Boey Chun Hian (by his guardian and next friend, Boey Ghim Huat) v Singapore Sports Council (Neo Meng Yong, third party)

AR Amy Tung:

[1] This is a case involving a boy (aged 15 then) (“the child”) who had a near drowning incident at Hougang Swimming Complex on 20 June 2009. The ironic tragedy of this case was that the child himself was participating in a lifesaving course at the time of the incident. As a result of the incident, the child suffered severe personal injuries, and is currently bedridden. He is unable to eat or speak and requires round the clock nursing care and feeding through a tube.

[2] His father brought an action as his guardian and next friend against the defendants, the Singapore Sports Council which owns and operates the Hougang Swimming Complex. He pleaded negligence on the part of the defendants and their lifeguards on duty on the day of the incident. He alleged, inter alia, that the lifeguards had failed to observe his son in distress and/or failed to render timely and effective rescue, thereby causing or contributing to his injuries. In particular, he alleged that the lifeguards had refused to lend the Automated External Defibrillator (“AED”) at the critical moment, and caused further delay in the administration of Cardio–Pulmonary Resuscitation (“CPR”) on his son. The father also alleged that the defendants had failed to put in place effective safety rules or a safe system for the conduct of lifesaving courses, and had further failed to put in place an effective medical emergency response system or protocols to provide emergency assistance to users or patrons of their swimming complex.

[3] The defendants denied that they were negligent or in breach of their duty of care to the child. They pleaded contributory negligence on the part of the child and further added his lifesaving instructor, one Mr Neo Meng Yong as third party to the action (the “Third Party”). It was pleaded in the defence that one of their lifeguards, Mr Albert Law was by the child’s side at about the same time that he was being pulled out of the water by the Third Party and immediately commenced emergency lifesaving procedures on him. The other lifeguard on duty, Mr Ong Kian Hua brought the softpack containing the AED and resuscitator to the child’s side.

[4] The application before me was one for specific discovery of documents. The plaintiff sought the discovery of the following:-

[5] Mr Koh Jia Wei and Mr Benjamin Tan Jun Jie were instructors from the same lifesaving school, i.e. Angel Lifesaver School, as the Third Party. Mr Albert Law and Mr Ong Kian Hua were the lifeguards employed by the defendants. All were present at or near the swimming pool where the child was first spotted motionless and submerged in the water.

[6] Apart from these “eye-witnesses”, the plaintiff also sought the communications flowing to and from the defendants in respect of Mr Moe Aripe and the SLSS. According to the plaintiff, Mr Moe Aripe who was from the SLSS had spoken with him to express sympathy and concern at or around the time of the incident. It appeared to him that Mr Moe Aripe was informed by the lifesaving instructors that the lifeguards had refused to lend the AED, before finally relenting on its use. The plaintiff understood that this had delayed the rescue or hampered the effectiveness of the CPR performed on the child.

[7] The plaintiff gave evidence on affidavit that after the incident, he resolved to find out what indeed had happened to his child, to seek justice for him and to ensure that nothing similar would ever happen to someone else’s child. He asked “how can it be that a fit, healthy 15 year-old, a strong swimmer, with no adverse medical history whatsoever, could go for lifesaving lessons one day, under the watch or within the vicinity of up to 5 lifesaving instructors and lifeguards, and yet return with severe and permanent disabilities within the very same evening?”

[8] When the defendants forwarded a Detailed Major Accident Report to him about a year later, he claimed that he was sorely disappointed as the “skimpy 1.5-page report” painted a rosy and incomplete picture of the incident. The plaintiff did not know of the existence of the COI Report and its enclosures until the defendants disclosed them in their List of Documents filed on 11 December 2012. Understandably, the plaintiff then sought production of these documents. When his request was refused by the defendants, he applied for specific discovery of these documents.

[9] The defendants filed an affidavit through their Director for Sports Safety, Mr Fong Hung Ying to resist the application. The defendants informed in that affidavit that shortly after the incident, there were interviews with various witnesses and their contemporaneous statements were recorded. In addition to the five witnesses listed by the plaintiff in his specific discovery application, there were contemporaneous statements recorded from 7 other persons, including Mr Tan Yew Lee, a senior lifeguard employed by the defendants and Mr Neo Sock Hong, the defendants’ customer service officer who called the ambulance at the time of the incident. These contemporaneous statements shall be referred collectively as “witnesses’ statements” in the rest of my judgment.

