DISTRICT COURT OF QUEENSLAND

1. [1]
   This application concerns the scope of s 27(1) of the Personal Injuries Proceedings Act 2002 (“the Act”), and its interpretation by the Court of Appeal in Haug v Jupiters Ltd [2008] 1 Qd R 276.

Background

2. [2]
   The applicant was born on 11 November 2001, and moved with her mother to Mount Isa in June 2002.^[1]  On 24 April 2004 a Part 1 notice of claim pursuant to the Act was given on behalf of the applicant by her mother to five respondents, including the Mount Isa City Council, the respondent to the application before me (“the respondent”).

3. [3]
   In that notice the applicant alleged that she has suffered injury in the form of “learning difficulties due to poor attention and concentration span, developmental delay, hyperactivity and irritability, loss of appetite, hearing and sight problems.”^[2]  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 injured person (Stella) has lived in Mount Isa with her mother since June 2002.  During this time, she has, without her knowledge or consent, been exposed to and consequently absorbed into her body dangerous levels of lead, arsenic, cadmium and other toxic elements (“the toxins”).  Exposure to the toxins has occurred at:

1.  27 Boyd Parade, Mount Isa.

2.  Mount Isa Central State School, 49 Mile Street, Mount Isa.

3.  Minnie Davis Park, Mount Isa,

from June 2002 to the present.  The absorption by Stella of these toxins has had a deleterious effect upon her health generally and in particular upon her brain and nerve function and development.”

4. [4]
   In answer to question 7 the date of incident was given as “2002 to present”, the place where the incident occurred as “Mount Isa”.

5. [5]
   Paragraph 18 of the notice of claim set out the reasons why the injured person believed that particular persons, including the respondent, caused the incident.  It was alleged that another respondent had over at least 20 years wilfully and negligently caused the contamination of large parts of Mount Isa with lead and other toxic elements, in various different ways including seven specific methods identified in the notice.  What was then said in relation to the respondent was:

“1. The Council has been aware of the matters referred to above at all material times but has failed to take effective steps to warn members of the community and in particular parents of children in the community of the matters referred to above and further has failed to:

1.1 develop an environmental management plan for the reduction of environmental lead and other toxic element exposure from all significant sources;

1.2 identify at‑risk subgroups in the community;

1.3 ensure that appropriate information was made available to the community of the control of lead and other toxic element exposure;

1.4 ensure that nationally accepted health standards were recognised and a serious attempt was made to achieve those standards with respect to environmental toxins.

2. The Council has approved for residential use land that it knew or ought to have known was contaminated with lead and other toxic elements and therefore was hazardous to residents.”

6. [6]
   The notice did not identify which land was involved in this way.^[3]  That the notice of claim was compliant was conceded by the respondent on 19 June 2008.^[4]  On 27 October 2008 the solicitors for the respondent advised the solicitors for the applicant that the respondent denied liability in relation to the claimant’s claim, and made an offer of settlement of $Nil.^[5]

The Act

7. [7]
   Section 27 of the Act provides in subsection (1):

“A respondent must give a claimant—

1. (a)
    copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim—

1. reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;
2. reports about the claimant’s medical condition or prospects of rehabilitation;
3. reports about the claimant’s cognitive, functional or vocational capacity; and

2. (b)
   if asked by the claimant—

1. information that is in the respondent’s possession about the circumstances of, or the reasons for the incident; or
2. if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.”

The proceedings

8. [8]
   It was not disputed that circumstances have arisen such that the respondent must comply with s 27(1).  Indeed, on 28 November 2008 a deputy registrar made by consent an order that the respondent serve by 17 December 2008 a list of the documents required to be given to the applicant pursuant to s 27 of the Act.^[6]  A list of documents in purported compliance with that order was provided by the respondent’s solicitors on 17 December 2008.^[7]

9. [9]
   In response a further application was filed the following day seeking a number of orders, including that the respondent within 14 days comply with its duty pursuant to s 27 of the Act.  This is the application now before me.  As well, an order was sought in relation to an allegation of contributory negligence; it is not necessary to consider that part of the application because the allegation of contributory negligence has been withdrawn.^[8]  On the date the application came on for hearing, leave was given to file an amended application, in which the applicant seeks in the alternative that the requirement for a compulsory conference and exchange of mandatory final offers be dispensed with, and that the applicant be permitted to commence a proceeding in court.  Consideration of the alternative relief can be deferred until after the issue about s 27 has been decided.

