Wright v KB Nut Holdings Pty Ltd
[2010] QDC 91
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Wright v KB Nut Holdings Pty Ltd[2010] QDC 91
- Add to List
Wright v KB Nut Holdings Pty Ltd[2010] QDC 91
Wright v KB Nut Holdings Pty Ltd[2010] QDC 91
DISTRICT COURT OF QUEENSLAND
CITATION: | Wright v KB Nut Holdings Pty Ltd [2010] QDC 91 |
PARTIES: | ROBYN JOY WRIGHT Applicant AND KB NUT HOLDINGS PTY LTD Respondent |
FILE NO/S: | OA 3567/09 |
DIVISION: | |
PROCEEDING: | Originating application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 19 March 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 January 2010 |
JUDGE: | McGill DCJ |
ORDER: | Order that the respondent within 21 days provide the following information to the extent that it is in the respondent’s possession, verified by statutory declaration: (a) the time at which the inspection on 18 April 2009 referred to in the affidavit of Mr Kallis on behalf of the respondent took place; (b) full particulars as to the outcome of that inspection, that is, details of what was found on that inspection; (c) whether any hypodermic needles or other drug related utensils were found during the course of that inspection; and (d) whether any records were kept of that inspection. Application otherwise dismissed. No order as to costs. |
CATCHWORDS: | NEGLIGENCE – Personal Injuries – pre-litigation procedures – obligation to disclose information – scope of – whether failure to comply Personal Injuries Proceedings Act 2002 s 27(1)(b)(i) Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500 – cited. Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 81 – cited. Broadhead v State of Queensland [2006] QDC 273 – considered. Commissioner for Railways v Beach (1938) 12 ALJ 39 – cited. Haug v Jupiters Ltd [2008] 1 Qd R 276 – applied. Haug v Jupiters Ltd [2007] QSC 68 – followed. Hill v Kirsten Bay Pty Ltd [2009] QDC 68 – not followed. Jackson v Vaughan [1966] 2 NSWR 147 – cited. Lahrs v Eichsteadt [1961] Qd R 457 – cited. Oliver v Mulp Pty Ltd [2009] QSC 340 – followed. Pomery v Rural Hotels Pty Ltd (1973) 5 SASR 191 – cited. RACQ-GIO Insurance Ltd v Ogilvie [2002] 1 Qd R 536 – applied. Wirth v Tuckey [1949] QWN 42 – cited. Wolski v ALH Group Pty Ltd [2009] QDC 202 – considered. Woolworths Ltd v Graham [2007] QDC 301 – followed. |
COUNSEL: | R.D. Green for the applicant The respondent appeared in person |
SOLICITORS: | Shine Lawyers for the applicant The respondent was not represented |
- [1]This is an application for an order under s 35(1) of the Personal Injuries Proceedings Act 2002 (“the Act”) that the respondent provide certain information sought by the applicant, which the applicant submits the respondent is required to provide by s 27(1)(b) of the Act.
- [2]By a letter dated 16 October 2009 the solicitors for the applicant sought the information identified in seven paragraphs, verified by way of statutory declaration.[1] The respondent has provided certain information in the form of an affidavit by Mr Kallis who deposed to being the sole director of the respondent at the relevant time,[2] but the applicant submits that not all of the information sought has been provided, and seeks specifically a response to paragraphs 3(a), (c), (d), and (e), 6 and 7 of the request. An affidavit is not a statutory declaration, but the difference is not significant and the applicant did not press that point.
Jurisdiction
- [3]The material initially relied on by the applicant did not establish that this court had jurisdiction to entertain the application. The jurisdiction of the court to entertain an application under the Act is contained in s 35 of the Act, which empowers “the court” to do certain things. By the Dictionary in the Schedule the term “court”, in relation to a claim in circumstances where no proceeding based on the claim has been brought, means “a court with jurisdiction to hear the claim.” That will always include the Supreme Court, but in order to show that an application in relation to a claim is properly brought in the District Court, it is necessary to show that the District Court has jurisdiction to hear the claim made by the applicant.
