Wolski v ALH Group Pty ltd[2009] QDC 202

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: This is an application for the respondent to provide the applicant with a response to a request for information delivered pursuant to section 27 of the Personal Injuries Proceedings Act 2002 on 17 November 2008. This request was again forwarded to the respondent on or about 25 February 2009 after advice by Proclaim Management Solutions on behalf of the respondent that they were unable to find the original request and asked that an additional copy be forwarded.

On 24 September 2008 a part one notice of claim had been forwarded to the respondent under section 9 of the Personal Injuries Proceedings Act. In that notice the applicant alleged injury in the form of a broken wrist, an injury to the right elbow, loss of feeling to the thumb on the left hand and bruising to ribs and the right elbow. In response to the requirement in the form in question 9 for a brief description of the incident the notice of claim submitted on behalf of the applicant stated, "The claimant's friend, Brett Steele, was involved in an unprovoked altercation and was king hit by another person. The claimant went to confront this person approximately five minutes later. As the claimant was running down to where the other man was he has been shoulder barged by a security officer. The claimant has fallen backwards onto the cement ground and sustained personal injuries. It is believed that the security guard has been involved in other altercations or incidents."

In answer to question 7 the date of the incident was given as 23 August 2008 at 12.30 a.m. The place where the incident was alleged to have occurred was the car park next to the bottle shop drive-through. The details of the person who caused the incident was given in answer to question 17 as the Redbank Plains Tavern. In answer to question 19 which requests the details of any other person or persons involved in the incident the name given was Sadaris Falaeo and an address was stated for that person.

Paragraph 18 of the notice of claim set out the reasons why the injured person believed that the Redbank Plains Tavern had caused the incident. It is accepted that the respondent trades as the Redbank Plains Tavern. It is alleged that the respondent is guilty of negligence in that the respondent by its servants or agents as set out in the answer to question 18 - Firstly, failed to ensure the safety of patrons at the tavern by allowing an aggressive security guard to continue working there. Secondly, failed to take any or any adequate action against Sadaris Falaeo when the respondent knew or ought to have known of his aggressive and violent behaviour. Thirdly, continued to allow Sadaris Falaeo to work as a security guard when he was not fit to do so. Fourthly, failed to report prior problems with Sadaris Falaeo to the security company. I do not refer to the next two dot points but refer fifthly, to the second last dot point which is a failure to take any or any adequate precautions for the safety of the claimant and the final dot point which is exposing the claimant to a risk of injury that could have been avoided by the exercise of reasonable care. The first, second, fourth and fifth of these reasons allege omissions on behalf of the respondent. The others allege other wrongdoing. The penultimate dot point raises issues of training.

That the notice of claim was compliant was conceded by the respondent in a letter of 1 October 2008. This was a response received from Proclaim Management Solutions which advised that the respondent was its client, was a proper respondent to the claim and was satisfied that the notice had been given as required. They also advised that they would be serving a notice of contribution on the security provider for the tavern. Subsequently, the applicant and respondent both provided disclosure and the applicant provided a part 2 notice of claim. I refer in that regard to paragraph 6 of Ms Cheshire's affidavit, she being the law clerk of the applicant's solicitor, filed on 8 April 2009.

After the section 27 request was again forwarded to Proclaim Management Solutions on behalf of the respondent on 25 February 2009 Ms Stone, their accounts manager, responded on 4 March 2009 that, "The questions posed are detailed and for the most part suggest knowledge of the security officer, Sadaris Falaeo, when in fact you would note that contribution has been requested from the security provider and as far back as October 2008 you were advised that our client considered Knight Eyes Security Services to be responsible for your client's alleged injuries. If you have evidence to suggest prior incidents involving Mr Falaeo it is requested that you provide such evidence immediately as it does not appear to be included in your client's disclosure."

On 6 March 2009 the applicant's solicitor responded with an advice that they had disclosed all discoverable documents to Proclaim Management Solutions and gave until 3 p.m. on Friday, 27 March 2009 for the information to be provided. They advised that if the information was not received by that time an application would be filed seeking information and costs against the respondent. No response was received with the result that this application has been instituted. However, the information now requested is limited to questions 1, 2, 4, 5, 6, 13 and 14 of the request.

