Alavi-Moghaddam v Woolworths Ltd [2012] QDC 98

DISTRICT COURT OF QUEENSLAND CITATION: Alavi-Moghaddam v Woolworths Ltd [2012] QDC 98 PARTIES: ELHAN ALAVI-MOGHADDAM (Applicant) AND WOOLWORTHS LTD (ACN 000 014 675) (Respondent) FILE NO/S: BD 5109/11 DIVISION: Civil PROCEEDING: Application for directions ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 17 May 2012 DELIVERED AT: Brisbane HEARING DATE: 27 April 2012 JUDGE: Farr SC DCJ ORDER: 1. Pursuant to s 287 Workers Compensation and Rehabilitation Act 2003, the respondent provide answers to the applicant’s request for information as requested in the applicant’s solicitors’ correspondence dated 11 January 2012, paragraphs 2(b), (c), (d) and (e) which is exhibited to the affidavit of Amanda Charmaine Karpeles filed 16 April 2012 and which is contained on pages 49 and 50 of the exhibits to that affidavit. 2. Pursuant to r 250 of UCPR, the applicant be permitted to attend at the respondent’s premises at Morningside together with her solicitor and engineer for the purpose of an inspection of that part of the respondent’s premises where the applicant alleges she was working (paragraph 4 of amended statement of claim). 3. The applicant’s engineer be permitted to take measurements and photographs of the relevant parts of the respondent’s premises. CATCHWORDS: WORKERS’ COMPENSATION – applicant seeks orders pursuant to s 279 and s 287 Workers’ Compensation and -- 1 of 14 -- 2 Rehabilitation Act 2003 (Qld) that the respondent provide information and documentation relevant to an injury allegedly sustained by the applicant in the workplace – whether the respondent has failed in its duty of disclosure pursuant to s 279 Workers’ Compensation and Rehabilitation Act 2003 (Qld) UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) – r 250 – applicant seeks further order allowing an inspection of the workplace pursuant to r 250 Uniform Civil Procedure Rules 1999 (Qld) – whether inspection of the workplace is necessary for deciding an issue in this proceeding Evans Deakin Pty Ltd v Orekinetics Pty Ltd (2002) 2 Qd R 345; [2002] QSC 042, cited Hartley v Australian Meat Holdings Pty Ltd (Unreported, No. 133 of 1995, District Court of Queensland, 13 December 1996), cited Karaka v Woolworths Ltd (Unreported, No 597 of 2009, Supreme Court of Queensland, 15 June 2009), cited Thornton v Thomas Borthwick & Sons (Australia) Pty Ltd [1998] QSC 165, cited Motor Accident Insurance Act 1994 (Qld), s 51B(5)(d) Personal Injuries Proceeding Act 2002 (Qld), s 37(2)(b) Uniform Civil Procedure Rules 1999 (Qld), r 250 Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 273, 279, 287, 289, 290A(2) COUNSEL: GJ Cross for the applicant. JB Rolls for the respondent. SOLICITORS: AK Compensation Lawyers for the applicant. DLA Piper Australia for the respondent. The issue [2] The applicant seeks orders pursuant to s 279 and s 287 Workers’ Compensation and Rehabilitation Act 2003 (WCRA) that the respondent provide information and documentation relevant to an injury allegedly sustained by the applicant in the workplace in or about April 2007. [3] The applicant seeks a further order allowing an inspection of that workplace pursuant to r 250 of the Uniform Civil Procedure Rules (UCPR). [4] The respondent opposes the orders sought. Brief factual background [5] The applicant was allegedly injured in the course of her employment with the respondent in April 2007. -- 2 of 14 -- 3 [6] The applicant is an immigrant from Iran and is said to have little understanding of the English language. [7] She was employed as a shelf-packer at the respondent’s Morningside store. [8] The accident is said to have occurred when the applicant was at the top of a ladder in the cold room of the respondent’s store retrieving a 20 kilogram box of produce from shelving. Allegedly, the ladder moved causing her to lose her grip on one side of the box and as it fell she suffered a wrenching injury to her right wrist which took the weight of the box. History of the matter [9] The applicant alleges that she provided a medical certificate dated 22 May 2007 to her employer but was advised at that time that as she was a casual employee she could not claim worker’s compensation. [10] As she could not afford medical treatment in Brisbane the applicant says that she returned to Iran in about February 2008 for surgery to her wrist. [11] A notice of claim was served on her employer on 15 February 2010. [12] The applicant’s solicitors sought disclosure of the applicant’s statutory claim file and relevant employment records shortly thereafter. The respondent’s solicitors advised on 5 March 2010 that their client could not locate the applicant’s personal file. That file was later located by the respondent, and a copy was provided to the applicant’s solicitors under cover of correspondence dated 19 May 2010. [13] An application for leave to bring proceedings was heard on 23 March 2010 before His Honour Judge Searles DCJ and such application was successful. [14] The pre-proceeding compulsory conference was held on 18 October 2011. The matter did not resolve and proceedings were filed on 16 December 2011. [15] By