Baker v Poole [2019] QDC 113

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Poole [2019] QDC 113 PARTIES: RACHAEL EMMA BAKER (applicant) v GARRY POOLE (respondent) FILE NO/S: 2216/18 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 8 July 2019 DELIVERED AT: Brisbane HEARING DATE: 24 June 2019 JUDGE: Sheridan DCJ ORDER: 1. Within 14 days of the date of this order, the respondent provide the following information, verified by statutory declaration: (a) Was a fee charged in respect of storage, parking or hangarage of PA 32 aircraft VH-BDG at the airstrip? 2. The parties must participate in a compulsory conference of the type referred to in s 36 of Personal Injuries Proceedings Act 2002 (Qld) at a mutually convenient time within 14 days of the provision of the information referred to in order 1 above. 3. The application filed 19 June 2019 is otherwise dismissed. 4. If the parties wish to pursue an order for costs, then written submissions in support must be filed within 7 days of the making of this order. CATCHWORDS: TORTS – NEGLIGENCE – GENERAL MATTERS – Personal Injuries – pre-litigation procedures – obligation to disclose information and documents – scope of obligation – whether failure to comply COUNSEL: M.J. Smith for the plaintiff/applicant A.J. Collins for the defendant/respondent -- 1 of 9 -- 2 SOLICITORS: Carter Capner for the plaintiff/applicant Carter Newell for the defendant/respondent Introduction [1] This is an application for an order pursuant to s 35 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) for the respondent to provide certain information and documents in compliance with his obligations pursuant to s 27 of PIPA. [2] The applicant is the complainant in a personal injuries claim pursuant to PIPA. The applicant was a passenger in a small aircraft. She alleges she suffered personal injuries consequent upon the aircraft landing at an aerodrome controlled by the respondent. The injury is alleged to have occurred on 26 July 2015. Jurisdiction [3] Peter Carter, as solicitor for the plaintiff, has filed an affidavit dated 27 June 2019, to which he attaches a report by Dr Vaidya Bala, consultant physician in rehabilitation medicine, following the conduct of a medical assessment of the applicant. Mr Carter deposes that, in his opinion, the quantum of the applicant’s claim for personal injuries sustained in the accident for which she is seeking damages against the respondent will exceed the jurisdiction of the Magistrate’s Court but will not exceed the jurisdiction of this Court. On that basis, I am satisfied that the District Court has jurisdiction to hear the claim, and hence this application. Background [4] A notice of claim pursuant to PIPA was given to the respondent on 8 August 2016. In the notice of claim, the following description of the incident was given: “The claimant was a passenger on board aircraft VH-BDG. As the aircraft was attempting to land on runway 22 at Lakeside Airpark, the pilot planned a steep approach towards the runway in order to maintain sufficient clearance over two nearby rows of powerlines and still land near the runway threshold well before the sealed section of the runway. During the descent the aircraft sank rapidly to a dangerously low level and the pilot was unable to sufficiently correct the aircraft’s trajectory to avoid an impact. The tail of the aircraft impacted with terrain and proceeded to drag along the gravelled section of the runway for about 18 metres. Upon impact with the ground the claimant felt immediate pain in her back. A hazard briefing conducted by the airpark operated some weeks earlier included a request to pilots to land on the gravel area of the runway as the seal that had been laid recently proved to be quite soft.” [5] In the notice of claim, in answering the question as to what the injured person believed caused the incident, it was said: “The named respondent as the airpark operator of the Lakeside Airpark has failed to: 1. Ensure that runway 22 was safe for landing in all respects; -- 2 of 9 -- 3 2. Ensure that the sealed area of runway 22 was adequate for the conduct of landing so that pilots were not required to confine landing only to the gravel portion of the runway; 3. Close the airstrip to operations until the inadequate sealing of the runway had been rectified; and 4. Warn pilots of the hazard associated with confining landings to only the gravel section of the runway namely: – (a) The need to touch down as close as possible to the start of the gravel surface; the possibility of rapid sink on final approach; (c) The possibility of wind shear and downdraft on final approach; and (c) Restricted manoeuvrability due to the presence of powerlines on final approach. As a result of any of the above failures the named respondent’s negligence has caused or contributed to the accident resulting in the claimant’s injuries.” [6] The Notice of Claim names the pilot as being a person to whom it is intended the Notice of Claim be given. The pilot is not a respondent to this application. [7] In a subsequent statutory declaration sworn 16 May 2019, the claimant deposed that the following response fully describes why the respondent caused the incident: 1. The respondent as the airpark operator at the Lakeside Airpark requested the pilot of the aircraft to confine aircraft operations to