[10] Apart from these witnesses’ statements and the COI Report, the defendants claimed that there are no other documents in respect of Mr Moe Aripe, Angel Lifesaver School or the SLSS which are in their possession, custody or power. Neither are they in possession, custody or power of any police statements. They also did not obtain any written statements from any other bystanders who might have witnessed the incident as they had no knowledge of their identities.

[11] The defendants did not dispute that the witnesses’ statements and the COI Report are relevant documents but claimed that they are privileged documents. More specifically, they asserted that the witnesses’ statements are protected from disclosure by virtue of litigation privilege while the COI Report is covered by legal advice privilege. As such, the entire hearing before me proceeded on the narrow but interesting issues as to whether the witnesses’ statements and the COI Report are protected by litigation privilege and legal advice privilege respectively. The Third Party did not participate at the hearing as the application was essentially between the plaintiff and the defendants.

[12] Litigation privilege and legal advice privilege are the two principal forms of legal professional privilege, which has existed within the common law system of justice for hundreds of years. In Singapore, both litigation privilege (to an extent) and legal advice privilege find their expressions in sections 128 and 131 of the Evidence Act (Cap 97, 1997 Rev Ed). They provide as follows:-

[13] The leading authority on legal professional privilege in Singapore is the case of Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2007] SGCA 9 (“Skandinaviska”) where the Court of Appeal discussed the rationale underlying legal professional privilege and considered the relationship between litigation privilege and legal advice privilege. There is an overlap between these two forms of privilege, though they are conceptually distinct: see Skandinaviska at [23] and [45]. As a result of the functional difference between litigation privilege and legal advice privilege, they operate in different ways: see Skandinaviska at [43] to [46]. The Court of Appeal highlighted two main operational differences. First, legal advice privilege will apply to a confidential communication between a lawyer and his client made for the purpose of seeking legal advice, regardless of whether or not litigation is contemplated. Secondly, once a communication is indeed for the purpose of litigation, litigation privilege will attach even if the communication is not between a lawyer and his client, but arises from some other third party.

[14] The Court of Appeal also clarified that the statutory provisions in our Evidence Act (i.e. sections 128 and 131) do not affect the applicability of English law principles, which can continue to guide our courts, so long as they are not inconsistent with the written law: see Skandinaviska at [31].

[15] Regardless of the differences between these two forms of privilege, it is trite that it is for the party asserting privilege and refusing disclosure to prove that he is entitled to the privilege (Brink’s Inc v Singapore Airlines Ltd [1998] SGCA 33 applying Waugh v British Railways Board [1980] AC 521 (“Waugh”)).

[16] I now turn to the issues.

[17] For litigation privilege to apply, two elements must be satisfied. First, it must be shown that there is a reasonable prospect of litigation and secondly, the dominant purpose of the document over which privilege is claimed must have come into existence for the purpose of the pending or contemplated litigation.

[18] Before me, the issue of whether there was a reasonable prospect of litigation did not arise at all. It was deposed in the defendants’ affidavit that “it is reasonably anticipated that where a fatal or near fatal accident occurs while a user is using facilities provided by the defendants, a claim for compensation is likely to be made ... and legal proceedings will ensue”. Counsel for the plaintiff appeared to have accepted this statement and made no submissions on this issue.

[19] Even though this was not a disputed issue at the hearing, I will briefly state my views. The fact that parties are already in the midst of litigation does not always necessarily answer the question whether there is a reasonable prospect of litigation in the affirmative. The relevant time at which the courts must consider the criterion is the point in time when the documents came into existence. Although there is no requirement that litigation must be certain, it is not sufficient for litigation privilege to attach if at the time the documents were created, litigation is merely possible: see United States of America v Philip Morris Inc [2004] EWCA Civ 220. In this case, the documents in question were the witnesses’ statements recorded quite shortly after the incident. Given that the personal injuries which ensued were very severe, resulting in permanent disabilities, I accepted that on the facts of this case, there was a reasonable prospect of litigation at the time the witnesses’ statements were recorded. This was notwithstanding the fact that the plaintiff only commenced proceedings in May 2012, nearly three years after the incident.

