Curry v Brisbane City Council [2010] QDC 148

DISTRICT COURT OF QUEENSLAND CITATION: Curry v Brisbane City Council [2010] QDC 148 PARTIES: GEORGE RICHARD CURRY (Applicant) AND BRISBANE CITY COUNCIL (Respondent) FILE NO/S: BD585/10 DIVISION: PROCEEDING: Originating Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 12 April 2010 DELIVERED AT: Brisbane HEARING DATE: 10 March 2010 JUDGE: Reid DCJ ORDER: 1. Application dismissed 2. No Order to Costs CATCHWORDS: NEGLIGENCE – Personal Injuries – Personal Injuries Proceedings Act – pre-litigation procedure – obligations under s 27 to disclose documents and provide information – scope of obligation – whether failure to comply Personal Injuries Proceedings Act 2002: s 27(1) Haug v Jupiters Limited Trading as Conrad Treasury Brisbane (2008) 1 Qd R 276 – followed. Oliver v Mulp Pty Ltd (2009) QSC 340 – followed. Wright v KB Nut Holdings Pty Ltd [2010] QDC 91 – followed. Haug v Jupiters Limited Trading as Conrad Treasury Brisbane [2007] QCA 328 – considered. Wolski v ALH Group Pty Ltd (2009) QDC 202 – referred to. Hare v Mount Isa City Council (2009) QDC 39 – referred to. Bowers & RACQ GIO Insurance Ltd v. Ogilvie [2001] QSC -- 1 of 22 -- 2 36 – considered. COUNSEL: C. Newton for the applicant A.M. Musgrave for the respondent SOLICITORS: Turner Freeman for applicant Barry and Nilsson for respondent [1] In this matter the applicant was injured in a motor vehicle accident on 27 June 2007. He was a pedestrian crossing the intersection of Wharf, Queen and Eagle Streets when struck by a taxi, travelling inbound on Queen Street. The taxi was intending to go straight ahead along the one inbound lane of Queen Street which proceeded into that section of Queen Street between Wharf Street and Creek Street. [2] In addition to giving notice under the Motor Accidents Insurance Act (“MAIA”) to the CTP insurer of the taxi, the claimant also gave notice under the Personal Injuries Proceeding Act (“PIPA”) to the respondent, which is said to be the local authority responsible for the configuration of the intersection. [3] In response to question 9 of the standard Part 1 Notice of Claim, the applicant said: “I went to cross the road and was hit by a taxi. The configuration of the traffic lights, road markings and signs was confusing and a foreseeable risk of injury to pedestrians.” [4] In answer to question 18 thereof, which is directed towards who caused the accident, he said: “The council as a road authority by its:-- 1. failure to design or configure the roadway intersection by lights, signs and warnings in a way that would reduce the risk of injury to pedestrians; 2. failing to adequately warn me of the danger at the intersection.” -- 2 of 22 -- 3 [5] The issue in dispute concerns compliance by the respondent with its obligations pursuant to both s 27(1)(a)(i) and s 27(1)(b)(i) of PIPA. [6] Those sub-sub sections provide 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; [7] 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. [8] It is important to note that by this definition “incident” involves not only the accident itself, but also the matters (“other act, omission or circumstance”) alleged to have caused the applicant’s injury. It does not, on its face, appear to extend to matters relevant to the imposition of a duty of care on the respondents. I draw attention to that because of the conclusion I reach in this matter and because of a submission by counsel for the applicant that: “The issue … is the (respondent’s) duty to the applicant to design and configure the intersection in a safe manner and steps it took to that end.” [9] The matters the applicant alleges to have caused the accident are set out, as I have said, in answer to question 18 of the Part I Notice of Claim referred to in paragraph [4] hereof. -- 3 of 22 -- 4 [10] Thus in this case, by reference to the words of s 27(1)(b)(i) and the definition of “incident”, the respondent is obliged, if asked by the applicant, to produce information in its possession about the circumstances of, or the reasons for, the act, omission, or circumstances whereby the respondent failed to design or configure the roadway intersection in a way that would reduce the risk of injury to pedestrians, or to adequately warn of the danger at the intersection. It is also required by s 27(1)(a)(i) of the Act, to disclose documents directly relevant to an issue in the claim and about the incident. Documents are about the incident if they are about “the act, omission, or circumstances whereby the respondent failed to design or configure the intersection in a way that would reduce the risk of injury to pedestrians, or adequately warn them of the danger at the intersection.” [11] The obligations imposed by s 27(1)(a) and by s 27(1)(b) of PIPA are