- [4]If the applicant has claimed a particular amount, there is no difficulty; it will be sufficient to show that the amount claimed is not in excess of the monetary limit under s 68 of the District Court of Queensland Act 1967.[3] Where, however, as here, the applicant has not claimed a particular amount, but simply claimed in effect such damages as may be appropriately assessed according to law in respect of the injuries suffered by the applicant, in order to show the District Court has jurisdiction to hear the claim it is necessary to show that such a claim is for an amount of damages which is not in excess of the monetary limit. It does not matter whether the respondent is taking the point; an order made without jurisdiction is void.[4] So whenever an application is made to this court (or for that matter the Magistrates Court) for relief under s 35 it is necessary to address the question of jurisdiction.
- [5]Whether it has been shown that the District Court has jurisdiction will always be a matter for the court: in order to exercise jurisdiction, it will first be necessary for the court to find that the claim is one which could be brought in the District Court. Where the claim has not been quantified previously, however, the appropriate course is for the applicant to provide some information from which some assessment of the claim can be made, which may include the opinion of the applicant’s solicitors as to the value of the claim.[5]
- [6]In the present case after my decision was reserved the applicant’s solicitor in a further affidavit has provided further information about the claim, particularly that the only continuing consequence of the incident is the psychiatric injury, and that any economic loss would not be such as to take the claim into the jurisdiction of the Supreme Court.[6] There is not much information about the injury and the size of the claim, but in the circumstances I think it is sufficient, and I find that the District Court does have jurisdiction to hear the applicant’s claim, and hence this application.
Background
- [7]On or about 5 August 2009 a Part 1 Notice of Claim under the Act was served on the respondent.[7] In that notice the applicant alleged that on 20 April 2009 at about 4.30 pm she suffered a physical injury when her right index finger was pricked by a hypodermic needle while she was wiping the tread of an internal staircase in serviced apartment let to her by the respondent. The applicant alleged that she also suffered psychological injury as a result of the physical injury. It was alleged in the notice of claim that this was caused by the respondent for various reasons, but essentially because of a failure properly to clean and inspect the premises before they were let to the applicant (and her family), and a failure to warn the applicant of the risk of injury in circumstances where it knew that there had been a problem with drug users staying in the apartments.
- [8]The letter of 16 October 2009 sought in paragraph 1 information in relation to the cleaning carried out prior to the commencement of the applicant’s stay in the premises, and paragraph 2 asked whether there was an inspection between the premises being cleaned and the commencement of the claimant’s stay on 18 April 2009. The affidavit of Mr Kallis said that the relevant apartment was cleaned on 12 April 2009 and inspected by a named person on 18 April 2009 prior to the arrival of the applicant and her family.[8] Paragraph 3 of the letter was in the following terms:
“If the answer to the preceding question is yes, please specify:
- (a)the date and time on which the inspection/s took place;
- (b)the full name and position of the person/s who carried out the inspection/s;
- (c)full particulars as to the outcome of the inspection;
- (d)whether any hypodermic needles or other drug-related utensils were found during the course of the inspection; and
- (e)whether any records were kept of the inspection. If so, please provide a copy.”
- [9]Paragraphs 6 and 7 of the letter were in the following terms:
“6. Between the date of commencement of operation of Bonapartes Serviced Apartments and the date of the claimant’s incident, has the respondent and/or its cleaning contractors ever found any hypodermic needles or other drug-related utensils in any of the apartments within its complex?
- If the answer to the preceding question is yes, please provide:
- (a)the number of occasions on which such utensils have been found;
- (b)how frequently such utensils are found;
- (c)the dates of each and every occasion on which such utensils have been found;
- (d)the full name and position of the persons who found the utensils.”
- [10]Section 27(1)(b) of the Act provides:
“(1) A respondent must give a claimant—
…
- (b)if asked by the claimant—
- (i)information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident
…
- (3)If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration.
- (4)If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.”
- [11]On the hearing of the application the applicant was represented by counsel; the respondent was represented by Mr Kallis, its sole director, whose submission was essentially that he had tried to comply with the request of the applicant’s solicitors, and had sought details from those solicitors as to what additional information was required, but the solicitors had never provided those details properly to him. No argument was advanced to the effect that subsection (4) provided an exclusive remedy for a failure to comply with the obligation under s 27(1)(b) of the Act, and I assume that, notwithstanding the presence of subsection (4), an order can be made under s 35(1) requiring a respondent to do what is required in order to comply with the duty imposed by that provision. Whether an order will be made and in what terms in a particular case is a matter of discretion, but ordinarily it would be appropriate to order that the respondent do what the court determines would discharge the obligation of the respondent under the section in the light of the request made and the information already provided, if any.