[20] Throughout the hearing, counsel for the plaintiff reiterated many times his submission that the Detailed Major Accident Report (and the witnesses’ statements which were used to prepare it) and the COI Report were all routine documents, to which privilege should not attach. In particular, counsel for the plaintiff referred to paragraph 4 of the defendants’ affidavit and argued that the account of the process or workflow showed that the preparation of an incident report was routinely done following an accident. He sought a clarification from the counsel for the defendants as to whether the ‘incident report’ referred to in that paragraph was the Detailed Major Accident Report. The relevant paragraph reads:-

[21] In contrast, it was argued by the counsel for the defendants that the Detailed Major Accident Report was not a routine report and would also have been a privileged document, if not for the fact that the defendants had chosen to voluntarily disclose it upon receiving letters from the plaintiff’s Member of Parliament. According to him, the ‘incident report’ in paragraph 4 of the defendants’ affidavit did not refer to the Detailed Major Accident Report but a routine report. The Detailed Major Accident Report was prepared specially for this case, where the injuries which ensued were so severe as to cause permanent disabilities and where there was also police involvement. The Detailed Major Accident Report was intended by the defendants to be and was submitted to their in-house counsel for advice on their potential legal liability arising out of the incident.

[22] It was further argued by counsel for the defendants that the recording of contemporaneous witnesses’ statements was not an established practice of the defendants. Again, it was stated that this was specially done in this case and that it was abundantly clear that the witnesses’ statements were created for the dominant purpose of obtaining legal advice in anticipation of proceedings against the defendants.

[23] In my opinion, it was not entirely clear from the defendants’ affidavit that the ‘incident report’ was not the same as the Detailed Major Accident Report, especially since paragraph 4 showed that the incident report was to be submitted to the Sports Recreation Centre Management and on the face of the Detailed Major Accident Report, it was meant “for senior management reporting”. The clarification from counsel for the defendants appeared to be evidence from the bar. I can understand, however, why the counsel for defendants was anxious to show that neither the witnesses’ statements nor the Detailed Major Accident Report were ‘routine’ documents. The authorities placed before me (at least those which similarly involved reports) show that the courts, in refusing the claim for privilege, appeared to be influenced by the fact that the reports in question were ‘routine’ documents.

[24] In Grant v Downs (1976) 135 CLR 674, the deceased was admitted as a patient to a government mental hospital. He was left on his own in a single room and was found the next morning dead on the hospital grounds. Various reports were made following his death. His wife sued the hospital for negligence and sought production of those reports. The claim to privilege was upheld at first instance and on appeal. When the application for leave to appeal was refused by the Court of Appeal, the wife appealed to the Australian High Court against the refusal to grant leave. Jacobs J (at [5]) agreed with the description of the reports by the lower court Judge, which was as such:

[25] Jacobs J held that “there is no indication that these documents would not have come into existence in the ordinary course of administration” and that the “test [for privilege] is clearly not satisfied” (at [6]). Stephen, Mason and Murphy JJ decided that it was not established that the reports existed for the sole purpose of being submitted to the legal advisers and went on to state (at [29]):-

[26] Waugh was similarly cited for the purpose of showing that routine documents should not be protected by litigation privilege. Counsel for the plaintiffs sought to rely on this authority while counsel for the defendants sought to distinguish it.

[27] While I appreciated that a finding that a report was a routine document would generally mean that the document did not come into existence for the dominant purpose of litigation, I was not convinced that labeling documents as routine or otherwise is necessarily helpful in every case. In this regard, I much prefer the views of Barwick CJ in the case of Grant v Downs ([24] supra) that the “circumstance that the document is a ‘routine document’ will not be definitive” (at [3]). The fact that a document is a routine one will strongly suggest that it would normally have come into existence as a matter of course and therefore is not one produced for the dominant purpose of litigation. However, the question to be asked is still whether or not a document was made or came into existence for the dominant purpose of litigation. Routine documents may in particular circumstances be sufficiently clothed with the requisite purpose while on the other hand, non-routine documents may not be established as having been made with the dominant purpose of litigation, even when litigation is reasonably in sight or pending (as was the case in Gallagher v Stanley [1998] 2 I.R. 267).

