s.27(1)(b) PIPA – provision of information – ‘slip & fall’ – circumstances of the incident

Bradley v Woolworths Limited [2010] QSC 284

CATCHWORDS:

TORTS – NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSON ENTERING PREMISES –Where the applicant alleges she slipped and fell in the fruit and vegetables section of the respondent’s supermarket – where the applicant has given Notice of Claim to the respondent pursuant to the Personal Injuries Proceeding Act 2002 (Qld) (PIPA) – where the applicant sent the respondent a letter seeking information pursuant to s 27(1)(b) of PIPA regarding the circumstances of, or the reasons for, the incident – where the respondent has not responded to 11 paragraphs of the applicant’s letter – whether the respondent must respond to those paragraphs.

Fyi – earlier postings:

s.27 PIPA – obligation to disclose and provide information

PIPA disclosure and de facto interrogatories

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

ANN LYONS J:

The request for information pursuant to s.27(1)(b) of PIPA flowed from a ‘slip and fall’ incident at the defendant’s store in the fruit and vegetable section.

Her Honour applied:

  • Haug v Jupiters Ltd [2008] 1 Qd R 276
  • Haug v Jupiters Limited trading as Conrad Treasury Brisbane
  • [2007] QSC 68
  • RACQ/Gio Insurance Ltd v Ogilvie [2002] 1 Qd R 536
  • Wright v KB Nut Holdings Pty Ltd [2010] QDC 91

[9] Clearly then, the information requested by a claimant must relate to the “incident” which is particularised in the Notice of Claim. The provisions of s 27 were carefully examined by the Court of Appeal in Haug v Jupiters Ltd1 where Jerrard JA stated that the section should be given a broad remedial construction but that words of limitation in the section cannot be ignored. He also considered that the obligation in s 27(1)(b) to provide information in the respondent’s possession was much broader than the obligation to produce copies of documents in s 27(1)(a). It was also considered that the obligation imposed by s 27(1)(b)(i) is much closer to the obligation imposed pursuant to s 45(1) of the Motor Accident Insurance Act 1994 (Qld) as discussed by Ambrose J in RACQ/Gio Insurance Ltd v Ogilvie2 where he stated:

“[26] In my view, ‘circumstances of the accident’ are not limited to events contemporaneous with the accident observable perhaps by an independent witness having an opportunity to view it. A circumstance of the accident is any fact to which the occurrence of the accident may be attributed. In my view, upon its proper construction, ‘circumstances of the accident’ within the meaning of s 45(1)(a) encompass all events which appertain to or are causes of the accident in which the claimant suffers personal injury.”

[10] It is also clear that the requirement to provide information “does not extend to information which a respondent might be able to obtain through inquiry”.3

Furthermore, the respondent’s obligation under s 27(1)(b)(i) to provide information to the claimant is not limited by the requirement that the information is “reasonably requested”.

Paragraph 1

[11] Paragraph 1 of the request seeks particulars of the mat referred to in paras 9 and 18(i) of the Notice of Claim, from which the applicant stepped immediately prior to slipping as follows:

“1. By reference to the mat on which the Claimant was walking immediately prior to her accident specify:

(a) the dimensions of the mat;

(b) the colour of the mat; and

(c) nature of the material comprising the top surface and the underside of the mat.”

[14] In my view, the request by the applicant for this information is a request about the circumstances of or the reasons for the incident pursuant to s 27(1)(b)(i). The accident occurred in the fruit and vegetable section adjacent to or near a mat. The incident involved water which was on the floor. The claimant alleges that there was a large amount of water present on the floor “under and around” the mat. Clearly a mat which is closely located to the water is something which relates to the accident, as a mat may absorb or extrude water or indeed, it may do both. I also consider that the colour of the mat is relevant, as the colour of the mat goes to the visibility of any water absorbed by the mat. I also consider that the dimensions of the mat are relevant, as the dimensions of the mat could relate to the quantity of water absorbed.

[15] As previously discussed, the request for information must relate to the incident and must remain within the broad confines of facts to which the occurrence could be attributed. In my view, all of this information relates to facts to which the occurrence of the accident in which the claimant suffered personal injury could be attributed.

[16] The information requested in para 1 should therefore be provided if that information is indeed in the respondent’s possession.

Paragraphs 4, 5, 6 and 7

[17] Paragraphs 4, 5, 6 and 7 of the request seek particulars of the respondent’s inspection system as follows:

“4. At the time of the Claimant’s accident did the Respondent implement and maintain a system for the periodic inspection of the supermarket floors for the presence of spillages or other risks of injury?

5. If the answer to the preceding question is yes, please provide full particulars of the system of the inspection that was implemented and maintained at the time of the Claimant’s accident.

6. At the time of the Claimant’s accident did the respondent implement and maintain a system for the cleaning of spillages or other substances present on the supermarket floors?

7. If the answer to the preceding question is yes, please provide full particulars of the system of the cleaning that was implemented and maintained at the time of the Claimant’s accident.”

[18] The respondent argues that the requests for information are nothing more than “fishing expeditions”6 and that these questions are too wide. The respondent submits therefore that the information sought by the claimant does not fall within the ambit of the section because they:

(a) Relate to “the supermarket floors” in general, not simply the area where the accident occurred (in front of the fruit and vegetable display in the fruit and vegetable section);

(b) Go to what the respondent did to discharge its duty of care in general to entrants into the supermarket;

(c) Are not confined to what the respondent did or did not do on the day of the accident which caused or contributed to the plaintiff’s alleged fall.