Authorities
- [12]The principal authority in this area at the present time is the decision of the Court of Appeal in Haug v Jupiters Ltd [2008] 1 Qd R 276. That was an appeal from an order by a trial division judge that a respondent provide to a claimant copies of certain documents and give certain information. The present application does not raise any issue about the provision of documents, except indirectly in question 3(e), and the only order sought was in relation to information. Jerrard JA, who delivered the principal judgment, noted that the obligations on claimants and respondents under the Act, and the obligations imposed on various parties in other legislation, were differently worded, and that the obligation in a particular situation needs to be determined by reference to the legislative provision applicable to that situation.
- [13]In Haug the notice of claim contained some allegations about why the respondent had caused the incident, which included an allegation of an omission and an allegation as to the adequacy of the training of certain security guards, as well as allegations the guards had on this occasion behaved in an inappropriate fashion by using excessive force. His Honour noted that the allegations were not pleadings but suggest the pleadings which may be filed: [19]. He said that the obligation to produce copies of documents in s 27(1)(a) is (relevantly) concerned with documentary material “about the incident” “that are directly relevant to a matter in issue in the claim”.
- [14]The judge at first instance had required the production of documents relating to the training of security staff, but not documents relating to prior complaints involving security staff at the casino, or documents relating to previous claims brought against the respondent relating to excessive or inappropriate use of force by security personnel at the casino. The Court of Appeal held that certain documents, including documents relating to the training of security personnel, were “not about the incident in the notice of claim, or in connection with it, or in relation to it.”: [24]. Ultimately, the Court of Appeal set aside orders requiring the production of documents, other than “all documents relating to the incident involving our client”: [31]. There was no appeal against the refusal to order production of the documents relating to prior complaints and previous claims, but Jerrard JA did say that they were not about the incident or in connection with it or in relation to it: [24].
- [15]In relation to the provision of information, his Honour said at [26] that the obligation in s 27(1)(b)(i) of the Act “is much broader than the obligation to produce copies of documents” and approved the decision of Ambrose J in RACQ-GIO Insurance Ltd v Ogilvie [2002] 1 Qd R 536 at 541 and 542. His Honour said at [25]:
“The object of the legislation is 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.”
- [16]Hence, it was relevant to provide information about the intoxication of the driver of the vehicle and either of the claimants who were passengers in the vehicle at the time when the incident happened as a result of the driver’s colliding with a pole at night. His Honour continued at [26]:
“In my view, ‘circumstances of the accident’ are not limited to events contemporaneous with the accident observable perhaps by an independent witness having the 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 s 45(1)(a) encompass all events which appertain to or are causes of the accident in which a claimant suffers personal injury. The term certainly includes the degree of a driver’s intoxication either from drugs or alcohol if they may be causative of a collision to which personal injury is attributed. It would also include intoxication of a claimant by alcohol or drugs should that be relevant to questions of contributory negligence.”
- [17]In that matter there was no argument before the Court of Appeal in relation to a request to provide details of any prior complaints or problems with security guards at the casino, information which the judge at first instance had held not covered by the section. The order complained of by the respondent was one seeking the “identifying description of all cameras which filmed the incident and where they were located”. On appeal, Jerrard JA said at [28] of this order:
“[The appellant] argues that that request cannot be for information about the circumstances of the incident or the reasons for it, and that the areas can be identified from the tape which it has provided already, without the necessity for identification of the camera locations. Those are said to be matters of security relevant to its proper functioning. I agree with that complaint – that it seeks more than information about the circumstances of the incident or the reasons for it.”
- [18]Williams JA at [5] in the same matter said that s 27 “should be given a broad, remedial construction; but that does not mean words of limitation found in the section can be ignored.” None of their Honours said anything to suggest that any of the orders made by the judge at first instance refusing production of documents or information relating to other incidents were inappropriate, but it can fairly be said that their Honours were directing their attention specifically to those parts of the order which went too far. Nevertheless, there is no direct support in this decision for the proposition that information about other incidents may be obtained on the basis that such information is about the circumstances of or the reasons for the incident, that is the incident involving the claimant.
