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The claimant suffered injuries when she fell off the edge of the
patio at her parents' home in December 2009. She sued her
parents for damages. Her parents made a claim under their home
insurance policy. The insurer appointed solicitors. The
instructions to the solicitors included to advise on whether
indemnity should be extended to the parents and to arrange factual
investigations to be completed by loss adjustors.
The loss adjustor interviewed and obtained signed statements
from both parents. The loss adjustor provided these signed
statements to the insurer, together with a draft statement the
mother did not sign, and separately, a report.
The insurer's solicitors disclosed the report.
The claimant requested the draft statement and the signed
statements be disclosed. The insurer's solicitors refused on
the basis the statements were the subject of legal professional
privilege. The claimant made an application to the court seeking
orders the draft statement and the signed statements be
disclosed.
Decision
Sections 30(1) and(2) of the Personal Injuries Proceedings
Act 2002 (Qld) ('PIPA') provides documents protected
by legal professional privilege are not required to be disclosed,
with the exception of investigative reports, medical reports and
rehabilitation reports, which must be disclosed, but which can be
disclosed with passages consisting only of statements of opinion
omitted.1
The claimant argued the statements must be disclosed because
they were not protected by legal professional privilege and
properly constituted investigative reports.
Boddice J of the Supreme Court of Queensland held the statements
were privileged as they were confidential communications brought
into existence for the dominant purpose of the insurer obtaining
legal advice.
Following the recent Court of Appeal decision of State of
Queensland v Allen 2 , he held the statements were
not 'reports' and certainly were not 'investigative
reports':
'...a statement of a witness of an incident or a
solicitor's file note which records that person's
recollection of the circumstances of the incident and the
person's opinion about the incident for use in anticipated
litigation is not an 'investigative report.
...The statements are not in the nature of a systematic
examination or enquiry.'
The claimant argued in the alternative the statements must be
disclosed pursuant to s20 of PIPA which requires the respondent to
make an offer of settlement accompanied by medical reports and all
other material in the respondent's possession that may help the
claimant make a proper assessment of the offer. The claimant relied
on the Court of Appeal decision of Watkins v State of
Queensland3 which held the Act did not intend to
operate to preserve privilege in the documents described in
s20.
Boddice J held the circumstances of the present case were
readily distinguishable from Watkins which was a medical
negligence case concerning disclosure of a medical report obtained
for the pre-litigation procedures required by PIPA. He further held
there was no evidence the statements were obtained for the purpose
of complying with s20 of PIPA. The statements were not signed until
after the s20 offer of settlement was made.
The claimant further argued privilege over the statements was
waived because the contents of the statements were referred to in
the loss adjustors' report. This argument was also
unsuccessful.
The insurer's solicitors disclosed the instruction given to
the loss adjustor, which asked the loss adjustor to follow specific
directions to retain legal professional privilege. The claimant
argued instructing the loss adjustors to deliberately engage in a
course of action designed to prevent access to the witness
statements was contrary to the objects of PIPA. Boddice J did not
agree and held the instructions did not involve any ruse to shroud
with privilege a document not properly the subject of legal
professional privilege. He observed whilst the main object of PIPA
is to encourage disclosure between the parties, PIPA expressly
retains legal professional privilege, except in specific
circumstances.
Comment
This decision sensibly recognises the principle that legal
professional privilege is an important common law right which can
only be abrogated by legislation which uses clear and unambiguous
language.
Unlike the PIPA, section 279 of the Workers'
Compensation and Rehabilitation Act 2003 (Qld) expressly
requires the disclosure of 'written statements made by
witnesses'. Accordingly, for claims to which that Act applies,
signed witness statements must be disclosed.
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Whereas most insurance policies exclude liability arising under contract, insurers can
positively benefit where an insured has limited or excluded its liability under contract.
This usually arises where the insured's contract has a limitation or exclusion of liability clause in the insured's favour.
