Eyles v Sydney Skydivers Pty Ltd [2022] QDC 1

DISTRICT COURT OF QUEENSLAND CITATION: Eyles v Sydney Skydivers Pty Ltd [2022] QDC 1 PARTIES: EYLES, James Richard (Plaintiff) v Sydney Skydivers Pty Ltd ACN 002 690 235 (Defendant) FILE NO: BD 1/2019 DIVISION: Civil PROCEEDING: Application Hearing ORIGINATING COURT: District Court at Bowen DELIVERED ON: 19 January 2022 DELIVERED AT: Brisbane HEARING DATE: 25 June 2021 JUDGE: Devereaux SC CJDC ORDERS: I will hear from the parties as to the precise form of orders and as to costs. CATCHWORDS: PROCEDURE –CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – FILING DOCUMENTS AND ACCESS THERETO – where the plaintiff applied for an order pursuant to s 32(2) of the Personal Injuries Proceedings Act 2002 (Qld) that the defendant be precluded from using certain documents at any trial of the claim – where the defendant applied for an order that it may rely on the contested documents – whether the defendant was obliged to disclose the documents pursuant to s 27(1)(a) of the Personal Injuries Proceedings Act 2002 (Qld) LEGISLATION: Personal Injuries Proceedings Act 2002 (Qld), s 4, s 21, s 22, 27(1)(a), s 30, s 31, s 32(2), s 34, s 37, s 40. CASES: Haug v Jupiters Limited [2008] 1 Qd R 276. Livesay v Hawkins [2010] QSC 489. -- 1 of 12 -- 2 Luck v Lusty EMS Pty Ltd [2008] QSC 146. Newson v Aust Scan Pty Ltd t/a Ikea Springwood & Ors [2010] QSC 223. SDA v Corporation of the Synod of Diocese of Rockhampton & Anor [2020] QSC 253. COUNSEL: P. T. Cullinane QC for the plaintiff S.J. Deaves for the defendant SOLICITORS: Macrossan & Amiet Solicitors, Mackay for the plaintiff Lander & Rogers for the defendant The claim [1] The plaintiff suffered fractures in his right leg when landing during a skydiving course at Bowen on 30 October 2016. In December 2016, he gave a Notice of Claim to the defendant. Throughout 2017 and 2018, the plaintiff’s legal representatives wrote to the defendant’s representatives raising the defendant’s duty of disclosure. The parties participated in a compulsory conference in November 2018, without resolution. [2] On 7 January 2019, the plaintiff filed a claim and statement of claim against the defendant in the District Court at Bowen, alleging negligence and breach of contract. The defendant filed a Defence on 15 February 2019 and, on 19 February 2019, served its list of documents. The defendant amended its defence in April 2019 and the plaintiff filed a reply in May 2019. These applications [3] Certain documents in the defendant’s list had not been disclosed before the compulsory conference. By his amended application,1 the plaintiff seeks an order that 1 Application filed 29 April 2021; Amended application filed 25 June 2021. -- 2 of 12 -- 3 the defendant be precluded from using, at trial, documents 25 to 39 of that list. By its application,2 the defendant seeks orders that it may rely on any documents referenced in the list served on 19 February 2019 and the Parachuting Contract disclosed on 25 March 2019. The issues have been reduced by the parties. The plaintiff concedes that it did not make a request for disclosure pursuant to s 27(1)(b) of the Personal Injuries Proceedings Act 2002 (Qld) (“the PIPA”). Therefore, these applications concern only the interpretation of s 27(1)(a). The plaintiff concedes that document 35, the statement, was not disclosable under s 27(1)(a), being excused by s 30 of the PIPA. The defendant accepts that it was obliged by s 27(1)(a) to disclose the Incident/Accident Notification Forms, documents 27 – 29, and failed to meet that obligation. In her affidavit, Ms Josey for the defendant informs the Court that ‘they were not disclosed due to oversight on the part of Lander & Rogers’, the instructing firm. [4] Before delivery of these reasons, the parties reduced the number of documents in contention to documents 26, 30, 31, 32, 34 and 38.3 [5] The plaintiff contends the defendant, having failed to disclose the contested documents, must be precluded by s 32(2) of the PIPA from using them in subsequent court proceedings on the claim. The defendant submits it was not required to disclose the documents, and alternatively, by its application, seeks the Court’s exercise of discretion under s 32(2) to allow the defendant to use the documents at trial, notwithstanding its failure to comply with s 27(1)(a). 2 Defendant’s application filed 25 June 2021. 