PIPA – Disclosure – Previous Incidents – Duty of Care/Causation

Wright v KB Nut Holdings Pty Ltd [2010] QDC 91 

 

The application before his Honour McGill DCJ sought information and documents pursuant to sections 27(1)(b)(i) and 35(1) of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”).

The contest involved to what degree the respondent/defendant is required to provide information and/or documents of previous incidents and whether it went to the duty of care or causation elements.

Initially, however, his Honour needed to be persuaded as to jurisdiction:

[3] The material initially relied on by the applicant did not establish that this court had jurisdiction to entertain the application. The jurisdiction of the court to entertain an application under the Act is contained in s 35 of the Act, which empowers “the court” to do certain things. By the Dictionary in the Schedule the term “court”, in relation to a claim in circumstances where no proceeding based on the claim has been brought, means “a court with jurisdiction to hear the claim.” That will always include the Supreme Court, but in order to show that an application in relation to a claim is properly brought in the District Court, it is necessary to show that the District Court has jurisdiction to hear the claim made by the applicant.

[4] If the applicant has claimed a particular amount, there is no difficulty; it will be sufficient to show that the amount claimed is not in excess of the monetary limit under s 68 of the District Court of Queensland Act 1967.3 Where, however, as here, the applicant has not claimed a particular amount, but simply claimed in effect such damages as may be appropriately assessed according to law in respect of the injuries suffered by the applicant, in order to show the District Court has jurisdiction to hear the claim it is necessary to show that such a claim is for an amount of damages which is not in excess of the monetary limit. It does not matter whether the respondent is taking the point; an order made without jurisdiction is void.4 So whenever an application is made to this court (or for that matter the Magistrates Court) for relief under s 35 it is necessary to address the question of jurisdiction.

[5] Whether it has been shown that the District Court has jurisdiction will always be a matter for the court: in order to exercise jurisdiction, it will first be necessary for the court to find that the claim is one which could be brought in the District Court. Where the claim has not been quantified previously, however, the appropriate course is for the applicant to provide some information from which some assessment of the claim can be made, which may include the opinion of the applicant’s solicitors as to the value of the claim.5

[6] In the present case after my decision was reserved the applicant’s solicitor in a further affidavit has provided further information about the claim, particularly that the only continuing consequence of the incident is the psychiatric injury, and that any economic loss would not be such as to take the claim into the jurisdiction of the Supreme Court.6 There is not much information about the injury and the size of the claim, but in the circumstances I think it is sufficient, and I find that the District Court does have jurisdiction to hear the applicant’s claim, and hence this application.

3 Currently $250,000: s 68(2).

4 Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 81.

5 Woolworths Ltd v Graham [2007] QDC 301, where the position was discussed in a way with which I

respectfully agree.

6 Affidavit of Leddy filed 4 February 2010, para 3.

Authorities

 

His Honour considered in particular the following decisions:

Broadhead v State of Queensland [2006] QDC 273;

Haug v Jupiters Ltd [2008] 1 Qd R 276;

Haug v Jupiters Ltd [2007] QSC 68;

Hill v Kirsten Bay Pty Ltd [2009] QDC 68;

Oliver v Mulp Pty Ltd [2009] QSC 340;

RACQ-GIO Insurance Ltd v Ogilvie [2002] 1 Qd R 536; and

Wolski v ALH Group Pty Ltd [2009] QDC 202.

Analysis

[34] There is no doubt that the knowledge of a respondent as to the existence of particular risks may be relevant to the content of any duty of care owed by the respondent to the claimant, so that such knowledge may be relevant to the question of whether the respondent is liable for the injury suffered by the claimant in the incident.12 Evidence of other accidents at a particular place, such as a particular flight of stairs, is evidence of the dangerous condition of that place.13 Ordinarily, evidence that does no more than show that the defendant was negligent on another occasion will not be admissible to show that it was likely that the defendant behaved in a similar way, and was therefore negligent, on the occasion in question,14 except in circumstances where it is suggested that the relevant incident was the product of some habit15 or system.16 But in those cases where evidence would be admissible as to the defendant’ behaviour on other occasions, on the basis that this did provide relevant evidence of how the defendant probably behaved on the relevant occasion, it could not be said that the defendant’s behaviour on those other occasions were matters which appertained to or were causes of the consequences of the defendant’s behaviour on the relevant occasion. They are simply part of a circumstantial case by which the plaintiff seeks to prove the circumstances of the relevant incident.

[35] Accordingly, it is not just a question of whether evidence would be admissible at a trial in relation to the question of liability about the matters the subject of the request for information. Commonly when looking at the question of causation one is starting with the breach of duty relied on or found, and in that context there can be causation whether the relevant breach consisted of acting in a particular way, or of omitting to act.17 If there is a duty to act and the defendant does not act, and if, had the defendant performed that duty and acted, the harm to the plaintiff would have been averted, it can be said that the omission was a cause of the harm the plaintiff suffered. But does it follow that a respondent must give a claimant (if asked) information about any relevant omission on the part of the respondent, or about circumstances which are sought to be relied on as giving rise to a duty on the part of the respondent to act, on the basis that it is information about the circumstances of, or the reasons for, the incident?

