Watkins v State of Queensland

[1] The applicant sought orders for disclosure of certain documents pursuant to the Personal Injuries Proceedings Act 2002 (PIPA) in respect of a claim for negligence against the respondent. Those documents are:

(1) Letters from the respondent's solicitors, Minter Ellison, to Professor Alastair MacLennan dated 22 September 2006, 20 December 2006 and 24 December 2006 (the "letters of instruction") referred to in the report provided by Professor MacLennan to Minter Ellison dated 2 January 2007;

(2) Any file notes, minutes or memoranda created by Professor MacLennan or Minter Ellison recording the telephone conference between Professor MacLennan and Penelope Eden of Minter Ellison held on 2 November 2006;

(3) Any reports of the trials conducted by Professor MacLennan that give rise to his statement in his report that he has "conducted most of the Australian trials on various prostaglandins."

[2] The applicant also sought an order that the respondent provide a statutory declaration listing all the documents, case notes, reports and literature that Professor MacLennan reviewed for the purposes of promulgating his report.

[3] In order to understand the application it is necessary to set out some of the background facts. The applicant, Stephen Watkins, is the father of the claimant, Harrison, and is his litigation guardian. Harrison is a five year old child who has a spastic quadriplegic form of cerebral palsy, with microcephaly and intermittent dystonic posturing. He also has cortical vision impairment. He is claiming damages for injuries alleged to have been suffered when he was born at the Nambour Hospital on 9 July 2001.

[4] A Notice of Claim was provided to the respondent pursuant to PIPA on 31 January 2006. In the Notice of Claim it is alleged that Harrison's mother, Tanja Pasalic, was about 12 days overdue when she was admitted to the Nambour Hospital at about 7.00pm on 8 July 2001 for birth induction. She was seen and examined by two nurses employed by the State of Queensland who administered the initial stage of the induction being the insertion of prostin gel into the vaginal cavity. At 8.40pm Ms Pasalic was instructed to go home and return at 7.00am the next morning.

[5] Ms Pasalic says that the pain was intense once she was home and that after ringing the hospital she returned to the hospital between 11.00pm and 12.00am that night. Upon examination, two nurses were unable to hear the baby's heartbeat and they called for a doctor who performed an emergency caesarean section. Harrison was born at 1.00am on 9 July.

[6] In the Notice of Claim, the reasons why the injured person believed that the respondent caused the incident are set out as follows:

"1. The injured person and the injured person's mother were in the care of the respondent at all times relevant to the incident.

2. The respondent failed to notify the injured person's mother of the possibility of undergoing an operation to deliver the injured person by caesarean section.

3. The respondent failed to notify the injured person's mother of the potential risk to the injured person that was involved in undertaking birth induction procedure.

4. The respondent was responsible for the examination of the injured person's mother on the 8th July and undertook that examination.

5. The respondent administered the first stage of a birth induction procedure at approximately 7.45pm on the 8th July.

6. The respondent failed to adequately comply with relevant guidelines for the administration of such a procedure.

7. The respondent instructed the injured person's mother to go home following the administration of the 1st stage of the procedure.

8. The respondent knew or ought to have known that the injured person's mother lived at least 40 minutes drive away from Nambour Hospital.

9. The respondent dismissed the concerns of the injured person's mother relating to her condition and the continuing progress of the birth induction procedure.

10. The respondent delivered the injured person at 1.00am on the 9th July 2001.

11. The respondent failed to monitor the injured person's mother following the administration of the 1st stage of the induction procedure.

12. The respondent instructed the injured person's mother to return home in circumstances where they knew or ought to have known that this posed a significant risk to the injured person.

13. The respondent failed to provide an adequate degree of care to the injured person's mother.

14. This failure resulted in the injury that was suffered by the injured person."

[7] The applicant has provided to the solicitors for the respondent two reports from experts in the United States as to Harrison's injuries. The first is by Dr. Richard Luciani, an Obstetrician and Gynaecologist, which addresses the causation of Harrison's injuries and the second by Dr. Daniel Adler, a Paediatric Neurologist, as to the impact of those injuries upon Harrison.

