Broadhead v State of Queensland [2006] QDC 273

DISTRICT COURT OF QUEENSLAND CITATION: Broadhead v State of Queensland [2006] QDC 273 PARTIES: DAVID FREDERICK BROADHEAD Plaintiff and STATE OF QUEENSLAND Defendant FILE NO/S: D1541 of 2004 PROCEEDING: Application under s 35 of Personal Injuries Proceedings Act 2002 DELIVERED ON: 28 July 2006 DELIVERED AT: Brisbane HEARING DATE: 17 July 2006 JUDGE: Judge Brabazon QC ORDER: Defendant to give further information CATCHWORDS: PERSONAL INJURIES – PRE LITIGATION PROCEDURES – REQUEST FOR INFORMATION – OBLIGATION TO COOPERATE WITH CLAIMANT. Where application for better answers to questions, disclosure of two witness statements and documents - Where child injured at school - Whether response to questions sufficient. Motor Accident Insurance Act 1994, s 45(1) Personal Injuries Proceedings ACT 2002, ss 4, 21 (a), 21 (c), 27, 37 Gitsham v Suncorp Metway Insurance Ltd (2003) 2 QDR 251 Lemon v Suncorp Metway Insurance Ltd (2005) QDC 128 Sharpe v Smail (1975) ALR 377 Suncorp Metway Insurance Ltd v Brown 2004 QCA 325 RACQ-GIO Insurance Limited v Ogilvie [2002] 1 QdR 536 -- 1 of 14 -- 2 Allcroft v Lord Bishop of London (1891) AC 666 Henderson v Low [2000] QSC 417 Waterford v Commonwealth (1987) 163 CLR 54 Small & Sidcott 2003 QSC 254 A-G v Maurice (1986) CLR 425 COUNSEL: Mr C Newton for the plaintiff Mr J Cowley-Grimmond for the defendant SOLICITORS: Carter Capner Lawyers for the plaintiff Crown Solicitor for the defendant The Issues [1] Mr Broadhead was a student at the Karalee State School in 1994. He was in Year 6. [2] A covered walkway was near his classroom. The supports for the roof included exposed beams. See Exhibit CEC1. He was swinging on one of those beams when he lost his grip and fell onto the concrete floor. He says that he was injured. He has made a claim against the State of Queensland. Education Queensland was in control of the school. [3] His claim is subject to the requirements of the Personal Injuries Proceedings Act 2002. A compulsory conference has not yet been held. The State has denied liability, and there is no allegation of contributory negligence, at this stage. No particulars of that denial of liability have been given. Mr Broadhead has filed a claim and statement of claim. No defence has been filed. [4] This application on behalf of Mr Broadhead seeks to achieve several things – better answers to questions submitted by his solicitors, disclosure of two witness statements obtained by Crown Law, and disclosure of Q-Build documents relating to work to cover up the beams. -- 2 of 14 -- 3 Co-Operation [5] It was submitted that the need to co-operate, together with the need to be fully prepared for trial (ss 4 (21 (c) and 37 (21 (a) of the Act) showed a legislative intention that each side had to make such disclosure as would be required if proceeding in court were going to trial. It is true that the MAIA, which contains a comparable provision, emphasises the intention of the legislature that the parties be as fully prepared as if commencing a trial of the action when participating in a compulsory conference. See the Court of Appeal in Gitsham v Suncorp Metway Insurance Ltd (2003) 2 QDR 251. It is also true, as Judge McGill said in Lemon v Suncorp Metway Insurance Ltd (2005) QDC 128, “ …. That requirement is absurd .… the real difficulty is that the provisions for the pre-litigation procedures in the Act are too superficial and too rigid to accommodate the multitude of possible situations which can arise in practice.” (paras 14-15). [6] The detailed and limited steps set out in the Act and Regulations cannot be ignored. If they prescribe or forbid something, then appeals to procedures at common law, or under the Uniform Civil Procedure Rules, or to considerations of justice and fairness, or to the need for “cards on the table” will be of no avail. Parliament has chosen to insist on a new set of rules about the steps to be taken before any proceedings in court. If it really wants parties to be ready for trial, then a substantial amendment will be needed, to achieve that result. The present drafting is inappropriate. The ineffective reference to a full preparation for trial is just a tantalizing distraction for legal practitioners. Giving Information -- 3 of 14 -- 4 [7] Division 2 of Part 1 of PIPA deals with the obligations of the parties. The purpose is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim (s 21). In considering the scope of the parties’ obligations, it is important to keep in mind the purposes of the Act, in s 4: “4(2) The main purpose is to be achieved generally by: (a) …., (b) promoting settlement of claims at an early stage wherever possible, (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, (d) ….” [8] Section 27 sets out the duty of the State to give documents and information to Mr Broadhead: “27(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) reports about the claimant’s medical condition or prospects of rehabilitation; (iii) reports about the claimant’s cognitive, functional or vocational capacity; (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, (2) …., (3) If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration.” -- 4 of 14 -- 5 [9] Mr Broadhead’s solicitors have administered two requests for information. They required the information to be verified by statutory declaration. That has been done, by an officer of the Department of Education, who has no personal knowledge of the incident. [10] It is accepted by the State that it has a duty to make appropriate enquiries of its employees and agents, so that its representative can answer the questions properly. Reference