correspondence dated 2 September 2011 the applicant requested documents and information which were said to be relevant to the circumstances of the accident pursuant to s 279 WCRA. Pursuant to s 279(4) WCRA the respondent had to respond by 30 September 2011. It failed to do so. [16] The applicant made a further request on 5 October 2011. The respondent’s solicitors responded that same day and advised, inter alia: “We are not in possession … of the information and documentation.” [17] By correspondence dated 17 October 2011 the respondent’s solicitors advised liability was denied “on the basis that Woolworths took all reasonable steps and precautions to prevent the accident.” [18] After the compulsory conference failed to resolve the issue, the applicant’s solicitors by correspondence dated 18 October 2011 sought to have an inspection of the workplace with an engineer. -- 3 of 14 -- 4 [19] No response was received to that correspondence, and on 2 November 2011 the applicant’s solicitors again sought a response to the letter of 18 October 2011. [20] By correspondence dated 2 November 2011 the respondent’s solicitors advised that an inspection would not be allowed. They did advise, though, that a photograph of the ladder would be disclosed “in due course”. Further correspondence then took place in November and December 2011 regarding the issue of permission being given for an inspection to take place. No such permission was given. [21] By correspondence dated 4 January 2012, the applicant’s solicitors sought outstanding disclosure as requested on 2 September 2011. The respondent’s solicitors responded on 9 January 2012 and advised, inter alia: “We will otherwise respond to your requests for information once the solicitor with the conduct of this file returns from leave on 16 January 2012.” [22] On 11 January 2012 the applicant’s solicitors by correspondence requested the following to be provided: “1. Pursuant to s 279(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003, could you please have your client provide all document[s] about the circumstances of the event resulting in the injury including: (a) Any document not already disclosed, that was given to our client about training, safety, manual handling and workplace health and safety. (b) Task descriptions and/or description of the duties our client was required to do, risk assessments of these jobs/duties and/or any other documents which gave our client instruction or explanation on how to carry out the duties she was assigned. (c) Specifically, please have your client provide documents relating to the use of ladders and carrying and placing goods or boxes in the cold or storage room and removing and carrying boxes from the cold storage room. (d) Please have your client provide documents detailing the design and layout of the shelves in the cold storage room including any risk assessments or engineering. (e) Please have your client provide photographs, plans or diagram[s] of the cold storage room including its layout at the time of the event in April 2007, the height of the shelves, width of access areas and ladders. If the room or layout has changed since April 2007, please have your client provide documents in relation to the changes including any -- 4 of 14 -- 5 documents regarding design, constructions, any diagram and photographs that may exist. (f) Could you please have you[r] client provide photographs and/or any documents regarding the ladder used by our client and/or ladders used in the cold storage room at the time of the event in April 2007, including design, maintenance and use. 2. Pursuant to s 279(1)(b) of the Act, please have your client provide the following information: (a) Information about the subject ladder and ladders used at the time of our client’s incident. (b) Have there been any previous incidents that your client was aware of, either before or after our client’s incident, where the ladder had become unstable, or moved while persons were on the ladder? (c) What training, instruction and other information was given to our client regarding the correct use of ladders, regarding moving goods to and from the cold storage room, placing goods or taking goods out of the cold storage room? For example, how was our client instructed to take goods from, and place goods on shelves, including high shelves? (d) In regards to the cold storage room at the time of the event in 2007, could you please have your client provide information as to the room’s layout including its dimensions, i.e. length and width, dimensions of the racking or shelving within the cold room including the height and depth of the racking or shelving. (e) Information as to where potatoes and apples were stored at the date of the event in 2007, for example on shelves or on pallets, how these shelves were placed and how they are accessed by staff.” [23] No response was made to that request and this application was filed on 29 March 2012. [24] On 26 April 2012, a photograph of a step ladder and a document entitled “Safety Basics” were separately emailed to the applicant’s solicitors by the respondent’s solicitors. The application [25] The applicant is applying to the court for the following orders: -- 5 of 14 -- 6 “1. Pursuant to s 287 WCRA the respondent provide answers to the applicant’s request for information and documentation as requested in the applicant’s solicitor’s correspondence dated 11 January 2012. 