[8] On 23 January 2007, the solicitors for the respondent denied liability. It was said that the basis for denial of liability was detailed in the report of Professor MacLennan, Obstetrician and Gynaecologist, dated 2 January 2007 which was enclosed. That report sets out the documents on which the opinion is based. The list of documents on which the opinion was based does not include the letters of instruction. During the course of the report, however, Professor MacLennan does refer to a letter of instruction to observe that "Your letter of instruction says that Ms Pasalic lived about 40 minutes from the hospital." There are other statements of fact relied upon by Professor MacLennan where the source is not apparent, but which do not appear to come from the documents listed as sources by Professor MacLennan. An example is where he observes that regular strong contractions were "the instructed prompt for her to phone the hospital and come back to the hospital."

Letters of instruction and legal professional privilege

[9] Letters of instruction from a legal representative to an expert whose opinion is sought are usually protected from disclosure by legal professional privilege.[1] Legal professional privilege is a substantive common law right which cannot be abrogated by legislation except expressly or by necessary implication.[2]

[10] However, independently of statutory abrogation of the privilege, legal professional privilege in such documents can be waived, either expressly or by implication. Implied waiver can be said to have occurred when a reference to the otherwise privileged material in a document which has been disclosed makes it unfair to maintain the privilege. This was explained by Mason and Brennan JJ in Attorney-General (NT) v Maurice at 487-488 as follows:

"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. Professor Wigmore explains:

'[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' (Wigmore, Evidence in Trials at Common Law (1961), vol 8, par. 2327, p.636).

In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Great Atlantic Insurance Co. v. Home Insurance Co. [1981] 1 WLR 529; [1981] 2 All ER 485."[3]

[11] The reference made to the material in the letter of instruction by Professor MacLennan is of itself sufficient to give rise to a right in the applicant to see the letters of instruction which apparently formed part of the factual basis of Professor MacLennan's opinion. The necessity for disclosure is such a situation was referred to by Lindgren J in ASIC v Southcorp[4] as follows:

"Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents [copies of which form part of confidential communications between the client's lawyers and the expert witness] at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481 per Gibbs CJ, 487-488 per Mason and Brennan JJ, 492-493 per Deane J, 497-498 per Dawson J; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870 BC 506842; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 at [46]."

[12] This view is reinforced when one views, as the court was invited to do by the respondent, those letters of instruction. It appears that the reference by Professor MacLennan to the letter of instruction saying that Ms Pasalic lived about 40 minutes from the hospital is inaccurate. That fact does not appear in any letter of instruction. However it does appear that other factual material which forms part of the basis of Professor MacLennan's opinion is sourced from the letters of instruction. It would be quite unfair to the applicant to be left with an incomplete and, as it turns out, erroneous impression of the letters of instruction. They should be disclosed as the privilege which would otherwise inhere in their contents has been waived by implication. Their disclosure will reveal part of the factual basis for Professor MacLennan's report and also the nature and purpose of the telephone conversation between Ms Eden and Professor MacLennan.

[13] It was argued that there can be no waiver by implication when the document which refers to the otherwise privileged document is itself subject to compulsory disclosure. In this case, however, the report of Professor MacLennan was voluntarily disclosed by the respondent by enclosing it as particulars of its rejection of the claim thereby waiving any legal professional privilege that would otherwise have inhered in the report.

[14] True it is that had it not been disclosed voluntarily, it would have been required to be disclosed pursuant to s 27(1)(a)(i) and s 30(2) of PIPA, but it was, as I have said, disclosed voluntarily with any legal professional privilege thereby being expressly waived.

[15] For completeness I should say that it would not have made any difference to the reasoning or the result if the report of Professor MacLennan had been disclosed pursuant to the provisions of PIPA. The requirement for disclosure under s 27 and

s 30 of PIPA was after all the legislative context in which the respondent used the report as particulars of its defence of the claim. The question is not whether the document which refers to a privileged document is itself the subject of privilege. It was not in Attorney-General (NT) v Maurice. Nor is it relevant that privilege in the original document has been abrogated by statute. Rather the question is whether the privilege that ordinarily inheres in letters of instruction has been waived in this instance.

