Woolworths Limited v Day[2016] QDC 81

DISTRICT COURT OF QUEENSLAND

1. [1]
   Olga Day was injured on 18 December 2014, when she slipped on a shallot on the floor of a Woolworths Store in the Orion Shopping Centre, Springfield. Pre-litigation processes under the Personal Injuries Proceeding Act 2002 (PIPA) are in progress. Mrs Day has proceeded against Woolworths Limited and 2 other companies, CPM Australia Pty Ltd and Retail Activation Pty Ltd, because of their connection to a demonstration table operated in the Woolworths store near where she fell. Those 2 company respondents are referred to in this judgment as Retail Activation.

2. [2]
   Mrs Day is a litigant in person, but is qualified as a lawyer in Russia, her country of birth. She has prior experience of the Queensland civil justice system and has previously conducted her own litigation. She confirmed her intention to represent herself and also her understanding of the obligations imposed on parties to civil proceedings.

3. [3]
   This matter is before the court because of disputes about PIPA requirements. Woolworths and Mrs Day have brought competing applications about:

(a)  The Compulsory conference

4. [4]
   When Woolworths commenced their application, it sought an order for the court to set a date for a compulsory conference. It later amended its application to seek an order to dispense with the compulsory conference. Mrs Day is now willing to participate in a compulsory conference on 22 April 2016; a date which is convenient to the other parties. Although Woolworths maintained its application to dispense with the conference; it did so only faintly. The date for the compulsory conference is set at 22 April 2016.

(b)  Inspection of the store

5. [5]
   The court may make an order to inspect property if, relevantly to this claim, it is necessary for deciding an issue in a proceeding.^[1] The condition that inspection is necessary to decide an issue in a proceeding imparts the notion that, without the inspection and the evidence that would be obtained from it, it would not be possible to make a decision on a particular issue.^[2] The requirement that the inspection is necessary has been interpreted to mean necessary in the sense of being necessary to do justice between the parties.^[3] 

6. [6]
   Mrs Day wants to inspect the store for the following purposes:

7. [7]
   Woolworths opposes the order, arguing there is no need for the inspection and investigations given information already provided and the concessions made by Woolworths, which it is bound by.

8. [8]
   There are two aspects to Mrs Day’s request: inspection and testing of the area in the vicinity of the fall; and inspection of the CCTV monitoring system. Dealing with the former, I am not persuaded that inspection is necessary to decide an issue in the proceeding.

9. [9]
   The following information was provided to Mrs Day in a letter dated 7 October 2015 from Woolworths’ solicitor:

As the premises are leased Woolworths is the relevant entity to gain access of the premises for testing.  To date we have not been contacted by Mirvac in respect of any request for access however in order to expedite the investigations of your ergonomic expert Woolworths has made inquiries and gathered the following information:

• The flooring in the main aisle of the Woolworths’ Springfield area where Mrs Day’s accident occurred is a VCT (vinyl composite tile) called Exelon which is manufactured by Armstrong World Industries Australia Pty Ltd.
• Woolworths has undertaken investigations in respect of any records they may hold regarding slip resistance testing of the Exelon tiles.  We enclose copies of slip resistant tests performed by CSIRO pursuant to the Australian Standard AS-NZS4586.1999 and AU-NZS4586.1999.
• Furthermore, whilst Woolworths cannot admit the circumstances of the accident as its staff did not directly witness the fall Woolworths is prepared to make the concession that if Mrs Day is accepted in the evidence that she stepped on a piece of shallot on the floor in the common walkway near the cash registers that debris would have made the floor slippery.

In order to make the point absolutely clear, Woolworths is not leading evidence that the accident occurred other than as alleged by Mrs Day or that the shallot would not have represented a slipping hazard.  Woolworths is contesting liability on the grounds that there was a reasonable system for inspecting and cleaning the floors and that in the circumstances of this particular accident there were no reasonable steps which Woolworths could have taken to have prevented the accident occurring. 

If your ergonomics expert is not satisfied with the slip resistance testing data and the concessions made by Woolworths, and requires a physical testing of the flooring in question, would you please obtain a letter from the expert outlining the further investigations which they require in order to complete their report and why the need to undertake the physical inspection in addition to the slip resistant test results which we have disclosed to you.  We will then take that response to Woolworths to determine whether they are able to provide that information without the need to incur the cost and delay of an inspection.”