10. [10]
    It was apparent from the way that the application was argued that there is a real dispute between the parties as to the scope of the obligation under s 27.  In these circumstances it is appropriate to decide that issue rather than focus on the question of whether the applicant has shown that documents within s 27 exist and have not been provided.

Argument for the applicant

11. [11]
    The applicant relied on s 27(1)(a)(i) of the Act.  It was submitted that the effect of the obligation under subsection (1)(a)(i) was to provide copies of documents “about the incident” that are “directly relevant to a matter in issue in the claim.”  The term “incident” is defined in the Schedule to the Act in the following terms: “Incident, 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 present case it was apparent from the notice of claim that the applicant’s allegation was that she had suffered personal injury and that she alleged that that injury was caused by omissions on the part of the respondent, as identified in paragraph 1 of the relevant part of the response to question 18, and acts in the form of approving for residential use land which it knew or ought to have known was contaminated.

12. [12]
    Applying this to the definition of “incident”, the omissions alleged in the notice of claim constitute the incident, or perhaps an incident, since they are alleged to have caused the personal injury, as indeed was the act of approval of the land for residential use. Accordingly the applicant’s submission was that the obligation under s 27(1)(a)(i) is to provide documents about those omissions, and those acts, in the respondent’s possession that are directly relevant to a matter in issue in the claim.  Since liability has been denied, whether the defendant is liable is a matter in issue in the claim.

13. [13]
    It was submitted that the obligation extended therefore to documents which were relevant to the state of knowledge of the respondent about the existence of contamination of lead and other heavy metals within Mount Isa, and documents which were relevant to showing whether the respondent had done anything, and what, in response to that knowledge, over a long period of time during which the contamination, to which the applicant was in due course exposed, occurred, as well as documents relating to the approval for residential use of the relevant land, and documents which showed the state of knowledge of the respondent at the time of such approval, and documents from which it could be shown that the respondent ought to have known things about that state of contamination.

Argument for the respondent

14. [14]
    The respondent’s submission relied heavily on the decision of the Court of Appeal in Haug (supra).  It was submitted that this supported a confined rather than a generous interpretation of the respondent’s obligation to disclose, and that the focus should be on the particular circumstance under which the claimant came to suffer the injury.  This followed from the requirement that the reports and other documentary material be “about” the incident, rather than merely being relevant to the question of whether there was negligence on the part of the respondent in the way alleged by the claimant.  It was submitted that the incident was therefore not simply the dispersal of lead in and about Mount Isa, or the respondent’s reaction to that.  Even if that was alleged to be the cause of the injury, it was not the accident, act, omission or circumstance comprising the incident.

15. [15]
    The incident must be comprised of a body of fact which is, in effect, the happening or occurrence of the injury. That necessarily connotes a defined set of circumstances with a particular time and place (or times and places), and particular happenings.^[9]  The respondent submitted that it was necessary to focus on the process by which injury was caused to the claimant, as shown by the fact that the “incident” was defined as something “alleged to have caused” the injury, and by the fact that s 27(1)(a)(i) referred to the incident “alleged to have given rise to” the injury.

Haug v Jupiters Limited

16. [16]
    This was an appeal from a decision ordering various documents to be disclosed pursuant to s 27(1) of the Act.  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.  The other grounds relied on were based on vicarious liability for the particular behaviour of the security guards concerned.  Jerrard JA, who delivered the principal judgment said at [19]:

“The second and third dot points obliquely raise an issue of the training of the guards.  Those allegations in the notice of claim are not pleadings, but they suggest the pleadings which may be filed.”

17. [17]
    In relation to the significance of the “incident”, his Honour said at [13]:

“Section 6 of the PIPA provides that it applies in relation to all personal injuries arising out of an ‘incident’. … In s 3(3) the regulation requires a claimant to provide extensive particulars in the notice [of claim] about the ‘incident’ alleged to have caused the personal injury to which the claim relates.  That focus on the ‘incident’ to which the claim relates is repeated in both s 22(1)(a)(i) and s 27(1)(a)(i).”

18. [18]
    Earlier at [11] his Honour had said that s 27(1)(a)(i) limits the respondent’s obligation to give copies of documents “to an obligation to give a claimant copies of reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates (“documents about the incident”).  The statutory obligation is not as broad as an obligation to give a claimant copies of documents that are directly relevant to a matter in issue in the claim, where those are not documents about the incident.”

