By David Slatyer, Partner
Personal injury claims in Queensland (which are not motor accident or workers’ compensation claims) must be brought under the pre-court regime in the Personal Injuries Proceedings Act 2002. If at the end of that process a claim is not settled the claimant is entitled to bring proceedings in Court.
Under the Act, known as PIPA, a claimant is entitled to ask a respondent for “information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident” (section 27(1)(b)).
That has been considered by the Courts in the past. For example, a guitarist from the rock band Powderfinger was injured in an altercation with security personnel at Jupiters Casino in Brisbane and he sought information from the casino of “the identifying description of all cameras which filmed the incident and where they are located”. The Queensland Court of Appeal decided in 2008 that such request was not “about the circumstances of, or reasons for, the incident” as required by section 27.
The issue came up again in 2009 where a claimant was involved in an altercation with another patron of a motel and the claimant sought information from the respondent about incidents of physical altercations between patrons in the 12 months preceding his incident. The Supreme Court said that such information (regarding prior similar incidents) were not facts to which the occurrence of the incident in question may be attributed and thought the request a fishing expedition.
The issue was again considered in 2010 in the District Court where a new tenant of residential premises suffered a needle stick injury when cleaning the premises upon moving in. The claimant sought information from the respondent landlord about its cleaning or inspection of the premises immediately before they were let to her and the Court allowed it. In doing so, Justice McGill said that “section 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.”
Practitioners thereby understood that information could be sought about causation. Of course, what is relevant to causation in any given matter will depend on the incident in question.
In the most recent case, SDA v Corporation of the Synod of the Diocese of Rockhampton and Anor (2020) QSC 253, His Honour Justice Crow appears to have expanded the test, although applied it in a way which did not afford the claimant in that case with the relief they sought.
In SDA the claimant was allegedly subjected to sexual and physical abuse perpetrated by staff at St George’s Home for Children in Rockhampton which was run by the respondents. The claimant was an orphan at the home between 1973 and 1980. He alleges in particular that Reverend M was the perpetrator. Reverend M was the superintendent of the Home between 1963 and 1974.
Prior to the application in Court the claimant’s solicitors made requests for documents and information from the respondents, which the respondents answered in correspondence. Ultimately though the subject of the application was one request for information, in these terms:
“All information about a report, complaint, warning, concern or investigation regarding any act of sexual or physical abuse on a child committed or alleged to have been committed by Reverend M at St George’s Home for Children … between 18 December 1963 and 10 January 1975”.
The claimant and Reverend M only co-existed at the Home between 1973 and 1974. The claimant was therefore seeking information about various matters pertaining to Reverend M for a period of approximately ten years before his alleged abuse.
Applying the test in accordance with the previous authorities, one would comfortably reach the conclusion that a request for information about prior similar conduct or incidents is generally unlikely to be relevant to the incident the subject of the claim in question.
Information about prior similar issues normally goes to whether or not the respondent is put on notice of a particular risk and therefore whether they owe a duty of care to the present claimant. That is understood to be outside the ambit of a s27(1)(b) request for information, which is limited to the circumstances of or reasons for, the incident in question. For instance, as Justice McGill said in Wright v Nut Holdings, a claimant is not entitled to ask for information “about what the respondent ought to have done” and that “information which is relevant to the question of what the respondent’s duty was in the circumstances then prevailing … is not something within the scope of Section 27(1)(b)”.
The previous authorities that looked at the test under PIPA essentially equated it to the test under the Motor Accident legislation, the comparable provision of which allowed a claimant to seek information “about the circumstances of the accident”. However in SDA Justice Crow said that although this addresses the question of “circumstances” it doesn’t address the question of “reasons”. He said “the mere fact that they have both been used (that is ‘reasons’ and ‘circumstances’) conveys a broader meaning than either word ordinarily would in their singular use; their totality broadens the singular definition”. He concluded that the test under PIPA was therefore broader than its Motor Accident counterpart.
Justice Crow posed a question to himself, whether the “reason” for the incident “be an indispensable link in the chain of causation or merely a strand in the rope of causation?” and answered his question by adopting the “strand in the rope of causation” metaphor.
Whilst still a question of causation, Justice Crow says it is broader than the previous authorities contemplated.
Turning to the case at hand, in SDA His Honour applied his own test as follows. He reached the conclusion that “the respondent is not obliged to provide information in response to a request under section 27(1)(b) which relates to prior similar incidents, unless it can be demonstrated that the prior incidents have causative effect, in the sense of being a strand in the rope of causation”. Information about prior similar incidents has not been allowed in the past, however Justice Crow has introduced a “strand in the rope” metaphor as the test of causation in this respect. What is meant by that is unclear, except that it is broader than, in his words, “an indispensable link in the chain of causation”. How it might be applied in a particular case is unclear.
In SDA Justice Crow applied it as follows. He noted that the respondent had replied to the request stating that it did not have any record of any complaint at any time prior to the retirement of Reverend M in December 1974, but that it received a complaint from a former resident of the home about Reverend M at the time of the Forde Inquiry in 1999.
Interestingly it is not said what the complaint about Reverend M, received in 1999, actually contained.
Justice Crow concluded “therefore it cannot be considered that information received 25 years after the fact could have had any bearing on what the first respondent did or did not do at the time of the incident, nor could it be said to have put the first respondent on notice of the risk”.
We wonder how it could be known whether the complaint contained information that might be relevant to causation of the claimant’s abuse in 1973-1974, without considering the content of the complaint. The fact that the complaint was received 25 years later has nothing to do with the content of the complaint, which obviously related to Reverend M’s time at the Home (1963-1974). The content may well have related to the circumstances or reasons in or about 1973 to 1974 that had a causative effect on the claimant’s incident “in the sense of being a strand in the rope of causation”.
Also, by asking whether it was information which “put the first respondent on notice of the risk” is not the correct test, as it relates to the question whether the respondent owed a duty of care, rather than the true question which is one of causation of the particular incident.
The application was dismissed. It will be interesting to see what comes of this decision and how practitioners struggle to reconcile it with previous authorities and apply it in practice.
We accept the test is one of causation, but don’t really know what the metaphor a “strand in the rope of causation” means except that it is probably broader than what the previous authorities contemplated; it is still a test of causation and should be restricted to what the respondent did or did not do in the lead up to the incident. Depending on the incident itself, what the respondent did or did not do in the lead up to the incident will vary, but a general request for information about prior similar incidents is unlikely to meet that test.
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