Privilege prevails over staff expert records: defendants to gain forensic advantage
Breast Screen Queensland was last week protected by a Supreme Court ruling from disclosing internal communications pertaining to the negligent diagnosis claim of a Cairns patient who underwent screening in 2007 and 2009.
She alleges the defendant was negligent in its advice that lumps in her right breast were dense breast tissue and that as a consequence she has developed terminal breast cancer.
Last week’s ruling concerned whether notes of a conference held between Breast Screen’s solicitors and an employee medical specialist were for the purpose of obtaining instructions and providing legal advice and thus protected by legal professional privilege.
In finding that privilege did indeed apply and deciding the defendant could keep the notes to itself, the court gave a timely summary of the subtle distinctions between what must be disclosed and what need not be:-
- If an expert’s report is obtained for the purposes of pre-litigation procedures contemplated by Part one of Chapter 2 of PIPA, s 20(3) operates to override any privilege that might otherwise attach to that report: Watkins *
- Any communications associated with the commissioning and provision of that report are likewise not subject to privilege:Watkins
- In instances 1 & 2 it is not open for a defendant to claim that the report or note was bought into existence for the dominant purpose of litigation and to that extent s 30 does not cancel the effect of s 20(3).
- File notes recording information about the circumstances of the incident the subject of a claim are disclosable if they constitute a report about the incident alleged to have given rise to the personal injury: section 27(1).
- A file note that was brought into existence for reasons other than compliance with s 20 or s 27 and prepared for the purpose of obtaining or giving legal advice – such as a one in the instant case – is properly the subject of legal professional privilege and s 30 applies to immunize it against disclosure.
In the instant case, the specialist with whom the meeting was held was not intended to be called as a witness, another specialist had provided a medico-legal report that had been disclosed and the defendant’s s20(3) obligations had already been met a month earlier.
These factors were enough for the court to slot the meeting into category 5: the conference was for the purpose of obtaining legal advice and section 30 protects notes arising from it from disclosure.
Although not accorded any weight in the court’s reasoning, the fact that the particular expert was an in-house employee is obviously material. One wonders if this outcome will therefore only be of benefit to defendants.