DISTRICT COURT OF QUEENSLAND

2. [2]
   This is an application for an order under s 35(1) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) that the respondent provide certain information sought by the applicant, which the applicant says the respondent is required to provide by s 27(1)(b) of PIPA.

3. [3]
   The applicant also seeks an order under the Uniform Civil Procedure Rules 1999 (UCPR) rule 160 that the respondent provide further and better particulars in respect of para 4.16 of its’ amended defence filed 16^th December 2009 within 14 days.

4. [4]
   As this application was only filed after both parties had signed a request for trial date in this matter, the applicant requires the leave of this court to bring its’ application: (UCPR 470).

Preliminary Issue – should leave be granted?

5. [5]
   Counsel for the respondent argued both orally and in his written submissions (marked ex 2) that leave should not be granted in all the circumstances of this matter primarily because the applicant had been ‘tardy’ in not bringing its’ application before it had signed the Request for Trial Date on the 10^th May 2010. Counsel also made a further point of argument that the information that was now being sought by the applicant was, in any event, information which the applicant already had or indeed, the applicant already knew herself, and as such, the requests now being made of the respondent were both repetitive and unreasonable.

6. [6]
   In support of his respective arguments, Counsel referred me to certain case authorities, helpfully set out in his written submissions, which refer to a relevant principle, that if a court comes to the conclusion that the information now being requested by the applicant was for some object other than giving information relevant to resolving the claim, then it would be very unlikely that answers would be required: Angus v Conelius [2008] 1 Qd R 101 at para [22]; see also Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Piatek v Piatek [2010] QSC 122. Counsel also referred to UCPR 5, 443(a), 444 and 469(1) respectively in support of his submissions.

7. [7]
   Counsel for the applicant on the other hand argues that the applicant has not been ‘tardy’ in its’ conduct of this matter, even notwithstanding that he concedes that the matters now the subject of the application before this court were still outstanding at the time the applicant signed the Request for Trial Date on the 10^th May 2010. Counsel submitted that it was only as a consequence of the late ‘drip feed’ approach to disclosure taken by the respondent that the applicant was left with no choice but to bring its’ application after the Request for Trial Date had been signed (Court document 28). He also submitted that genuine attempts had been made by Mr Patino not to disrupt the timetable agreed upon by the parties (signed on 25^th March 2010 and subsequently made by order of the Registrar 9^th April 2010, court documents 24 and 27). In support of his submissions he referred me in detail to the affidavit of Mr Patino filed 6^th June 2010 and a schedule which he had helpfully drawn up (marked collectively with his written submissions as ex 1).

8. [8]
   Having considered the respective arguments made by both Counsel on this first point, I am of the view that the affidavit evidence of Mr Patino filed 6^th June 2010 does support the conclusion that certain information and documentation which had previously been in the respondent’s possession about the subject incident had not been provided to the applicant in a timely way: see Customer Incident investigation Report dated 29^th December 2006 but only disclosed 11 November 2009; Plant and Equipment Assessment Worksheet – Mobile Apparel Hanging Racks only disclosed 17 December 2009; 8 further photographs of the clothes rack identified as having been taken on 20^th October 2009 but only disclosed to the applicant on 25 March 2010 and significantly, the correspondence of the 16^th March 2010 in which the respondent only disclosed for the first time certain relevant information; that the clothes rack in question had never been left unattended by any of the three staff members who were apparently unloading from it at the relevant time and were always within 3 to 5 metres from it. Mr Patino’s affidavit also supports the conclusion that he did acted quickly upon his receipt of this further information, seeking in particular, that the information disclosed in the respondent’s 16^th March 2010 correspondence be verified by statutory declaration (CJP 29). It is also apparent from his affidavit that upon the further (previously undisclosed) 8 photographs being received by him on the 25^th March 2010, that the clothing hanging on the rack was in a different position to that previously disclosed by the respondent of 3 earlier different photographs on 18^th July 2007(see CJP 6). It was only then that he made the further requests the subject of the application now before this court (CJP 1) as it relates to the clothes rack. It is also apparent that the consent order, signed by both parties on the 25^th March 2010, was subject to the respondent providing by way of statutory declaration, the information it had disclosed for the first time on 16^th March 2010 to the applicant. It is also apparent that the signing of the Request for Trial Date on the 10^th May 2010 by the applicant was also conditional upon the respondent fulfilling the requests which had previously been made by the applicant (para 53 of Mr Patino’s affidavit and CJP40).

9. [9]
   Accordingly, I cannot accept the respondent’s submission that the information now being sought by the applicant was clearly for some object other than giving information relevant to resolving the claim.