significantly different.. [12] The obligation under sub-subsection (b) only arises “if asked by the claimant”, whereas that under sub-subsection (a) arises automatically, and is an ongoing obligation. [13] More importantly, the scope of the obligations are different, as was explained by Jerrard JA in Haug v Jupiters Limited Trading as Conrad Treasury Brisbane (2008) 1 Qd R 276, where, at p 286 His Honour said: (26) Regarding the orders made in accordance with s 27(1)(b)(i) of the Act, the obligation in that sub-section to provide information in the appellant’s possession about the circumstances of, or the reasons for, the incident is much broader than the obligation to produce copies of documents. That phraseology in s 27(1)(b)(i) reflects the terms in s 45(1)(b)(i) of the Motor Accident Insurance Act (an obligation to give information reasonably asked “about the circumstances of the accident”) as it was drafted when considered by Ambrose J in RACQ/GIO Insurance Limited v Ogilvie [2002] 1 Qd R 536 at 541 and 542. His Honour considered that an object of the legislation was to have the claimant place the insurer, to the best of -- 4 of 22 -- 5 his or her ability, in the best position to determine whether to admit or contest liability, (at p 541), and His Honour went on: (at p 542, at paragraph 26) ‘[26] In my view, “circumstances of the accident” are not limited to events contemporaneous with the accident observable perhaps by an independent witness having an opportunity to view it. A circumstance of the accident is any fact to which the occurrence of the accident may be attributed. In my view, upon its proper construction, ‘circumstances of the accident’ within the meaning of s 45(1)(a) encompass all events which appertain to or are causes of the accident in which a claimant suffers personal injury.’ (27) The learned trial judge in this matter considered that the construction of “circumstances of the accident” in that legislation was relevant to the obligation imposed by s 27(1)(a)(i) of the PIPA. The judge thus concluded that the obligation to produce directly relevant documents about the incident therefore extended to production of reports and other documents about (all events) which appertain to or relate to causes of the incident.3 I respectfully disagree; the reasoning of Ambrose J explains why there is a significant difference between, on the one hand, the obligation in 27(1)(a)(i) to provide copies of documents which are both directly relevant and are also documents about the incident, and on the other hand, an obligation to give information “about the circumstances of the accident” (the Motor Accident Insurance Act provision). It is much the same as the difference between the obligations in 27(1)(a)(i) and in 27(1)(b)(i). The latter obligation is much closer to s 45(1) (as it was) than is the former. The respondent’s argument tries to find the same breadth of meaning in “about the incident” as Ambrose J found in “about the circumstances of the accident”, but the difference in terminology is highlighted by the wording of s 27(1)(a)(i) and s 27(1)(b)(i). Courts are obliged to apply the language of the differently worded obligations as worded, and that means different outcomes.” [14] It is clear from that passage, and indeed from the words of s 27 itself, that the obligation under subsection (b) is significantly wider than any obligation which arises under subsection (a). This point has been accepted in subsequent decisions – see for example per Martin J in Oliver v Mulp Pty Ltd (2009) QSC 340; per Irwin DCJ in Wolski v ALH Group Pty Ltd (2009) QDC 202. and per McGill DCJ in Hare v Mount Isa City Council (2009) QDC 39. [15] In Oliver v Mulp Pty Ltd (supra) Martin J also said at page 7: -- 5 of 22 -- 6 “[7] To determine the extent of the obligation cast upon a respondent in these circumstances, it will be of assistance to go first to the text of the Act and, in particular, the objects of PIPA. Section 4 relevantly provides: ‘(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.’ [8] Section 21 of PIPA is in the same Division as s 27 and it provides: ‘21 Purpose of div 2 The purpose of this division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.’” [16] It is in my view of importance to have regard to those stated purposes in determining this application. In my view, the purpose set out in s 7(2)(c) in particular, is best satisfied by applying a wide interpretation of the obligation of disclosure, but it is till necessary that any such interpretation be within the meaning of the words used in s 27 of PIPA. [17] Letters passing between the applicant’s solicitors and the respondent’s solicitors relevant to the respondent’s obligations under s 27 are referred to in paragraph 11 of the affidavit of Harold