State of Queensland v Allen [2011] QCA 311

I refer to my earlier posting regarding Justice Applegarth’s decision. In respect of the contentious issue, Fraser and White JJA allowed the appeal, with Fryberg J dissenting. The plurality of the court found that s.4 and s.9 of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’) did not assist in its construction the terms in s 30(2) of PIPA, but rather the meaning of the words by reference to the dictionary interpretation and the actual documents in question: [26] – [30] & [60] – [69], together with statutory principles of construction. Ultimately, Fraser and White JJA considered they were not investigative or medical reports.

Central to the interpretation of these terms was the factual context of the hospital’s lawyer requesting more information because of the apparent lack information in the hospital’s records. Whilst Fryberg J riled against the lack of information and the process adopted by the hospital, there was no allegation that the records were being concealed for ulterior motives:

[75] One would expect that when a patient suffers a serious incapacity as an unintended and unexpected outcome of medical treatment, the hospital would conduct an investigation to ascertain what happened and why. One would expect that the hospital would have policies in place to deal with such an event. The Prince Charles Hospital apparently had policies of some sort. By letter dated 29 December 2003, Dr Haas notified the Acting Executive Director of Medical Services, Dr Sue Phillips, of the incident. He attached to his letter his “contemporaneous statement on behalf of this case as requested by the hospital policies”.

[76] Dr Phillips contacted Dr Jeremy Hayllar who was then Acting Deputy Director of Medical Services for Prince Charles Hospital. He e-mailed back to her on 2 January 2004:

“It is not yet clear whether the parents are planning any sort of legal action, but there must be a significant risk that they will seek compensation. The appropriate course of action seems to engage the lawyers and then seek privileged statements from those involved.”

[77] As a result Dr Phillips wrote to Minter Ellison, the hospital’s then solicitors, on 7 January:

“This is to advise of an unexpected adverse outcome relating to a surgical procedure that The Prince Charles Hospital Health Service District believes may result in health litigation.

We consider this matter to have medico-legal risk for The Prince Charles Hospital district. As such we seek legal privilege for review documentation.”

[78] The solicitors responded on 9 January:

“Upon review of the medical record, we note Dr Haas’ statement has been placed on the medical record. Given our understanding that it was prepared in anticipation of health litigation, we regard this as privileged and suggested [sic] that it be moved from the medical record onto your medico-legal file.

Given the lack of documentation in the medical record by the various medical practitioners involved, we recommend that statements be obtained from them sooner rather than later. Our recommendation is that statements be obtained from Drs Anderson, Whight, Rhodes and Pohlner.

In order to contain costs, we suggest as a starting point that we provide you with a list of questions that each doctor should address, you can add any additional questions you have (our questions will be provided to you in word format by email so the additions can easily be made), and the doctors be asked to prepare a written report to you, addressing these queries, and the report is to be marked ‘privileged and confidential’.”

[79] On this and other evidence, Applegarth J found that the documents in question attracted legal professional privilege. My purpose in setting out the foregoing facts is not to reopen that finding, although I note that by themselves, those facts would likely be insufficient to prove privilege. I refer to them because in my view they evidence a course of conduct which is inappropriate for those acting on behalf of the State of Queensland.

[80] Dr Phillips’ letter demonstrates that the hospital intended to carry out a review of what happened. That was entirely appropriate. The importance of a review in such circumstances can hardly be overstated. Whether the review took place is not apparent from the record. When such a review occurs, it is obviously desirable that those conducting the review have unrestricted access to all documents relating to the event under review. The course followed by the hospital puts such access at risk. There will inevitably be a tendency to withhold privileged documents from the review to avoid the risk of waiver of privilege and to minimise the risk of a subsequent finding that the primary purpose for the creation of the document was the review, rather than any apprehended litigation.

[81] It is not appropriate for the State to attempt to conceal the full course of events surrounding an accident in a hospital from a person adversely affected by the accident. That is true even if the events suggest that the State may be liable in damages. It is notorious that the State professes to be a model litigant. Counsel for Ethan referred to that fact. Model litigant principles issued at the direction of Cabinet were revised as recently as October last year.[64] They provide (among other things) that the State should adhere to principles of fairness and firmness by:

“ paying legitimate claims without litigation, including making partial settlements of claims, or interim payments, where liability has been established and it is clear that the State’s liability is at least as much as the amount to be paid

not requiring a party to prove a matter which the State knows to be true

claiming legal professional privilege where appropriate”.

It would not be appropriate for an agency of the State to clothe documents which would be produced in any event for a review with legal professional privilege simply to prevent their falling into the hands of a potential claimant. Neither would it be appropriate to claim legal professional privilege in respect of such documents. The State would not want it said that it operated a “document creation policy” calculated to cover up possible wrongdoing by its employees.

Brisbane Barrister – David Cormack



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