Sinclair v Coles Supermarkets Australia Pty Ltd
[2024] QSC 175
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- Sinclair v Coles Supermarkets Australia Pty Ltd[2024] QSC 175
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Sinclair v Coles Supermarkets Australia Pty Ltd[2024] QSC 175
Sinclair v Coles Supermarkets Australia Pty Ltd[2024] QSC 175
SUPREME COURT OF QUEENSLAND
CITATION: | John William Sinclair v Coles Supermarkets Australia Pty Ltd [2024] QSC 175 |
PARTIES: | JOHN WILLIAM SINCLAIR (applicant) v COLES SUPERMARKETS AUSTRALIA PTY LTD (respondent) |
FILE NO: | 5934 of 2024 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 21 August 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 June 2024 |
JUDGE: | Martin SJA |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – PERSONAL INJURY OR FATAL ACCIDENTS PROCEEDINGS – OTHER MATTERS – where the applicant claims that he slipped and fell while shopping in the respondent’s store due to water on the floor – where the applicant sought information and documents from the respondent pursuant to s 27 of the Personal Injuries Proceedings Act 2002 (Qld) – where the applicant claims the respondent’s response to the request was inadequate – where the applicant seeks records regarding any previous or similar incidents and complaints about safety – where the applicant claims he was told by an employee of the respondent that there was video footage of the incident – where the applicant seeks a copy of that video footage, or in the alternative, statutory declarations from particular employees of the respondent as to why the footage ceased to exist or does not exist – whether the respondent is required to provide information about the existence of prior, similar incidents – whether the respondent is required to provide an explanation or verification as to CCTV footage or lack thereof Personal Injuries Proceedings Act 2002 (Qld), s 4, s 21, s 27, s 31, s 32, s 35 Day v Woolworths Ltd [2016] QCA 337, cited SDA v Corporation of the Synod of the Diocese of Rockhampton [2021] QCA 172, cited |
COUNSEL: | L Smith for the applicant M Edwards (solicitor) for the respondent |
SOLICITORS: | Littles Lawyers for the applicant Bray Lawyers for the respondent |
- [1]Mr Sinclair claims that, on 12 February 2024, when he was shopping in the respondent’s Hope Island store, he slipped and fell due to there being water on the floor in the store’s fruit and vegetable section.
- [2]An “Incident Report” was created by a Coles employee. It contains the following:
- (a)the incident is described in this way:
“Customer has slipped on water from an ice trolley and landed on their right hip. First aid and medical treatment not required.”
- (b)the injury type was described as “Bruise/Contusion, Hip, Right”;
- (c)the answer to “Was the incident a slip or a fall?” was “Yes”; and
- (d)the answer to “Was incident captured on CCTV?” was “Yes”.
- [3]In his submissions Mr Edwards told me, without objection, that Coles had disclosed a maintenance report the day before the hearing which showed that the plug for the ice trolley had to be replaced.
- [4]Mr Sinclair has sought information and documents from Coles pursuant to s 27 of the Personal Injuries Proceedings Act 2002 (PIPA). He regards Coles’ response as inadequate and now, pursuant to s 35 of the PIPA, seeks orders that particular information be provided.
Pre-trial obligations under PIPA
- [5]The PIPA requires that the relevant parties provide information to each other before a proceeding is commenced. That requirement is consistent with the main purpose of the Act which, so far as is relevant, is contained in s 4:
- “(1)The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.
- (2)The main purpose is to be achieved generally by—
- (a)providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and
- (b)promoting settlement of claims at an early stage wherever possible; and
- (c)ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and
…”
- [6]The provisions relied upon by Mr Sinclair are contained in Chapter 2, Division 2 of PIPA. The purpose of the division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim – see s 21.
- [7]By s 22 of PIPA a claimant is required to give the respondent copies of specified documents and information reasonably required by the respondent about matters such as: the incident, the nature of the personal injury, and so on.
- [8]The duties imposed on the respondent by the PIPA is found in s 27:
- “(1)A respondent must give a claimant—
- (a)copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim—
- (i)reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;
- (ii)reports about the claimant’s medical condition or prospects of rehabilitation;
- (iii)reports about the claimant’s cognitive, functional or vocational capacity; and
- (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; or
- (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.
- (2)A respondent must—
- (a)give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent’s possession later, within 7 days after it comes into the respondent’s possession; and
- (b)respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it.
- (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
What did Mr Sinclair claim happened?