[16] The High Court held in Mann v Carnell[5] that implied waiver occurs when the person claiming the privilege acts inconsistently with the maintenance of the privilege by, for example, failing to maintain the confidentiality of the communication which the privilege is designed to protect. It is widely accepted that disclosure of part of a document may lead a court to require the disclosure of the whole of the document if part disclosure is misleading or unfair to the other side.[6] As Wilson J held in Bryce v Anderson at [9]:

"The test [for determining whether privilege has been waived] 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."

[17] In Bryce v Anderson[7], it was held that it would be "unfair or misleading" if the documents were not disclosed because they were referred to "cryptically" by the expert and without disclosing the context of the document. Wilson J also looked at the purpose for referring to the privileged documents in the expert reports - if the matter disclosed was "integrally connected" to the proceedings, then it should be fully disclosed.[8]

[18] In this case, the letters of instruction were referred to by Professor MacLennan as part of the factual basis of his report. In those circumstances it would be unfair not to disclose those documents and misleading not to disclose the full contents of those documents.

[19] So far as documents used by the expert in forming his or her opinion are concerned, other than those provided by the party's legal adviser, they should ordinarily be disclosed. No privilege attaches to them.[9]

[20] Applying these principles to the documents sought in the application, the following orders are appropriate:

(1) The letters of instruction should be disclosed. Ordinarily they would be protected from disclosure by legal professional privilege but that privilege has been impliedly waived. The whole of the letters of instruction should be disclosed lest the disclosure of part only be misleading.

(2) Any file note by Minter Ellison recording the telephone conversation between Professor MacLennan and Penelope Eden of Minter Ellison should be disclosed if the file note reveals that Ms Eden gave Professor MacLennan further instructions or received an oral report from him which has been reduced to writing by her.

(3) With regard to various documents that were in Professor MacLennan's possession, such as file notes of any telephone conversation with Ms Eden, reports of trials or prostaglandin and other medical literature on which he based his report, those documents are not prima facie privileged.[10] However, they are not in the respondent's possession, which is a necessary precondition of the requirement to disclose them under s 27 (1)(a) of PIPA and therefore not required to be given by the respondent to the claimant.

The respondent must give to the applicant copies of the following documents in the respondent's possession:

(1) Letters from the respondent's solicitors, Minter Ellison, to Professor Alastair MacLennan dated 22 September 2006, 20 December 2006 and 24 December 2006;

(2) Any file notes, minutes or memoranda created by Minter Ellison recording the telephone conference between Professor MacLennan and Penelope Eden of Minter Ellison held on 2 November 2006.

[1] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Instant Colour Pty Ltd v Canon Australia Pty Ltd Federal Court of Australia No. WAG93 of 1991, FED No. 870/95 30 Oct 1995, RD Nicholson J at [109]-[110]; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No. 1) [1999] 1 Qd R 141 at 156 per Pincus JA; Henderson v Low [2000] QSC 417; Greenhill Nominees Pty Ltd v Aircraft Technicians of Australia Pty Ltd [2001] QSC 7 at [20]; ASIC v Southcorp [2003] FCA 804; (2003) 46 ACSR 438 at 439-440; [2003] FCA 804 at [21]; Bryce v Anderson [2005] QSC 216 at [8] per Wilson J.

[2] Daniels Corp v ACCC [2002] HCA 49; (2002) 213 CLR 543.

[5] [1999] HCA 66 at [28]- [29]; [1999] HCA 66; 201 CLR 1 at 13.

[6] Bryce v Anderson (supra); Williamson v ING Life Limited (supra); Mann v Carnell (supra) per McHugh J at [108].

[8] See also Henderson v Low (2000) QSC 417 at [12]- [16].

[9] ASIC v Southcorp (supra) at 442; [21].

[10] Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No. 1) (supra) at 151 per Pincus JA.