Dignan, the applicant’s solicitor. [18] Photographs, being part of the Verifact report and which are said to have been taken on 2 November 2007 are also part of that affidavit. At the time of the photographs being taken, a little over four months after the accident, it is clear vehicles were still able to travel inbound along that lane of Queen Street on which the taxi was travelling when the applicant stepped into its path. (See the photographs at pp 85-91 of the affidavit of Mr Dignan) -- 6 of 22 -- 7 [19] Also included in the material attached to the affidavit of Mr Dignan is a report of OGSA, loss assessors appointed by the respondent’s solicitors. The report of 11 February 2009 is contained at pp 102-125 of the affidavit of Mr Dignan. It had been provided to the applicant’s solicitor by the respondent’s solicitor. The report states, inter alia, that: (i) the respondent is the local authority responsible for the design, construction, review and ongoing maintenance of the intersection; (ii) the respondent is aware that several pedestrians have been hit by motor vehicles at that intersection, but this was said to be due to the fault of such pedestrians; (iii) a division of the respondent is informed of any incidents occurring at the intersection, and indeed at all CBD intersections, and such information is recorded in a ‘crash statistics register’; (iv) the respondent is said to liaise with the Queensland police in an effort to heighten the public’s need to exercise care when crossing controlled intersections and engages in an education campaign known as ‘walk/don’t walk initiative’.” [20] A document which is attached to that report (at p 120 of the affidavit) is said by the author of the report to show “the layout of the intersection as at the date (the accident) occurred”. I interpose that although the document is entitled “Traffic Signal Installation”, it appears clearly to be a scale drawing of the intersection, showing not only traffic signal installations but also marked lanes on the roadway with allowable directions of traffic flow for vehicles using the roadway near to the intersection clearly marked. It shows the third lane from the gutter for inbound Queen Street traffic approaching the intersection (the lane in which the taxi was travelling) as being able to move straight through the intersection. Indeed, that is shown to be the only allowable movement for such vehicles. -- 7 of 22 -- 8 [21] The drawing on its face is said to be “As Constructed” as at 13 November 2003. There is also reference in the document to 8 November 2001. This appears to me to be the date on which some part of the design may have been drawn. In my view, the document is consistent with the traffic flow at that intersection as at 2 November 2007, being the time of the photographs to which I earlier referred, and necessarily with traffic flows at the times of the subject accident in June 2007. [22] At pp 124 and 125 of the affidavit of Mr Dignan, a further drawing of the intersection is attached. It is Attachment 4 to the report of OGSA to which I have referred. The drawing at p 125 of the affidavit is described as a project for “Pedestrian Crossing Improvements – Queen Street and Wharf Street, Brisbane CBD”. Both documents show that the lane in Queen Street in which the taxi which struck the applicant is said to have been travelling, was either proposed to be or had already been closed off and that all vehicles travelling inbound on Queen Street were then required to turn left into Eagle Street. There was shown to be only 2 lanes in Queen St for inbound traffic approaching the intersection and they were only able to turn left into Eagle Street. It appears from both drawings that they were designed, drawn, checked and authorised in September 2008. It would seem that the changes clearly relate to more than changes to traffic signal installations, although I note that was still said to be the title of the document at p 124 of the affidavit. [23] It might be readily inferred that, some time after the time when the photos referred to in paragraph 15 hereof were taken and so after the occurrence of the subject accident, the traffic flow in Queen Street at the subject intersection has materially changed (or at least such change was planned). [24] It is in those circumstances that the correspondence and consideration of the respondent’s s 27 obligations must be considered. -- 8 of 22 -- 9 [25] After the claimant’s solicitors received the report of OGSA of 11 February 2009, under cover of the applicant’s solicitor’s letter of 27 February 2009, the applicant’s solicitors wrote to the respondent’s on 4 March 2009. The letter states: “Your client, the Brisbane City Council, has extensive records involving injuries to pedestrians in