- [9]The Notice of Claim provided by Mr Sinclair pursuant to the PIPA contained, under the heading “Give a Brief Description of the Incident”, the following:
“On Monday, 12 February 2024, the claimant went shopping to Coles Hope Island. Coles opens at 7am. At approximately 7:30am, the claimant got a shopping trolley and walked to the fruit and vegetable department, and then walked past the lettuce and slipped over. The claimant went down hard on his right side. As the claimant was laying on the floor, he could feel his shirt and shorts wet. This is when the claimant realised there was water on the floor that made him slip over. There were lots of Coles staff that came to assist the claimant. There were no signs or any warnings indicating a wet floor. There were no slip mats in place. Coles opens at 7am and the accident happened at 7:30am. The claimant was unable to get up for some time. The claimant laid there in a lot of pain down his right side. The Coles staff eventually got the claimant up and sat him on a chair. A man came with a mop to clean the water off the floor. The claimant’s knee was swelling so he went to the doctors who referred him for MRI investigations. The MRI came back showing 2 x commuted [sic] fracture involving R fibula neck and head.”
- [10]Section 18 of the Notice of Claim is headed “Detail the Reasons why the Injured Person believes that Person caused the Incident”. The expression “that Person” refers to Coles. Under that heading, the printed form contains the following: “The reasons must particularly identify the step, process or act/s of the person that caused the incident and the link to the named respondent…”. The material inserted by Mr Sinclair reads:
- “a.exposed the claimant to a risk of injury which could have been avoided by the exercise of reasonable care;
- b.failed to take any adequate or reasonable precautions for the safety of the claimant;
- c.failed to warn the claimant of slippery surface by way of a warning sign;
- d.failed to have adequate cleaning system in place to prevent the claimant slipping;
- e.failed to have any slip mats in place;
- f.in the circumstances, Coles owed a duty of care to the claimant to ensure the premises was safe and hazard free.
by virtue of those matters, exposed the claimant to a not insignificant risk of injury.”
What did Mr Sinclair seek from Coles in discharge of its PIPA pre-trial obligations?
- [11]In March 2024 Littles (Mr Sinclair’s solicitors) sent a letter to Coles which referred to previous correspondence and then said: “Please provide us with the following information and documentation pursuant to s 27 of the Personal Injuries Proceedings Act 2022:”. That was followed by a list of 19 matters said to be required by the PIPA.
- [12]That list appears to have been drawn as widely as possible and, in some instances, without regard to the alleged incident. Some of the matters are more suited for incidents in which an employee has been injured. For example, information and documentation were sought relating to:
- work logs for the week during which “our client” was injured;
- internal policy documents in relation to the system of work for the task(s) that “our client” was performing at the time that the subject injury was sustained;
- video evidence relating to “our client’s” injuries and the system of work for the task(s) that our client was performing at the time that the subject injury was sustained; and
- copies of safety briefings or guidance notes provided by your insured[1] to persons entering, using, and/or working at the incident site.
- [13]The letter then went on to refer to and rely on the judgment of Morrison JA in SDA v Corporation of the Synod of the Diocese of Rockhampton.[2] In that case, the majority decision was given by Fraser JA (with whom Lyons SJA agreed). Except where Fraser JA agrees with the reasons of Morrison JA, it is the reasoning of Fraser JA which is binding.
- [14]Further correspondence ensued and documents and information were provided by Coles but Mr Sinclair maintained that the legislative obligations had not been fulfilled.
What does Mr Sinclair now seek?
- [15]On this application, Mr Sinclair seeks:
- “all records regarding any previous and/or similar incidents and complaints made about safety at the Coles, Hope Island store;”
- “the CCTV footage that was identified by the Respondent’s Assistant Manager, Mitch on 13 February 2024 as having been footage that ‘a report had been done’ in relation to and that he had ‘marked the spot on the store tape’ that covered the incident as he ‘had seen something’ on the recording which he had tagged;” and
- “further, the CCTV footage from CCTV cameras shown in Exhibit HH-7 to the affidavit of Harrison Hynd sworn on 9 May 2024, specifically, from 6:30am through [sic] 8:30am on 12 February 2024.”
- [16]In the alternative to those matters, Mr Sinclair seeks other relief based upon his recollection (and those of his wife and son) of the conversations with Mitch and Sam (whose alleged roles are discussed below), namely, that such footage exists. In the further alternative, if the footage has never existed, he seeks a statutory declaration from Sam or another “appropriate individual with knowledge” as to why such footage does not exist.
- [17]Coles maintains that it has provided all relevant documents and information and that there is no CCTV footage of the actual incident.
The CCTV footage issue
- [18]Mr Sinclair claims that there must be other CCTV footage. This is based on two things: conversations with a person called Mitch who he says was the Assistant Manager and with a person called Sam who he says was the Store Manager, and assertions made by his solicitor, Mr Hynd, about the CCTV cameras in the store.