- [19]At first instance,[9] the view had been adopted that the test in Ogilvie (supra) applied in relation to s 27(1)(a) as well as s 27(1)(b). Applying that test, however, her Honour rejected the disclosure of documents relating to previous incidents. Her Honour said at [48]:
“I consider the documentation requested in paragraphs 3 and 4 in relation to training, complaints and previous incidents to be too remote to be ‘directly relevant’ to either the requirements to relate to or appertain to the incident. Similarly, I consider the documents requested in paragraph 8 relating to all previous claims brought against Jupiters to be similarly too remote from this particular incident.”
- [20]As to the question of information being provided, her Honour noted that there was no requirement that it be either directly relevant to a matter in issue or that it relate to the incident that gave rise to the personal injury, but that it was enough that it was about the circumstances of or the reasons for the incident, which was said to be much broader: [49]. Her Honour’s conclusion in relation to the question of information about other incidents was in paragraph [53]:
“Accordingly I consider that s 27(1)(b) is wide enough to allow the questions requested by the claimant in paragraphs numbered 9 and 13 except for the information requested in paragraph 12(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.”
- [21]Paragraph 12(c) of the letter had requested information about the alcohol consumed by restaurant staff that evening, while paragraph 14 sought details of “any prior complaints/problems with security guards at the Brisbane casino … .” The other information sought in the paragraphs was more specifically related to the incident, or at least did not raise issues about whether questions could properly be asked about other incidents. This decision therefore stands as an authority against the proposition that information about other incidents can be sought under s 27(1)(b).
- [22]There is a further single judge decision in the Supreme Court, dealing with a claim where it was alleged that the licensee of premises was responsible for injuries suffered by the claimant as a result of an altercation between the claimant and another patron, essentially because of a failure to provide adequate security at the hotel: Oliver v Mulp Pty Ltd [2009] QSC 340. In this matter there were difficulties about some of the information sought in view of the content of the notice of claim. Two of the questions asked whether during the 12 months preceding the assault on the claimant there had been any incidents of physical altercations between patrons on or in the vicinity of the licensed premises and if so the dates and natures of each such incident. That suggests that the information was sought with a view to making a case that the previous history of physical altercations on the premises provided a justification for a greater level of security than had in fact been provided. Nevertheless, it was held by Martin J that these questions were outside the scope of s 27(1)(b). His Honour said at [15]:
“Questions 21 and 22 are with respect to the period of 12 months preceding the assault and are questions about whether there have been incidents of physical altercations between patrons. I cannot see how they are facts to which the occurrence of the incident may be attributed. Many of those questions are nothing more than fishing expeditions.”
Again, this is an authority that information cannot be sought about other incidents under s 27(1)(b).
- [23]There has, however, been a somewhat different approach in a number of decisions of the District Court. The first of these preceded both of the decisions in Haug (supra). In Broadhead v State of Queensland [2006] QDC 273, Brabazon DCJ required the respondent to provide information in relation to earlier incidents of behaviour by students similar to that behaviour which it was alleged had resulted in the injury to the claimant, and the response of the school. Significantly, his Honour applied the test in Ogilvie (supra) also applied in Haug. His Honour at [23] said:
“Evidence about what a defendant did after an event is often admitted, if it is relevant to the issue as to what the defendant should have done on the earlier occasion which has given rise to litigation. Here, there is a duty to give information, if it is ‘about the circumstances of, or the reasons for, the incident’. It is easy to see that events happening before the incident might be part of the circumstances. …”
His Honour then referred to the decision in Ogilvie.
- [24]He continued at [24]-[26]:
“[24] The circumstances usually mean the existing conditions or state of affairs surrounding and affecting the result. It is a condition with respect to time, place, manner, which accompanies, determines or modifies a fact or event. See the Macquarie Dictionary. …
[25] … This question, asking about similar conduct, could apply to such conduct before or after the incident. In saying that staff of the school did observe other students also swinging on the beams, that could have applied to events before, at the same time, or after this incident.
[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.”
- [25]His Honour went on to hold that a question about what the respondent did to prevent students under its care from swinging on the bars in a similar manner, if it were aware of that, had to be answered if it related to the period before the incident. His Honour therefore seems to have proceeded on the basis that awareness of earlier similar behaviour, and the respondent’s response to such awareness, were matters that fell within s 27(1)(b).
