Draft witness statements & privilege

A further interlocutory judgement in Tinnock v Murrumbidgee Local Health District (4) [2016] NSWSC 89 followed the evidence of the surgeon who had operated on the claimant. His first evidentiary statement was changed in a second statement, in part by deletion of a reference to a subsequent risk of infection.

A subpoena to produce documents was served on the surgeon, seeking draft statements and other documents. The defendant claimed privilege in respect of some of those documents.

On the issue of privilege at [10] the court noted:

Both counsel accept, in my view, with respect, correctly, that the mere fact that Dr Payne has been called to give evidence and has given his evidence in accordance with the Court’s directions by statement does not operate to waive the privilege otherwise attaching to draft statements and confidential communications passing between the solicitors for the defendant and Dr Payne. Support for the correctness of counsel’s common position is found in MLUbase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859; 69 NSWLR 557 at [29]-[32] by Brereton J.

Given that position, the defendant’s claim for privilege has been made good subject to the claimant satisfying the court that privilege has been waived in accordance with the provisions of the Evidence Act 1995 (NSW).

At [14]:

Although ML Ubase deals with the tender of an expert witness’s report, the same principles, in my judgment, apply to a witness called to give evidence of primary fact. Although Dr Payne is obviously an expert surgeon and has expressed opinions about medical matters, as is conventional in this type of litigation, his primary role is as a witness of the facts. In any event, at [45]-[46], Brereton J said:

“In my opinion, service and tender of an expert witness’ report in proceedings does not constitute a waiver of the privilege which attaches to communications between the expert and the solicitors who instructed him or her, save to the extent that those communications are associated documents reasonably necessary to an understanding of the report. “Proper understanding” of a document or communication will sometimes, but not always require that documents to which it responds or refers be available. It may very likely be so when the primary document contains a summary or excerpt from an earlier communication, or responds to questions which are not themselves restated in it. But I do not accept that “a proper understanding of the communication or document” involves an appreciation of the manner in which the opinions contained in the document have been formed over time, or the iterations and evolutions through which they have passed. The test is concerned with the comprehensibility of the primary communication or document: if it can be completely or thoroughly understood without more, then access to the related communications or documents is not reasonably necessary.

Accordingly, for the purposes of s 126, one starts by looking at the substantive document (made admissible under s 122 or another of the applicable sections) and asking whether, in order to understand it thoroughly, it is necessary to know what is in the associated material.”

Applying the test posed at [46] of ML Ubase and the reasoning lying behind it explained by Brereton J, in particular at paragraph [45], I am satisfied that the primary documents, that is to say exhibit 9A and B, are entirely comprehensible without looking at the draft documents. There is nothing in any of those documents which incorporates, or summarises, any previous document; nor is there anything which, when one reads it alone, is beyond comprehension unless considered by reference to some other document.

The trial judge had in any event inspected the relevant documents and commented that there was nothing that gave rise to a concern as to how the treating surgeon came to change his evidence.


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