Production of statements obtained by an adjuster can waive privilege over the solicitor’s file

Statements of a co-Defendant produced to a Plaintiff will waive privilege over both the statements and the other relevant documents dealing with the subject matter of the statements.

Huntley v. Larkin, 2007 NSSC 297, Nova Scotia Supreme Court, A.W.D. Pickup J., October 16, 2007

The Plaintiff was a passenger in a motor vehicle driven by Mr. Larkin. Mr. Larkin swerved to avoid a dog, owned by Mr. Hogeterp, and crashed into a telephone pole, causing the Plaintiff to suffer a severe brain injury. An action was commenced by the Plaintiffs against Mr. Larkin and Mr. Hogeterp. In August of 1997, Lombard Insurance entered an Appearance on behalf of Mr. Hogeterp and retained an independent adjuster to investigate the claim. The adjuster obtained two statements from the Defendant Mr. Larkin. Mr. Hogeterp’s counsel provided the statements of Mr. Larkin to Mr. Larkin, and to the Plaintiff. The Plaintiff brought an Application seeking production of Lombard Insurance’s entire adjuster’s file.

The Chambers Judge ruled that there would have been no waiver of privilege had Mr. Hogeterp’s counsel released the statements to Mr. Larkin, as he was the maker of the statements, and was therefore entitled to the statement. The trial Judge relied upon Hanna v. Maritime Life Assurance (1995), 137 N.S.R. (2d) 339 (S.C.) for this proposition. However, the Chambers Judge found that the Plaintiff and Mr. Larkin were adverse in interest and as such, the disclosure of the statements waived privilege over the statements, and all other relevant documents dealing with the same subject matter. The Chambers Judge relied upon Walsh v. Smith (1999), 180 N.S.R. (2d) 173 for guidance with respect to the extent of the waiver of privilege. The Chambers Judge ordered that Mr. Hogeterp had to disclose documents that had any reference to the statements and the circumstances under which they were obtained. However, these references could be severed from the remaining filed documents.

In determining what documents were privileged and what documents were not privileged, the Chambers Judge determined that the most appropriate method would be to examine the entire file over which privilege was claimed and make an individual assessment of each document.

This case was originally edited by David W. Pilley.

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