- [26]In Hare v Mt Isa City Council [2009] QDC 39 I rejected an application for disclosure of documents under s 27(1)(a) by applying the approach of the Court of Appeal in Haug (supra). Accordingly, my analysis of the decision in Haug focused on what their Honours said in relation to documents. It is of little relevance to the present application, which is about information. There was, shortly afterwards, a decision involving information: Hill v Kirsten Bay Pty Ltd [2009] QDC 68. This was a situation like that in Oliver (supra) where the claimant was alleging that the occupier of licensed premises was responsible in circumstances where the plaintiff had been assaulted, because of a failure to control properly the behaviour of other patrons. The questions which were contentious were identical with those considered in Oliver; Everson DCJ, however, came to the conclusion that these questions had to be answered. His Honour said on p 4:
“In my view the nature of the allegations made by the applicant which broadly allege shortcomings in the security arrangements which the applicant[10] 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 … 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 to any such violence and the occasions on which they occurred appear to go directly the question of the duty owed. I am therefore of the view that the information which is sought in this application should be provided.”
- [27]Apart from the difficulty that this decision is inconsistent with a later decision of a single judge of the Supreme Court,[11] the reasoning appears to focus on the relevance of the earlier incident to the content of the duty owed by the respondent to the applicant. It occurs to me, however, that the formulation in Ogilvie (supra) endorsed by the Court of Appeal in Haug (supra), focuses not on the question of the scope of the duty on the respondent, but on the question of causation. Ambrose J said at [26]:
“A circumstance of the incident is any fact to which the occurrence of the accident may be attributed.”
- [28]That is concerned directly with causation, not with the scope of the duty on the respondent. On this basis it appears that the reasoning process adopted by his Honour was not consistent with that endorsed by the Court of Appeal. It must be said, however, that there is no reference to authorities in his Honour’s reasons, and it may be that none were cited to his Honour.
- [29]The next decision was Wolski v ALH Group Pty Ltd [2009] QDC 202, which also arose from an incident on licensed premises involving a dispute between patrons, although in this case the claimant alleged that he suffered an injury, when proceeding to confront a person who had attacked the claimant’s friend, as a result of the action of a security officer employed by a security firm engaged by the respondent. The grounds on which it was alleged that the respondent was negligent included a failure to respond appropriately to the known aggressive and violent behaviour of the security officer concerned, and continuing to allow him to work on the premises (as an employee of a separate company) in view of his previous behaviour. It was not alleged that the respondent was vicariously liable for the actions of the security officer concerned. Another ground raised an issue of training of security officers. There were also other grounds referred to in the notice of claim which were expressed in terms which were so general as to be meaningless.
- [30]What came before Irwin DCJ was the question of whether information had to be provided about previous incidents in which the same security officer had been involved, or any awareness on the part of the respondent of previous aggressive behaviour displayed by that security officer, and what action was taken as a result of any previous aggressive behaviour or incidents, as well as what procedures were in place to stop reoffending. There was also an issue about questions of what procedure the respondent used when complaints were made about security guards and what procedure was used to report incidents about security guards to the security company. His Honour required all of this information to be given.
- [31]His Honour considered the decision in the first instance in Haug (supra), and on appeal to the Court of Appeal, and particularly the endorsement of the approach in Ogilvie in relation to s 27(1)(b), and applied that test. His Honour considered and obtained support from the decision in Broadhead (supra), because some of the requests related to prior knowledge of previous incidents involving the security guard in question, and that therefore they met the test in Ogilvie. This was said to be because any inappropriate behaviour of the security guard in question known to the respondent which is allowed to go unchecked can be regarded as a cause of the incident or a reason for the incident. This was said not to be inconsistent with the reasoning at first instance in Haug, and to be supported by the decision in Hill, which was said to be applicable to the conclusion that some of the information should be provided, because it would clarify the extent of the duty owed by the respondent to the applicant at the time of the incident.
- [32]As to the request about steps taken to avoid reoffending, and procedures that were in place, his Honour said at pp 17-18:
“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 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 caused his injuries.”
- [33]Again, his Honour went on to say that the requirement to provide this information was supported by the reasoning in Hill.
