While Tourism Qld may have long touted Queensland as the ideal venue for a fishing trip, it seems the Courts have now come on board as well. In this recent decision, the Queensland Court of Appeal has significantly expanded the pre-court disclosure obligations on a PIPA respondent.
Background
The Queensland Court of Appeal recently heard an appeal from Justice Crow of the Supreme Court from 2020 regarding the scope of disclosure obligations on a defendant under section 27 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).
The appellant, the alleged victim of sexual abuse, sought disclosure from the respondent that had run an orphanage where he alleged that he had been abused by staff and other residents at the orphanage some 45 years ago.
The crux of the issue was whether the respondent was obliged, by section 27(1)(b)(i) PIPA, to provide information regarding other complaints relating to the superintendent of the orphanage. The respondent conceded that complaints had been received but not until after the superintendent had retired. The appellant still pushed for disclosure of those complaints, but at first instance, it was held that the respondent was not obliged to provide information regarding prior similar incidents unless it could be demonstrated that those prior incidents had a causative effect “in the sense of being a strand in the rope of causation”.
Crow J did not consider that information received years after the alleged abuse could have any bearing on the respondent’s conduct at the time, nor could it have put the respondent at the risk of the abuse such that there was no “strand in the rope”.
The Court of Appeal has now overturned that ruling, finding that the nature of information about prior similar incidents is not confined to information about prior incidents that have a causative effect regarding the allegations made by a claimant and that disclosure of that information ought to be provided so that the Court can determine at trial whether the information has any causative effect or not.
In reaching that decision, the Court of Appeal was primarily influenced by the fact that:
- the definition of ‘incident’ in PIPA includes the phrase “or other act, omission or circumstance”; and
- the legislative intent set out in section 21 PIPA is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.
It was also held that it is not for a defendant to decide whether the information that it provides in response to a request is accurate or true (that is, complaints which a defendant believes, as opposed to knows/has proven, to be false or inaccurate are still to be disclosed).
That obviously sets a new and more onerous duty of disclosure on a defendant regarding the existence of prior incidents, though one that seems to have been in the making for some time recalling the similar decision of her Honour Holmes CJ from March 2021 of Re XCJ [2021] QSC 129. It seems that the new approach is that:
- complaints made may be relevant if they are true or it is not known whether they are true or false; and
- prior complaints that are known to be false need not be disclosed.
However, the Court of Appeal judgement confirms that this more onerous duty is not unfettered, and the following limitations still apply (and defendants need to be very aware of them):
- the information sought must still be in the defendant’s possession and that “does not extend to what might be obtained through enquiry”, but where an insurer is conducting the defence, the insurer must provide the information that is available to its insured;
- the information sought must still pertain to an allegation made by the claimant in the Part 1 Notice of Claim form, and each case turns on those allegations and its own facts- see paragraph 128 regarding the Oliver decision; and
the information need not be required if known to be false (i.e. it has been investigated and proven false or withdrawn by the complainant with acknowledgement that it was false).[i]
In a way, the Court of Appeal judgment skates very close to endorsing hindsight reasoning and creates a big headache for defendants and their insurers about what weight information that has not been put through the trier of fact process will have. If information that is first made available after an incident and likely false but cannot be proven as false (because it has not been tried and tested) now must be disclosed and can be relied upon, how will the process not involve multiple trials within trials?
Implications
An appropriately worded notice of claim will now be a powerful tool for a claimant in terms of securing a broader range of information than was previously thought to be disclosable under section 27 PIPA (including records of past complaints) if it can be established that they are:
- true, or at least not known to be false, and
- relevant in that there was an omission to do something in light of those complaints.
Practically, this will create a lot more work for defendants and their insurers, investigators and solicitors in terms of meeting the new and more onerous duty. What is also left open is the scope for disclosure of previous similar incidents for matters where such similar incidents are much more frequent (i.e. not limited to a single perpetrator or specific period)- consider slip and falls at shopping centres- will all slip and falls since the establishment of a shopping centre need to be disclosed for each and every subsequent slip and fall claim at that shopping centre?
We expect the Court of Appeal decision will be the first of many hearings to confirm the breadth of the new goalposts.
Principal
Principal