 considered whether fairness required that these documents be disclosed to the applicant (plaintiff): "The plaintiff's solicitors should be able to prepare adequately for trial with the material that they have. They know the facts drawn from [the defendant's] statements that apparently have been relied upon by the experts. I can find no unfairness in connection with the preparation for trial. It is possible, as it contemplated in some of the decisions referred to, that at trial the position will change. It might emerge that material not particularised has been relied upon. For some other reason it may become necessary to consider the whole of [the defendant's] statement. But that is a matter to be dealt with by the trial judge. So fairness in the sense of preparation for trial does not require that a waiver of privilege be imputed. … Looking at the matter more broadly, it does not appear to me that [the defendant's] solicitors have secured some advantage by the use of privileged material, which material they now seek to conceal. That was what happened in Goldberg . In the present case the only material important for the expert is the material relied upon by the expert as a basis for his opinion, and that material has been particularised." 24 It cannot be suggested that the plaintiff is the victim of unfairness in the sense of the term used in Maurice.

Compulsion to serve documents - does this constitute an implied waiver of privilege under the common law ? 25 The first question is whether the material referred to in the expert medical report was produced voluntarily or under compulsion of law. The expert medical report served by the defendants contained references to facts and assumptions (Schedule K para 5 and Practice Note 104) which were compulsory to disclose pursuant to a procedural direction of the court and Part 36 r 13A(5). Due to the practice directions of the court it was therefore compulsory to make reference to Dr McKendry's statement 26 May 1999 and Dr Moore's statement 20 October 1997.

The second question which arises is whether there has been an implied or an imputed waiver of client legal privilege. In Woollahra Municipal Council v Westpac (1992) 33 NSWLR 529 Giles J held that there is no implied waiver of a claim for legal professional privilege over documents where they are produced to a third party under the threat of compulsion, or an attempt at compulsion, and the person claiming the privilege did not use the material in such a way as to make it unfair to maintain the privilege. 26 In Sevic the respondent filed a medical report with the common law division in accordance with a direction by the court. The report referred to documents not annexed to the report in relation to which the respondent claimed privilege. The Court of Appeal held that privilege had not been lost and dismissed the appeal. Sheller JA examined the issue of waiver with regard to s 122 Evidence Act 1995 (NSW). However, both Powell JA and Fitzgerald AJA applied the common law. 27 Powell JA stated that at common law, the production of a document in accordance with a court direction does not amount to a waiver of legal professional privilege. British Coal Corporation v Dennis Tye Ltd (No. 2) [1988] 1 WLR 1113; Giannarelli v Wraith (No 2) (1991) 171 CLR 592; Westpac and Goldberg. 28 According to Powell JA a report filed pursuant to a court direction, that has not been adduced in evidence and has not been used in such a way to make it unfair for the appellant of the proceedings to be denied access to it does not lose privilege. Powell JA at 301: "Whatever may earlier have been the position (see, eg Warner v Women's Hospital [1954] VLR 410) the position would seem now to be that waiver is not to be implied or imputed where the document the delivery of which is relied upon to found the implication, or support the imputation, of waiver was delivered - whether to the other party to the litigation or to a third party - pursuant to an order of the court or otherwise under compulsion of law unless the documents be later tendered in evidence on the hearing of the proceedings in which the parties are involved, or otherwise used in such a way on the hearing of those proceedings as would make it unfair to the other party not to treat the privilege as having been waived." 29 The reasoning of Powell JA was also discussed in Cole and cited with approval in James Hardie v Yeomans [2000] NSWSC 539, 16 June 2000. In Cole, Doyle CJ considered whether waiver is to be implied where the document delivery which is relied upon to found the implication is delivered pursuant to an order of the court or statutory requirement. Doyle CJ did not agree that compulsory disclosure was the decisive factor in determining whether privilege had been waived. Doyle CJ said at paras 46-48: "As the ultimate question is one of fairness, it is not possible to lay down a universal rule that will determine whether or not waiver has been imputed….The judgements of the High Court in Goldberg indicate that an important matter is whether the disclosure of the privileged material is voluntary. The relevant disclosure here is the disclosure of the expert report, pursuant to the requirements of r38.01. The privileged material in question is disclosed as the result of the disclosure of the reports that is required by r 38.01.

However, because the ultimate issue is one of fairness, the question of whether the disclosure is voluntary or not cannot be decisive when considering whether a waiver of privilege is to be imputed. The fact that the disclosure is not voluntary is important, but not decisive." 30 Doyle CJ also stated at para 56: "A rule that privilege is waived if material is submitted to an expert for use in connection with an expert report would be a very substantial intrusion on legal professional privilege. And such an intrusion would be for little gain in terms of justice or efficiency, if particulars of any matter relied upon by the expert must be provided." 31 This issue was again touched upon by the majority in Mann. In this case the issue was whether disclosure of confidential material to a third a party constituted an implied waiver of privilege. The majority of Gleeson CJ, Gaudron, Gummow and Callinan JJ stated at para 29: "Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which privilege is intended to protect….What brings about the waiver is the inconsistency, which the courts, where necessary informed by the considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principles of fairness operating at large." 32 This line of reasoning was adopted in Yeomans at para 18: "The cases establish the principle that there is implied or imputed waiver where there are circumstances which are inconsistent with the maintenance of the privilege." 33 The question of whether disclosure is voluntary or not is not decisive, but it is an important factor to be considered, along with the issue of fairness and whether disclosure occurred in circumstances inconsistent with the maintenance of privilege. 34 In the present case the requirement that the expert refer to all facts and assumptions forming the basis of his opinion, compelled disclosure of material contained in the statements of Dr McKendry and Dr Moore. This disclosure was not inconsistent with the maintenance of privilege. Or alternatively, disclosure was compelled because if the defendant is to rely upon the report of Dr Wilkinson, it must have been served on the plaintiffs (see Part 36 r 13A(5) SCR). Thus, the assumptions were not disclosed voluntarily but by compulsion of law and this is an important factor in considering whether the disclosure occurred in circumstances inconsistent with the maintenance of privilege. 35 As the facts upon which the expert report have been based have been particularised, I do not regard it as unfair that the defendant's should be permitted to withhold from production the statements of Dr McKendry and Dr Moore. It is my view that it is debatable as to whether the first defendant, the general practitioner's statement plays any role in relation to an experts report covering the administration of anaesthetic. As discussed earlier, the plaintiffs' solicitors should be able to obtain their experts reports and prepare adequately for trial with the material they have in their possession. The plaintiffs' experts will be appraised of all the assumptions that have been made by the defendants' expert. It is my view that legal professional privilege in relation to the statements of the defendants has not been waived. 36 It might emerge that material not particularised has been relied upon or it may become necessary for some other reason to consider the whole of the statements. But that is a matter to be dealt with by the trial judge. Fairness in the sense of preparation for trial does not require that a waiver of privilege be imputed. Accordingly I dismiss the notice of motion. 37 Costs are discretionary. The normal rule should apply. The plaintiffs are to pay the defendants' costs. 38 The orders I make are:

(1) The plaintiffs' notice of motion filed 3 April 2001 is dismissed.

(2) The plaintiffs are to pay the defendants' costs. **********

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