Birch v Sparkle Away Pty Limited & Anor [2008] ACTSC 27 (11 April 2008)

Last Updated: 7 May 2008

DAVID ERNEST BIRCH v SPARKLE AWAY PTY LIMITED (ACN 104 170 247) & AUSTRALIAN POSTAL CORPORATION trading as AUSTRALIA POST

[2008] ACTSC 27 (11 April 2008)

PRACTICE AND PROCEDURE - discovery of documents - client legal privilege - medical report - earlier report by specialist produced - no subsequent assessment of plaintiff - surveillance videotape provided to specialist for opinion - second report privileged

Workers Compensation Regulation 2002, ss 9, 10, 11

Court Procedures Rules 2006, Part 2.12, r 621

Workers Compensation Act 1951

Lambert v ACT Nursing Services Pty Limited [2007] ACTSC 86

Smith Management Concepts Pty Limited v Truong [2006] ACTSC 16; (2006) 197 FLR 118

Edmeades v Thames Board Mills Limited [1969] 2 QB 67

Clarke v Martlew [1973] 1 QB 58

Neill v Commonwealth of Australia (Blackburn CJ, 9 September 1982, unreported)

Australian Capital Territory Electricity Authority v Reid [1991] FCA 248; (1991) 29 FCR 500

No. SC 79 of 2007

Judge: Master Harper

Supreme Court of the ACT

Date: 11 April 2008

IN THE SUPREME COURT OF THE )

) No. SC 79 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID ERNEST BIRCH

Plaintiff

AND: SPARKLE AWAY PTY LIMITED (ACN 104 170 247)

First Defendant

AND: AUSTRALIAN POSTAL CORPORATION trading as AUSTRALIA POST

Second Defendant

ORDER

Judge: Master Harper

Date: 11 April 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The plaintiff pay the first defendant's costs of the application.

1. This an interlocutory application in an action for damages for personal injury by an employee against an employer. The order sought in the application is that the first defendant provide to the plaintiff a report by a general surgeon, and the briefing letter provided to the surgeon requesting the report.

2. The cause of action is alleged to have arisen on 12 May 2004. The plaintiff lodged a claim for workers' compensation, and the workers' compensation insurer initially accepted the claim and made some payments to the plaintiff or on his behalf. By March 2006, the insurer had instructed the solicitors who presently act for the first defendant. The solicitors made appointments with Dr Peter Battlay (whom they described as an orthopaedic surgeon but who, I understand, is a general surgeon) and with Associate Professor Oakeshott, an orthopaedic surgeon. The plaintiff attended appointments with both practitioners, who reported to the insurer's solicitors. The plaintiff was at that time unrepresented: the solicitors wrote to him direct with details of the appointments, and made reference in their letter to the Workers Compensation Regulation 2002.

3. The plaintiff instructed his solicitors in July 2006. The present proceedings were instituted in February 2007.

4. In the course of discovery, the solicitors for the first defendant, after some differences in correspondence, provided the plaintiff's solicitors with a copy of Dr Battlay's report dated 29 March 2006, and of their letter to Dr Battlay confirming the appointment and providing him with background information. The solicitors disclosed that they had obtained a second report from Dr Battlay. They maintained a claim for privilege in relation to that report. They said that Dr Battlay in the report made reference to surveillance footage. They asserted that they were entitled to claim privilege over the surveillance report and footage, and over Dr Battlay's report relating to the surveillance. They said that they had asked Dr Battlay to view the footage and provide specific comments on it.

5. Part 2.12 of the Court Procedures Rules 2006 deals with service of expert reports, but does not govern the present situation: expert reports obtained by a defendant are not required to be served until shortly before the filing of a certificate of readiness. That stage has not yet been reached. Counsel agreed on the hearing of the application that the power the plaintiff was seeking to invoke was conferred by Rule 621. That rule empowers the Court to make an order about whether a document has to be produced by a party to another party, and to inspect the document to decide whether it ought to be produced.

6. In addition to the general rules about discovery, counsel for the plaintiff relied on Part 3 (Medical Assessments) of the Workers Compensation Regulation. The part establishes a regime for assessments of injured workers by medical specialists. Section 10 of the Regulation provides that an assessment by a medical specialist may be requested by any of the following:

(a) the worker;

(b) the worker's lawyer;

(c) the worker's employer;

(d) the employer's insurer.