[28] As such, whether or not the Detailed Major Accident Report or the witnesses’ statements were routine documents would not be determinative of the issue as to whether litigation privilege should attach. Even if I were to accept that the recording of witnesses’ statements and the preparation of a Detailed Major Accident Report do not routinely occur, I would still have to examine the purpose for which they were recorded and prepared in this case.

[29] By the defendants’ own evidence, I was of the opinion that the witnesses’ statements were not recorded for the dominant purpose of litigation. At paragraph 6 of the defendants’ affidavits, it was stated:

[30] From the affidavit evidence, I could distill at least three purposes for which the witnesses’ statements were recorded:-

[31] In my view, the defendants were only able to show that the use of the witnesses’ statements for preparation of a report to be submitted to the defendants’ in-house counsel was, at best, only one of the purposes.

[32] Indeed, although the recording of witnesses’ statements might not have been routinely done following an incident, there was a compelling reason (even from an objective perspective) for the witnesses’ statements to be recorded in this case so as to establish what had exactly happened to the child, to account for the incident and to look into safety measures. In Waugh, Lord Edmund-Davies stated ([15] supra at 544):-

[33] Moreover, to my mind, the intention to supply the witnesses’ statements to the COI, if and when convened, reinforced their fact-finding use. This was especially since the formation of a COI had been clearly stated in the Singapore Sports Council Annual Report 2008/2009 (at page 18) to be for safety purposes.

[34] In the circumstances, I found that the witnesses’ statements were not recorded for the dominant purpose of litigation. As such, the defendants’ claim to litigation privilege in respect of the witnesses’ statements must fail.

[35] Counsel for the plaintiff argued that the dominant purpose test should apply to legal advice privilege i.e. that in order for a document to be covered by legal advice privilege, it must be created or produced for the dominant purpose of obtaining or giving legal advice. The mere conveyance of the COI Report to the defendant’s in-house counsel for follow-up and legal advice was simply not sufficient to attract legal advice privilege. Since the COI Report must invariably have at least an equal purpose of preventing lapses and ensuring safety, the defendants’ claim to legal advice privilege must thus fail.

[36] Counsel for the defendants, on the other hand, argued that the dominant purpose test is to be confined to litigation privilege. It was submitted that our Court of Appeal in Skandinaviska did not lay down a dominant purpose test for legal advice privilege. As the COI Report was submitted to the defendants’ in-house counsel for follow-up and legal advice, it was part of solicitor-client communications that are traditionally protected by legal advice privilege.

[37] No doubt, the reason why the defendants had not sought to assert litigation privilege over the COI Report was that they would not have been able to prove that the dominant purpose for which it was produced was for use in the conduct or in aid of the conduct of actual or contemplated proceedings. Equally, the defendants would not have been able to prove that the dominant purpose of its creation was to seek legal advice from their in-house counsel. The COI Report remained, in my view, to be primarily of an investigative nature i.e. to find out what had happened during the incident and possibly to look into any measures to ensure safety within all the swimming complexes operated and maintained by the defendants.

[38] The issue then which had arisen on this application was whether a document which was communicated between a lawyer and his client attracts legal advice privilege, even though it was not created or produced for the dominant purpose of obtaining legal advice.

[39] The modern test for legal advice privilege was laid down by Taylor LJ (as he then was) in Balabel v Air India [1988] 1 Ch 317 (“Balabel”):-

[41] The effect of Balabel was to guide the courts away from a narrow approach in considering what legal advice might be or its scope, taking into account the continuum and fluidity of information being exchanged within an on-going relationship between a lawyer and his client. Nevertheless, I did not believe that the case made a ‘pendulum swing’ to stand for an all-embracing approach either. To this extent, I agreed with the authors of The Law of Privilege (Bankim Thanki, ed) (Oxford University Press, 2011) at para 2.94 that:-

[42] Even in Balabel, although Taylor LJ was not in favour of the narrow approach, he was still mindful of “the need to re-examine the scope of legal professional privilege and keep it within justifiable bounds” ([39] supra at 332).