10. [10]
    Mrs Day did not respond to that invitation to provide information from her expert.

11. [11]
    It is evident from Mrs Day’s most recent submissions^[4] that she has misconceived Woolworths’ position in the proceedings. She said that Woolworths admitted the floor was slippery at the time of the incident and, on that assumption, queried its denial of liability.

12. [12]
    However, as is clear from the extract above. Woolworths has not admitted the floor was slippery at the time. That will be a matter for the court to determine on Mrs Day’s evidence. Woolworths has advised that it will not lead evidence the accident occurred other than as she alleges. Further, it will not lead evidence that a shallot on the floor would not represent a slipping hazard. The effect of these concessions is that, assuming the court accepts Mrs Day’s statement she slipped on a shallot, there will be no issue about whether the floor was slippery or how slippery it was.

13. [13]
    It also seems that Mrs Day now wants to perform a reconstruction to test a statement given by the person operating the demonstration table on the day of the fall. He said he saw something green drop from a shopping trolley onto the floor approximately 15 steps away. Mrs Day wants to reconstruct the scene to test whether it is possible for him to have seen this. Why Mrs Day wants to contest this evidence is not clear. It seems consistent with her case that there was a shallot on the floor. In any case, I am not satisfied that a reconstruction is necessary in order to decide an issue in the proceeding.

14. [14]
    Ultimately the case against Woolworths will turn on whether it took reasonable steps to deal with the acknowledged risk that a customer might slip on products spilled on the floor. Mrs Day has not explained why inspection and testing of the area in which the fall occurred is necessary for deciding that issue, or any other.

15. [15]
    I will now turn to the request to inspect the CCTV monitoring system. Mrs Day wishes to inspect the CCTV system and security cameras. In his statutory declarations of 2 July 2015 & 3 September 2015 Mr McMillan, who is the Store Manager, said there was no CCTV footage of the event as the area in question was not covered by a CCTV camera. He said there was no extant CCTV footage from 18 December 2014 from any of the cameras.

16. [16]
    Mrs Day has alleged Mr McMillan’s declarations are false and that he was counselled by Woolworths’ lawyers to destroy evidence. These are most serious allegations and, other than her own suspicion, Mrs Day appears to have no foundation for making them. However, there is a conflict in the evidence before the court about the location and direction of the cameras that does have a bearing on my decision about this request and also some unanswered requests for disclosure of information about the CCTV system.

17. [17]
    Mrs Day said she fell somewhere near aisles 5 & 6. She produced an investigative report by Mark French, who said that he observed CCTV cameras above checkouts 3 to 8 and observed himself on a CCTV monitor in aisle 5 as he walked away from the direction of the checkouts 4, 5 & 6.

18. [18]
    One of Mrs Day’s requests was for a floor plan of the store showing the location and direction of the CCTV cameras. Whilst that is too broadly described, the location and direction of CCTV cameras in the vicinity of the fall is relevant in two respects; firstly as to whether the incident itself was captured; and secondly as to the assertion in Woolworths’ Liability Response that the area was inspected 10 minutes before the fall.

However, this is a matter that can be dealt with by further disclosure of information pursuant to s 27(1)(b)(i). Applying the principles discussed under the heading disclosure of information, I consider it is appropriate to order that Woolworths must provide Mrs Day with a floorplan of the area in the vicinity of her fall showing the location and direction of the cameras as they applied on the day of the fall.

(c)  Disclosure of information

19. [19]
    Mrs Day claimed the other parties have not fulfilled the obligation imposed by s 27 PIPA to disclose relevant information. Dealing with Mrs Day’s requests has been complicated by the many requests made over time and the number of individuals they have been directed to. In Mrs Day’s final written submissions, she has identified which of the specific requests have not been met and why she says I should order disclosure. Before dealing with them in turn, I will make brief observations about the principles that I have applied in determining the disputes about disclosure.

20. [20]
    The requests for disclosure are made pursuant to s 27 PIPA. The section has a beneficial purpose and should be given a broad remedial construction. However, words of limitation in the section cannot be ignored.^[5] Mrs Day’s requests appear to be made under s 27(1)(b)(i), which requires disclosure of information in the respondent’s possession about the circumstance of, or the reasons for, the incident.

