Introduction
In Queensland, during the pre-litigation stage of personal injuries claims, one of the banes of defendant lawyers’ lives is responding to lengthy requests for disclosure, many of which seem to increasingly extend beyond the ambit of the disclosure obligations under the Personal Injuries Proceedings Act 2002 (the PIPA). This may partly be explained by the seemingly more liberal interpretation of the disclosure obligations given by the courts in recent times.
There are essentially two types of disclosure obligations under the PIPA: a positive obligation to disclose documents; and a reactive obligation to disclose information upon request. This article examines the scope of the obligation to disclose documents ‘about the incident’ and the scope of that phrase.
Section 27
A respondent’s disclosure obligations are set out in s 27(1) of the PIPA as follows:
27 DUTY OF RESPONDENT TO GIVE DOCUMENTS AND INFORMATION TO CLAIMANT
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- A respondent must give a claimant—
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- copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim—
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- reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;
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- if asked by the claimant—
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- Information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident; or
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Leading Decision - Haug v Jupiters
The first leading decision in this area is Haug v Jupiters.1 That decision concerned injuries suffered by the claimant when he was being ejected from the casino by security staff. During the pre-litigation stage, the claimant delivered to the respondent requests for documents and information. The following documents were requested:
- Personnel and training records for each security guard involved in the incident.
- All documentation relating to the incident.2
- All documentation relating to training of security staff relating to training issues.
- All documentation relating to prior complaints involving security staff.
- A floor plan of the casino.
- A floor plan of the casino indicating camera placement.
- A copy of all footage from every camera in the “event” vicinity on the night.
- Documents relating to previous claims relating to excessive and/or inappropriate use of force by employees, including security personnel of the casino.
The judge at first instance held that the documents in categories 1, 2, 5, 6 and 7 were disclosable. In arriving at his decision, His Honour considered that the construction of the words ‘circumstances of the accident’ found in s 45(1)(a) of the Motor Accident Insurance Act 1994 were relevant to the obligation imposed by s 27(1)(a) of the PIPA, and, having regard to the decision of Ambrose J in RACQ/GIO Insurance Limited v Ogilvie,3 concluded that the obligation to produce documents ‘about the incident’ extended to the production of documents about ‘all events which appertain to or relate to causes of the incident.’ In other words, the document obligation extended beyond documents directly about the incident.
However, the Court of Appeal disagreed, finding that only documents in category 2 were disclosable, being documents relating to the incident. Jerrard JA, who gave the leading judgement, observed that the obligation to provide information in s 27(1)(b) of the PIPA ‘about the circumstances of, or the reasons for, the incident’ was much broader than obligation to produce documents ‘about the incident’ in s 27(1)(a), and that the obligation in s 45(1)(a) of the MAIA was much closer to the information obligation than the document obligation.4 He further stated:
The respondent’s argument tries to find the same breadth of meaning in “about the incident” as Ambrose J found in “about the circumstances of the accident”, but the difference in terminology is highlighted by the wording of s 27(1)(a)(i) and s 27(1)(b)(i). Courts are obliged to apply the language of the differently worded obligations as worded, and that means different outcomes. 5
Williams JA, who agreed with the orders proposed by Jerrard JA, observed that in the Schedule Dictionary to the PIPA, the term ‘incident’ was defined as meaning ‘the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury’. He also noted that the duty imposed by s 27 was consequent upon the notice of claim containing, among other things, specific ‘particulars about the incident’.6 Against that background, His Honour considered that when the PIPA required a respondent to provide documents ‘about the incident’, that meant a reference to ‘the “incident” described and particularised in the notice of claim’.
Williams JA also similarly observed that, although the stated purpose of the PIPA7 supported a broad, remedial construction of s 27, that did not mean the specific words of limitation found in that section could be ignored.8
Following the decision in Haug, it seemed to be generally accepted that documents ‘about the incident’ were limited to documents about the specific incident alleged to have caused the injury – or, if there wasn’t a specific incident, then the ‘act, omission or circumstance’ alleged to have caused the injury – and did not extend to documents about indirect events which were alleged to ‘appertain to or relate to causes of the incident.’
Subsequent Decisions
Since Haug, there have been two more recent appellate level decisions considering the scope of s 27. The first is the decision in Day v Woolworths.9 That case concerned an injury allegedly suffered by the claimant when she slipped on a piece of shallot on the floor of a supermarket operated by the first respondent. In that matter, the claimant delivered a lengthy request for information and documentation to the first respondent pursuant to s 27 of the PIPA, to which the judge at first instance found the respondent had adequately responded.
For the purposes of this article, the main request of interest was the request for ‘relevant documents and information relating to all slip and fall incidents’ at the supermarket ‘prior to and after the incident’. The judge at first instance accepted the respondent’s rejection of the request on the basis that, as it related to all slip and fall incidents at the store before and after the incident, it did not bear on the ‘circumstances or reasons for’ the claimant’s fall. On appeal, Jackson J, with whom McMurdo P and Philippides JA agreed, took a slightly different view on that issue, stating:10
In my view the existence of prior similar incidents, if any, may be information about the circumstances or reasons for the incident. Those circumstances could include that the respondent was on notice of the risk in a way that made the measures adopted to avoid the risk inadequate. That would be a circumstance of the incident for the purposes of s 27(1)(b)(i) of PIPA … (emphasis added)
In dismissing the appeal, Jackson J was more critical of the scope of the request than the nature of the information requested, considering it should have been confined to no more than 5 years before the incident.