Under the heading of Prior Knowledge the questions in issue are:

1. How many prior incidents has Sadaris Falaeo been involved in?

2. What was the nature of those incidents.

4. Are you aware of any previous aggressive behaviour displayed by Sadaris Falaeo? If so, please provide full details.

5. As a result of any previous aggressive behaviour or incidents involving Sadaris Falaeo what action did the tavern take?

6. What procedures are in place to stop re-offending?

I am advised by the applicant's solicitor that question 6 is a general request not limited to Mr Falaeo and can be read in conjunction with questions 13 and 14. In context, however, I interpret question 6 to request information about procedures that are in place to stop re-offending by security guards given that it is alleged that the incident in question for which it is suggested that Mr Falaeo was involved is said to have been caused by a security officer.

Questions 13 and 14 are under the heading Other Documents or Information. Question 13 is what procedure does the tavern use when complaints are made about security guards. Question 14 is what procedures are used to report incidents about the security guard to Knight Eyes Security.

The original questions each requested the provision of full details, including all relevant documentation. However, I have been advised by Mr Gibson on behalf of the applicant that the documentation is not pursued and it is only the information that is requested. I also interpret in context question 14 to refer to procedures used to report incidents about security guards to Knight Eyes Security.

It is requested that the response to the request be by way of statutory declaration. The information is requested under section 27(1)(b)(i) of The Personal Injuries Proceedings Act, which is as follows: "A respondent must give a claimant, if asked by the claimant, information that is in the respondent's possession about the circumstances of or the reasons for the incident." It has not been submitted that the information requested was not in the respondent's possession. However, in opposing the application, Mr Morton, on behalf of the respondent, raised an issue as to the scope of the section. It is conceded that the requested information must be about the circumstances of or the reasons for the incident. However, it is submitted on behalf of the respondent that that is not the situation here.

The respondent relied, in particular, on the decision of Justice A Lyons in Haugh v Jupiter's Limited trading as Conrad Treasury, Brisbane [2007] QSC 68 to the extent that she dismissed the application in that case and, more particularly, upon the successful appeal to the Court of Appeal in respect of other aspects of the judgment in Haugh v Jupiter's Limited [2008] 1 QR 276, in particular, the judgments of Williams JA at paragraphs 2 to 5 and Jerrard JA at paragraph 11 and 13 and 23 and 24. In that case the respondent had given a notice of claim alleging that he suffered an injury to the left wrist as a result of the actions of security staff at the respondent's casino who, in the early hours of the morning, had ejected him from the casino while holding him in a wrist lock, It was alleged that the appellant had been negligent in various ways, including in failing to engage reasonably competent security guards authorising or permitting the security guards to restrain the complainant with the use of unreasonable and excessive force and failing to take any or any reasonable care for the safety of the claimant.

As his Honour Judge McGill states in Hare v Mt Isa City Council [2009] QDC 39 at paragraph 23 with reference to the decision of Jerrard JA: "It follows that in that matter, notwithstanding that his Honour recognised that the notice of claim foreshadowed issues about the adequacy of the training of the security guards and whether the appellant had been guilty of relevant omissions in relating to the engaging of security guards, he rejected it as not about the incident in the notice of claim or in connection with it or in relation to it, the personnel records of the security guards concerned, documentation relating to training of security guards at the casino, documentation relating to prior complaints involving security staff at the casino, a full floor plan of the casino, information about security cameras at the casino, and documents relating to previous claims brought against the appellant relating to excessive or inappropriate use of force by security guards there. This was because these documents did not relate to the incident but rather appertained or related to the causes of the incident which was not within the scope of the obligation in section 27(1)(a)(i)."

As Mr Morton submits on behalf of the respondent, the incident in that case was the event of eviction. He submits that the comments of Jerrard JA that he has referred to are relevantly indistinguishable from this case. It is submitted that, in the circumstances, the respondent's request under section 27 is a cynical fishing expedition. Further, it is submitted that each and every one of the matters to which the response is now pressed is a matter that cannot relate to the incident in this case.

