Tinnock v Murrumbidgee Local Health District (4)

Dr Michael Payne, who was the treating surgeon who operated on the plaintiff at Wagga Wagga Base Hospital, has given evidence as part of the defence. In accordance with directions made for case management, Dr Payne's evidence-in-chief was substantially contained in two evidentiary statements, which are exhibits 9A and B.

The second statement, exhibit 9B, is dated 4 May 2015 and makes two important corrections to evidence contained in the first statement. He has been cross-examined by Mr Bartley of Senior Counsel, who appears with Mr Ingram for the plaintiff, about whether the corrections represent an accurate statement of the position.

The first correction relates to whether, as he said in par 16 of his statement, at the time of his initial examination of the plaintiff “bowel contents” were herniating through the defect in the plaintiff's abdominal wall, which he operated to repair. And the second relates to a correction to par 38 of the first statement, where he described procedures, or techniques, followed during the operation to decrease "the dead space" created by the open surgical approach adopted. In his first statement he said that the techniques were followed, inter alia, to reduce the "subsequent risk of infection". In the second statement he deleted the word "infection" and substituted the words "seroma formation". The two pathological entities are different, although the latter, in general terms, may create an environment which increases the risk of the former.

In oral evidence Dr Payne corrected par 38 of Exhibit 9A to read that the operation note for the procedure was written by him and not his assistant, Dr Gundara. He was cross-examined closely about how he could have made this mistake.

A subpoena to produce documents was served on Dr Payne in or about May 2015 requiring him to produce, amongst other things, the following:

In answer to that subpoena, which was more extensive than the parts I have quoted, documents were produced. In respect of two bundles of documents placed in separate envelopes and covered by paragraphs 3 and 4 respectively, the defendant, Murrumbidgee Local Health District, claims legal professional privilege. Those documents had been placed in an envelope marked S-25 in the registry, which I have marked MFI 9.

I record that for the purpose of this ruling I inspected the contents of each of the two envelopes.

The envelope marked with the number 3, which "responds" to paragraph 3, consists of two letters passing from the solicitors for the defendant to Dr Payne, each attaching a draft of the first evidential statement for Dr Payne's consideration and correction. Neither draft is signed. The covering letters also ask for further instructions about other matters. None of those matters, I will record, relates to the corrections the subject of the second statement.

The envelope "responding" to paragraph 4 contains other draft statements, mainly at an early stage of preparation. None are signed. It also contains a series of emails passing between the solicitors for the defendant and Dr Payne which deal solely with the subject matter of this litigation and ask for further information, or instructions, from Dr Payne about disparate aspects of the case. None of them deal specifically with the authorship of the operation report of 7 June 2010. Nor do they deal specifically with either change sought to be made Exhibit 9A by Dr Payne in his Exhibit 9B.

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 ML Ubase 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 plaintiff satisfying me that privilege has been waived in accordance with the provisions of the Evidence Act 1995 (NSW). In this regard, Mr Bartley relied upon the provisions of section 126, which is in the following terms:

The argument advanced by Mr Bartley is that the evidential statements tendered in evidence are documents over which privilege has been waived by its voluntary tender. It is also argued that the draft statements and communications in respect of which the claim has been advanced are "reasonably necessary to enable a proper understanding" in this case of the evidential statements.

This section has been discussed a number of times. I think it fair to say, as Mr Bartley advances, it is a statutory form of implied waiver of the type arising at common law as discussed by the High Court of Australia in Attorney General (NT) v Maurice [1986] HCA 80; 161 CLR 475. However, as Sackville J (as he then was) pointed out in Towney v Minister for Land & Water Conservation (1997) 76 FCR 401, it would be wrong to treat the provision as simply restating the common law position.

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:

As I have said, I have inspected the contents of the envelopes and there is nothing, on my reading of them, which gives rise to any concern about how Dr Payne came to change or correct his original statement.

I fully appreciate, from the passages Mr Bartley reminded me of, that Dr Payne was cross-examined about whether he was completely sincere in the explanations he gave about the changes made, and he was cross-examined about how the documents reached their final form. Legitimate as that cross-examination was, it did not change anything about the comprehensibility of the documents, as I have said. With every respect, it does seem to me that section 126 is not properly engaged in this case.

I did ask Mr Bartley about whether really he was interested in obtaining discovery of the preceding documents just in case a forensic windfall fell out, sometimes referred to as a “fishing expedition”. I accept his submission that my suspicions were unfounded.

However that may be, section 126 is not properly engaged, and these are the reasons for the ruling I made at 2pm this afternoon.