Investigation of the slip and fall – court examines disclosure obligations under PIPA
Jun 2016 |
Woolworths Limited v Day & Others [2016] QDC 81
It has been a number of years since the Queensland courts have had the opportunity to examine disclosure obligations under the Personal Injuries and Proceedings Act 2002 (Qld) (PIPA). In this recent application, the court was able to revisit these pre-court provisions and the case serves as a refresher to practitioners and claims staff on disclosure obligations for respondents.
Principles
Disclosure obligations for respondents are provided in s 27 of the PIPA:
- A respondent must provide a claimant copies of documents in a respondent’s possession which are directly relevant to a matter in issue in the claim;1
- A respondent must provide a claimant information concerning the circumstances of, or the reasons for, the incident.2
Whilst the obligation to provide information is broader than the obligation to provide documents, this is counterbalanced by the fact that the obligation to provide documents is proactive, whereas, the obligation to provide information is reactive.
The parameters regarding the disclosure obligations imposed upon respondents under the PIPA has been subject to considerable discussion by Queensland courts.
In the 2007 decision of Haug v Jupiters Limited Trading as Conrad Treasury Brisbane,3 the court adopted a narrow interpretation regarding the disclosure obligations imposed under s 27 of the PIPA, specifically regarding the provision of CCTV information, and it was ordered that the respondents were not required to disclose the CCTV footage, floor plans of the casino and a plan of the casino concerning camera placement.
This most recent decision has demonstrated a willingness of the courts to broaden their interpretation regarding a respondent’s obligation to provide information about the circumstances of an incident.
Introduction
The claimant was injured when she slipped on a shallot in a Woolworths store in Queensland. The incident occurred near the produce and checkout section of the store. The claimant slipped near a demonstration table which was connected to a company known as Retail Activation. The claimant commenced proceedings under the PIPA against Woolworths and Retail Activation.
Woolworths and the claimant brought competing applications concerning disclosure obligations under the PIPA.
Inspection
The claimant submitted that inspection of the incident scene was required to perform ergonomic testing. Woolworths contested the inspection of the store, submitting that it had provided the claimant information regarding the type and name of the manufacturer of the tile, and previous slip resistance testing reports. Further, Woolworths’ solicitors made a concession that the presence of debris would make the floor slippery.
The court held an inspection of the subject area was not necessary to deciding an issue in the proceedings. The court reasoned the effect of the concessions made by Woolworths was that there was no issue regarding whether the floor was slippery and so no need for the claimant to obtain that kind of evidence.
CCTV system
The claimant sought information about CCTV cameras within the store and their proximity to the subject location. The court held the location and direction of the CCTV cameras were relevant to whether the incident was captured. The court was also persuaded because Woolworths’ liability response stated the area was inspected before the fall occurred.
The court ordered Woolworths to provide the claimant with a floorplan of the area in the vicinity of the fall which showed the location and direction of the cameras. The court reasoned there was conflicting evidence before the court regarding what the CCTV system could and could not capture. Woolworths was also ordered to provide details of the person responsible for records management from the CCTV system.
In the decision of Haug, the case concerned a personal injury claim brought by Haug due to injuries he sustained by the security personnel working at the casino. The claimant brought an application against the casino to compel disclosure of various documents and information, including, the full floor plan of the casino and a floor plan of the casino indicating camera placement. The court reasoned the requested floor plans were not about the incident in the notice of claim or in connection with it, and held the request went beyond the statutory obligations of the respondent. In distinguishing these two cases, the court in Haug reasoned that a connection did not exist between the incident as defined in the Notice of Claim and the requested floorplans.
Whereas, in the current case, the court stated there existed conflicting evidence before the court concerning what the CCTV system could or could not capture. Consequently, this was sufficient to compel the disclosure of the floor plan of the cameras.
Disclosure of information
Section 27 of the PIPA requires disclosure of information in the respondent’s possession about the circumstance of, or reasons for, the incident.
The claimant made a number of requests for information, including requests about previous incidents, but the court confirmed previous case law on the point that questions about previous incidents do not relate to the circumstance of, or reasons for, the incident, and that type of evidence need not be provided by a respondent.
Woolworths
Sweeping logs
The claimant requested the sweeping logs for the produce and checkout areas on the date of the incident. The court held information relating to the cleaning process used in the produce and checkout areas on the days leading up to the incident was potentially relevant to what Woolworths did, or failed to do, regarding the spill hazards on the day of the incident. Woolworths was required to disclose this to the claimant.
Information regarding demonstration
The claimant requested information regarding the purpose and location of the demonstration table used by Retail Activation. At the application, the claimant said the location and activities of the demonstration table distracted her. The court held the information should be provided because in Woolworths’ liability response, they alleged the claimant failed to keep a proper lookout for her own safety and the questions related to circumstances of or reasons for the incident.
Slip resistant quality
The claimant sought information regarding the slip resistant quality of the floor. The court held this information request did not relate to a matter in dispute, reasoning that Woolworths had confirmed it had a responsibility to clean the floor during trading hours, had provided slip test results and reports in its possession, and admitted that the presence of a shallot on the floor would be a slip hazard.
Retail Activation
The claimant requested information regarding who placed the demonstration table in the common walkway. The court held Retail Activation should provide the information requested because of how the claimant alleged the location of the table contributed to her fall.
Joining Woolworths’ directors of officers to the claim
The claimant sought to amend her PIPA Notice of Claim Part 1 to join the Chief Executive Officer, Chairman, Chief Legal Officer and Company Secretary (directors and officers) as personal respondents to the claim. The claimant submitted the directors and company officers knew or ought to have known that the hazardous conditions under their control could injure, and they negligently failed to take appropriate actions to avoid the harm. The claimant argued the directors and officers breached their statutory duties under the Corporations Act 2001 (Cth) and personal liability should flow from this.
The court refused to add the suggested respondents to the claim, holding the claimant’s interpretation of the law was incorrect. The court reasoned the claimant failed to demonstrate how the duties of the directors and officers were specifically linked to the circumstances in which she was injured. The court commented that for such liability to arise there must be direct involvement in the tort by the director or officer.
Commentary
The Woolworths decision is consistent with earlier decisions on disclosure obligations under the PIPA and reinforces the general proposition that requests for documents must pertain about the incident to which the claim relates; and requests for information must relate to circumstances of, or the reason for, the incident.
Respondents are not required to provide evidence about previous incidents. However, they could be required to provide information or facilitate the obtaining of evidence (for example, by allowing inspections etc) about those matters that are still in issue.
The disclosure rules remain a critical process for parties to adhere to in the PIPA phase and as part of the ‘cards on the table’ approach to pre-litigation attempts at settlement. However, parties need to be aware of what documents and information are protected from disclosure so as not to prejudice their rights to claim privilege, as well as keep in mind that non-disclosure can result in a party being later prevented from relying on certain documents in defence of a claim. It is therefore an important time for parties to carefully turn their mind to what in fact is required to be disclosed and to make appropriate enquiries.
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1 Section 27(1)(a). This is more narrow than the obligations imposed upon the claimant under s 22 of the PIPA which removes the requirement for documents to be ‘directly relevant to a matter in issue’.
2 Section 27 (1)(b).
3 [2007] QCA 199.
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