In particular, it is submitted that this application is indistinguishable from Haugh. It is said that the applicant is only entitled to documents or information about the circumstances of or the reasons for the incident. It is submitted that that does not extend to documents or information about the number, nature or consequence of prior incidents - assuming for the moment that there were any - nor about the respondent's general procedures for recording or reporting incidents.

It is submitted that the error in the applicant's approach is that the extent of the documents or information that the respondent is obliged to provide is not determined by the extent of the allegations that the applicant makes but rather by the words of the legislation, that is, The Personal Injuries Proceedings Act. Thus it is said that it does not matter what allegations of breach of obligation are made but rather whether the document or information is about the incident.

I agree that it follows from the decision of the Court of Appeal that the extent of the information that the respondent is obliged to provide is not determined by the extent of the allegations that the applicant makes but rather by the words of the relevant legislation. However, I do not agree that this case is indistinguishable from Haugh because their Honours in the passages referred to were directing their attention to section 27(1)(a) and not section 27(1)(b)(i) which is in issue in the present case. As is recognised in that case, the provisions are in different terms. Similarly, the decision of his Honour Judge McGill, in relation to the facts of the case of Hare, related only to section 27(1)(a).

In the decision of the Court of Appeal at paragraph 5 Williams JA said that, with reference to the purposes of The Personal Injuries Proceedings Act, provisions such as section 27 should be given a broad remedial implementation, but that does not mean words of limitation found in the section can be ignored. At paragraph 4 his Honour said: "Similarly, when section 27(1)(b)(i) of the Act requires a respondent to provide information about the circumstances of or the reasons for the incident, that must be a reference to the incident described and particularised in the notice of claim."

Therefore, in the circumstances of this case, the incident for the purpose of section 27(1)(b)(i) request must be the alleged shoulder barge by the security officer. This must be considered in terms of what Jerrard JA, with whom Williams JA and White J agreed, said about providing information under that provision in paragraph 26 of the judgment, which has not been referred to in the outline of submissions by the respondent. As the applicant's solicitor submits, the obligation under that provision is much broader than the obligation to produce copies of the documents.

In paragraph 26 of that decision Jerrard JA said: "Regarding the orders made in accordance with section 27(1)(b)(i) of the Act, the obligation in that subsection to provide information in the appellant's possession about the circumstances of, or the reasons for, the incident is much broader than the obligation to produce copies of the documents. That phraseology in section 27(1)(b)(i) reflects the terms in section 45(1)(b)(i) of The Motor Accidents Insurance Act (an obligation to give information reasonably asked "about the circumstances of the accident") as it was drafted when considered by Ambrose J in RACQ-GIO Insurance Limited v Ogilvy [2002] 1 QdR 536 at 541 and 542. His Honour considered that an object of the legislation was to have the claimant place the insurer, to the best of his or her ability, in the best position to determine whether to admit or contest liability (at page 541)," and his Honour went on: (at page 542) "[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 section 45(1)(a) encompass all events which appertain to or are causes of the accident in which a claimant suffers personal injury."

His Honour then said in paragraph 27: "The learned trial Judge in this matter considered that the construction of circumstances of the accident in that legislation was relevant to the obligation imposed by section 27(1)(a)(i) of the PIPA. The Judge thus concluded that the obligation to produce directly relevant documents about the incident therefore extended to production of reports and other documents about (all events) which appertain to or relate to the causes of the incident. I respectfully disagree. The reasoning of Ambrose J explains why there is a significant difference between, on the one hand, the obligation in section 27(1)(a)(i) to provide copies of documents which are both directly relevant and are also documents about the incident and, on the other hand, an obligation to give information about the circumstances of the accident (the Motor Accident Insurance Act provision). It is much the same as the difference between the obligations in 27(1)(a)(i) and in 27(1)(b)(i).

The latter obligation is much closer to section 45(1) (as it was) than is the former. The respondent's argument tries to find the same breadth of meaning in "about the incident" as Ambrose J found in about the circumstances of the accident but the difference in terminology is highlighted by the wording of section 27(1)(a)(i) and section 27(1)(b)(i). Courts are obliged to apply the language of differently worded obligations as worded and that means different outcomes."

I proceed on this basis of applying the language of the differently worded obligation under section 27(1)(b)(i) to the circumstances of this case.