circumstances whereby the confusing design and configuration of the roadway intersection caused or contributed to the pedestrians’ accidents.” [26] Reference was then made to a number of accidents at the subject intersection, reflecting the content of the OGSA report to which I referred. [27] The letter reiterated the claimant’s allegation that the subject accident occurred because of the respondent’s failure to adequately design or configure the intersection, or to adequately warn the applicant of the dangers the intersection posed. Reference was made to the response to question 9 of the Notice of Claim to which I have set out in paragraph [3] hereof. The letter stated: “Your client must disclose documents ‘about the incident’, which must include reports written before an incident and predicting its occurrence. Such a report/s may be in the form of drawings submitted to the council by its engineers with comments as to suggested improvements, very much like the ones which postdate the accident, which you have disclosed. The plain underlying purpose of the comments on the second page of Attachment 4 of the OGSA report is the ensure that the design of the intersection, as currently configured, is such as to avoid or lessen the likelihood of further pedestrian accidents. Therefore, any reports written pre-incident which predict the occurrence of the accident should be disclosed, together with the Council’s letters of instructions.” [28] After a follow up letter from the applicant’s solicitors of 2 April, the respondent’s solicitors replied on 6 April, noting the request for disclosure, and stating that they were considering the request and would revert to the applicant’s solicitors shortly. The claimant’s solicitors sent a further follow up letter of 26 June 2009. -- 9 of 22 -- 10 [29] On 30 July 2009 the claimant’s solicitors provided a list of questions said to be delivered pursuant to s 27 of the Personal Injuries Proceedings Act. Prior to the questions themselves, the request read as follows: “The respondent is required to provide information in response to the following questions asked pursuant to s 27(1)(b) Personal Injuries Proceedings Act 2002 about the circumstances of or reasons for the incident being a collision between the claimant and a taxi at the intersection of Queen Street, Wharf Street and Eagle Street (hereinafter “the intersection”) at or about 2.45 pm on 27 June 2007, the subject of the claimant’s Notice of Claim to the respondent dated 31 October 2008” [30] The questions were then listed. At the end of the questions, the applicant wrote: “The respondent is required to answer each of the foregoing questions by statutory declaration.” [31] The requirement to answer by way of a statutory declaration was a clear reference to the provisions of subsection 27(3) of PIPA which provides: “If the claimant requires information provided by an insurer under this section to be verified by statutory declaration, the information must be verified by statutory declaration.” [32] Provided the questions fell within the ambit of s 27(1)(b)(i) of that Act, the respondent was obliged to provide the information in the form of a statutory declaration within a reasonable time. To date, no statutory declaration has been provided, although the respondent’s solicitors have on two occasions formulated what might be described as draft answers to such questions. I will refer to these later. [33] The relevant questions, which were attached to the letter from the applicant’s solicitor dated 30 July 2009, were conveniently summarised, together with a response from the respondent’s solicitors, in a document attached to the submissions provided by the respondent’s counsel. A copy of that document is attached to these reasons. -- 10 of 22 -- 11 [34] Further follow up letters were sent by the claimant’s solicitors on 1 and 9 September 2009. The later of these threatened the bringing of an application seeking an order compelling compliance unless sworn answers to the list of questions was provided by 16 September 2009. [35] That has not been done. [36] On 14 September 2009, the respondent’s solicitors wrote and advised that the relevant person within the Brisbane City Council to provide a response to the request was on leave, was due to return to work on 17 September. An extension of the time in which to provide a response was sought until 24 September. On 28 September the applicant’s solicitors again wrote, requiring the provision of the sworn declaration in response to the questions within seven days. [37] On 2 October the respondent’s solicitors wrote and indicated that the person within the respondent council to respond to the request had been due to return from leave on 17 September, but had extended his leave due to