[43] I must state at the outset that I was much persuaded by the argument that the mere submission of a document to legal advisers does not mean that the document must necessarily be protected by legal advice privilege and hence immune from disclosure. This is especially when the document would have been created independently of the relationship between lawyer and client in any event. In this case, it must be remembered that what was sought by the plaintiff was not the legal advice of the defendants’ in-house counsel given on the COI Report. Neither was it the instructions or brief which the defendants would have given to their in-house counsel on the matter. Instead, it was a document which would contain the facts, the account of witnesses, and the outcome of investigations into a near-fatal incident. There was no suggestion that there was any legal advice embedded in or which formed an integral part of the COI Report. Such a document should not, as a matter of principle, be protected from disclosure.

[44] In Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357, Stone J was not prepared to follow the principle in Wheeler v Le Marchant (1881) 17 Ch D 675 that only a communication made through the agent of a client as a conduit (on the basis that the agent stands in exactly the same position as the client) to the solicitor is protected by legal advice privilege. She highlighted that the case of Wheeler v Le Marchant could be understood in a different way, in the light of Cotton LJ’s reasoning in that case that although the surveyors were employed on behalf of the defendants to do certain work, their work did not include communication with the defendants’ solicitor to obtain legal advice. She stated (at [95]):-

[45] In Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2002] EWHC 2730 (Comm) (“Three Rivers (No 5)”), the plaintiffs sought discovery of four categories of documents from the defendants, the Bank of England (“the Bank”):-

[46] Tomlinson J, hearing the application at first instance, was of the view that if an internal confidential document, not being a communication with a third party, was produced or brought into existence with the dominant purpose that it or its contents be used to obtain legal advice, it was privileged from production (see at [30]). This test was applied to all the documents, regardless of whether they were sent to the counsel of the Bank. He was convinced, after examining the authorities that “actual communication is not the touchstone for the attraction of privilege. The touchstone is…the dominant purpose which accounts for the creation of the confidential material” (see at [20]).

[47] Tomlinson J’s decision was subsequently overturned by the Court of Appeal (see Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474 (“Three Rivers (No 5)(CA)”). The Court of Appeal preferred a narrower scope for legal advice privilege and confined the privilege to:-

[48] Notwithstanding this, I observed that the Court of Appeal did not reject the dominant purpose test. In fact, Lord Carswell in Three Rivers (No 6) described the Court of Appeal as reaching “a subsidiary but distinct conclusion” ([40] supra at [73]) that legal advice privilege did not apply because the dominant purpose of the preparation of the documents by the Bank’s employees was not to obtain legal advice but to put all relevant factual material before the inquiry conducted by Bingham LJ (as he then was) in an orderly and attractive fashion (see at [35] of Three Rivers (No 5)(CA)). The Court of Appeal, as such, did apply the dominant purpose test but characterised the dominant purpose of the documents differently from Tomlinson J.

[49] Although the House of Lords in Three Rivers (No 6) declined to make any observations on the correctness of the decision of the Court of Appeal in Three Rivers (No 5)(CA), especially in relation to the point of whether communication between an employee and the employer’s lawyers ought to be treated for legal advice privilege purposes as a communication between the lawyer and his client, Lord Carswell commented that Tomlimson J’s reasons in upholding the Bank’s claim on privilege (i.e. in applying the dominant purpose test) appear to have “considerable force” (see at [70] of Three Rivers (No 6)).

[50] I agreed with Tomlinson J that the touchstone for legal advice privilege (at least in relation to documents which are created independently of the relationship between a lawyer and his client) ought not to be actual communication to the lawyer. Instead, it should depend on the purpose of the document, which has to be objectively determined at the time of its creation. The yardstick should, however, be the dominant purpose of the document, rather than its sole purpose; the latter test not having found favour with the courts since its application by the majority of the High Court of Australia in Grant v Downs. I would, therefore modify the question posed by Jacobs J (at [5]) as follows:-

If the dominant purpose of a document is for it to be supplied to legal advisers for the purposes of seeking or obtaining legal advice, the document would be privileged. There is no reason why privilege should attach to documents which, quite apart from being supplied to legal advisers, would have come into existence for other purposes, for which there would have been no privilege to speak of.