[36] If one focuses on the scope of the reasons for the incident, it may be in a particular case that one of the reasons for the incident can be seen as an omission on the part of the respondent to do something which, if done, would have prevented the incident. On that basis, it may well be relevant to inquire about whether the respondent had done, or had not done, at or prior to the time of the incident, any particular things which if done, or perhaps if done more thoroughly or extensively, or better, would have prevented the incident. That could well cover matters like inquiries as to previous directions given by school staff to pupils in relation to their conduct, which it is alleged ultimately led to the claimant’s injury, as in Broadhead. Possibly, it might extend to information about whether or not the respondent had done anything in relation to a particular individual alleged to have been responsible for the harm as a result of previous conduct by that individual, as in Wolski.

[37] There is a difference between information as to whether the respondent did or omitted to do something and information which is only relevant to the question of whether the respondent had a duty to do something, or to do more, in the lead up to the particular incident. What the respondent in fact did, which may relevantly be nothing, can in my opinion be part of the circumstances of the incident, or the reason for the incident. Whether circumstances existed such that the respondent at that time had a duty to do something other than what the respondent did seems to me to be something separate from the circumstances of or the reasons for the incident. That focuses on the content of the duty, whereas s 27(1)(b) is essentially talking about the issue of causation. Information can be obtained about what the respondent did or did not do, but not about what the respondent ought to have done.

[38] It seems to me with respect that the reasoning adopted in Hill, and followed in Wolski, that information relevant to the content of the duty is within s 27(1)(b) is unpersuasive, and I do not agree with it. I am certainly encouraged in that view by the fact that at least one and probably both Supreme Court judges appear to have come to the same conclusion. Confronted with the conflict in Oliver and Hill, the fact that the former is a decision of the Supreme Court makes it more persuasive. But apart from this consideration, it appears to me that close attention to the actual words of the statute, and the exposition of them in Haug, supports the view that the approach adopted in the Supreme Court is the correct one.18 It follows that in my opinion in the present case the claimant is entitled to information about what the respondent actually did or did not do by way of cleaning or inspection of the premises, but information which is relevant to the question of what the respondent’s duty was in the circumstances then prevailing, in relation to the cleaning or inspection of the premises, is not something which is within the scope of s 27(1)(b). The applicant’s submissions supporting questions 6 and 7 were based on Hill and Wolski and the reasoning that I have rejected.

[39] Applying this approach to the questions in issue, the various parts of question 3 are concerned with an inspection, which the respondent admits it did undertake, of the premises in which the applicant claims to have been injured prior to the time when the applicant began to occupy them. It can therefore be seen as information about the circumstances of or the reasons for the incident: it is concerned with just what the respondent actually did, or did not do, in the lead up to the incident. The real issue in relation to these questions is whether the information already provided by the respondent adequately discharged its obligation under the section.

[40] The effect of the answer already provided is that the inspection occurred on 18 April 2009 prior to the arrival of the applicant, so it seems to me that the date of the inspection has already been provided, and all that remains is the question of the time of the inspection. It may be that the respondent does not know that information, in which case I expect that it is not information in the respondent’s possession, but if the respondent knows that information there is I think no reason why it should not be provided. As to the outcome of the inspection, again that should be provided to the extent that that information is in the respondent’s possession, because it would provide information as to what the respondent did or did not do by way of inspection. The answers already provided are vague about just what was found in the inspection, and the applicant is entitled to a specific response. Whether any hypodermic needles or other drug related utensils were found during the course of the inspection is in the same category; it is relevant to what was actually done, or not done, by the respondent on the occasion relevant to this particular incident. Again, the response of the respondent was not sufficiently direct and specific about this inspection. Whether any records were kept of the inspection is I think in the same category; it is concerned with what the respondent actually did.

[41] The information sought in paragraphs 6 and 7, however, seems to me to be much wider. It is not something which could be seen as a cause of or a circumstance of the particular incident relied on by the applicant. It is not confined to the particular apartment in which the respondent was injured, so it could not be related to the occasion when the particular hypodermic syringe which the applicant alleges caused her injury came to be in the position where she injured herself on it. It is on the contrary concerned with the state of knowledge of the respondent at the relevant time, and therefore concerned with the content of the duty on the respondent at the relevant time. It was also said to be relevant to an evaluation of the systems in place to prevent such an injury, but, it seems to me, only in relation to the content of the respondent’s duty of care in the circumstances. That in my view does not fall within the scope of s 27(1)(b) and I will not order that the information sought in paragraphs 6 and 7 be provided.

12 Jackson v Vaughan [1966] 2 NSWR 147; Pomery v Rural Hotels Pty Ltd (1973) 5 SASR 191 at 196.

13 Commissioner for Railways v Beach (1938) 12 ALJ 39 at 40 per Dixon J

14 Wirth v Tuckey [1949] QWN 42.

15 Lahrs v Eichsteadt [1961] Qd R 457 (High Court).

16 Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500

17 See also the definition of “incident” in the Act, which includes an omission: Schedule.

18 Haug is of course also an authority for the proposition that what really matters in these cases is the extent of the obligation actually imposed on the relevant party in a particular situation by the precise words used by the legislature applicable in that situation.

Brisbane Barrister – David Cormack

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