21. [21]
    The circumstance of, or the reasons for, the incident are not limited to events contemporaneous to the incident. That phrase is apt to encompass all events which appertain to or are causes of the incident in which the claimant suffers personal injury.^[6] The focus of the obligation is upon causation not the nature or scope of the respondent’s duty. Information may be obtained about what a respondent did or did not do. However, requests directed to whether the respondent had a duty to do something, or more, in the lead up to the incident are beyond the scope of s 27(1)(b)(i).^[7]

22. [22]
    Questions about the knowledge of various officers and directors about previous or subsequent incidents do not relate to the circumstance of reasons for the incident.^[8] Further, the obligation applies to information in the respondent’s possession; there is no requirement for a respondent to enquire of others.^[9]

1. (i)
   Requests of Woolworths

23. [23]
    Dealing firstly with the requests she made of Woolworths, Mrs Day made 2 sets of requests. Request 1 was made on 14 October 2015; Request 2 was made on 9 February 2016. Woolworths has provided Statutory Declarations by Mr McMillan, the store manager, on 14 July 2015 and 7 September 2015. It has also responded to requests for information through letters from DLA Piper on 7 and 19 October 2015 and 10 February 2016. Unless otherwise specified, the question numbers used in the following reasons relate to the first request.

24. [24]
    Woolworths has adequately responded to many of the requests and others are beyond the scope of Woolworths’ disclosure obligation. However there are a few requests which I will require Woolworths to respond to.

25. [25]
    Firstly, Q 16 seeks sweeping logs for the Produce and Check Out areas on the date of the incident. Woolworths provided those for the area in which Mrs Day fell. However, sweeping logs for other areas of the store could appertain to the reasons for the incident. Mrs Day alleges there was no cleaning procedure at all. Information relating to the cleaning process used for the Produce and Check Out areas on the day leading up to the incident, is potentially relevant to what Woolworths did, or as Mrs Day alleges, did not do in dealing with spill hazards on that day.

26. [26]
    Secondly, Q 17 - Q 19, to the extent that they deal with policies and procedures to identify and reduce slip hazards, relates to the circumstance of or reasons for the incident.

27. [27]
    Thirdly, in its liability response, Woolworths asserts that Mrs Day failed to keep a proper lookout for her own safety. At the hearing, Mrs Day identified that she will argue the location of and activities conducted at the demonstration table distracted her, contributing to her fall. Q21 –Q22 seek information about the location and purpose of the demonstration table. The questions relate to a circumstance of or reasons for the incident.

28. [28]
    Fourthly, Q 23 – 25 relate to the CCTV coverage of the area in which Mrs Day fell; information about the person responsible for recording, monitoring and supervising the CCTV security cameras and the procedure for managing, monitoring and deleting the CCTV footage as at the date of the incident. As observed when dealing with the request for inspection, there is conflicting evidence before the court about the CCTV system and what it can and cannot capture. Consistent with my decision about the floor plan of the cameras and their directions, I will order Woolworths to answer these questions.

29. [29]
    Otherwise, the requests have been responded to or are not proper requests, as I understand Mrs Day’s claim. For quite a few of the requests it seems that Mrs Day does not accept the answer given. That is not a proper basis for seeking further information.

30. [30]
    Some questions relate to the cleaning, maintenance and testing of the floor, specifically of its slip resistant quality. (Q1 – Q4 & Q6-Q8). Woolworths has confirmed its responsibility for cleaning the floor during trading hours: see Mr McMillan’s 2^nd Statutory Declaration [2] [3] & [5]. Further, Woolworths provided information about the materials used for the floor tiles in the relevant area and provided the only test results it held (letter DLA Piper 7 October 2016). Finally, Woolworths advised that it does not deny that the presence of a shallot on the floor would present a slip risk (letter DLA Piper 7 October 2016). In those circumstances the requests do not relate to a matter in dispute.

31. [31]
    Q9 – Q10 relate to the packaging of shallots and the risk of spill hazards. Mr McMillan adequately answered that request in his 2^nd Statutory Declaration [14] – [16]. Q11 – Q14 relate to the Weekly Sweeping Log and the system of inspection. Again, Mr McMillan adequately addressed this in his 2^nd Statutory Declaration [2] [3] [15].