Analysis
- [34]There is no doubt that the knowledge of a respondent as to the existence of particular risks may be relevant to the content of any duty of care owed by the respondent to the claimant, so that such knowledge may be relevant to the question of whether the respondent is liable for the injury suffered by the claimant in the incident.[12] Evidence of other accidents at a particular place, such as a particular flight of stairs, is evidence of the dangerous condition of that place.[13] Ordinarily, evidence that does no more than show that the defendant was negligent on another occasion will not be admissible to show that it was likely that the defendant behaved in a similar way, and was therefore negligent, on the occasion in question,[14] except in circumstances where it is suggested that the relevant incident was the product of some habit[15] or system.[16] But in those cases where evidence would be admissible as to the defendant’ behaviour on other occasions, on the basis that this did provide relevant evidence of how the defendant probably behaved on the relevant occasion, it could not be said that the defendant’s behaviour on those other occasions were matters which appertained to or were causes of the consequences of the defendant’s behaviour on the relevant occasion. They are simply part of a circumstantial case by which the plaintiff seeks to prove the circumstances of the relevant incident.
- [35]Accordingly, it is not just a question of whether evidence would be admissible at a trial in relation to the question of liability about the matters the subject of the request for information. Commonly when looking at the question of causation one is starting with the breach of duty relied on or found, and in that context there can be causation whether the relevant breach consisted of acting in a particular way, or of omitting to act.[17] If there is a duty to act and the defendant does not act, and if, had the defendant performed that duty and acted, the harm to the plaintiff would have been averted, it can be said that the omission was a cause of the harm the plaintiff suffered. But does it follow that a respondent must give a claimant (if asked) information about any relevant omission on the part of the respondent, or about circumstances which are sought to be relied on as giving rise to a duty on the part of the respondent to act, on the basis that it is information about the circumstances of, or the reasons for, the incident?
- [36]If one focuses on the scope of the reasons for the incident, it may be in a particular case that one of the reasons for the incident can be seen as an omission on the part of the respondent to do something which, if done, would have prevented the incident. On that basis, it may well be relevant to inquire about whether the respondent had done, or had not done, at or prior to the time of the incident, any particular things which if done, or perhaps if done more thoroughly or extensively, or better, would have prevented the incident. That could well cover matters like inquiries as to previous directions given by school staff to pupils in relation to their conduct, which it is alleged ultimately led to the claimant’s injury, as in Broadhead. Possibly, it might extend to information about whether or not the respondent had done anything in relation to a particular individual alleged to have been responsible for the harm as a result of previous conduct by that individual, as in Wolski.
- [37]There is a difference between information as to whether the respondent did or omitted to do something and information which is only relevant to the question of whether the respondent had a duty to do something, or to do more, in the lead up to the particular incident. What the respondent in fact did, which may relevantly be nothing, can in my opinion be part of the circumstances of the incident, or the reason for the incident. Whether circumstances existed such that the respondent at that time had a duty to do something other than what the respondent did seems to me to be something separate from the circumstances of or the reasons for the incident. That focuses on the content of the duty, whereas s 27(1)(b) is essentially talking about the issue of causation. Information can be obtained about what the respondent did or did not do, but not about what the respondent ought to have done.
- [38]It seems to me with respect that the reasoning adopted in Hill, and followed in Wolski, that information relevant to the content of the duty is within s 27(1)(b) is unpersuasive, and I do not agree with it. I am certainly encouraged in that view by the fact that at least one and probably both Supreme Court judges appear to have come to the same conclusion. Confronted with the conflict in Oliver and Hill, the fact that the former is a decision of the Supreme Court makes it more persuasive. But apart from this consideration, it appears to me that close attention to the actual words of the statute, and the exposition of them in Haug, supports the view that the approach adopted in the Supreme Court is the correct one.[18] It follows that in my opinion in the present case the claimant is entitled to information about what the respondent actually did or did not do by way of cleaning or inspection of the premises, but information which is relevant to the question of what the respondent’s duty was in the circumstances then prevailing, in relation to the cleaning or inspection of the premises, is not something which is within the scope of s 27(1)(b). The applicant’s submissions supporting questions 6 and 7 were based on Hill and Wolski and the reasoning that I have rejected.