was made to the comparable duty to answer interrogatories – see Sharpe v Smail 5 ALR 377 (1975, Gibbs J). That duty is comparable to the similar duty arising under the provisions of the Motor Accident Insurance Act 1994. There is a need for co-operation and an implied obligation to do all things necessary to provide the claimant, or the insurer, with the verification referred to in that Act. See Suncorp Metway Insurance Ltd v Brown 2004 QCA 325 at paras 14-16, and Personal Injuries Proceedings in Qld, (2005, Butterworths) by Jones & Forde at para 6.80. [11] The application asks that those having personal knowledge of the incident should make the declaration, or that the present declarant should disclose the sources of his information and belief. [12] There is no power to demand that particular individuals should make declarations. PIPA does not say that. There is no provision comparable to Rule 235 of the UCPR, whereby a court can direct that named individuals answer interrogatories. [13] When an affidavit is based on information provided by another person, the deponent must state the sources of the information and the grounds for the belief. See Rule 430. However, an answer to an interrogatory does not have to identify the sources. -- 5 of 14 -- 6 It is necessary, and sufficient, for it to say what enquiries have been made, and then answer to the best of the respondent’s knowledge, information and belief. [14] As it happens, the sources of information in this case are identified elsewhere in the papers. But, in any case, the deponent here is not obliged to identify his sources. It would have been better if he had described his enquiries, and said that his answers were given to the best of his knowledge, information and belief. The Answers [15] Some of the responses are uncontroversial. In particular, it is admitted that Mr Broadhead sustained an injury on 16 September 1994 whilst a student at the school, that the incident occurred during the course of an ordinary lunchtime recess, that it occurred on the undercover path outside the Year 6 classroom, and that staff at the school did observe students “engaging in the activity believed to be similar to that which the plaintiff was engaged in at the time of his injury”. [16] The answers say that the areas outside the classrooms were out of bounds during lunchtime recess, and that there was no instruction for school staff to supervise any of the areas outside the classrooms during the lunchtime recess, as they were then out of bounds. [17] The first request asked a question about any warnings of danger: “5. Prior to the time of the incident, was any and if so what warning given to the Claimant by the Respondent, by any and what servant of agent of the Respondent:- a. That swinging on the exposed metal bars that supported the roof of the walkway was dangerous? b. If your answer is yes, at what times were such warnings given? A. As to question 5: (b) in answer to question 5(a), on the information supplied to me, the answer to that question is yes. -- 6 of 14 -- 7 (c) In answer to question 5(b) on the information available to me, warnings were given to the entire school population on a regular basis at school assembly.” That response prompted a further question and answer, in the second request: “1. The respondent has previously stated that warnings were given to students that swinging on the exposed metal bars that supported the roof of the walkway, where David Frederick Broadhead (‘the Claimant’) was injured was dangerous. The Respondent has said that such warnings were given, ‘to the entire school population on a regular basis at school assembly’. Please advise:- a. How these warnings were given? b. How often these warnings were given? c. Who gave these warnings? A. As to questions from the information available to me, I believe that: (a) as to question 1(a), warnings were given verbally; (b) as to question 1(b): i. warnings were given to the entire school population at school assemblies at least twice per term; ii. warnings were given to the entire school population whilst on parade once or twice per term; iii. warnings were given regularly to students whilst in class. (c) as to question 1(c) warnings were given by school staff.” [18] The complaint is that there is no mention of which servant or agent gave the warning, nor does it describe with any particularity what “regularly” means, particularly by reference to the time of the accident. [19] The first answer admitted that there was a warning, and that swinging on the metal bars was dangerous. The references to warnings at “school assembly” and “parade” are responsive, but it emerged during argument there was uncertainty on both sides about the difference between an assembly and a parade. Perhaps such terminology differs between schools. It could easily be cleared up by a further answer. [20] The warnings to students whilst in class were said to be given “regularly”. That is not a helpful description. As the Macquarie Dictionary shows, the usual meaning of -- 7 of 14 -- 8 the word is that warnings are given at recurring and fixed times. It does not describe the frequency of those times, such as once a year or once a week. [21] The first request asked for the particular servant or agent who gave the warnings to be identified. The second request asked “who gave these warnings”. No doubt they were given by school staff, as the second response says. However, that is not precisely responsive to the question, which asked for details of individuals. If particular teachers can no longer be identified, it may be that a better description can be given, such as “the principal” or “the teacher of each class”. [22] The response to a question said that staff at the school did see students swinging on bars, as Mr Broadhead said he did. Question 7 then asks what action was taken. The response was this: “I answer to question 7, this question is not answered as it does not seek information concerning ‘the circumstances of, or the reasons for, the incident’.” [23] Evidence about what a defendant did after an event is often admitted, if it is relevant to the issue as to what the defendant should have done on the earlier occasion which has given rise to litigation. Here, there is a duty to give information, if it is “about the circumstances of, or the reasons for, the incident”. It is easy to see that events happening before the incident might be part of the circumstances. For example, if the driver of a car is intoxicated either from drugs or alcohol, that intoxication may be a cause of the collision, and so part of the circumstances of the collision. Ambrose J in RACQ-GIO Insurance Limited v Ogilvie [2002] 1 QdR 536 at 541, where s 45(1) of the Motor Accident Insurance Act 1994 spoke of a duty of a claimant to cooperate with the insurer, and give information reasonably asked by the insurer about the circumstances of the accident out of which the claim arose. It -- 8 of 14 -- 9 was submitted that it was only the circumstances of the incident itself that could be sought. As he put it: “In my view, such an approach is altogether too narrow having regard to the overall intention of the legislation to have a claimant place the insurer in the best possible position to determine whether to wholly or partly admit or to deny responsibility for the claimant’s injuries. The object of the legislation is to have the claimant place the insurer, to the best of his or her ability, in the best position to determine whether to admit or contest liability. ... In my view, ‘circumstances of the accident’ are not limited to events contemporaneous with the accident observable perhaps by an independent witness having the 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 section 45(1)(a) encompass all events which appertain to or are causes of the accident in which a claimant suffers personal injury. The term certainty includes the degree of a driver’s intoxication either from drugs or alcohol if they may be causative of a collision to which personal injury is attributed. ...” [24] In this case, the question is asked about things which may have happened after the accident. “The circumstances” usually mean the existing conditions or state of affairs surrounding and affecting an event. It is a condition with respect to time, place, manner, which accompanies, determines or modifies a fact or event. See the Macquarie dictionary. Likewise, see the definition of “circumstances” in Stroud where none of the examples includes things happening after the event. It is true that in Allcroft v Lord Bishop of London (1891) AC 666 at 676, Lord Halsbury observed that an inquiry “into all the circumstances of the case” was one which might justly include considerations of the good to be done or the mischief involved in proceedings which, unless they obtained the Bishop’s sanction, could not proceed. That involved looking to the future. Though expected in the future, they were considerations presently relevant to the Bishop’s decision. That is not this case. [25] However, the question is not necessarily limited to events after this incident. The earlier questions refer to the “time of the accident” or “prior to the time of the -- 9 of 14 -- 10 accident”. This question, asking about similar conduct, could apply to such conduct before or after this incident. In saying that staff of the school did observe other students also swinging on the beams, that could have applied to events before, at the same time, or after this incident. [26] If the school took any action because of that activity, and took it before this incident, then the answer could be different. The action, or inaction of the school, would be part of the circumstances of the incident. If the school took any action because of students swinging on beams before this incident, the State is obliged to say what action was taken. [27] Question 9 in the first request is to similar effect. It asks what action, if any, did the respondent take in relation to warnings or modifications of systems of supervision in respect of the area containing the steel bars. That was an appropriate refusal to answer the question. [28] Likewise, the question is asked again in the second request: “6. If the Respondent was aware that students under its care would swing on bars in a similar manner to that in which the Claimant was engaged at the time of the injury, please state what action the Respondent took to prevent students under its care from partaking in that activity? A. Question 6 does not seek information in the respondent’s possession about the circumstances of or the reasons for the incident.” [29] Once again, the appropriate response depends on the time of any action taken by the school – if it was before this incident, then it had to be answered. If after the incident, then the question did not have to be answered. [30] The first request asked about supervision. Question 3, and the response, is as follows: -- 10 of 14 -- 11 “3. At the time of the accident had the Respondent instructed any of its employees to supervise the area outside the Year 6 classroom, including the walkway area, during the lunchtime recess? A. As to question 3 of the request, from the information available to me I believe the answer to that question is no.” Because the answer to the question was “no”, the school declined to provide any further information. [31] The second request returned to the same issue. This is the question, with its response: “3. Were employees of the Respondent regularly rostered on to perform supervision duties in the playground and/or areas outside of the classrooms at recesses? A. As to question 3, from the information available to me, I believe that: (a) employees of the respondent were regularly rostered to perform supervision duties in the playground; (b) employees of the respondent were not regularly rostered on to perform supervision duties in the areas outside the classroom at recesses as those areas were out of bounds during recess. 