- [19]As to the first matter, it depends upon the recollection of Mr Sinclair, his wife and his son about the conversations had with Mitch and Sam. So far as the conversation with Mitch was concerned, it went no higher than that Mr Sinclair and his wife recalled Mitch saying that “a report had been done” and that he had “marked the spot on the store tape” that covered the incident as he “had seen something” on the recording which he had tagged.
- [20]There was then a further conversation involving Mr Sinclair, his son and Sam where they were told by Sam that the CCTV did not cover the section of the store in which the accident occurred and that there was no CCTV footage of the incident. Sam further said that none of the cameras covered the section of the store in which Mr Sinclair fell.
- [21]In response to that material, Coles provided affidavits from Mr Edwards and from a person employed in the Public Liability team of Coles Legal & Safety Division. The effect of that evidence was:
- Mitch recalled the conversation differently – he said that when he spoke to Mr and Mrs Sinclair he had assumed that the incident would have been recorded by the CCTV system, that he told them that he thought there was footage of the incident and that he would look at it and mark the incident; and
- Sam had made enquiries which revealed that none of the CCTV cameras at the store had captured the incident. There were numerous cameras, each facing in a different direction, and at the time of the incident there was one camera facing the fresh produce section and the footage captured by that camera had been disclosed.
- [22]Mr Sinclair relies upon an affidavit by Mr Hynd to which is exhibited a photograph which Mr Hynd says shows five different CCTV cameras in the store. The letter making the relevant request is Exhibit HH-6 to the affidavit of Harrison Hynd sworn 29 May 2024. Submissions were made during the hearing of this application that a still image, which had been extracted from footage and been provided, could not have come from the camera identified by Coles. The submissions were made without anything other than a photograph taken by an amateur apparently within the store. There were no plans of the store and there was nothing which showed the field of vision available to each of the five cameras said to be shown in the photograph.
What is Mr Sinclair entitled to?
The CCTV Footage
- [23]Mr Sinclair and his solicitors have correspondence, and now have affidavits, confirming that there is no relevant CCTV footage. The respondent cannot disclose something which does not exist. An application under the PIPA is not an application for further and better disclosure. It is a distinct and separate means by which relevant information can be provided to an applicant.
- [24]Mr Sinclair’s application with respect to CCTV footage is based almost entirely on the recollections he, his wife, and his son have of some conversations. The content of those conversations is disputed by the other parties to them. He also relies on the reference in a Coles “Incident Report” where there is notation of “Yes” in answer to the question “Was incident captured on CCTV?”
- [25]The regime for the provision of documents and information under the PIPA does not comprehend the resolution of disputes about the content and meaning of conversations such as those which have been referred to above.
- [26]Section 27(3) of the PIPA allows a claimant to require information which has been provided under s 27 to be verified by statutory declaration. If that requirement is made, then the respondent must do that.
- [27]On 3 May 2024 Littles sent a letter to Coles requesting that the footage from the CCTV cameras said to be shown in Exhibit HH-7 be provided, specifically from 6:30am to 8:30am. The letter then contained the following:
“Should Coles maintain the position that the CCTV footage does not exist, then we request a statutory declaration from Mitch, Sam and any other individual involved explaining how the CCTV went from being seen and marked by Mitch on 13 February 2024 to no longer existing. The request of all material referred to in this letter is made pursuant to section 27 of PIPA.”
- [28]That request is not a request for a statutory declaration verifying information provided by a respondent under s 27. It is a request for an explanation of something which Coles says is untrue. Coles did not, in its correspondence with Littles, say that the CCTV footage “went from being seen and marked … to no longer existing”. In other words, Coles did not provide that “information”. The information it provided was that there had not been and was not any such footage. What was sought in the letter from Littles was an “explanation” which is not the same as a verification by statutory declaration of information provided.
- [29]Mr Sinclair’s solicitors were seeking information about:
- why documents, which they thought existed, did not exist;
- why, if those documents had existed, they ceased to exist; and
- why particular comments were allegedly made by identified individuals.
- [30]None of those matters are about “the circumstances of, or the reasons for, the incident”.
- [31]
“[17] Whether or not something stated to a respondent or claimant about the circumstances or reasons for an incident is accurate or believed to be accurate by the recipient of the statement, that statement is information about that incident. That accords with the ordinary meaning of the word “information”, which comprehends true information and false information. Nor, in ordinary parlance, does information cease to be information if the person in possession of it forms a belief that it is untrue.”
- [32]This part of the dispute is not about whether Mitch or Sam said something about “the circumstances or reasons for an incident”. It is about whether they said something about evidence of the incident, i.e., the existence or otherwise of relevant CCTV footage.