the gravel portions of the runway; 2. The respondent as airpark operator failed to: (a) Ensure that runway 22 was safe for landing in all respects; (b) Ensure that the sealed area of runway 22 was adequate for the conduct of landing so that pilots were not required to confine landing only to the gravel portion of the runway; Particulars: (i) The sealed area of the runway was part of a runway upgrade project that had been completed three to four weeks prior to the incident; (ii) The sealed area started 200 metres in from the north-west start of the runway and ended 300 metres thereafter; (iii) The sealed area was not sufficiently hardened so as to allow unrestricted aircraft operations upon it without risking damage to the bitumen surface; (c) Warn pilots of the hazard associated with landings on runway 22 having regard to 2(a) and 2(b)(iii), namely that: (i) The gravel surface of the runway prior to the sealed area was 200 metres in length and the gravel surface of the runway after the sealed area was 500 metres in length; (ii) There was a possibility of rapid sink on final approach; (iii) There was a possibility of wind shear and downdraft on final approach; (iv) There were powerlines extending into the flight path on final approach; -- 3 of 9 -- 4 (v) There was a need to touchdown as close as possible to the start of the gravel surface without any allowance for round out, ground effect or flare; and that as a result of (i)-(v) (vi) There was insufficient landing distance for the conduct of the safe operations except by experienced pilots who had adequate experience in landing on the runway. (d) Close the airstrip to operations until the inadequate sealing of the runway had been rectified; (e) Close the airstrip to operations except by experienced pilots who had conducted a sufficient number of prior take-offs and landings at the airstrip to be reasonably considered safe for the purposes of the respondent. 3. As a result of any of the above failures the named respondent’s negligence has caused or contributed to the accident resulting in the claimant’s injuries. 4. The services supplied to the claimant by the respondent in relation to the use of the airstrip did not conform to the statutory guarantees applicable pursuant to Australian Consumer Law ss 60, 61(1) and 61(2). [8] Prior to the request the subject of this application, the claimant had made a number of requests for documents and information pursuant to s 27 of PIPA. The information and documents the subject of this application had been the subject of a request under cover of a letter from the applicant’s solicitors dated 12 June 2019. [9] In determining this application, it will be necessary to have careful regard to the language of s 27 and the stated purpose of PIPA. [10] The relevant subsection provides as follows: “(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) … (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; …” [11] The word “incident” is defined in the schedule to PIPA as follows: “incident, in relation to personal injury, means the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury.” [12] The scope of the obligations imposed by s 27(1)(a) and s 27(1)(b) of PIPA are significantly different. It is accepted that the obligation in s 27(1)(b) to provide information “about the circumstances of, or the reasons for, the incident” is much -- 4 of 9 -- 5 broader than the obligation to produce documents about the incident directly relevant to a matter in issue.1 [13] The difference in terminology has the consequence that different outcomes will result. That may at times have the resultant effect of not permitting the achievement of the purpose of the legislation: in particular the purpose of division 2, being the division under which the s 27 obligation arises, which is stated to be “to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.” That purpose will be best satisfied by applying a wide interpretation of the obligation of disclosure, but it is accepted that any such interpretation must be within the meaning of the clear language of s 27 of PIPA.2 In Haug, White J described it as the broad construction giving way “to the actual words employed by the legislature which have the effect of limiting the categories of material that must be disclosed and produced by the appellant.”3 The request [14] Applying those general principles to the current application, it will be necessary to consider each of the individual requests in turn. Information [15] The first request in paragraph 1(a) of the application sought information in relation to fees, namely: (i) Was a fee charged in respect of storage, parking or hangarage of aircraft at the airstrip? (ii) Was a fee charged in respect of storage, parking or hangarage of PA 32 aircraft VH-BDG at the airstrip? [16] In submissions on behalf of the respondent, it was accepted that s 27(1)(b) has a broad remedial application but “any request for information must bear a relevant relationship to the incident.”4 It was said that the seeking of any information of and relating to fees is “not conceivably relevant to any claim for negligence in respect of the design of the airstrip on an allegedly different landing area”. [17] It is difficult to see how information relating to fees charged to aircraft generally at the airstrip has the necessary degree of relevance. However, whether or not there was a fee for services in relation to the aircraft involved in the incident must be relevant to the incident. It must be regarded as part of the circumstance of the incident. That information should be provided by the respondent. [18] The second request for information related to the “two power lines” which are said to extend “into the flight path on final approach”. The request for information was directed to the placement of the power lines, whether such power lines had since been relocated and whether the respondent had been involved in any proposal for the removal of the power lines. 