19. [19]
    His Honour noted that the obligations on the claimant and the respondent under ss 22 and 27 of the Act were different, and after some consideration of other legislation (which his Honour regarded as not of assistance) he proceeded at [17] to define “the incident” for the purposes of that proceeding:

“The incident giving rise to this litigation happened on 22 February 2006 when Mr Haug was removed from the Conrad Treasury Casino in Brisbane, operated by the appellant.”

20. [20]
    After referring to the terms of the notice of claim and the correspondence between the parties, and the order made, his Honour continued at [23]:

“The requirement that the directly relevant documents be ‘about the incident’ should be understood as meaning reports and other documentary material about the incident described in the notice of claim.  That accords with the description of the application of the Act in s 6, and the obligations in s 9 to give a notice as described in the regulation.  It is a limiting requirement.”

21. [21]
    His Honour continued at [24]:

“While the notice of claim suggests that a subsequent pleading might allege inadequate training, the documents asked for in paragraphs 1, 3, 4, 5, 6, 7, and 8, are not about the incident in the notice of claim, or in correction with it, or in relation to it.  This is a fishing exercise, although it is not objectionable for that reason; it is objectionable because it goes beyond the statutory obligations of the appellant.  To satisfy those it would be sufficient for paragraph 2 simply to require production of copies of ‘all documents relating to the incident involving our client’.  The fuller description provided by the respondent’s solicitors may assist the appellant in identifying relevant documents, but it goes too far in demanding ‘any other document relating in any way to the incident’.  That last variety would not qualify as ‘directly relevant’.”

22. [22]
    His Honour then referred to the explanation of the expression “circumstances of the accident” given by Ambrose J in RACQ‑GIO Insurance Ltd v Ogilvie [2002] 1 Qd R 536 at 542, and continued at [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 s 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 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 s 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 s 27(1)(a)(i) and in s 27(1)(b)(i).  The latter obligation is much closer to s 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 s 27(1)(a)(i) and s 27(1)(b)(i).  Courts are obliged to apply the language of the differently worded obligations as worded, and that means different outcomes.”

23. [23]
    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 relation to the engaging of security guards, he rejected 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.^[10]  This was because these documents did not relate to the incident, but rather appertained to or related to the causes of the incident, which was not within the scope of the obligation in s 27(1)(a)(i).

24. [24]
    Although his Honour did not specifically address the definition of “incident” and explained how its reference to “omission” operated in this context, it is clear from the passages to which I have referred, particularly [19] and [27], that his Honour was aware of the scope of the allegations made and that the significance of the inclusion of “omission” in the definition of “incident” was engaged.  Besides, Williams JA added some short additional reasons in which he quoted the definition of the term “incident”:  [2].  He said at [3] that the reference in s 27(1)(a)(i) of the Act “must be a reference to the ‘incident’ described and particularised in the notice of claim.”  His Honour concluded that the request for reports and documents in that case was far broader than was permitted by the legislation:  [5].

Analysis

25. [25]
    There is this factual difference between Haug and the present case, that in Haug there was a specific event identified in that notice of claim in which the claimant suffered injury.  There was no similar specific event identified in the notice of claim, but it seems to me that the equivalent in the notice of claim is the process of absorption of lead and other heavy metals alleged to have been experienced by the claimant between July 2002 and the time when the Notice was given.

26. [26]
    I am bound by the decision in Haug, and do not seek to limit its application; rather, my function is to decide this application in a way consistent with the approach to s 27 of the Court of Appeal.  It seems to me that if the argument advanced on behalf of the applicant before me were correct, the decision of the Court of Appeal in Haug would have been different; some or all of the documents sought by the respondent’s solicitors relevant to the selection and training of security guards would have been held to have been within the scope of s 27(1)(a)(i).  It must follow that the applicant’s argument is not consistent with the decision of the Court of Appeal, and must therefore be rejected.

27. [27]
    By analogy with the decision in Haug, in the present case what is to be disclosed under this provision are any reports and other documentary material in the respondent’s possession about the absorption by the applicant of lead and other heavy metals from July 2002 until the time when the notice of claim was given.  It is sufficient to say that there is nothing in the material before me to suggest that that obligation has not been complied with, nor did the submissions on behalf of the applicant seek to advance the application on that basis.  Rather it was submitted that the obligation under the subsection extended to disclosing all documents relevant to whether the Council knew, over a long period of time, of contamination of all or part of Mount Isa by lead or other heavy metals, and the respondent’s reaction to that.  It follows that the relief sought in the first limb of the applicant’s application must be refused.