3 Email 14 October 2021. -- 3 of 12 -- 4 Legislative framework [6] The main purpose of the PIPA is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury. The first two stated means for achieving the purpose are providing a procedure for the speedy resolution of claims and promoting settlement of claims at an early stage wherever possible. The third is “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” (s. 4). [7] Chapter 2 of the Act establishes pre-court claims procedures, commencing with the giving of a notice of claim, the giving of a preliminary response, the giving of an acknowledgement that the respondent is the proper respondent, the giving of a response, and an exhortation upon the respondent to try to resolve the claim. Then, in Division 2, the chapter imposes obligations on the parties, the purpose of which is to put them in a position where they have enough information to assess liability and quantum in relation to a claim (s. 21). Relevantly, s. 22 requires the claimant to give the respondent “reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates” (s. 22(1)(a)(i)). Section 27 requires the respondent to give the claimant copies of “reports and other documentary material about the incident alleged to have given rise to the personal injury …”. Even certain documents that would otherwise be protected by legal professional privilege must be disclosed (s. 30). It is an offence for a respondent to withhold material unless permitted under the division or as approved by the court (s. 31). The consequence of failing to disclose is that the document cannot be used by the party in a subsequent court proceeding based on the claim, unless the court -- 4 of 12 -- 5 otherwise orders (s. 32). A party is not required to give a document or information that is already in the other party’s possession (s. 34). [8] All of the foregoing is to prepare the parties for the compulsory conference. As if to ensure that there be no surprises, s. 37 requires that before the conference, the parties must exchange copies of all documents not yet given as required under the Act and a statement that all relevant documents in the possession of the party that are required to be given under the Act have been given, and a certificate of readiness, which includes a statement that the party is in all respects ready for the conference and all investigative material required by the party has been obtained, including witness statements. (Apparently, neither party to these applications signed a certificate of readiness before the compulsory conference.)4 Only after a failed conference and exchange of final offers (unless the court dispenses with this step) may a claimant commence court proceedings (s. 40). [9] Clearly, this detailed and probably expensive process is designed to settle cases before court proceedings commence, with the parties being sufficiently informed to do so. [10] In Haug v Jupiters Limited [2008] 1 Qd R 276, Jerrard JA referred to the statement in the explanatory notes to the Personal Injuries Proceedings Bill 2002, “that the clear purpose of the division of the PIPA in which s. 27 appears is to put the parties in the position where they have enough information to assess liability and quantum in relation to a claim.”5 [11] Noticing the focus of the provisions on the ‘incident’ to which the claim relates, Jerrard JA said: 4 Affidavit of Ms Josey, of the defendant’s solicitors, at paragraph 19. 5 [2008] 1 Qd R 276 at [8]. -- 5 of 12 -- 6 “The statutory obligation is not as broad as an obligation to give a claimant copies of documents that are directly relevant to a matter in issue in the claim, where those are not documents about the incident.6” [12] Williams JA, who agreed with the reasons of Jerrard JA, noted that the term “incident” as defined in the PIPA dictionary – “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”. Williams JA allowed that, against the purposes and means set out in s. 4, s. 27 should be given “a broad, remedial construction; but that does not mean words of limitation found in the section can be ignored.”7 [13] As Crow J. recorded in SDA v Corporation of the Synod of Diocese of Rockhampton & Anor [2020] QSC 253, White J, as her Honour then was, in Haug said, “… although the purposive approach to statutory construction must be preferred to any other interpretation, s. 14A of the Acts Interpretation Act 1954, it may not prevail over the clear words of the provisions of the Act. Accordingly, the broad construction sought to be advanced by [Counsel] for the respondent must give way to the actual words employed by the legislature which have the effect of limiting the categories of material that must be disclosed and produced by the appellant.” [14] The relevant part of s. 27 of the PIPA is: (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; 6 [2008] 1 Qd R 276 at [11]. 