2. Pursuant to UCPR r 250 that the applicant be permitted to attend at the respondent’s premises at Morningside together with her solicitor and engineer for the purpose of an inspection of that part of the respondent’s premises where the applicant alleges she was working. 3. The inspection be permitted to take place at a time when operations in the respondent’s premises are being carried out. 4. The applicant’s engineer be permitted to take measurements and photographs or take video footage of the relevant parts of the respondent’s premises. 5. The respondent pay the applicant’s costs of and incidental to this application.” [26] During oral submissions, counsel for the applicant indicated that order number 3 above was no longer sought. The legislation [27] Section 279 WCRA provides: “(1) The parties must cooperate in relation to a claim, in particular by: (a) giving each other copies of relevant documents about: (i) the circumstances of the event resulting in the injury; and (ii) the worker's injury; and (iii) the worker's prospects of rehabilitation; and (b) giving information reasonably requested by each other party about: (i) the circumstances of the event resulting in the injury; and (ii) the nature of the injury and of any impairment or financial loss resulting from the injury; and (iii) if applicable the medical treatment and rehabilitation the worker has sought from, or been provided with, by the worker's employer or the insurer; and -- 6 of 14 -- 7 (iv) the worker's medical history, as far as it is relevant to the claim; and (v) any applications for compensation made by the claimant or worker for any injury resulting from the same event. (2) Subsection (1)(a) applies to relevant documents that: (a) are in the possession of a party; or (b) are reasonably required by WorkCover from the worker's employer under section 280. (3) A claimant and an insurer must give each other copies of the relevant documents within 21 business days after the claimant gives the insurer a notice of claim. (3A) An insurer and a contributor must give each other copies of the relevant documents within 21 business days after the insurer gives the contributor a contribution notice. (3B) A contributor must give the claimant copies of the relevant documents within 21 business days after the insurer gives the contributor a contribution notice. (3C) If the relevant documents come into a party's possession later than the time mentioned in subsection (3), (3A) or (3B), a party mentioned in the subsection must give the other party mentioned in the subsection a copy of the relevant documents within 21 business days after they come into the party's possession. (4) A party must respond to a request from another party under subsection (1)(b) within 21 business days after receiving it. (5) This section is subject to section 284. (6) In this section: relevant documents means reports and other documentary material, including written statements made by the claimant, the worker's employer, a contributor, or by witnesses.” [28] Section 279 falls within chapter 5, part 5 WCRA. Section 273 provides that the object of chapter 5 part 5 “is to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense”. [29] Section 287 WCRA empowers the court to order a party to comply with a provision of chapter 5. [30] Rule 250 of the UCPR provides: -- 7 of 14 -- 8 “(1) The court may make an order for the inspection, detention, custody or preservation of property if— (a) the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or (b) inspection of the property is necessary for deciding an issue in a proceeding. Note— Under the Acts Interpretation Act 1954, section 36—property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action. (2) Subrule (1) applies whether or not the property is in the possession, custody or power of a party. (3) The order may authorise a person to do any of the following— (a) enter a place or do another thing to obtain access to the property; (b) take samples of the property; (c) make observations and take photographs of the property; (d) conduct an experiment on or with the property; (e) observe a process; (f) observe or read images or information contained in the property including, for example, by playing or screening a tape, film or disk; (g) photograph or otherwise copy the property or information contained in the property. (4) In the order, the court may impose the conditions it considers appropriate, including, for example, a condition about— (a) payment of the costs of a person who is not a party and who must comply with the order; or (b) giving security for the costs of a person or party who must comply with the order. (5) The court may set aside or vary the order.” Submissions [31] The applicant has submitted that the intent of the legislature is apparent from the provisions of s 279 WCRA and that is to impose a broad