Hill v Kirsten Bay Pty Ltd[2009] QDC 68

DISTRICT COURT OF QUEENSLAND

This is an application seeking the provision of information pursuant to section 27(1)(b) of the Personal Injuries Proceedings Act 2002.  The applicant alleges that he was viciously assaulted at the Eagleby Tavern, a licensed premises conducted by the respondent on Wednesday, 6 July 2006 at approximately 6:30 p.m. ("the incident").

The applicant has issued a notice of claim alleging that the incident was caused by the respondent failing to prevent the assault committed upon him by other patrons.  The applicant specifically alleges that the respondent:-

"(a) failed to properly implement and/or regulate any or any adequate policies and procedures for its employees in ejecting patrons from the premises as part of their crowd controller duties;

1. failed to properly monitor, train and/or supervise its employees in the performance of their duties;
2. failed to ensure that its employees were competent in the performance of their duties;
3. failed to provide any or any adequate direction or instruction for the ejection of the patrons to its employees;
4. required, permitted, invited, allowed and/or enabled its employees to act in the manner in which they did when it knew, or ought to have know, their actions would result in injury to the claimant;
5. failed to take any or any reasonable care for the safety of the complainant."

In correspondence dated 9 December 2008 from the applicant's solicitors to the respondent's solicitors certain information pursuant to section 27 of the Personal Injuries Proceedings Act was requested.  All of the information has been provided to the applicant's satisfaction with the exception of the information requested in paragraphs 11 and 12 of the letter which are in the following terms:-

"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 of each such incident; and

(b) the nature of each such incident."

Section 27 of the Personal Injuries Proceedings Act provides that a respondent must give a claimant copies of various documentation and information relating to matters in issue in the claim.  In particular, section 27 relevantly states:-

 "(1) A respondent must give a claimant -

  …

  (b) if asked by the complainant -

 (i) information that is in the respondent's possession about the circumstances of, or the reasons for the incident; …"

Mr Myers, who appears on behalf of the applicant, submits that the information sought in paragraphs 11 and 12 of the applicant's letter is certainly information about the reasons for the incident.  Mr McIver, who appears on behalf of the respondent, submits that the information sought is too broad.  Upon enquiry by me as to what would be an acceptable ambit for such information he declined to nominate one, submitting that this was a matter for the applicant.

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.  The information requested, which Mr McIver does not submit is unduly onerous, providing records have been kept, will clarify the extent of the duty owed by the respondent to the applicant at the time of the incident.

Incidents of physical violence or physical altercations between patrons, the extent of any such violence and the occasions on which they occurred appear to go directly to the question of the duty owed.  I am therefore of the view that the information which is sought in this application should be provided.  Accordingly the orders of the Court are as follows:-

1. The respondent is to provide the applicant with the information requested in paragraphs 11 and 12 of the letter dated 9 December 2008 from the applicant's solicitors to the respondent's solicitors pursuant to section 27(1)(b) of the Personal Injuries Proceedings Act 2002 within seven days;

2. Such information is to be provided by way of a statutory declaration signed by an authorised officer of the respondent;

3. The respondent is to pay the applicant's costs of the application on the standard basis.