Adopting the approach of Ambrose J, the issue is whether the request relates to information about all events which appertain to or are causes of the incident involving the alleged shoulder charge by the security officer.

In the case of section 27(1)(b)(i), the Legislature has expressly extended the obligation to information about the causes of the incident by incorporating the words "reasons for" in the provision. Ambrose J clearly considered "causes" to include "any fact to which the occurrence of the accident may be attributed."

In Broadhead v The State of Queensland [2006] QDC 273, his Honour Judge Brabazon at paragraph 23 cited with approval the passage from the judgment of Ambrose J which has been referred to with approval by Jerrard J in the case of Haug and defined "the circumstances" in section 27(1)(b)(i) at paragraph 24 of his judgment as follows: "The circumstances usually mean the existing conditions or state of affairs surrounding and affecting an event. It is a condition with respect to time, place, manner which accompanies, determines or modifies a fact or event. "His Honour considered that it involves looking to the future. That case involved a negligence claim alleged to arise out of a fall by a school student who was swinging from an exposed beam whilst at school. A question was asked about what action the school had taken when staff saw students hanging on the bars. In relation to this, his Honour said at paragraph 26, "If the school took any action because of that activity and took it before this incident, then the answer could be different. The action or inaction of the school would be part of the circumstances of the incident. If the school took any action because of students swinging on beams before this incident, the State is obliged to say what action was taken."

Similarly, with questions 1, 2, 4 and 5 of the request for information, they relate to the respondent's prior knowledge of previous incidents involving the security guard who is alleged in paragraph 19 of the notice of claim to be the person involved in the incident, including the knowledge of any aggressive behaviour and as to what action was taken in relation to such aggressive behaviour.

I consider that these are questions seeking information about events which appertain to or are causes of the incident or about facts to which the occurrence of the incident may be attributed. This is because, as submitted by Mr Gibson on behalf of the applicant, any inappropriate behaviour of the particular security guard which is known by the respondent, such as overly aggressive behaviour which is allowed to go unchecked, can be regarded as a cause of the incident or a reason for the incident.

This is not inconsistent with the reasoning of A Lyons J in Haug at paragraph 53, which is referred to in the outline of submissions by the respondent as follows: "Accordingly, I consider that section 27(1)(b) is wide enough to allow the questions requested by the claimant in paragraphs numbered 9 to 13, except for the information requested in paragraph 12 and paragraph (c) of the letter dated 17 January 2007. I do not consider that the information requested in paragraph 14 could be said to be about the circumstances of and the reason for the incident given. They relate to previous complaints and incidents."

Paragraph 14 of the request was as follows: "Please provide details of any prior complaints or problems with security guards at the Brisbane Casino, including (a) the name of the person; (b) his or her role and a brief description of duties; (c) the nature of the complaint or problem and who initiated any complaint; (d) the date the complaint or problem was received or arose. This case is distinguishable because it is a request related to a specific security guard alleged to be the person involved in the incident rather than in relation to complaints or problems with security guards in general, as was the case in Haug."

The decision of Judge Everson in Hill v Kirsten Bay Pty Ltd [2009] QDC 68 to order the respondent to provide the applicant in that case with the information requested under section 27(1)(b)(i) while dealing with a more general request for information is also relevant. The request in that case was as follows: "11. During the 12 months preceding the assault upon the claimant were there incidents of physical violence or physical altercations between patrons at the Eagle [sic] Tavern? 12. If the answer to the preceding question is yes, please specify: (a) the date or each such incident; and (b) the nature of each such incident."

His Honour said in relation to this at page 4 of his decision: "In my view, the nature of the allegations made by the applicant which broadly allege shortcomings in the security arrangements which the applicant put in place at the tavern make the safety of the establishment very much an issue relevant to the reasons for the incident."

When his Honour referred to the nature of the allegation made by the applicant in that case, he was referring to the reasons detailed in question 18 of the notice of claim. Similarly, in this case, the nature of a number of the reasons in question 18 broadly allege shortcomings in the security arrangements put in place at the tavern and make the safety of the establishment very much an issue relevant to the reasons for the incident. Viewed in this way, his Honour's decision is consistent with the reasoning of the Court of Appeal in Haug.