7. The Regulation imposes duties on the requesting person and on the medical specialist. Written notice of a request by an employer or an insurer must be given to the worker and the worker's lawyer at least two weeks before the assessment, and the resulting medical report must be given to the worker and the worker's lawyer within five working days of receipt.

8. Counsel for the defendant submitted that the Regulation did not govern Dr Battlay's assessment and report of March 2006, for the reason that the assessment was requested by the solicitors instructed by the insurer, and not by the insurer direct. Counsel for the first defendant submitted that section 10 of the Regulation should be construed by reference to the principle of statutory interpretation expressio unius est exclusio alterius. The section specifically included the worker's lawyer as an eligible requesting person, but made no mention of the employer's lawyer or the insurer's lawyer. Hence, it was submitted, lawyers for the employer and the insurer should be taken to have been specifically excluded from eligibility to request a report, and it followed that the assessment conducted by Dr Battlay in March 2006, and the report which followed, were not governed by the Regulation. There was thus no obligation to provide a copy of the report to the worker or the worker's lawyer.

9. The Workers Compensation Regulation was the subject of consideration by Gray J in Lambert v ACT Nursing Services Pty Limited [2007] ACTSC 86, upon which the plaintiff placed some reliance. That was an appeal from an order of the Magistrates Court staying arbitration proceedings under the Workers Compensation Act 1951. The issue for Gray J was whether compliance with Part 3 of the Regulation was required where a respondent's solicitor sought to have a claimant medically examined in the course of the preparation of proceedings for arbitration of the claim. His Honour, after considering the explanatory statement which accompanied the Regulation, held that its purpose was to deal with all medical assessments which might be made of a claimant, including those designed to confirm or challenge the claimant's medical condition. His Honour rejected the contention that the Regulation ceased to have effect once there was a dispute about compensation and proceedings concerning the dispute were in contemplation.

10. His Honour made reference to his previous decision in Smith Management Concepts Pty Limited v Truong [2006] ACTSC 16; (2006) 197 FLR 118, a case in which the insurer's solicitors had claimed that a report under section 11 of the Regulation was privileged. His Honour had decided in that case that such a report was not privileged: the dominant purpose of seeking the report would not be that of obtaining relevant legal services, nor could the report satisfy the requirement that its communication be confidential.

11. His Honour noted in Lambert that there was no direct authority at common law by which plaintiffs could be required to submit to a medical examination, but that courts had developed the principle that proceedings might be stayed where a plaintiff unreasonably refused to be medically examined at the request of a defendant, based on considerations of fairness: see Edmeades v Thames Board Mills Limited [1969] 2 QB 67 at 71 per Lord Denning MR; Clarke v Martlew [1973] 1 QB 58 at 62 per Lord Denning MR; Neill v Commonwealth of Australia (Blackburn CJ, Supreme Court of the Australian Capital Territory, 9 September 1982, unreported). His Honour concluded that on any view of the Regulation, the worker was obliged to provide all medical assessments obtained to the employer. His Honour saw no reason in fairness why the corollary should not be so and held that all reports following medical assessments obtained by a defendant employer should be provided to the worker.

12. I make the point that the issue before Gray J in Lambert, as previously in Truong, arose in an appeal to this Court from arbitration proceedings before a magistrate under the Workers Compensation Act. By contrast, the present application arises in an action for damages under the general law in this Court, in circumstances where there have been no arbitration proceedings in the Magistrates Court.

13. Gray J held that a report which comes into existence following a medical assessment under Part 3 of the Workers Compensation Regulation is not protected by client legal privilege, sometimes called legal professional privilege, for two reasons: firstly, it is not a confidential communication, because a copy of it is required to be provided to the worker and the worker's lawyer. Secondly, it is not a document prepared for the dominant purpose of the client being provided with professional legal services relating to a proceeding in which the client is, or may be, a party.

14. In the present case, although both reports by Dr Battlay came into existence before the plaintiff was legally represented, and well before the institution of proceedings, they were brought into existence at a time when the first defendant was represented by solicitors, and at a time when, I infer, the insurer had developed a suspicion about whether or not the injuries alleged by the plaintiff were genuine, or at least whether they were as serious as the plaintiff made them out to be. It would have been reasonable for the insurer to take the view that if payments of compensation were stopped, the plaintiff would seek legal advice and might make an application for arbitration in the Magistrates Court or bring an action for damages under the general law. If the reports had been commissioned by the insurer without instructing solicitors, I might be left with some doubt as to whether the dominant purpose related to anticipated court proceedings, or simply to the administrative decision of whether or not to continue making payments of workers' compensation. The fact that the present solicitors for the first defendant had been instructed, and had made the arrangements for the medical assessments, persuades me that by the time the appointments were made, the dominant purpose of the insurer was the provision of professional legal services relating to anticipated court proceedings.

