Fletcher v Brisbane City Council & Anor [2011] QDC 13

Judge Jones

HIS HONOUR: This is an application for relief under three headings or categories. First, a request for further and better particulars; second, a request for information pursuant to section 27(1)(b) of the Personal Injuries Proceedings Act of 2002 and last, disclosure.

The facts and issues in the case relevant to this application are that the plaintiff was allegedly riding his bicycle along a bike path under the jurisdiction of the defendant. He approached the entrance to an underpass. He was riding from daylight into shade of the overpass. Some of the grates that covered drains at the entrance to the overpass had been removed, allegedly, either by the effect of storm water or vandals.

His bicycle hit an open drain and he was injured. According to the applicant, the issues in the proceedings are (a) the defendant's prior knowledge that the grates had been removed in the past and the manner of their removal; (b) the defendant's financial capacity and resources to maintain the underpass; (c) the adequacy of the defendant's system of inspection of the underpass to reveal hazards; and (d) the method of securing the grates to prevent their removal

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Turning then to relief sought. The further and better particulars sought by the applicant are set out in Exhibit 7 to the affidavit of Ms Jenner sworn on 18 January 2011.

If I could deal with the second question asked concerning paragraph 19(o) of the defence first. In circumstances where the respondent has made a positive assertion, as it has, in paragraph 19(o) of its defence that, at the time, it had in place a reasonable system of inspection and maintenance, I consider question 2 to be a valid request for particulars. That such a system or systems was in place is not an ancillary issue. It is one of the issues directly relevant to the questions in issue between the parties.

As to the first question, as I understand it, the respondent has disclosed the financial material sought by the applicant in Exhibit 16 to Ms Jenner's affidavit, to which I will refer later, in subparagraph (a) and (b) of that letter. Those documents being concerned with the budgetary and resource documents and also the manner in which such budget and resources were allocated. That, however, is not the real answer to this particular question.

In my view, the explanation underlying the denial in paragraph 19(f) of the defence does not necessarily create an issue or assertion of fact justifying the particulars sought. The issues raised thereby are ancillary matters and not directly relevant to the real issues to be tried.

In this regard, I rely on the observations made by Justice Helman in Gilbert v. Goodwin 2002 QSC 5632 an unreported decision of the Supreme Court cited with approval and considered by Justice Daubney in Cape York Airlines v. QBE Insurance Australia Limited 2008 QSC 302 particularly at paragraphs 35 and 36.

Turning then to the issue of disclosure. The disclosure initially sought is set out in Exhibit 16 of Ms Jenner's affidavit in paragraphs (a), (b), (c) and (d). As I understand it, the documents sought in subparagraph (a) and (b) of Exhibit 16, have been since disclosed by the respondent. That leaves then the documents referred to in paragraphs (c) and (d) of that correspondence.

Rule 211 of the Uniform Civil Procedure Rules requires the disclosure of documents directly relevant to issues raised in the pleadings. The documents sought in respect of paragraph (c) and (d) of Exhibit 7 extend over the whole of the respondent's Local Government area from the CBD to its most remote and unpopulated areas. It's terms are too wide, in my view.

In my view, none of the allegations made in the statement of claim and put in dispute by the defence would justify orders in the terms sought. That said, in my view, an order in the terms sought in subparagraph (c) is warranted if limited to the bikeway or bike path in question.

In a similar vein, the question asked in subparagraph (d) should be limited to the bikeway or bike path in question. In paragraph 16 of the written submissions of Mr Atkinson, it is said in respect of this paragraph, "Most importantly, it is oppressive because it would oblige the defendant to gather information across a notoriously large Local Government area covering suburbs as diverse as Wishart, Pullenvale, Virginia and West End."

I do not consider this to be a valid ground to refuse the orders in the limited terms I propose for two reasons. First, I was not taken to any evidence to support that assertion made but, in any event, having regard to the limited extent of the relief I intend to grant, the extent of the exercise required to be undertaken by the respondent ought be materially reduced.