general duty to cooperate. -- 8 of 14 -- 9 It is submitted that there is an obligation on the respondent to do all things necessary to provide the applicant with information. [32] The applicant further submits that while proceedings were filed on 16 December 2011, the obligations imposed by chapter 5, part 5 WCRA are continuing. [33] In relation to r 250(1)(b) UCPR the applicant submits that the rule applies only to property that is of some evidential value, given that the rule refers to inspections of property if such should be “necessary to decide an issue in a proceeding”. It was noted that “issue” is not defined in Schedule 4 of the rules, and it was submitted that the definition of that word should not be constrained beyond its natural meaning, in that it could be a factual or legal issue. [34] The applicant has submitted that an inspection is necessary for the following reasons: (a) no incident report has been prepared and no investigation has been carried out by the respondent; (b) there has been a delay in bringing the claim and on the applicant’s case the delay was by reason of the respondent wrongfully advising the applicant that she could not claim; (c) the respondent has failed to comply with the obligations pursuant to s 279 WCRA in that it failed to comply within the requisite time period; (d) the applicant has language difficulties where it is reasonable to assume that a demonstration by her of the task would be of more assistance than an explanation through an interpreter; (e) the applicant would necessarily have to remember heights, distances and dimensions for an accident that occurred over five years earlier, whereas the respondent has ready access to the alleged accident site, the ladders in use at the time and perhaps drawings or plans of the room; (f) it would be necessary for an expert to observe the workplace flooring, the force that might be required to move the ladder, the reach distance the applicant was required to obtain the 20 kilogram carton from, and whether the ladder had locking devices on its wheels in order to form an opinion that would be of assistance to the court. [35] In response the respondent has submitted that in relation to the application for an order for an inspection under r 250 UCPR, the inspection must be “necessary” and that word should be interpreted as meaning the inspection is necessary in the sense that there is good reason to think that the applicant would be prevented from obtaining a just resolution of the action unless an order was made. Reliance was placed upon a decision of McGill DCJ in Hartley v Australian Meat Holdings Pty -- 9 of 14 -- 10 Ltd,1 where his Honour held “necessary” meant necessary for the purpose of doing justice between the parties to the action. [36] The respondent also relied upon observations of Daubney J in Karaka v Woolworths Ltd,2 wherein his Honour said when interpreting the word “necessary” in r 250: “What is required for an applicant such as Mr Karaka to succeed in an application of this nature is for it to be demonstrated that the inspection is necessary for deciding an issue. That seems to me to impart the notion that without the inspection, and the evidence which would be obtained from an inspection it would not be possible to make a decision on the particular issue.” [37] The respondent further submits that the applicant has not identified why an inspection is necessary in this case and that the applicant is doing no more than fishing for a case and hoping that an inspection may identify some further or other default with the place or system which might found an, as yet, unpleaded case against the respondent. [38] The respondent further submits that even if the court finds that an inspection is necessary in the sense referred to above, that is not determinative of making such an order. It is submitted that the rule is discretionary, that the discretion is a wide one, and that an order for inspection should not be made unless there is sufficient evidence that in the absence of an inspection the applicant’s rights are being infringed and that the inspection would facilitate proof of the claim.3 [39] In that regard, the respondent submits that as the request for an inspection was first made after the compulsory conference was held pursuant to s 289 WCRA and the exchange of mandatory final offers, there is now a risk that the provision of an expert report may render that compulsory conference and the exchange of mandatory final offers, together with cost consequences, nugatory subsequent to any trial. It is submitted that it may well result in a further compulsory conference being necessary. The respondent submits that the particulars of negligence in the statement of claim demonstrate that the only purpose for an inspection at this stage would be to present a new case which would render the pre-court procedures useless. It is therefore submitted that the court should, in those circumstances, exercise its discretion and dismiss the application for inspection. [40] In relation to the order seeking production of documents, the respondent has submitted that the applicant was advised by the respondent in a letter dated 5 October 2011 that no further training information, diagrams, task descriptions, or risk assessments were possessed by the respondent. It has been submitted that there must be some evidentiary basis for the assertions that the applicant makes that disclosure under the Act has not been complete and that there must be a demonstrable case based upon evidence that the duty to disclose has not been complied with. The respondent submits that in this case the affidavit material does not disclose any basis to suspect that the statements made by the solicitors for the respondent on 5 October 2011 are incorrect and there is no reason to make an order in relation to the documents sought. 