injury. Nevertheless, preliminary responses were provided, although not in the form of a statutory declaration. [38] The applicant’s solicitors on 6 October 2009 wrote to the respondent’s solicitors stating: “If the sworn answers which were delivered in this matter are in the terms of the draft … an application will be brought without further reference to you.” The letter also referred to the terms of s 27(1)(b)(i) of PIPA and referred to a number of cases said to be relevant to a determination of the scope of the obligation. -- 11 of 22 -- 12 [39] Further letters from the applicant’s solicitors of 19 November 2009 and of 11 January 2010 inquired as to when the answers might be expected. On 15 January 2010 the respondent’s solicitors wrote, indicating what their instructions at that time were in respect of each of the answers. Once again the response was not in the form of a statutory declaration as required. The solicitors said: “We are continuing to collate information in order to fully respond to your request for information. Due to the large business conducted by council and the age of some of the information requested, it is a time-consuming process to respond to your request.” [40] This application was filed by the applicant’s solicitors on 19 February 2010 and came before me on 10 March 2010, when I reserved judgement. [41] Late on 9 March, the day prior to the hearing, an affidavit of a solicitor in the employ of the respondent’s solicitors, Melanie Niatakis, was sworn. It was filed by leave at the hearing. I was advised that it had been provided to the applicant’s solicitors late on the afternoon of 9 March. [42] The affidavit outlined, inter alia, the chronological history of her conduct of the matter, including her acquiring numerous medical records. In respect of the relevant obligation to answer the questions and provide documentation, Ms Niatakis said at paragraph 14 of her affidavit: “I am informed by Mark Gehrke, information and records management of the respondent, and verily believe that he has conducted a search of the records of the respondent, he has spoken with the respondent’s call centre and to the ward office and the only documents ‘about the incident’ that he has been able to locate that are held by the respondent are ... .” [43] She then listed documents marked “a” to “l” in paragraph 14 of her affidavit. Copies of those documents are exhibit MJN5 to her affidavit. They were sent to the applicant’s solicitors on 5 March 2010 and would presumably have been received -- 12 of 22 -- 13 on 8 March, 2 days before the hearing and well after the filing of the application. It is reasonable to say that the documents relate to correspondence between the respondent, or elected Councillors of the council, and members of the public concerning the subject accident and complaints about the design of the intersection. On that basis, they would appear to be disclosable under s 27(1)(a)(i) of the Act. There is reference in the correspondence to other accidents both before and after the subject accident. Letters from the respondent at p 105 and 112 of the affidavit make it clear there had, to the respondent’s knowledge, been other accidents at the intersection. More importantly it was said that the majority of those accidents were due to the fault of pedestrians and there is reference to work to be undertaken at the intersection apparently to reduce the risk of injury to such pedestrians. This indicates that the respondent clearly was possessed of information, and possibly documents, about those other accidents in order for it to make statements about their cause and design remedial measures. [44] The applicant asserts in its written submissions that it is entitled to documents to explain what is said to be the decision processes which led to: “(a) painting a ‘look’ on the roadway shortly following the accident; (b) reconfiguring the intersection to remove the inbound traffic lane on Queen Street (being the traffic lane in which the accident happened).” (Paragraph 10 of the submissions of the applicant’s counsel). [45] In paragraph 12 of his submissions, counsel for the applicant refers, in support of his submission, to the documents supplied on 8 March about the design of the intersection before the accident and the respondent’s own documents referred to in [42] hereof. He submits there would necessarily be documents written before the -- 13 of 22 -- 14 accident and “predicting its occurrence, (which) could be said to be about the incident”, and which ought to be disclosed. The words in quotation are taken from paragraph 23 of the judgement in Haug v Jupiters Limited (supra) which Senior Counsel in that case had conceded would have to be produced. [46] In his submission, counsel for the applicant referred in