Kasey, a student, sued his school alleging that he was injured in an incident at the school in 2018. He sought damages for both physical and psychological injuries. In the course of the proceedings, Kasey’s lawyer served a subpoena on the school seeking access to incident reports, investigation reports, statements, meeting notes and teacher notes relating to the incident. The School claimed “legal privilege” over three documents:
- an undated Student Incident Report prepared by the school’s Deputy Principal;
- a Teacher Incident Report prepared on the day of the incident; and
- an email from Kasey’s class teacher sent to the Principal and a Deputy Principal two days after the incident.
The claim for privilege was based on a provision in the Evidence Act 1995 (NSW) which does not allow the contents of a confidential document that was prepared for the dominant purpose of the school being provided with professional legal services in relation to actual, anticipated or pending court proceedings in which the school is or may be, or was or might have been, a party. The legislation in other states is similar.
A confidential document is a document prepared in such circumstances that, when it was prepared the person who prepared it, or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not it was a legal obligation.
A dominant purpose is a purpose that is the ruling, prevailing and most influential purpose. The time for ascertaining the purpose is the time at which the document was made. It is not enough to make a bare assertion that the dominant purpose was for use in prospective litigation. There needs to be objective evidence of that.
The day after the incident, at a meeting with the Principal, Kasey’s mother said that she was going to take legal action as a result of her son being injured, adding that she had already consulted a lawyer because she believed that the class teacher had been negligent. The same day, she emailed the Principal formalising her complaint and using the phrase “failed duty of care and neglect for a child”. As a result, the Principal believed that there would be litigation.
The Principal then told her three Deputy Principals what the mother had said and asked one of them to collect statements from people who were there at the time of the incident. The next day, the Principal received an email from the class teacher containing her report about the incident.
The school had a policy about reporting school accidents which, under the heading “Why are accident reports prepared?”, stated:
School accident reports are prepared solely for the purpose of assisting [the school’s] legal advisors to assess and, if appropriate, defend claims made against it as a result of persons being injured on school sites or during the course of school activities. Legal professional privilege is likely to attach to school accident reports.
It is well established that persons injured on school sites or during the course of school activities may wish to claim compensation from [the school]. These claims may involve litigation. Sometimes there is a considerable period of time between the date of the accident and the date of a claim being made. [The school’s] ability to properly consider and/or defend claims depends to a significant degree on the information contained in school accident reports.
The Court found on the basis of the facts and the existence of the policy that all three documents were prepared for the dominant purpose of the school being provided with professional legal services relating to anticipated court proceedings, being an action in negligence for damages suffered by Kasey arising out of the incident at his school.
It is therefore important for schools to have policies about reporting school incidents and for school leaders to be aware of the contents of such policies.
While the form of an incident report or the words on it will not of themselves prove that documents are confidential and that their dominant purpose was to get legal advice relating to anticipated court proceedings, a sensible, pragmatic approach is to ensure that you put CONFIDENTIAL at the top of the incident report and add an acknowledgment at the bottom by the person making the statement about its purpose and about confidentiality.