1 Unreported, No. 13 of 1995, District Court of Queensland, 13 December 1996. 2 Unreported, No. 597 of 2009, Supreme Court of Queensland, 15 June 2009. 3 See Evans Deakin Pty Ltd v Orekinetics Pty Ltd (2002) 2 Qd R 345 at 350. -- 10 of 14 -- 11 [41] Similar submissions were made in relation to information sought pursuant to s 279(1)(b) WCRA. The respondent again submits that there is no evidentiary foundation that can establish that the respondent has not complied with its obligations under the Act and there is no evidence upon which the applicant can rely that suggests the statements made on 5 October 2011 are incorrect. Findings Inspection [42] I have been particularly assisted by the comments of Daubney J in Karaka v Woolworths Ltd (supra) quoted in paragraph 36 above. [43] In my view, given the state of the evidence as it presently appears to exist, an expert ergonomic report detailing the nature of the flooring, the height of the shelving upon which the 20 kilogram box of produce was positioned, particulars about the ladder, the angle that the applicant would have been required to reach up to to take hold of the box of produce, and the force required to slide and pick up that box of produce (and this is not an exhaustive list) would be evidence which could be obtained from an inspection and would be necessary for deciding an issue in the proceeding. Such issues would include whether the respondent had breached an implied term of the contract of employment or whether the respondent had breached a duty of care by: 1) failing to take all reasonable precautions for the safety of the applicant whilst she was engaged in carrying out her assigned work; and/or 2) exposing the applicant to a risk of damage or injury of which it knew or ought to have known; and/or 3) failing to provide and maintain safe and adequate plant and equipment; and/or 4) failing to take reasonable care that the place at which the applicant carried out her assigned work was safe; and/or 5) failing to provide a safe system of work. [44] In the absence of such expert evidence, it is my opinion that the remaining evidence would be inadequate for the purposes of resolving such issues. There is no incident report disclosed in the material nor is there any evidence of an investigation having been conducted into the alleged incident. Furthermore, given that the incident is alleged to have occurred over five years ago, it would be unrealistic for the court to expect the applicant to present her case based solely on her memory of details that may well have seemed peripheral at the time. [45] I do not accept the respondent’s submission that such an inspection is being sought for the purposes of “fishing for a case, that is, to seek to have the inspection which may identify some further or other default with the place or systems which might found an, as yet, unpleaded case against the respondent”.4 Such a submission carries even less weight given the fact that the applicant is not now seeking to have 4 Submissions of respondent, paragraph 15. -- 11 of 14 -- 12 the inspection take place at a time when operations in the respondent’s premises are being carried out. [46] It follows, that I also do not accept that the only purpose for such an inspection would be to present a new case which would then render the pre-court procedures such as the compulsory conference and the exchange of mandatory final offers nugatory. In fact, it is difficult to see how such an inspection could result in anything other than evidence being obtained which is potentially relevant to either or both parties’ cases as they are presently stated. [47] It’s also relevant to note that s 290A(2) WCRA provides that a certificate of readiness must state that the party is completely ready for the compulsory conference. This is to be compared and contrasted to s 37(2)(b) Personal Injuries Proceeding Act 2002 (PIPA) and s 51B(5)(d) Motor Accident Insurance Act 1994 (MAIA) where the parties must certify that they are ready for trial at that same stage. The applicant submits that this difference is reflective of the fact that no costs are payable (other than in exceptional circumstances) under WCRA until the trial process has been conducted, whereas under PIPA and MAIA costs are payable on resolution of the claim, and that as a consequence a responsible solicitor should attempt to avoid running up expenses for the client at a time when they would