Alternative relief

28. [28]
    It was submitted that, if further material was not to be made available under the obligation in s 27, there was no point in having the compulsory conference or the exchange of mandatory final offers, and the matter should proceed directly to litigation.  It was submitted that without further material it was impossible for the applicant to make a realistic assessment of her prospects of success in any such litigation, and therefore impossible for there to be any meaningful settlement negotiations, or any realistic assessment of an appropriate amount for which the applicant should be willing to compromise her claim.  However, the respondent opposed this course, and there is nothing in the respondent’s material to suggest that a compulsory conference would necessarily be a waste of time.

29. [29]
    There is also the consideration that the respondent to this application is not the only respondent to the notice of claim. Ordinarily one would expect there would be one compulsory conference involving the complainant and all respondents to the notice of claim. It occurs to me that the prospect of some settlement between the claimant and other respondents may be jeopardised if the respondent to the application is not a party to the compulsory conference process.^[11]  The other respondents to the notice of claim have not been made respondents to this application, so there is no question of dispensing with the compulsory conference and exchange of mandatory final offers generally.

30. [30]
    Apart from this, the applicant has other material available. There is exhibited to one of the affidavits in support of the application various documents which are said to have been generated by the respondent’s officers over the years which touch on these matters,^[12] and in addition there has been an application made on behalf of the applicant seeking disclosure of various documents from the respondent pursuant to the Freedom of Information Act.^[13]  I am not concerned with the question of what material, if any, is subject to disclosure to the applicant by the respondent pursuant to that legislation, but it may well be that the applicant will in that way be able to obtain material which would be of assistance in negotiation at a compulsory conference, or in deciding on the quantification of a mandatory final offer.

31. [31]
    Although it may be that the applicant would not necessarily be fully informed about all the material which might be put in evidence at a trial, there is always some risk of that with litigation, and I doubt if the legislative intention was that the mandatory final offer process should apply only in circumstances where the parties had complete knowledge of everything which would be before a court at a trial. These procedures are an important part of the scheme established by the legislature,^[14] and they should not be dispensed with lightly, even though the court has power in an appropriate case to make such an order.^[15]

32. [32]
    In all the circumstances, I am not persuaded that it is appropriate to make such an order at this time in relation to this claim, as between the applicant and the respondent. It follows that I am not prepared to order the alternative relief sought on behalf of the applicant either. Accordingly the application is dismissed with costs.

Comment

33. [33]
    It occurred to me when looking at the Act and the Regulation, and particularly the form of the notice of claim under the Regulation, that, although plainly liability for personal injury can arise in a wide variety of circumstances, the fact that ordinarily it arises by way of a specific injury caused on a particular occasion in a particular event has lead to a tendency for the legislation, and the subordinate legislation, to assume that that is the situation in all cases or at least formulate obligations in terms more difficult to apply to atypical injuries. That is shown most particularly by the wording of the form for the notice of claim. It seems to me that to some extent this tendency has been reflected in the drafting of s 27.

34. [34]
    I have some difficulty in coming to grips with the concept of documents directly relevant to an omission to do something, unless the omission was the result of a specific, deliberate, and documented decision not to do it. The sort of case which the applicant seems to be seeking to make here against the respondent, that over a long period of time circumstances existed such that it was appropriate for the respondent to do something, but the respondent did not do it, is not I think one which fits readily within the framework contemplated by the legislation.

35. [35]
    There is the additional consideration that, under the legislation, a failure to disclose in accordance with the requirement to s 27 is made a criminal offence:  s 31.  This does not have the same significant consequences for the interpretation of the legislation that might have occurred previously,^[16] but nevertheless if the language of a statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.^[17]  It is not necessary for me to consider whether that should be taken into account in the present case, since I am simply applying the approach adopted to the interpretation of the statute by the Court of Appeal.  Nevertheless, I consider that as a matter of principle it is undesirable if an obligation, the failure to comply with which is vested with criminal penalties, is not expressed in terms which enable the person subject to the obligation to know clearly and distinctly, in all cases in which the obligation can arise, just what has to be done in order to enable the obligation to be performed.  Any ambiguity therefore about the scope of the obligation under s 27 is necessarily unsatisfactory.  There is also the consideration that, if a wide scope is given to such an obligation, the burden on a particular respondent in particular circumstances may be very onerous, and that burden arises simply because someone has given a Notice of a Claim under the Act.