- [33]Coles is not required to provide a verification (or, indeed, an explanation) of information it has not given. It was required to verify by statutory declaration the information to the effect that there was no relevant CCTV footage if it had been asked to do so. It had not been asked to do that.
- [34]Verification by statutory declaration is to be made by the respondent under s 27(3) – in this case, Coles. Coles can only do that through a person it authorises and there is nothing in the PIPA which allows for a claimant to demand that a particular person or persons make such a statutory declaration.
- [35]In any event, once verification is made by statutory declaration, that is the end of the matter. Unless a respondent misconceives the obligation it is under, when it has disclosed in accordance with s 27 and verified under s 27(3) then a claimant can take it no further. If it is later determined that a respondent has withheld information or documents then it is liable to punishment under s 31 and is prohibited from using such a document in a relevant court proceeding without leave – s 32.
Records regarding any previous and/or similar incidents and complaints made about safety at the Coles Hope Island store
- [36]Mr Sinclair contends that any such records constitute information about the circumstances of, or the reasons for, the incident within the scope of s 27(1)(b).
- [37]Coles argues that there should be a distinction drawn in s 27 between “records” and “information” and that documents that are not about the incident are not disclosable. I do not accept that.
- [38]The word “records” is not used in the PIPA in relation to these obligations. Section 27(1) requires a respondent (so far as this case is concerned) to provide copies of “reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates”. Records which are about the “incident” would fall within the description “other documentary material”.
- [39]The word “information” has a broad meaning and includes “records” which are “about the circumstances of, or the reasons for, the incident” as set out in s 27(1)(b)(i).
- [40]In SDA Fraser JA concluded:
“[5] … that the nature of information about prior similar incidents which is required to be given by a respondent to a claimant under s 27(1)(b)(i) is not confined to information about prior incidents that have a causative effect in relation to the incident alleged by a claimant …”
- [41]Fraser JA went on to say:
“[26] … the required information about the reasons for and the circumstances of the incident must comprehend information relating to the question whether the respondent may or may not be found liable and the appropriate quantum of the claimant’s claim. In considering those matters, the statutory scheme requires reference to the claimant’s notice of claim.” (emphasis added)
- [42]What might constitute such information was considered in Day v Woolworths Ltd[4] by Jackson J (with whom McMurdo P and Philippides JA agreed):
“[109] In my view the existence of prior similar incidents, if any, may be information about the circumstances or reasons for the incident. Those circumstances could include that the respondent was on notice of the risk in a way that made the measures adopted to avoid the risk inadequate. That would be a circumstance of the incident for the purposes of s 27(1)(b)(i) of PIPA, read in the context of ch 2 pt 1 div 2 generally.” (emphasis added)
- [43]Based on the reasoning above, Coles is required by s 27(1)(b)(i) to provide information about the existence of prior, similar incidents.
- [44]In the Originating Application an order was sought that Coles provide “all records of prior similar injuries at Coles, Hope Island store”. At the hearing, that order was no longer sought. Instead, another order was pursued. It sought “all records regarding any previous and/or similar incidents and complaints made about safety at the Coles, Hope Island store.”
- [45]The extent of the obligation imposed by s 27(1)(b)(i) is determined by the words used in that provision, and not the description given in a request purportedly made under that section. Coles does not have to provide information about “complaints made about safety” at the store. That is much broader than the requirement of this section. A request for such information should be confined to seeking “information” and not confuse the issue by using words such as “records”.
Conclusion
- [46]Mr Sinclair has failed in his application so far as it concerns CCTV footage. He has partially succeeded so far as it concerns his claim for information regarding any previous, similar incidents.
Costs
- [47]Mr Sinclair seeks indemnity costs. He relies upon s 27(4) of the PIPA which provides:
“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.”
- [48]Coles did fail to comply fully with s 27 so far as the issue of “previous, similar incidents” is concerned. Mr Sinclair failed to show that Coles had not complied fully with respect to the CCTV issue.
- [49]Most of the material referred to, and the submissions made, concerned the CCTV issue. Section 27 relates the liability for costs to the failure, without proper reason, to comply fully with the section. Mr Sinclair succeeded, to a limited extent, with respect to information about previous, similar incidents. His degree of success should be recognised by an order that the respondent pay 20% of the applicant’s costs on the standard basis.
Orders
- 1Within 14 days of today’s order, the respondent is to provide information that is in its possession about previous incidents at the Hope Island store which are similar to the incident alleged by the applicant.
- 2The respondent is to pay 20% of the applicant’s costs on the standard basis.