Day v Woolworths is often cited as authority for the proposition that the scope of the document obligation extends to documents about prior similar incidents. However, it is clear that, while the claimant’s request was for both information and documentation, Jackson J’s comments, by referring to ‘the circumstances or reasons for’ the incident and to s 27(1)(b) of PIPA, were limited to the information obligation, not the document obligation. Accordingly, in the author’s opinion, Day v Woolworths is not authority for the proposition that the scope of the document obligation extends to documents about prior similar incidents.11
The second decision is the decision of SDA v Corporation of the Synod of the Diocese of Rockhampton,12 which concerned allegations of sexual abuse. In that matter, the claimant delivered a request for documents and information, including in relation to other acts of physical abuse by the alleged perpetrators.
While the focus of this decision was on the information obligation, both Fraser and Morrison JJA, in their comprehensive reviews of the disclosure obligations under s 27, also commented on matters relevant to the scope of the document obligation.
Fraser JA relevantly stated:13
That the definition of “incident” does refer to a direct cause alleged by a claimant is consistent with the expression “the reasons for” in s 27(1)(b)(i) comprehending an indirect cause of the personal injury which bears upon the respondent’s alleged liability. (emphasis added)
Morrison JA similarly stated:14
There might be thought to be some circularity in the expanded phrase “the circumstances of … the act, omission or circumstance, alleged to have caused all or part of the personal injury”. However, on closer consideration, the first refers to facts generally whereas the second refers to particular facts, that is, those that are alleged to have caused the personal injury.
In relation to the definition of ‘incident’ in the PIPA, Morrison JA also stated:15
It can be seen that the definition [of “incident”] deals with two separate categories of event, each of which is an event alleged to have caused the personal injury. The first is the “accident”, and the second is something “other” than the accident, namely any “act, omission or circumstance”. Plainly if the claim does not allege that an accident caused the personal injury, then one must turn to the second category. (emphasis added)
In the author’s opinion, it is clear from these comments that, consistent with the decision in Haug, Their Honours were of the view that the obligation to disclose documents ‘about the incident’ is limited to producing documents about the actual event alleged to have caused the injury, not documents more broadly related to indirect causes of the incident.
Morrison JA also incidentally stated that, ‘it is possible that the giving of the information may necessitate producing a record of it, but it may also simply be given by referring to the information in correspondence’. This simply recognised, as a matter of logic, that a document may be produced in answer to a request for information, but disclosure of the document itself does not fall within the ambit of the document obligation, as it is simply a means of providing information upon request.
Conclusion
In the author’s opinion, the above authorities make it clear that the phrase ‘about the incident’ in s 27(1)(a) of the PIPA means just that, about the incident, meaning the obligation to disclose documents ‘about the incident’ is limited to documents about the actual event alleged to have caused the injury.
Despite claimant solicitors often suggesting that the definition of ‘incident’ in the PIPA extends the document obligation to documents relating to indirect causes of the incident, this is clearly not the case. The purpose of the definition is simply to allow for the fact that not all injuries the subject of public liability claims are caused by ‘accidents’, they can be caused by other events, such as sexual abuse, for example. The two ‘events’ described in the definition do not operate coextensively. As stated by Morrison JA in SDA, ’if the claim does not allege that an accident caused the personal injury, then one must turn to the second category.’
2 Including letters of complaint, advices, memos, warnings, directives, file notes, incident reports, statements, investigation reports, minutes of meetings, correspondence with insurers and others, and any documentation relating in any way to the incident.
3[2002] 1 Qd R 536.
4Ibid at [26].
5Ibid at [27].
6 Section 9(2)(a) of the PIPA provides that the notice must contain a statement of the information required under a regulation, and section 3(3) of the Personal Injuries Proceedings Regulation 2002 requires the information to include specified ‘particulars about the incident alleged to have caused the personal injury to which the claim relates’.
7 Which included to provide a procedure for speedy resolution of claims.
8 Haug v Jupiters Limited Trading as Conrad Treasury Brisbane [2007] QCA 199 at [5], per Williams JA; White J agreeing at [33].
9Day v Woolworths Ltd & Ors [2016] QCA 337.
10 Day v Woolworths Ltd & Ors [2016] QCA 337, at [109].
11 It should be noted the District Court judge at first instance made orders in respect of disclosure of certain document (e.g. sweeping logs, and policies and procedures in relation to slip hazards) based on the information obligation (s 27(1)(b)), which in the author’s opinion is an incorrect application of the disclosure provisions, as it ignores the obviously intended distinction between ‘documents’ and ‘information’ in s 27(1)(a) and s 27(1)(b). However, this point was not the subject of appeal.
12 SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor [2021] QCA 172.
13 Ibid at [19].
14Ibid at [116].
15 Ibid at [112].
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
