WCRA s.279 & r.250 UCPR: production of information & inspections

Alavi-Moghaddam v. Woolworths Ltd [2012] QDC 98

Issue: whether post compulsory conference and in litigation – the respondent/defendant was required to provide information and documentation as to how the applicant/plaintiff allegedly injured herself pursuant to s.279 & 287 of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) and for an expert inspection under r.250 of the Uniform Civil Procedure Rules 1999 (UCPR).

Farr SC DCJ

Inspection

 [36]         The respondent also relied upon observations of Daubney J in Karaka v Woolworths

Ltd,2 wherein his Honour said when interpreting the word “necessary” in r 250:

What is required for an applicant such as Mr Karaka to succeed in an application of this nature is for it to be demonstrated that the inspection is necessary for deciding an issue. That seems to me to impart the notion that without the inspection, and the evidence which would be obtained from an inspection it would not be possible to make a decision on the particular issue.

[42]         I have been particularly assisted by the comments of Daubney J in Karaka v.Woolworths Ltd (supra) quoted in paragraph 36 above.

[43]         In my view, given the state of the evidence as it presently appears to exist, an expert ergonomic report detailing the nature of the flooring, the height of the shelving upon which the 20 kilogram box of produce was positioned, particulars about the ladder, the angle that the applicant would have been required to reach up to to take hold of the box of produce, and the force required to slide and pick up that box of produce (and this is not an exhaustive list) would be evidence which could be obtained from an inspection and would be necessary for deciding an issue in the proceeding. Such issues would include whether the respondent had breached an implied term of the contract of employment or whether the respondent had breached a duty of care by:

1)             failing to take all reasonable precautions for the safety of the applicant whilst she was engaged in carrying out her assigned work; and/or

2)             exposing the applicant to a risk of damage or injury of which it knew or ought to have known; and/or

3)             failing to provide and maintain safe and adequate plant and equipment; and/or

4)             failing to take reasonable care that the place at which the applicant carried out her assigned work was safe; and/or

5)             failing to provide a safe system of work.

[44]         In the absence of such expert evidence, it is my opinion that the remaining evidence would be inadequate for the purposes of resolving such issues. There is no incident report disclosed in the material nor is there any evidence of an investigation having been conducted into the alleged incident. Furthermore, given that the incident is alleged to have occurred over five years ago, it would be unrealistic for the court to expect the applicant to present her case based solely on her memory of details that may well have seemed peripheral at the time.

[45]         I do not accept the respondent’s submission that such an inspection is being sought for the purposes of “fishing for a case, that is, to seek to have the inspection which may identify some further or other default with the place or systems which might found an, as yet, unpleaded case against the respondent”.4 Such a submission carries even less weight given the fact that the applicant is not now seeking to have the inspection take place at a time when operations in the respondent’s premises are being carried out.

[46]         It follows, that I also do not accept that the only purpose for such an inspection would be to present a new case which would then render the pre-court procedures such as the compulsory conference and the exchange of mandatory final offers nugatory. In fact, it is difficult to see how such an inspection could result in anything other than evidence being obtained which is potentially relevant to either or both parties’ cases as they are presently stated.

[47]         It’s also relevant to note that s 290A(2) WCRA provides that a certificate of readiness must state that the party is completely ready for the compulsory conference. This is to be compared and contrasted to s 37(2)(b) Personal Injuries Proceeding Act 2002 (PIPA) and s 51B(5)(d) Motor Accident Insurance Act 1994 (MAIA) where the parties must certify that they are ready for trial at that same stage. The applicant submits that this difference is reflective of the fact that no costs are payable (other than in exceptional circumstances) under WCRA until the trial process has been conducted, whereas under PIPA and MAIA costs are payable on resolution of the claim, and that as a consequence a responsible solicitor should attempt to avoid running up expenses for the client at a time when they would be unrecoverable. It is submitted that this is a relevant issue when considering the respondent’s submission that an expert report should have been obtained prior to the compulsory conference.

[48]         I accept that to be a fair submission.

[49]         Finally, I am supported in my ultimate conclusion by the comments of Justice Demack (as he then was) in Thornton v Thomas Borthwick & Sons (Australia) Pty Ltd:5

“It is absolutely essential in the interests of fair play and fair representation that the inspection of the premises at which the plaintiff alleges the sustaining of an injury should occur.”

[50]         That sentiment has perfect application in this matter and the application in respect of the inspection should be allowed, although I do not see the necessity for video footage to be taken given that the applicant no longer seeks to conduct the inspection at a time when operations are being carried out.

 Production of documents

[51]         The respondent has submitted that its solicitor’s letter of 5 October 2011 stating that the respondent was not in possession of any of the requested documents is sufficient for the purposes of compliance with the provisions of s 279 WCRA. It further submits that no order should be made upon the mere assertion or submission that the duty to disclose has not been complied with, in the absence of an evidentiary basis.

[52]         I agree with that proposition.

[53]         Whilst the applicant submits that its request for documents dated 11 January 2012 lists in greater detail the documents sought than that which was particularised in its letter of September 2011, the categories of documents sought did not in fact change. Given that fact, in my view, the respondent complied with its responsibilities under s.279(1)(a) (albeit outside of the permitted time frame) on 5 October 2011. I note that on the day before this application was heard, the respondent provided to the applicant, by two separate facsimiles, a copy of a photograph of a ladder said to be of the same type and style as that used by the applicant and a copy of a one page document headed “Safety Basics”. Whilst I assume that, at the very least, the second of those documents must have been in the possession of the respondent at a time when the respondent claimed that it was not (given that the applicant specifically asked for that document on 2 September 2011), that fact does not persuade me that the respondent has failed in its duty of disclosure pursuant to s.279(1)(a).

[54]         The application in that regard, for those reasons, should be refused.

 Provision of information

[55]         On 2 September 2011, the applicant requested the following information pursuant to s.279(1)(b) WCRA:

“Could you please provide us with information as to what ladder our client (was) using at the time i.e. what ladders were available for use.

What training, instruction or other information was given in relation to the use of ladders.

What training, instruction and other information was given in relation (to) carrying and removing goods from the cold storeroom.”

[56]         Given that a photograph of the ladder has now been provided to the applicant, I need not consider further the first of those three requests. In relation to requests 2 and 3, the respondent responded by saying “We are not in possession of any documents…or any other information…”.

[57]         The respondent relies upon that response as evidencing its compliance to the provisions of s.279(4) WCRA. In my opinion it fails to do so. The request for information which is the subject of this application was made on 11 January 2012. As can be seen in paragraph 21 above, the information sought is quite different to that which was sought in the letter of 2 September 2011. As I have already noted, there has been no response by the respondent to the request of 11 January 2012. The information sought seems reasonable and relevant in the circumstances of this matter and in my view the respondent has not complied with its statutory requirements of disclosure.

[58]         The application should be allowed in relation to questions 2(b), (c), (d) and (e)  contained in the applicant’s solicitors’ letter dated 11 January 2012.

  •  1 Unreported, No. 13 of 1995, District Court of Queensland, 13 December 1996.
  • 2 Unreported, No. 597 of 2009, Supreme Court of Queensland, 15 June 2009.
  • 3 See Evans Deakin Pty Ltd v Orekinetics Pty Ltd (2002) 2 Qd R 345 at 350.
  • 4 Submissions of respondent, paragraph 15.
  • 5 [1998] QSC 165, Demack J 12/08/1998 at [3].

 

Brisbane Barrister – David Cormack

 

 

Related Posts

Recent Comments

    Categories