1 Haug v Jupiters Limited Trading as Conrad Treasury Brisbane [2008] 1 Qd R 276, [26] per Jerrard JA (Haug). 2 Oliver v Pulp Pty Ltd [ 2009] QSC 340 per Martin J (Oliver); Haug, Ibid. 3 Haug per White J, [33]. 4 Oliver, [12]. -- 5 of 9 -- 6 [19] Following submissions on behalf of the respondent, counsel for the applicant accepted that in the applicant’s description of the causes of the incident, it was alleged there was a failure to warn in relation to the position of the power lines, as distinct from it being suggested that the position of the power lines had caused the incident. Counsel conceded the issue and did not press for the further provision of information in relation to the power lines. [20] The third request for information related to the means by which the respondent formed the opinion that the pilot had sufficiently sound piloting skills and displayed sufficiently sound airmanship to conduct operations on the airstrip. The respondent submitted that he had already provided the information in a statutory declaration. In the statutory declaration it was said by the respondent that he formed the opinion the pilot had the requisite skill and experience to use the runway at the airfield because “he confirmed he had the appropriate licence to do so.” [21] On the basis of the information already provided, counsel for the applicant did not press for the provision of any further information. Documents [22] As to the application for further documents, the respondent submitted that there was no proper basis for asserting their existence and, if they did exist, that they were directly relevant to a matter in issue. [23] At the hearing, the request the subject of paragraphs 2(c) to (h) of the application was not pursued. [24] The request for documents in paragraph 2 of the application became limited to: (a) A copy of the “Lakeside Airpark flight path and elevations” and other plans and documents provided to the Mackay Regional Council concerning air safety and aircraft operations at the Lakeside airstrip; (b) A copy of all air safety and air strip information submitted to the Mackay Regional Council concerning the above; ….. (i) Information concerning the airstrip and aircraft operations provided to Cardno in respect of the Mackay Regional Council application. [25] If an order is to be made in relation to those requests, the documents must be shown to be both directly relevant to a matter in issue and to be documents about the incident. The requirement for documents to be “about the incident” should be understood to mean “about the incident” described in the notice of claim.5Here, it will be the description in the notice of claim as amended by the statutory declaration. [26] In order for the documents sought by the applicant in paragraphs (a), (b) and (i) to fall within this description the documents must specifically refer to this accident or its direct cause. To the extent to which the documents deal with air safety and aircraft operations generally at the Lakeside airstrip then those documents cannot be said to fall within the description as required by s 27(1)(a). That conclusion is consistent with the approach taken by the Court of Appeal in Haug and more recently by Reid DCJ in Curry v Brisbane City Council.6 5 Haug, [23] per Jerrard JA. 6 [2010] QDC 148 (Curry). -- 6 of 9 -- 7 [27] In Haug, it was accepted by the trial division judge, and not challenged on appeal, that documents relating to prior complaints involving security staff, or to previous claims brought against the casino relating to the use of excessive force by security staff, were not disclosable. The Court of Appeal also held that the personnel and training records of the security guards involved in the subject altercation, were also not disclosable. Jerrard JA concluded: “The documents asked for… are not about the incident in the notice of claim, or in connection with it, or in relation to it. This is a fishing exercise… it is objectionable because it goes beyond the statutory obligations of the appellant.” [28] Reid DCJ in Curry concluded that documents about prior accidents involving pedestrians at the intersection, where the accident involving the applicant had occurred, were not disclosable. [29] The request for these three classes of documents is based upon material obtained from the Mackay Regional Council and in particular the minutes of a Council meeting on 23 May 2018 which refer to a change of use application for the “formalization of an existing rural airstrip (Air Services)” lodged on 13 November 2017. The proposed use was defined as Air Services in accordance with the Mackay Regional Planning Scheme. The Council minutes refer to the fact that an airstrip had