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Insurance and Risk Alert: Disclosure of witness statements under PIPA: Mahoney v Salt - 26 Mar 2012

A recent Supreme Court of Queensland decision highlights the need for lawyers to give detailed and specific instructions to investigators in the course of personal injury investigations.

Mahoney v Salt [2012] QSC 43, delivered on 6 March 2012, is the most recent in a line of superior court decisions in Queensland (including Watkins v State of Queensland [2008] 1 Qd R 564, Felgate v Tucker [2011] QCA 194 and State of Queensland v Allen [2011] QCA 311) dealing with disclosure under the Personal Injuries Proceedings Act 2002.

Here, partner Robert Tidbury and associate Scott Macoun outline the proceedings and judgment in this case.

Key points

  • The decision in Mahoney v Salt highlights the importance of providing detailed instructions to investigators regarding the practical nature of how statements should be prepared and provided in the course of investigations.
  • The case also strengthens the now well-developed line of authority from superior courts in Queensland that 'investigative reports' under section 30 of the Personal Injuries Proceedings Act 2002 (PIPA) will not include witness statements to lawyers or their agents if they are stand-alone documents.

The facts of Mahoney v Salt

The applicant in Mahoney v Salt alleges that she fell and sustained injury on the respondents' property in December 2009. A claim related to this allegation is underway pursuant to the PIPA.

The respondents' insurer engaged lawyers to act on its behalf. Those lawyers arranged for a factual investigation firm to carry out an investigation into the matter, including obtaining statements from the respondents. The investigator provided a loss adjustor's report to the respondents' lawyers dated 29 April 2011. The respondents' lawyers later received an unsigned statement by the female respondent, and a signed statement from each of the respondents separately from the main report.

Following disclosure of the loss adjustor's report to the applicant's lawyers, the applicant's lawyers requested that copies of all the respondents' statements be provided to them. The respondents' lawyers refused on the basis of privilege, and the application to the court resulted.

Under section 27 of the PIPA, a respondent to a claim must provide a variety of documents to the claimant, including "reports or other documentary material about the incident alleged to have given rise to the personal injury".

However, such reports and documentary material do not have to be disclosed if they are protected by legal professional privilege, unless the documents are "investigative reports, medical reports and reports relevant to the claimant's rehabilitation", in which case they have to be disclosed even if they are subject to legal professional privilege.

Interestingly, the instruction letter to the investigator from the respondents' lawyers included the following specific requests:

"To retain the benefit of legal professional privilege, we ask that you provide reports to us in the following way:

  1. All discussions with witnesses are to be reduced to a written statement, even if the witness has not agreed to provide one.
  2. Witness statements are to be forwarded to us separately from your investigation report, with a 'with compliments' slip which simply notes our reference, not with a covering letter.
  3. Do not attach (by staples, paperclips or otherwise) the witness statements to your investigation report or to your statement of opinion, and do not refer to them in the body of the report."

The intention of these requests was to ensure that any statements prepared did not form part of the main report itself, and were instead prepared as completely separate documents.

The findings in this case

After viewing the statements in question, His Honour Justice Boddice found the following:

  • The statements were the subject of legal professional privilege, as they had been brought into existence for the main purpose of providing the respondents' insurer with legal advice. This was sworn to in an affidavit from the respondents' lawyers.
  • The statements were not 'investigative reports' that would need to be disclosed even though they were privileged. While they were brought into existence at the same time as the loss adjustor's main report, they were separate and distinct documents. The statements were not in the nature of a systematic examination or enquiry, which would usually be required for a document to be considered an investigative report.
  • Privilege had not been waived, even though parts of the female respondent's statement were referred to in the body of the investigator's report. This is because the references to the statement were not such that it would be unfair or misleading to allow the respondents to retain privilege in the statement. Put simply, the applicant could understand the investigator's report properly without needing to refer to the female respondent's statement.
  • Privilege could be maintained in the statements despite the nature of the respondents' lawyers' instructions to their investigator. His Honour found that the instructions to keep the statements separate were clearly directed at maintaining privilege and did not "involve a ruse designed to shroud with privilege a document not properly the subject of legal professional privilege", nor did the instructions "adopt a procedure contrary to the objects of the Act".

If the statements had not been kept separate from the main report due to the respondents' lawyers' direct instructions to the investigator, they would have needed to be disclosed.

For more information on disclosure under the Personal Injuries Proceedings Act 2002, please contact HopgoodGanim's Insurance and Risk team.