In my view, the current case is analogous and the reasoning of Everson DCJ is applicable in support of my conclusion that the information sought in questions 1, 2, 4 and 5 should be provided.

As his Honour Judge Everson said, and adopting his language, the information sought to those questions will clarify the extent of the duty owed by the respondent to the applicant at the time of the incident and will go directly to the question of the duty owed. This leaves for decision the request for information in question 6 as to "what procedures are in place to stop re-offending". As I have already said, I construe this in context to be in respect of the actions of security guards at the respondent's premises.

Question 13 requests the procedure used by the tavern when complaints are made about security guards, and question 14 asks what procedures are used to report incidents about the security guard to Knight Eyes Security. From the information contained in Ms Cheshire's affidavit, I proceed on the basis that Knight Eyes Security was the employer of the security guard in question in the present case. As I have indicated, the applicant's solicitor says that question 6 relates to questions 13 and 14. As I have also said, although question 14 refers to the security guard, I understand it in context to be general in its terms.

I consider that, as submitted on behalf of the respondent in relation to questions 13 and 14 but I extend this also to question 6, they also fall within the definition of circumstances of or reasons for the incident as any lack of procedures or inadequate procedures that the respondent has in place in relation to how complaints are made regarding security guards and whether these complaints are passed on to the employer of a security guard can be a circumstance of or a reason for the incident because, in the absence of an adequate system, complaints may not be dealt with or communicated and therefore any inappropriate behaviour of a security guard, such as being overly aggressive, will go unchecked and therefore allow an overly aggressive security guard to continue acting in the inappropriate behaviour, the behaviour which the applicant alleges causes his injuries.

Once again, the request relates to procedures that were in place prior to the incidents alleged to involve the security guard in the present case.

In my view, the information requested in questions 6, 13 and 14 comes within the tests propounded by Ambrose J. It is also analogous to the reasoning of Judge Everson, and I again adopt his words.

The information requested is distinguishable from request 8 which A Lyons J considered to be too remote in Haug as these related to previous claims brought against Jupiters Limited relating to excessive and/or inappropriate use of force by employees, including security personnel, of the casino and also the decision of the Court of Appeal in that case that a request about the identity of camera locations sought more than information about the circumstances of the incident or the reasons for it.

In this case, the issue of whether and what procedures were in place to stop re-offending by security guards, procedures to deal with complaints made about security guards and procedures used to report incidents against security guards is information about the circumstances of the incident as construed by Ambrose J, or the reasons for it.

Having come to this conclusion, I make the following orders: 1. The respondent provide the applicant with a response to questions 1, 2, 4, 5, 6, 13 and 14 of the request for information delivered by the applicant pursuant to section 27 of the Personal Injuries Proceedings Act 2002 on 17 November 2008 within seven days, excluding the related request to provide all relevant documentation with reference to questions 13 and 14.

2. Such response be by way of statutory declaration.

3. The applicant and the respondent file submissions as to the payment of costs by 4 p.m. on the 22nd of April 2009.

4. The applicant and the respondent file any submissions in reply as to the payment of costs by 4 p.m. on 29 April 2009.

So, effectively, the order is in the terms of the application subject to the fact that I have limited it to the questions which were in issue and excluded the requests in relation to questions 13 and 14 to the extent that they requested the provision of relevant documentation which was also conceded not to be an issue before me.

In addition to that, I have made orders to allow written submissions. Perhaps I should amend the order by inserting, in 3 and 4 written submissions so that 3 will be, "The applicant and respondent file written submissions as to the payment of costs by 4 p.m. on the 22nd of April 2009." And 4, "The applicant and respondent file any written submissions in reply as to the payment of costs by 4 p.m. on the 29th of April 2009." And I have done that because, as was indicated to me this morning, Mr Morton, who represented the respondent, was not available to make submissions on that point this afternoon and of course, it is recognised by the order that there have been some requests that were made earlier that have not been pursued or have otherwise been resolved and the issue as to the payment of costs obviously needs to be determined in light of that.

So, I think that covers all of the issues that have been raised in these proceedings. Unless any of the parties wishes to raise any other issue, I'll adjourn the Court.

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