[51] In my view, the dominant purpose test provides a sound and rationale basis for determining the scope of legal advice privilege. If documents were made for the dominant purpose of submission to legal advisers, then legal privilege would apply, notwithstanding that the documents might not have been eventually communicated to the legal advisers. If the documents were not made for the dominant purpose of submission to legal advisers, then legal privilege would not apply, notwithstanding that the documents have, in fact, been communicated to the legal advisers. Legal advice privilege is thus not dependent on the arbitrary distinction of whether a document has been communicated to legal advisers or not.

[52] I should add that the Court of Appeal in Skandinaviska observed (albeit in a narrower area of third party communications), that the dominant purpose test might “constitute an appropriate safeguard against an overly broad application of legal advice privilege” ([13] supra at [65]).

[53] Recently in 2012, section 128A was introduced into the Evidence Act (Cap 97, 1997 Rev Ed) to extend legal advice privilege to communications to a legal counsel within an entity (i.e. in-house counsel) made for the purpose of seeking legal advice. A large volume of documents could be generated within a corporation and many of them may pass through the hands of the in-house counsel. In Grant v Downs ([24] supra), Stephen, Mason and Murphy JJ noted a point of importance that emerged from Hamilton LJ’s observations in Birmingham and Midland Motor Omnibus Co Ltd v London and North Western Railway Co (1913) 3 KB 850 (at [20]):-

[54] Even though this observation was made in the context of the majority of the Australian High Court preferring the sole purpose over the dominant purpose test, I would echo the underlying sentiments that the element of submission to a legal adviser should not easily satisfy a claim to privilege. To my mind, the dominant purpose test acts an appropriate control mechanism to ensure that corporations or other entities do not cloak their documents with privilege (and immunity from disclosure) by ostensibly submitting them to their in-house counsel for legal advice and without regard to the purpose for which they were created or prepared.

[55] I would make some final remarks about the cases of Grant v Downs and Waugh. These two cases were concerned, as with this application, with reports prepared in the wake of accidents. In Grant v Downs ([24] supra), the documents before the High Court of Australia were reports prepared on injuries or death suffered by patients in mental hospitals which were to be submitted to the Department of Public Health as well as to legal advisers. In Waugh ([15] supra), the House of Lords were deliberating privilege over an internal inquiry report incorporating the statements of witnesses, made with the purpose of establishing the cause of the railway accident and with the equal purpose of being submitted to the solicitors of the British Railways Board (“the Board”) for advice on its legal liability.

[56] It was widely accepted that the judges in Grant v Downs made no distinction between legal advice privilege and litigation privilege in considering the purpose of the report to be conclusive when ordering its disclosure. In fact, the High Court of Australia subsequently confirmed that the dominant purpose test applies to both legal advice privilege and litigation privilege: see Esso v Federal Commissioner of Taxation (1999) 201 CLR 49 and Daniels Corporation v Australian Competition and Consumer Commission (2002) 213 CLR 543. The case of Waugh was less clear as to whether the House of Lords was mindful of the distinction, although the Court of Appeals in Three Rivers (No 5)(CA) appeared to view Waugh as undoubtedly concerned only with litigation privilege.

[57] Notwithstanding this, it was clear that one of the purposes of the reports in either of the cases was for submission to legal advisers. In fact, in Waugh, the affidavit filed on behalf of the Board stated that on the face of the internal inquiry report, it had “finally to be sent” to the solicitor for the purpose of enabling him to advise the Board.

[58] Although there was no indication within the decisions of both cases that the reports were finally and actually submitted to legal advisers, I did not doubt from the reasoning, the language and the tenor of the judgments, that the outcome would have been the same, even if it was found that the reports had been communicated to the legal advisers. The principal focus of the judges in these cases remained that of the purpose for which the reports were created or made. Privilege was denied in both cases since it could not be established that the reports were made either for the sole (in Grant v Downs) or the dominant purpose (in Waugh) for obtaining legal advice.

[59] For the foregoing reasons, I found that the COI Report is not protected by legal advice privilege.