32. [32]
    Some questions relate to what happened after the accident or relate to matters that are not a circumstance of or reasons for the incident and are beyond the scope of s 27(1)(b)(i):

         (ii) Requests of Retail Activation

33. [33]
    I will now turn to the requests made of Retail Activation. The requests were made on 13 August 2015. Although Mrs Day has not yet formalised her particulars of negligence against Retail Activation, I have considered her requests on the understanding that she will claim that she was distracted by the location of and activities at the demonstration table, and this contributed to her fall.

34. [34]
    Retail Activation has provided two Statutory Declarations by its employees: Maryanne Taylor, National Field Manager; and Monil Mehta, who operated the demonstration table. Further information or reasons for not providing requested information was provided by its lawyers Gadens, in a letter dated 11 February 2016.

35. [35]
    Having reviewed the requests for information and the responses, I am persuaded I should order further disclosure in one respect only.

36. [36]
    Q5 of the request made on 13 August 2015 asks who placed and/or permitted the demonstration table to be established on the Woolworths supermarket’s common walkway near the cash registers. Mr Mehta said that he set up the table, but not who selected the location for the table. In the letter of 11 February 2016 at [4], Gadens said the location was a matter for Woolworths as the occupier. At the time, the Mrs Day had not clarified her particulars of negligence against Retail Activation. Gadens noted the location of the table had nothing to do with the fall. Now Mrs Day has clarified how she will allege the location of the table contributed to her fall, it is appropriate that Retail Activation provide the information requested, if it can.

37. [37]
    Otherwise, I make no further orders for disclosure by Retail Activation, for the reasons that follow.

38. [38]
    One of the requests is for a Woolworths’ policy document that is not within Retail Activation’s possession: Q1. Other requests have already been adequately responded to:

39. [39]
    Others relate to what Retail Activation might have or should have done, not a circumstance of or reasons for the incident, and are therefore beyond the scope of s 27(1)(b)(i):

40. [40]
    None of those appear to be proper requests for information pursuant to s 27(1)(b)(i).

(d)  Amendments to the Notice of Claim

41. [41]
    Mrs Day wants to amend her PIPA Part 1 Notice of Claim in two ways; firstly to add particulars of the negligence she alleges against Retail Activation; and secondly to join certain Directors and Officers of Woolworths as personal respondents to the claim.

1. (i)
   Particulars of negligence

42. [42]
    The solicitors for Retail Activation have been seeking particulars of negligence alleged against its client since June 2015. At the hearing Mrs Day said her claim against Retail Activation relied on the position of the demonstration table in a high traffic area and the activities conducted at the table, which distracted her and contributed to her fall. At the end of the hearing, she confirmed she would clarify in writing her particulars of negligence against Retail Activation. She conceded that, as Retail Activation submitted, she did not need any order from the court to do so. It is not necessary to make any order to that effect.

2. (ii)
   Adding directors and officers of Woolworths as respondents

43. [43]
    Mrs Day sought to add Grant O'Brien and Gordon Cairns (Directors of Woolworths) and Richard Dammery (Chief Legal Officer and Company Secretary) as personal respondents to the claim because:

“they knew and/or reasonably should have known that the hazardous conditions under their control could injure (her)… but negligently failed to take or order appropriate actions to avoid the harm.”

44. [44]
    Because the time prescribed for adding respondents to the Part 1 Notice of Claim has elapsed,^[10] Mrs Day needs the leave of the court. Counsel for Woolworths held instructions from each of the proposed personal respondents to oppose the application because Mrs Day had not articulated a legal or factual basis for their personal liability.

45. [45]
    Mrs Day argued the ground of liability for adding the respondents is irrelevant, citing two decisions of this Court as authority for that proposition. I do not accept that submission. Nor are the cases relied upon authority for it. They deal with the principles that apply when a respondent to a Notice of Claim seeks contribution from another person. They do not assist Mrs Day on this application.^[11]

46. [46]
    Because of the consequences of adding a respondent to a Notice of Claim, I consider it is appropriate to adopt the test provided by r69 of the Uniform Civil Proceedings Rules 1999 for joining parties to a proceeding. That test is whether the addition of the proposed party is necessary, or is desirable, just and convenient, to enable the court to adjudicate effectually and completely on all matters in dispute.