Rule 443 and 444 considerations

10. [10]
    It is also apparent from the copious correspondence annexed to the affidavit material relied on by both parties that each of them had taken their own stance with respect to whether or not further disclosure should have been made. I accept the submission which was made by Counsel for the applicant however that this court should exercise its’ discretion to hear the application for further and better particulars even though UCPR 444 had not been strictly complied with. Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645 is authority for the proposition that even if a party does not comply with the obligation imposed on it under UCPR 444, this court still has a discretion to allow an application to be made notwithstanding, as provided for by UCPR 470, in order to resolve any dispute between the parties.

11. [11]
    I shall now deal with the second point of argument raised by the respondent.

Has the information now being sought, already been provided or is it within the applicant’s own knowledge in any event?

The relevant law

12. [12]
    Section 27(1) of PIPA provides the following:

1. “(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. (i)
   reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;

1. (ii)
   reports about the claimant’s medical condition or prospects of  rehabilitation;

1. (iii)
   reports about the claimant’s cognitive, functional or vocational capacity; and

1. (b)
   if asked by the claimant—

1. (i)
   information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident; or

1. (ii)
   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.”

13. [13]
    Significantly, the schedule dictionary in PIPA defines the term ‘incident’ in relation to personal injury to mean ‘the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury’.

14. [14]
    Section 34 of PIPA provides:

“No provision of this Act requires a party to give a document or other information to another party if the document or information has already been given to the other party under another provision or is otherwise already in the possession of the other party.”

15. [15]
    A helpful summary of the relevant principles to be applied when considering s 27 PIPA is set out in Wright v KB Nut Holdings Pty Ltd [2010] QDC 91 at para [21] by His Honour Judge McGill. In particular he noted that the principal authority in this area at the present time is Haug v Jupiters Ltd [2008] 1 Qd R 276. Relevantly he noted that Haug was authority for the proposition that the obligation imposed on a respondent by s 27(1)(b)(i) was much broader in scope than that imposed by s 27(1)(a)(i). His Honour also noted at para [37] in respect of that obligation, that there was also a difference between information as to whether a respondent did or omitted to do something and information which was only relevant to the question of whether the respondent had a duty of care to do something, or to do more, in the lead up to a particular incident.

16. [16]
    As I understand the submissions which were made on behalf of the respondent, Counsel does not argue that the information now being sought falls outside the ambit of s 27(1)(b)(i). Rather, Counsel argues that the information being sought has already been provided to the applicant or is within the applicant’s own knowledge in any event.

17. [17]
    Dealing with the latter of those points first, the obligation imposed on a respondent by s 27(1)(b)(i) is not, in my mind at least, merely erased simply because certain information may also be within the applicant’s own knowledge. As observed by Williams JA (as he then was) in Haug, the relevant purposes of the Act include not only providing for a procedure for speedy resolution of claims for damages for personal injury but that s 27 should be given a broad, remedial construction to give effect to all of the purposes set out in s 4(2).

18. [18]
    The respondent’s primary argument is that the information being sought by the applicant has already been provided by the respondent or could easily be the subject of enquiry at trial in any event. In support of that submission, Counsel referred to the relevant annexures attached to the affidavit of Megan Jeanette Venus sworn 4^th June 2010, set out in a schedule form (marked as part of ex 2) for my assistance.

19. [19]
    By necessity I shall deal with each of those in turn.

Section 27 PIPA Request 1 (a) – (e).

20. [20]
    The relevant documentation relied upon by the respondent namely annexures MJV4, 5, 6 and 7 set out in the schedule provided overlooks in my mind the difference between the photographs which were actually disclosed by the respondent (see Mr Patino’s affidavit sworn 7^th June 2010, annexures CJP6 and CJP34, pages 24 and 121) on the 18 July 2007 and 25 March 2010 regarding the type of clothing said to be hanging on the rack at the material time and any distance between them. The photographs first in time clearly show bras and underwear (briefs) across the full length of the top bar of the rack whereas the latter 8 photographs provided only show bras at one end of that bar. Notwithstanding this difference, the respondent continued to state in its’ own correspondence that the clothing depicted on the top bar of the clothes rack at the time of the accident in both sets of photographs were exactly the same, based on information obtained from witness Tammy Nielson. (see CJP6 page 21, Vicki Barritt’s statement and CJP34 pages 120,121 and CJP37 page 131 at para 2).