particular to paragraph 23 of the judgment of Jerrard JA in Haug v Jupiters Limited (supra). It does not seem to me that his Honour was necessarily saying that documents “written before an incident and predicting its occurrence” would fit the description of documents required to be disclosed by s 27(1)(a). Rather, he was saying that, even if he accepted the concession made in that case by senior counsel for the respondents was appropriate, the documents sought were generally not disclosable under s 27(1)(a). This does not seem to me to amount to a clear finding that documents written before an accident and “predicting its occurrence” could be said to be “about” the incident. In my view, the dual conditions to the imposition of the obligation under s 27(1)(a), namely that documents in the respondent’s possession be about the incident, and be directly relevant to a matter in issue in the claim, focuses on the much narrower range of documents which might be said to relate directly to the incident as defined in the Act. In my view, the documents sought by the applicant in this case, are documents about the dangers posed by the design of the intersection and do not fall within that description, unless they are specifically directed to this accident or to its direct cause. [47] My view in this regard is fortified by the result in Haug’s case. The applicant’s allegation in that case was that he suffered injury because of the fact that security staff applied excessive force to his wrist and arms when ejecting him from the Treasury Casino. It was alleged the Casino was negligent, inter alia, in not engaging -- 14 of 22 -- 15 competent security guards, or in permitting them to use excessive force. In Haug, it was accept by Lyons J, who heard the matter, and not challenged on appeal, that documents relating to prior complaints involving security staff, or to previous claims brought against the Casino related to the use of excessive force by security staff were not disclosable. [48] The Court of Appeal held also that the personnel and training records of the security guards involved in the subject altercation, which Lyons J had ordered to be produced, were also not disclosable. At first instance, Lyons J had also held that documents relating to the training of security staff at the Casino, and documentation about previous claims brought against the Casino, and relating to excessive force by the security personnel or to prior complaints about security staff were not disclosable. [49] At [24] of his judgement, Jerrard JA said in respect of such documents (being those sought in paragraphs 1, 3, 4, and 8 of the letter set out at paragraph [20] of the judgement of Jerrard JA): “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” [50] In my view, this supports the view that documents about prior accidents at the subject intersection are also not disclosable. [51] In Haug v Jupiters Limited [2007] QSC 68, Lyons J found that a request for information about prior complaints concerning security guard at the Casino was not covered by s 27(1)(b)(a) of PIPA. That decision was not appealed from. -- 15 of 22 -- 16 [52] A similar approach to that of Lyons J was adopted by Martin J in Oliver v Mulp Pty Ltd (surpa). His Honour there said that question about whether there had been any incidents of physical altercations occurring between patrons on or near the subject premises were not facts to which the occurrence of the incident might be attributed. [53] It is important to appreciate that the test is directed towards whether facts concern the circumstances of, or reasons for the accident in the sense used by Jerrard JA in paragraph [26] of his judgement in Haug (supra). Information about, inter alia, the causes of the incident, or facts to when the occurrence of the accident might be attributed, may be required to be given, but not all information relevant to the claim falls within the ambit of s 27(1)(b)(i) of the Act. The claimant must define his request for information to the “fact(s) to which the occurrence of the accident might be attributed” (see per Ambrose J in Bowers & RACQ GIO Insurance Ltd v. Ogilvie [2001] QSC 36 at paragraph [26]). [54] Information, for example, relevant to the respondent’s knowledge about its duty of care to the applicant, can be seen to be outside the ambient of inquiry under s 27. The information sought and denied about trainings of and complaints concerning security guards in Haug (supra) or about other altercations in Oliver (supra) can be seen in this light. [55] This too is the approach taken by McGill DCJ in a recent case of Wright v KB Nut Holdings Pty Ltd [2010] QDC 91. In that case, His Honour refused an application for an order requiring a respondent (who managed rental accommodation in which