[19] In my view, the request falls within s 27(1)(b)(i) of the legislation. I consider that the information sought is, in fact, about the circumstances of or the reasons for the accident. In particular, I consider that the information relates to what the respondent did or did not do in relation to dealing with material that could be on the floor and which might cause a person to slip. However, I consider that as it currently stands the request for information is too vague. In my view, the request for information about the inspection system and the cleaning system should be limited in time and relate to inspections and cleaning “at or prior to the time of the incident”.

[20] The issue of inspections and cleaning and the extent to which information needs to be given about a respondent’s practices under s 27(1) (b) was discussed by McGill DCJ in Wright v KB Nut Holdings Pty Ltd7 which involved the extent to which a respondent inspected and kept premises.

“[7] …The applicant alleged that she also suffered psychological injury as a result of the physical injury. It was alleged in the notice of claim that this was caused by the respondent for various reasons, but essentially because of a failure properly to clean and inspect the premises before they were let to the applicant (and her family), and a failure to warn the applicant of the risk of injury in circumstances where it knew that there had been a problem with drug users staying in the apartments.

[8] The letter of 16 October 2009 sought in paragraph 1 information in relation to the cleaning carried out prior to the commencement of the applicant’s stay in the premises, and paragraph 2 asked whether there was an inspection between the premises being cleaned and the commencement of the claimant’s stay on 18 April 2009. …

[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.

[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.

[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.”

[21] I consider, therefore, that the respondent should provide the information about the inspection and cleaning system it had in place at the supermarket at the relevant time. I also consider that information should be provided in relation to the system in place in the entire supermarket and not just the fruit and vegetable section. This is not like the factual situation in Wright where individual apartments were involved. The incident in the present case occurred when the claimant stepped in a large amount of water present on the floor in the fruit and vegetable section. The information already provided by the respondent simply states that the water came from “adjacent refrigeration units”. They were not necessarily located in the fruit and vegetable section. Furthermore, there was a large volume of water involved. Water flows across surfaces, can travel large distances and can be walked from area to area. I do not consider, therefore, that the information sought about the inspection and cleaning system can be limited to just one section given the numbers of customers who can walk from section to section in a supermarket of this nature. I do not consider that the information sought does, in fact, go to the state of knowledge of the respondent or to the question of the content of the duty.

[22] In my view, the information sought in paras 4, 5, 6 and 7 should be provided to the extent that the information is sought with respect to inspections and cleaning “at or prior to the time of the incident”.

Questions 9, 10 and 11

[23] Question 9 asks who inspected the floor, the nature of the inspection and whether any spillage was observed during that inspection.

[24] Question 10 asks when the area was last cleaned before the accident.

[25] Question 11 seeks information as to who did the cleaning and the precise nature of the cleaning.

[30] I consider that the name of the cleaning contractor should be provided and that this information would be in the possession of the respondent. The provision of information of this nature was in fact permitted in Haug v Jupiters Limited trading as Conrad Treasury Brisbane.8

[31] I also consider that the nature of the cleaning required to be done by the contractor is information that is in the respondent’s possession, given the contractors would have been employed to perform tasks which would have been clearly specified by the defendant.

[32] Furthermore, I consider that all of that information is information about the circumstances of or the reasons for the incident, as it clearly relates to the state of the floors at the time the incident occurred or prior to the time it occurred. The information sought is about what the respondent did or did not do. It is not about what the respondent ought to have done, which is the distinction made by McGill DCJ. It is not concerned with the state of knowledge of the respondent or the content of the duty of the respondent at the relevant time.

[33] Accordingly, whilst I consider that the information requested in para 9 has been provided, I do not consider that the information requested in paras 10 and 11 have been answered and therefore the respondent should provide that information.

[37] Paragraph 13(a) seeks information about the date the training was provided and 13(b) seeks information about who provided the training. I consider that in relation to question 13(a), that Mr Wallace has stated the substance of the training he received (supplementary statutory declaration, para 3) and that he applied this training on the day of the accident (supplementary statutory declaration, para 1). I consider that sufficient information has been provided in relation to this question. I do not consider that the question about the precise date of the training inquires about a relevant fact as to the causation of the accident, rather it inquires in general about the scope of the respondent’s duty of care.

[38] Question 13(b) relates to the identity of the person who provided the training. I do not consider that that is a relevant fact with respect to the causation of the accident. Whilst it is true that the identity of the security guards was permitted in Haug, those guards were clearly involved in the actual incident. That is not the case here. The identity of a person who has provided training is not a relevant fact to the causation of the accident. I agree that it actually inquires about the identity of a person who may be a witness at the trial.

[39] No further information need be provided in response to para 13.

Question 15

[40] Question 15 asks for information about the time the warning sign was erected, who erected the sign, where the sign was situated, as well as the nature of the warning given.

[41] Mr Wallace’s first statutory declaration says that a warning sign was erected at the commencement of the day’s trading. Accordingly, question 15(a) has been answered.

[42] I consider that question 15(b) merely seeks the name of a person who may be a witness at the trial. It does not inquire about any fact to which the occurrence of the accident may be attributed.

[43] Mr Wallace’s first statutory declaration also states that the sign was erected “at or about the site of the alleged incident” (para 3). I consider this sufficiently answers question 15(c).

[44] Mr Wallace’s first statutory declaration says the sign warned “of the presence of water on the floor” (para 3). I also consider that this sufficiently answers question 15(d).

[45] No further information, therefore, needs to be provided in relation to the information sought in para 15.

1 [2008] 1 Qd R 276.

2 [2002] 1 Qd R 536.

3 Oliver v Mulp Pty Ltd [2009] QSC 340 at [13].

4 See answers to questions 9 and 18 in the Notice of Claim.

5 Wright, supra at [11].

6 Martin J in Oliver v Mulp Pty Ltd [2009] QSC 340 at [15].

7 [2010] QDC 91.

8 [2007] QSC 68.

Brisbane Barrister – David Cormack

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