existed on the property “since the 1980s and possibly earlier.” The Council minutes record that the application was recommended subject to conditions. [30] The minutes (page 96) record that one submitter expressed three concerns about the application. One of the concerns related to safety, and in particular, the existence of powerlines; including a 250,000 volt high tension line and an 11,000 volt powerline surrounding the airstrip. The minutes include the statement from the submitter, “two fatal wire strikes so far”. The minutes record the application for approval responding that the runway take off and plane landing was not encumbered by powerlines, and referred to figure 1, “Lakeside Air Flight Path and Elevations”. The minutes record the applicant stating that the high voltage powerlink located in the far eastern portion of the subject site was removed 12 months previously. The minutes record the applicant stating that, “historic incidences referred to by the submitter were as a result of pilot error during flight and not related to take-off or landing procedures at the Lakeside Airpark”. [31] In his oral submissions, Mr Collins for the respondent objected to production of the documents sought in the application. Firstly, on the basis that the request was too broad and secondly, on the basis that it was seeking documents after the event. Later, during argument Mr Collins submitted that a document which showed a change in system which may or may not acknowledge a deficiency may or may not be relevant, but would not be disclosable if the request was too broad and made years after the event. Clearly, the second ground is not a proper basis for objection. The issue is whether the document created was about the incident; it does not matter when it was created. If it contains some acknowledgement of a deficiency in a system in existence at the time of and relevant to the incident, it would be disclosable; whenever it was created. [32] The application requests a copy of a specific document shown by the minutes to exist, and other documents relating to the same subject matter (air safety, the air flight path, elevations and take-off and landing procedures) which the minutes suggest also exist; -- 7 of 9 -- 8 or, at least to have existed at the time of the application to the Council, and been in the possession of the applicant for approval prior to that time. It would be surprising if the applicant for approval did not have copies of such documents at the moment. [33] It is, accordingly, conceivable that the respondent has not properly addressed the issue. [34] A more difficult question is whether any order should be made. The statute, as interpreted by the Court of Appeal in Haug, does not require a respondent to provide documents involving other incidents or about the circumstances generally. To be disclosable the document must relate to this incident. [35] The unknown issue is whether the submitter referred to historic incidences other than the two fatalities, namely this one, and whether the historic incidences to which the applicant for approval referred include the present one. The powerlines were evidently an issue for the submitter, and therefore became relevant for the applicant for approval, as they are in the present case. [36] There is a statutory obligation imposed upon a respondent to disclose documents relating to the incident. It may be that after an examination of these reasons the respondent will disclose more documents; particularly bearing in mind, if the matter proceeded to litigation, his obligations of disclosure and the potential for additional orders to be made for disclosure under the UCPR. [37] As the evidence stands, I am not satisfied that it is appropriate to make any order. Other orders [38] The application included a request for the parties to attend a settlement conference at a mutually convenient time within seven to fourteen days after the respondent has provided the disclosure ordered in paragraphs 1 and 2. At the hearing it was conceded that the parties should be directed to participate in a compulsory conference within 14 days of provision of the information or 14 days of the making of the order, if no information is ordered to be provided. [39] It was agreed that the question of costs must await the outcome of the application. Consistent with the agreed position, I will make provision for the making of submissions in relation to costs, but given the orders to be made the parties should consider whether the appropriate course is simply not to make any order. Orders [40] Accordingly, the court makes the following orders: 1. Within 14 days of the date of this order, the respondent provide the following information, verified by statutory declaration: (a) Was a fee charged in respect of storage, parking or hangarage of PA 32 aircraft VH-BDG at the airstrip? 2. The parties must participate in a compulsory conference of the type referred to in s 36 of Personal Injuries Proceedings Act 2002 (Qld) at a mutually convenient time within 14 days of the provision of the information referred to in order 1 above. 3. The application filed 19 June 2019 is otherwise dismissed. -- 8 of 9 -- 9 4. If the parties wish to pursue an order for costs, then written submissions in support must be filed within 7 days of the making of this order. -- 9 of 9 --