21. [21]
    Counsel for the applicant submits that the request for information at Request 1(a) – (e) is significant insofar as that the respondent has pleaded in its’ amended defence at para 4.16 that the clothing on rack would have been sufficient to visually warn the applicant of the existence of the clothes rack because of the clothes that were hung on it. Counsel also submitted that because of the differences now demonstrated in the two sets of photographs, the information requested in 1(a) – (e) was important as it directly impacts upon an issue which would have to be determined at trial namely what the applicant should have been able to see or could have seen (with reference to the clothes that were actually hanging on the rack at the relevant time).

22. [22]
    Having considered both Counsels’ submissions on this issue, I accept the submissions which have been made by Counsel for the applicant. I cannot accept the submission made by the respondent that the information being sought by the applicant now set out in Request 1(a) – (e) has already been answered, particularly in light of the late disclosure of the 8 photographs on 25^th March 2010. Whether there was clothing across the whole of the rack or only part of it in my mind will be of significance at the trial of this matter particularly in circumstances where the respondent has in this case pleaded that it is the actual clothing which hung on the top bar of the said clothes rack that would have provided a visual warning to the applicant which in turn should have alerted her to the fact that there was a clothes rack in position in one of the aisles.

23. [23]
    It follows that I consider this Request should be answered by the Respondent.

Section 27 PIPA Request 2

24. [24]
    Counsel for the respondent relies on the relevant documentation in annexures MJV9, 10, 11 and 12 set out in the schedule to demonstrate that this information being requested has already been provided.

25. [25]
    Counsel for the applicant on the other hand submits that even though some of that documentation was provided to the applicant (Tammy Nielson’s statement dated 29^th December 2006 (MJV12) and the floor plan (MJV11), the relevant statement of Ms McGoldrick dated 31^st March 2010 (referred to by the respondents in its’ correspondence 16 March 2010 for the first time (MJV9)) revealed new information that had not been previously disclosed by the respondent.

26. [26]
    Upon looking at the statement of Ms McGoldrick, I accept it does raise new information not previously disclosed. That information includes that the said clothes rack was never left unattended by any of the three staff in attendance, Ms McGoldrick, Ms Nielson and Ms Senn. Ms McGoldrick also raises for the first time a different distance with respect to where she believes the three staff were working away from the said clothes rack. The statement also refers to Ms Senn as one of those persons who never left the clothes rack unattended. No indication has been given by the respondent where Ms Senn was working at the material time (presumably because no statement had been taken from her). Ms McGoldrick also said that she had placed the clothes rack into position on that day even though previously the statement of Ms Barritt dated 16^th August 2007 (previously disclosed) suggested that her investigation revealed that Ms Nielson and Ms Senn had placed the rack into its’ position in the aisle on that day. Ms Nielson makes no mention of having done that and even suggests in her statement dated 29^th December 2006 that she and ‘Danell’ were both together working in the ladies underwear section (exact location unknown). The respondent referred to a floor plan (MJV11) which it is submitted adequately depicts where staff were working on that day however a careful examination of that diagram does not reveal on its’ face to me where exactly any of the staff in question were actually working in the circled area of that diagram on the relevant day at the material time or that the clothes rack in question was even near where they were working in the ladies underwear section. At best, Ms Nielsen says she turned from where she was working and saw the incident happen.

27. [27]
    Accordingly, I accept the submission made by Counsel for the applicant that an important issue which will need to be determined at trial will be what precautions if any did the respondent take in respect of the clothes rack, which was left in an aisle of the store traversed by customers during a busy sale time, in order to prevent any of those customers from tripping over it’s bottom rail. The location of the relevant staff members, the distance they were from the rack at any given time and what each of them were doing at the time of the accident are all relevant considerations, particularly in view of the recently disclosed information by Ms McGoldrick, which was that to the best of her recollection, the rack was never left unattended by any of the three staff members, a fact not disclosed until recent times.

28. [28]
    It follows that I consider that this Request should also be answered by the respondent.

29. [29]
    In light of the fact that I considered that Request 1 ought to have been answered, it is not necessary to further consider whether further and better particulars in respect of para 4.16 of the Amended Defence should also been provided.

Costs

30. [30]
    I consider that the usual order should be made in this case, that the respondent to pay the applicant’s costs of and incidental to this application, to be assessed on a standard basis.

Orders

1. The applicant be given leave to make an application in the proceedings.

2. The respondent provide the information requested by the applicant in its letter dated 26 March 2010 that is in the respondent’s possession, to be verified by statutory declaration within 30 days.

3. The respondent provide the Further & Better Particulars requested by the applicant in its letter of 26 March 2010 within 14 days.

4. The respondent to pay the applicant’s costs of and incidental to this application, to be assessed on a standard basis.