Turning then to the information sought under section 27(1)(b) of the Personal Injuries Proceedings Act 2002, that section, relevantly, provides, a respondent must give a claimant (b) if asked by the claimant (i) information that is in the respondent's possession about the circumstances of, or the reasons for, the incident."

The information sought is set out in paragraphs 1, 4 and 5 of Exhibit 12 to the affidavit of Ms Jenner. It is not objectionable in respect of section 27(1)(b) that the question is in the form of an interrogatory. However, as was identified by the Court of Appeal in Haug v. Jupiters Limited 2007 QCA 199, the extent of the obligation is limited to the incident in issue. However, consistent with remedial legislation it should otherwise be construed broadly but within the limitations prescribed by Parliament.

In Oliver v. Mulp Proprietary Limited 2009 QSC 340, his Honour Justice Martin considered the decision of Haug v. Jupiters and in paragraph 9, relevantly said, "In Haug v. Jupiters Limited 2008 1 Qd R 276 the Court of Appeal considered the provisions of section 27(1)(a) and 27(1)(b) of PIPA. The following principles may be drawn from that decision;

Subparagraph (d) the obligation in section 27(1)(b)(i) is much closer to that in section 45(1) of the Motor Accident Insurance Act. It was considered by Ambrose J in RACQ/GIO Insurance Limited and Ogilvie [2001] QSC 36; 2002 1 Qd R 536, "It would follow then that 'the circumstances of the incident' would include any fact to which the occurrence of the incident may be attributed."

Then in paragraph 10, "The word 'incident' is defined in the schedule to PIPA as, 'in relation to personal injury, means the accident or other act, omission or circumstance alleged to have caused all or part of the personal injury'."

In the very helpful decision of Judge McGill in Wright v. KB Nut Holdings Proprietary Limited 2010 Qd C 91, his Honour, after reviewing in some detail the authorities, at paragraph 37 said, "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 section 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."

I would add there that it, in appropriate circumstances, might be justified to seek information about what the respondent did or did not know.

In my view, the question asked in question 4 of Exhibit 12 to the affidavit of Ms Jenner is too wide. The question is in these terms, "During the period from 1 January 2005 to 7 February 2008, was the defendant made aware of incidents of flooding at or about the area containing the pathway and the drainage gates.

Question 5 is depended on the answer to question 4, and asks, "If the answer to the preceding question is, yes, specify, the date of each instance of flooding and the precise nature of each instance of flooding."

By reference to paragraph 10(f) of the statement of claim, it seems to me that the real issue in respect of flooding is flooding of such magnitude that it would cause the disturbance or displacement of the steel grates.

In my view, question 2 contained in Exhibit 12 which has been answered, would include the dislodgment or removal or displacement of drainage gates by any means be it by man or flooding.

In my view, questions 4 and 5 do not add in any relevant way to the matter. For the reasons given, I am not prepared to grant the relief sought in paragraph 4 of Exhibit 12 and, nor as a necessary consequence, in paragraph 5.

As to paragraph 1, it is said by Mr Atkinson that it is not a particularly sound question as it really has nothing to do with causation or even the incident in question. This matter becomes relevant in this way. In paragraph 6, of the defence it is pleaded, "The defendant denies the allegation in subparagraph 3(b) of the statement of claim is untrue on the grounds that it had no direct knowledge that the pathway was used by bicyclists as a bicycle path."

Paragraph 3(b) of the statement of claim pleads, "At all material times, the underpass was used inter alia by bicyclists as a bicycle path to the knowledge of the defendant.

As Mr Atkinson effectively acknowledged this pleading, certainly as I understand his submissions or concessions, has no sound basis and the defence ought properly be amended. I agree. However, on balance, in any event, I consider the state of knowledge of the respondent council about the use to which this path was put, to be relevant, and in the event that the pleadings are not amended to reflect the situation as far as the respondent knew it to be, then I would grant the relief sought in question 1 of Exhibit 12.

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HIS HONOUR: I think, on balance, costs in the cause is probably the most appropriate order so if you could incorporate that in your draft orders.

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Brisbane Barrister – David Cormack

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