the applicant, a tenant, suffered a needle stick injury from a discarded hypodermic needle) to disclose information about other instances, if any, of finding discarded needles. After examining the decisions of Huag (supra) and Oliver (supra) and a number of other District Court decisions, McGill DCJ said: -- 16 of 22 -- 17 “[34] There is no doubt that the knowledge of a respondent as to the existence of particular risks may be relevant to the content of any duty of care owed by the respondent to the claimant, so that such knowledge may be relevant to the question of whether the respondent is liable for the injury suffered by the claimant in the incident. Evidence of other accidents at a particular place, such as a particular flight of stairs, is evidence of the dangerous condition of that place. Ordinarily, evidence that does no more than show that the defendant was negligent on another occasion will not be admissible to show that it was likely that the defendant behaved in a similar way, and was therefore negligent, on the occasion in question, except in circumstances where it is suggested that the relevant incident was the product of some habit or system. But in those cases where evidence would be admissible as to the defendant’ behaviour on other occasions, on the basis that this did provide relevant evidence of how the defendant probably behaved on the relevant occasion, it could not be said that the defendant’s behaviour on those other occasions were matters which appertained to or were causes of the consequences of the defendant’s behaviour on the relevant occasion. They are simply part of a circumstantial case by which the plaintiff seeks to prove the circumstances of the relevant incident.” [56] He continued at paragraph [37]: “[37] There is a difference between information as to whether the respondent did or omitted to do something and information which is only relevant to the question of whether the respondent had a duty to do something, or to do more, in the lead up to the particular incident. What the respondent in fact did, which may relevantly be nothing, can in my opinion be part of the circumstances of the incident, or the reason for the incident. Whether circumstances existed such that the respondent at that time had a duty to do something other than what the respondent did seems to me to be something separate from the circumstances of or the reasons for the incident. That focuses on the content of the duty, whereas s 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.” [57] I agree with His Honour’s reasons which limit the obligation to disclose information about the accident as occurred in both Haug (supra) and Oliver (supra). [58] Counsel for the applicant also submitted that because the respondent had not yet reduced its response into the form of a statutory declaration, it must necessarily follow that the applicant’s application must succeed. -- 17 of 22 -- 18 [59] In paragraph 19 of his submissions, he said: “Insofar as the Niatakis affidavit seeks to suggest that some of the PIPA questions are not sustainable, in a broad-based way they have already been dealt with in these submissions but until the respondent provides as sworn set of answers, one is only dealing with hypotheticals and they should be ordered to provide a written response within a fairly short period of time.” In my view, that approach would be correct provided the request for information can properly be categorised as a request for information “that is in the respondent’s possession about the circumstances of, or the reasons for, the accident”. [60] For the reasons I have given, the questions do not seek information in the respondent’s possession about the circumstances of, or the reasons for, the incident, within the meaning of s 27(1)(b)(i) of the Act. Rather, they are questions, essentially in the form of interrogatories, designed to establish that the respondent owed a duty of care to the applicant. They are not directed to the actual cause of the accident itself. [61] I therefore conclude that the respondent is not required to provide answers to the questions attached to the letter of 30 July 2009. [62] I dismiss the application for the reasons stated, but note that documents were produced pursuant to the obligation under s 27(1)(a)(i) only days prior to the hearing of the application. In that circumstance, I make no order as to costs. -- 18 of 22 -- 19 Attached schedule from the Respondent’s submissions. Request First Response (02/10/2009) Second Response (15/01/2010) Comment 1. Was not the respondent responsible for the design of the intersection? Was responsible for the design at the time of the accident. Did not design and construct the intersection. Answered The question is ambiguous. What does the applicant intend to convey by the expression “responsible for the design” Otherwise falls within obligation to disclose. 