4. At the time of the accident involving the Claimant had the Respondent instructed any of its employees to supervise any of the areas outside the classrooms during the lunchtime recess? A. As to question 4, from the information available to me, I believe that the answer is no as the areas outside the classrooms were out of bounds during lunchtime recess.” [32] It is clear that the respondent is saying that the area in question here was not supervised. It is true that the principal of the school at the time said, in par 11 of his affidavit: “I have been reminded by Nicola Smith that the injury occurred near the Grade 6 block at the school. I do not know why David was in this area at the time the accident occurred because it was not a play area or a lunch area. David should not have been in this area though it is possible that he was returning a lunchbox to his schoolbag. There were gazetted play areas and Grade 6 students were meant to play in the covered area, top oval or the library.” -- 11 of 14 -- 12 [33] The possibility that Mr Broadhead returned a lunchbox to his schoolbag is beside the point. It arises out of the statement of one person with apparent knowledge of the facts at the time. That statement does not mean that the declared answer is somehow uncertain or qualified. There is no need for any further response. Witness Statements [34] Three statements were taken by the Crown Solicitor’s office some time after the incident. It is admitted that they were not taken at the time and so are not part of any “reports and documentary material about the incident”. Section 30 of PIPA maintains legal professional privilege in such statements: [35] This case is not like Henderson v Low [2000] QSC 417, where the defendants revealed part of their privileged information to an expert to support their defence of the plaintiff’s claim. It was held that they were not entitled to conceal the remainder by asserting that all that was relevant had been disclosed. That is not this case. The compulsory disclosure of the defendant’s position by responding to the plaintiff’s questions is a different situation. They are relevant documents, but they are privileged. The State is entitled to rely on the privilege – see Waterford v Commonwealth (1987) 163 CLR 54, and Small & Sidcott 2003 QSC 254 – a decision on the analogous s 37 of the MAIA. The privilege is not lost because the statements are referred to in an affidavit. See A-G v Maurice (1986) CLR 425 at 481. Q-Build Documents [36] This part of the application arises out of the former principal’s affidavit, at par 8: “There were other areas in the school where there were exposed beams such as those over stairways where younger children would have been able to reach. The beams above the stairs were eventually covered at the school’s request. Q-Build was requested to cover these beams because they were seen as more dangerous. There were -- 12 of 14 -- 13 a lot of walkways around the Karalee State School so it would not have been practical to cover them all. The beams above the stairs were covered because younger children were able to reach them and should anyone have fallen they would have landed on the concrete steps.” [37] It is submitted for the plaintiff that these documents should be disclosed as they would contain “information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident”. [38] It is submitted for the State that any covering up of other beams at different parts of the school would not be “directly relevant” to the question of whether or not this beam was dangerous. It is submitted, therefore, that any such documents would not have to be disclosed. [39] In my opinion, if there are Q-Build documents which arise out of an earlier request to cover exposed beams at the school because they were seen to be dangerous, then that would be a fact which is directly relevant to the issue of liability here. An appreciation of a danger, and any steps to avoid that danger, and the cost and extent of the work, would all be directly relevant matters. [40] To the extent that such documents were in existence by the time of this incident, then they must be disclosed. They are part of the circumstances of the incident. [41] Of course, the duty of disclosure is not limited literally to documents in the hands of Q-Build. It relates to any documents of the State which show the need for such work. Draft Orders [42] The parties can make any further submissions about these proposed orders: (a) The defendant is to make any necessary further and better answers about events up to 16 September 1994 with respect to questions 5, 7, 8 and 9 of -- 13 of 14 -- 14 the request of 22 February 2005, and questions 1 and 6 of the request of 8 August 2005. (b) The defendant is to disclose all “Q-Build” documents which came into existence on or before 16 September 1994. Costs [43] The parties can make submissions about costs after they have considered these reasons. -- 14 of 14 --