be unrecoverable. It is submitted that this is a relevant issue when considering the respondent’s submission that an expert report should have been obtained prior to the compulsory conference. [48] I accept that to be a fair submission. [49] Finally, I am supported in my ultimate conclusion by the comments of Justice Demack (as he then was) in Thornton v Thomas Borthwick & Sons (Australia) Pty Ltd:5 “It is absolutely essential in the interests of fair play and fair representation that the inspection of the premises at which the plaintiff alleges the sustaining of an injury should occur.” [50] That sentiment has perfect application in this matter and the application in respect of the inspection should be allowed, although I do not see the necessity for video footage to be taken given that the applicant no longer seeks to conduct the inspection at a time when operations are being carried out. Production of documents [51] The respondent has submitted that its solicitor’s letter of 5 October 2011 stating that the respondent was not in possession of any of the requested documents is sufficient for the purposes of compliance with the provisions of s 279 WCRA. It further submits that no order should be made upon the mere assertion or submission that the duty to disclose has not been complied with, in the absence of an evidentiary basis. [52] I agree with that proposition. [53] Whilst the applicant submits that its request for documents dated 11 January 2012 lists in greater detail the documents sought than that which was particularised in its 5 [1998] QSC 165, Demack J 12/08/1998 at [3]. -- 12 of 14 -- 13 letter of 2 September 2011, the categories of documents sought did not in fact change. Given that fact, in my view, the respondent complied with its responsibilities under s 279(1)(a) (albeit outside of the permitted time frame) on 5 October 2011. I note that on the day before this application was heard, the respondent provided to the applicant, by two separate facsimiles, a copy of a photograph of a ladder said to be of the same type and style as that used by the applicant and a copy of a one page document headed “Safety Basics”. Whilst I assume that, at the very least, the second of those documents must have been in the possession of the respondent at a time when the respondent claimed that it was not (given that the applicant specifically asked for that document on 2 September 2011), that fact does not persuade me that the respondent has failed in its duty of disclosure pursuant to s 279(1)(a). [54] The application in that regard, for those reasons, should be refused. Provision of information [55] On 2 September 2011, the applicant requested the following information pursuant to s 279(1)(b) WCRA: Could you please provide us with information as to what ladder our client (was) using at the time i.e. what ladders were available for use. What training, instruction or other information was given in relation to the use of ladders. What training, instruction and other information was given in relation (to) carrying and removing goods from the cold storeroom. [56] Given that a photograph of the ladder has now been provided to the applicant, I need not consider further the first of those three requests. In relation to requests 2 and 3, the respondent responded by saying “We are not in possession of any documents…or any other information…”. [57] The respondent relies upon that response as evidencing its compliance to the provisions of s 279(4) WCRA. In my opinion it fails to do so. The request for information which is the subject of this application was made on 11 January 2012. As can be seen in paragraph 21 above, the information sought is quite different to that which was sought in the letter of 2 September 2011. As I have already noted, there has been no response by the respondent to the request of 11 January 2012. The information sought seems reasonable and relevant in the circumstances of this matter and in my view the respondent has not complied with its statutory requirements of disclosure. [58] The application should be allowed in relation to questions 2(b), (c), (d) and (e) contained in the applicant’s solicitors’ letter dated 11 January 2012. Orders 1. Pursuant to s 287 Workers Compensation and Rehabilitation Act 2003, the respondent provide answers to the applicant’s request for information as requested in the applicant’s solicitors’ correspondence dated 11 January 2012, paragraphs 2(b), (c), (d) and (e) which is exhibited to the affidavit of -- 13 of 14 -- 14 Amanda Charmaine Karpeles filed 16 April 2012 and which is contained on pages 49 and 50 of the exhibits to that affidavit. 2. Pursuant to r 250 of UCPR, the applicant be permitted to attend at the respondent’s premises at Morningside together with her solicitor and engineer for the purpose of an inspection of that part of the respondent’s premises where the applicant alleges she was working (paragraph 4 of amended statement of claim). 3. The applicant’s engineer be permitted to take measurements and photographs of the relevant parts of the respondent’s premises. [59] I will hear the parties as to costs. -- 14 of 14 --