47. [47]
    The power to add respondents is discretionary. Mrs Day bears the onus of persuading the court they should be added. As I understood Mrs Day’s submissions, she considers all she needs to do is identify a potential way in which the respondents might have breached the Corporations Act in order to demonstrate the potential liability of the proposed respondents.

48. [48]
    Mrs Day based her application on the duty of due care and diligence owed by Directors and company officers such as General Counsel and Company Secretary. She relied on the following duties imposed by the Corporations Act 2001 (Cth):

49. [49]
    She argued a recent Supreme Court decision (Phoenix Constructions Queensland Pty Ltd v Coastline Constructions Pty Ltd [2011] QSC 167) widens the scope of a director’s personal liability, requiring only a contravention of the Corporations Act 2001.

50. [50]
    Again, I must reject Mrs Day’s interpretation of case law. This one turned on an interpretation of s 1324(10) of the Corporations Act in the particular circumstances of the case. Phoenix Constructions was a partner in a failed joint venture. It sought damages pursuant to the s 1324(10) against a Director of the other joint venture company, Coastline Constructions. The question the court had to determine was whether the Court had the power to award damages pursuant to that provision. The answer to that question depended on whether Phoenix Constructions could have applied for an injunction to restrain the director’s conduct, as a person whose interests were adversely affected by it. The trial judge accepted the director had improperly used his position to cause detriment to Coastline Constructions in breach of Section 182(1) of the Corporations Act, because his actions led Coastline Constructions to lose an interest in land. This detrimentally affected Phoenix Constructions’ recourse to assets in its status as a creditor of Coastline Constructions. The case deals with a different issue and does not further Mrs Day’s application.

51. [51]
    Mrs Day relies on statutory duties the proposed respondents owe to Woolworths and on their individual responsibilities for risk management within Woolworths. She has not drawn any specific link between these duties and responsibilities and the circumstances in which she says she was injured. Further, one of the proposed respondents, Mr Cairns, was not a director at the time of the incident.

52. [52]
    While a company might commit a tort through the actions of its directors, generally speaking the reverse is not true and the officers of the company do not bear a separate liability. There must be some direct involvement in the tort by the director or officer.^[12] A director or officer might be so closely involved in wrongful decisions that they are personally liable, but nothing of that nature has been suggested here.^[13]

53. [53]
    I am not persuaded the proposed respondents should be added to the Part 1 Notice of Claim and Mrs Day’s application is refused.

(f) Mrs Day’s direct communications with the respondents

54. [54]
    One of Woolworth’s applications dealt with the channel for communication between Mrs Day and the other parties. Retail Activation joined with Woolworths in seeking orders requiring Mrs Day to communicate with the other parties about this matter exclusively through their lawyers.

55. [55]
    Mrs Day accepted she had made direct contact with Directors, Officers and employees of Woolworths and also with Zurich Australian Insurance Limited, the public liability insurer for Retail Activation. It seems she persisted in doing so, despite requests she desist. The affidavit evidence on these applications demonstrated the confusion arising from Mrs Day’s multiple requests for information directed to different individuals within the companies.

56. [56]
    At the end of the hearing, Mrs Day undertook to communicate exclusively with the legal representatives of the parties. Mrs Day seemed to understand the gravity of her undertaking to the court and accepted her personal responsibility to comply with it. Given that, the orders appear unnecessary at this point.

(g)  Conflict of interest and abuse of the court process

57. [57]
    Mrs Day has requested an order requiring the directors and senior officers of Woolworths to disclose any conflict of interest they have with partners and employees of their solicitors. If there is any potential conflict of interest between Woolworths and its solicitors, Mrs Day has not explained how it bears on this case or why she is entitled to the order she seeks.

58. [58]
    Mrs Day asserts Woolworth’s solicitors have adopted an aggressive litigation practice in multiple cases involving injured customers and employees of Woolworths. She has also made numerous complaints about either the solicitors or counsel for the respondents to her claim. She relies on errors in their material, particularly about the time and date of the incident; late provision of material; and concurrence in the respondents’ attitudes to various matters to justify serious allegations of collusion and abuse of court processes. It is not necessary to descend into the detail of them as she has not made any application in relation to those matters. She did flag a claim for aggravated damages arising from what she alleges is oppressive conduct in the litigation. It is not necessary to consider the basis for such a claim at the pre-litigation stage.

59. [59]
    Orders:

60. [60]
    I will hear from the parties about costs.