- [39]Applying this approach to the questions in issue, the various parts of question 3 are concerned with an inspection, which the respondent admits it did undertake, of the premises in which the applicant claims to have been injured prior to the time when the applicant began to occupy them. It can therefore be seen as information about the circumstances of or the reasons for the incident: it is concerned with just what the respondent actually did, or did not do, in the lead up to the incident. The real issue in relation to these questions is whether the information already provided by the respondent adequately discharged its obligation under the section.
- [40]The effect of the answer already provided is that the inspection occurred on 18 April 2009 prior to the arrival of the applicant, so it seems to me that the date of the inspection has already been provided, and all that remains is the question of the time of the inspection. It may be that the respondent does not know that information, in which case I expect that it is not information in the respondent’s possession, but if the respondent knows that information there is I think no reason why it should not be provided. As to the outcome of the inspection, again that should be provided to the extent that that information is in the respondent’s possession, because it would provide information as to what the respondent did or did not do by way of inspection. The answers already provided are vague about just what was found in the inspection, and the applicant is entitled to a specific response. Whether any hypodermic needles or other drug related utensils were found during the course of the inspection is in the same category; it is relevant to what was actually done, or not done, by the respondent on the occasion relevant to this particular incident. Again, the response of the respondent was not sufficiently direct and specific about this inspection. Whether any records were kept of the inspection is I think in the same category; it is concerned with what the respondent actually did.
- [41]The information sought in paragraphs 6 and 7, however, seems to me to be much wider. It is not something which could be seen as a cause of or a circumstance of the particular incident relied on by the applicant. It is not confined to the particular apartment in which the respondent was injured, so it could not be related to the occasion when the particular hypodermic syringe which the applicant alleges caused her injury came to be in the position where she injured herself on it. It is on the contrary concerned with the state of knowledge of the respondent at the relevant time, and therefore concerned with the content of the duty on the respondent at the relevant time. It was also said to be relevant to an evaluation of the systems in place to prevent such an injury, but, it seems to me, only in relation to the content of the respondent’s duty of care in the circumstances. That in my view does not fall within the scope of s 27(1)(b) and I will not order that the information sought in paragraphs 6 and 7 be provided.
- [42]I therefore order that the respondent within 21 days provide the following information verified by statutory declaration:
- (a)the time at which the inspection on 18 April 2009 referred to in the affidavit of Mr Kallis on behalf of the respondent took place;
- (b)full particulars as to the outcome of that inspection, that is, details of what was found on that inspection;
- (c)whether any hypodermic needles or other drug related utensils were found during the course of that inspection; and
- (d)whether any records were kept of that inspection.
- [43]The application is otherwise dismissed. I will hear further submissions in relation to costs, but suspect that the appropriate course is simply not to make any order.
Footnotes
[1] Affidavit of Leddy filed 9 December 2009 Exhibit FJL7.
[2] Affidavit of Leddy filed 22 December 2009 Exhibit FJL1.
[3] Currently $250,000: s 68(2).
[4] Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 81.
[5] Woolworths Ltd v Graham [2007] QDC 301, where the position was discussed in a way with which I respectfully agree.
[6] Affidavit of Leddy filed 4 February 2010, para 3.
[7] Affidavit of Leddy filed 9 December 2009, para 4.
[8] Earlier, in an email the respondent claimed that Mr Kallis had inspected the apartment. Affidavit of Leddy filed 9 December 2009 Exhibit FJL8.
[9] [2007] QSC 68, per A Lyons J.
[10] sic, ? respondent.
[11] to whom it was apparently not cited.
[12] Jackson v Vaughan [1966] 2 NSWR 147; Pomery v Rural Hotels Pty Ltd (1973) 5 SASR 191 at 196.
[13] Commissioner for Railways v Beach (1938) 12 ALJ 39 at 40 per Dixon J
[14] Wirth v Tuckey [1949] QWN 42.
[15] Lahrs v Eichsteadt [1961] Qd R 457 (High Court).
[16] Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500.
[17] See also the definition of “incident” in the Act, which includes an omission: Schedule.
[18] Haug is of course also an authority for the proposition that what really matters in these cases is the extent of the obligation actually imposed on the relevant party in a particular situation by the precise words used by the legislature applicable in that situation.