15. At the same time, I am satisfied that the assessment by Dr Battlay on 22 March 2006, and his report of 29 March 2006, amounted to a medical assessment and report governed by Part 3 of the Workers Compensation Regulation, so that the insurer was obliged by Section 11(4) of the Regulation to give a copy of the report to the plaintiff and his solicitors. The legislative requirement to do so overrode the privilege which might otherwise have existed. As much has been conceded by the first defendant and its solicitors, in making the report and briefing letter available to the plaintiff's solicitors in the course of discovery.

16. As to the expressio unius argument, I take the view that an insurer cannot escape its obligation to comply with Part 3 of the Regulation by instructing solicitors to request a medical assessment rather than by making the request direct. A request made by a firm of solicitors acting for an employer or insurer for a medical assessment of an injured worker must be taken to be a request by the employer or insurer. The request made by the first defendant's solicitors in their letter of 10 March 2006 was therefore a request under section 10(2) of the Regulation.

17. Part 3 (Medical Assessments) of the Regulation contains in section 9(4) definitions of initial medical assessment, second medical assessment and later medical assessment, but there is no definition of medical assessment itself, either in the section, in the dictionary to the Regulation or in the dictionary to the Workers Compensation Act 1951. It seems to me from the other definitions and from a reading of the whole of Part 3 of the Regulation that an essential element of a medical assessment is the physical presentation of the injured worker to the medical specialist. There may be exceptions to this general rule, for example in the case of radiologists and pathologists, but no such exception arises in the case of a general surgeon or an orthopaedic surgeon.

18. In the course of the hearing of the application, I was provided by counsel for the defendant with a copy of the letter to Dr Battlay requesting the second report, and with a copy of the second report. These have not been seen by counsel for the plaintiff. It is apparent that the solicitors for the first defendant provided the doctor with a copy of a surveillance report and accompanying videotape, and that after reading the report and viewing the tape he departed in some respects from the opinion he had expressed in his earlier report. It is abundantly clear that Dr Battlay did not see the plaintiff in person again for the purpose of the second report. Hence the report was not a report following a medical assessment within Part 3 of the Workers Compensation Regulation, and nothing in the Regulation bears upon the question of whether or not it should be seen as a confidential communication between the doctor and the solicitors.

19. It is clear that the intention of the insurer, the solicitors for the first defendant and the investigators was that the plaintiff be unaware of the surveillance and filming at the time, and that the plaintiff and his advisers not be aware of the contents of the film or the surveillance report prior to the commencement of cross-examination of the plaintiff in the course of the hearing of the action. The same can be said of Dr Battlay's second report. I am satisfied that it was the intention of the solicitors for the first defendant and of Dr Battlay that his second report be confidential.

20. In the circumstances, I am satisfied that the briefing letter and the second report attracted client legal privilege when they came into existence. I am not satisfied that anything has happened which might have caused that privilege to be waived or lost.

21. It is unnecessary for me to deal on the hearing of this application with the question of whether Dr Battlay's second report will need to be served under the Court Procedures Rules if his evidence is to be relied on by the first defendant at hearing. That is an issue for a later stage in the action.

22. Counsel for the plaintiff referred me to a decision of this Court, Australian Capital Territory Electricity Authority v Reid [1991] FCA 248; (1991) 29 FCR 500, in which the Court (Gallop, Davies and Spender JJ) dealt with the obligation of a solicitor to serve a supplementary report coming into existence after service of an earlier report. That question is now the subject of specific provision in the Court Procedures Rules. It is in any event not relevant to the present circumstances but rather to the question of service of expert reports as a hearing is approaching.

23. I am satisfied that Dr Battlay's second report, dated 24 April 2006, and the letter requesting it dated 11 April 2006, are protected by privilege and not required to be disclosed by the first defendant on discovery. The application will be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 11 April 2008

Counsel for the plaintiff: Mr SH Pilkinton

Solicitors for the plaintiff: Blumers

Counsel for the first defendant: Mr GJ Lunney SC

Solicitors for the first defendant: Moray & Agnew

Date of hearing: 28 March 2008

Date of judgment: 11 April 2008