In this case, the Court reiterated that accident reports are always discoverable if their primary or dominant purpose is to report on the circumstances of the accident and how it had occurred and to make recommendations to prevent occurrences. The accident occurred on a construction site. The Site Safety officer’s report had not been disclosed by the Defendants to the Plaintiff although the Plaintiff never requested it. At trial, the Court queried why the Defendants had not disclosed it and remarked that accident reports of this nature has to be disclosed at the pre-action stage. It does not matter that they are stamped with words like "private and confidential" or "subject to legal privilege", they are still discoverable.
Although the Judge’s remarks were made in context of statutory duties of Safety Officers to investigate and report accidents to the proprietor of an industrial undertaking, they apply equally to accident reports routinely prepared by defendants following a bodily injury accident. Unless those reports were prepared for the purpose of seeking legal advice or in contemplation of litigation, they are usually discoverable and defendants are obliged to disclose them to the other side. If defendants wish to assert privilege over investigation reports, they must ensure that they are really being undertaken for the purpose of seeking legal advice or there will be a high risk they would have to provide them to the claimant.