2. Was not the respondent responsible for the construction of the intersection? Was responsible for the construction at the time of the accident. Did not construct the intersection. Answered The question is ambiguous. What does the applicant intend to convey by the expression “responsible for the construction” Not within obligation to disclose because there is no allegation of defect in construction. 3. Was not the respondent responsible for the ongoing review and maintenance of the intersection? Local government having powers under the Local Government Act BCC maintains the function and operation of the intersection Answered A question of law and not an inquiry for information about the circumstances of or the reasons for the incident Not within obligation to disclose because there is no allegation of a failure to maintain -- 19 of 22 -- 20 4. Did not the respondent consider the intersection one of the busiest intersections in the CBD Imprecise and matter of opinion No further response Utterly ambiguous. By what criteria is the respondent to attempt to answer? Not an inquiry for information about the circumstances of or the reasons for the incident 5. Is not “Traffic & Transport” a division of the BCC Traffic & Transport was a branch of urban Transport Division of BCC Answered Not an inquiry for information about the circumstances of or the reasons for the incident 6. Does not the Division maintain a Crash Statistics Register? No. The Webcrash database is compiled by the Queensland Department of Transport Answered This query demonstrates the applicant’s solicitors have not read the documents provided. The Webcrash schedules state that they are documents of the Queensland Department of Transport. 7. What source documents does the respondent rely on to compile the register? Not about the incident or reasons for but in any event the answer is that BCC does not compile or maintain the database No further response This query demonstrates the applicant’s solicitors have not read the documents provided. The Webcrash schedules state that they are documents of the Queensland Department of Transport. -- 20 of 22 -- 21 8. Is not Attachment 1 to the OGSA report a portion of the Register relating to the intersection? Nature of attachment is plain on its face. Not about the incident or reasons for the incident No further response Not an inquiry for information about the circumstances of or the reasons for the incident. The applicant’s solicitors seek to cross examine the respondent on the contents of the documents 9. Did not the respondent regard the number of pedestrian incidents as statistically significant? Imprecise and matter of opinion No further response Utterly ambiguous. By what criteria is the respondent to attempt to answer? Not an inquiry for information about the circumstances of or the reasons for the incident 10. What steps did the respondent take to address the recurring pedestrian impacts at the intersection No alterations to intersection between 2003 and the date of the incident Answered 11. Each precise plan or step to address pedestrian impacts Not required to answer due to answer to question 10. Answered. 12 (a) Any proposal, plan or discussion to replace the existing walkway through the traffic island Not answered No further response Oppressive. Too broad. Impossible to swear that no person in BCC had a discussion. Not within obligation to disclose because there is no allegation regarding the configuration of the -- 21 of 22 -- 22 island 12 (b) Any proposal, plan or discussion to increase the pedestrian island size for greater pedestrian storage capacity Not answered No further response Oppressive. Too broad. Impossible to swear that no person in BCC had a discussion. Not within obligation to disclose because there is no allegation regarding the configuration of the island 12 (c) Any proposal, plan or discussion to maximise separation between the two pedestrian crossings on the island? Not answered No further response Oppressive. Too broad. Impossible to swear that no person in BCC had a discussion. Not within obligation to disclose because there is no allegation regarding the configuration of the island 13. Any proposal, plan or discussion to paint ‘Look’ onto the road before the incident No No further response Answered insofar as able to in affidavit of Niotakis. Oppressive. Too broad. Impossible to swear that no person in BCC had a discussion. 14. Any proposal, plan or discussion to remove inbound lane Not answered No further response Answered insofar as able to in affidavit of Niotakis. Oppressive. Too broad. Impossible to swear that no person in BCC had a discussion. -- 22 of 22 --