7 [2008] 1 Qd R 276 at [5]. -- 6 of 12 -- 7 (ii) reports about the claimant’s medical condition or prospects of rehabilitation; (iii) reports about the claimant’s cognitive, functional or vocational capacity; … [15] Section 32 deals with the consequence of a party’s failure to provide disclosure: (1) This section applies if a party fails to comply with a provision of division 1 or this division requiring the party to disclose a document to another party. (2) The document can not be used by the party in a subsequent court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise. (3) If the document comes to the other party’s knowledge, the document may be used by the other party [16] In Newson v Aust Scan Pty Ltd t/a Ikea Springwood & Ors [2010] QSC 223, Alan Wilson J said, of the pre-court procedure provisions of the PIPA, “The obligation to make full disclosure is expressed, throughout, in imperative terms and non- compliance has serious consequences.”8 His Honour considered the nature of the statutory discretion activated by the term, “unless the court otherwise orders”. In the case of the discretion under s. 32 of the PIPA, “It is plain that complete disclosure of all relevant documents is at the heart of the PIPA process. Deliberate withholding is an offence, and noncompliance without reasonable excuse constitutes professional misconduct.”9 [17] Alan Wilson J referred to the decision of Byrne SJA in Luck v Lusty EMS Pty Ltd [2008] QSC 146. During the pre-court stage, the defendant had elected not to have the plaintiff medically examined but applied for an order after the plaintiff commenced 8 [2010] QSC 223 at [2]. 9 [2010] QSC 223 at [17]. -- 7 of 12 -- 8 the proceeding. Byrne SJA acknowledged the purposes of the pre-court procedures, including the narrowing of issues and the benefit of parties being fully informed for the compulsory conference. His Honour also noted the utility of the proviso in s. 32 of the PIPA, “unless the Court orders otherwise” to avoid injustice. [18] The defendant relies upon the statement of Fryberg J in Livesay v Hawkins [2010] QSC 489, that it is a ‘fundamental rule of natural justice that at trial in our courts parties be permitted to put their cases fully and effectively’. No doubt that is correct, but his Honour was there deciding not to make an order (by consent of the parties) that parties be permitted to call certain expert witnesses on the basis that no order was necessary because of the stated principle. The decision was not concerned with the purposes of the PIPA, or indeed any other legislation. The incident [19] The incident which caused the plaintiff’s injury, as described in the notice of claim, may be summarised as his parachute jump and grounding, the execution of which, he says, was caused by the actions of three persons involved in the jump. At item 18 of the notice of claim, where the plaintiff was required to detail the reasons why he believes [the defendant] caused the incident, he sets out conduct of the target assistant on the ground and two jump masters. The contested documents [20] It is necessary to briefly describe each contentious document. Document 26 is entitled AFF Course Review Form of Airlie Beach Skydivers, completed by the plaintiff and dated 16 September 2016. It is a 9-page questionnaire filled in by hand by the plaintiff. The questions are about safe procedure associated with skydiving. This document is pleaded in the defence. Specifically, it is pleaded that the plaintiff correctly answered -- 8 of 12 -- 9 questions about foot and leg position during landing and signed and acknowledged that he was responsible for landing his parachute unassisted. The defendant’s position about the plaintiff’s conduct on landing is forecast in documents 27 and 28, which are no longer contested. [21] In my opinion, Document 26 was documentary material about the incident – the act, omission or circumstance, alleged to have caused all or part of the personal injury – and was directly relevant to a matter in issue, namely, whether the plaintiff acted contrary to his training and thereby contributed to the cause of his injury. It is so because it outlines what the defendant says the plaintiff did not do despite the instruction he was given as evidenced by his correctly answering questions. It was therefore precisely the kind of document to be disclosed for the purposes of the pre- court procedures of the PIPA. The document is not analogous to, for example, the personnel records and training records of employees that, in Haug, were deemed not subject to s 27(1)(a). [22] The defendant’s material reveals that Document 26 was provided to the solicitors in January 2017, along with documents that the defendant now concedes should have been disclosed. The claim that the non-disclosure was an oversight was made by the defendant’s solicitors particularly with respect to other documents and not Document 26. In any case, the claim is less persuasive than it might otherwise have been in the face of the repeated requests for disclosure by the plaintiff’s solicitors. Although the document was completed by the plaintiff it is not said that he would have been given a copy of it, such that he should have produced it to his solicitor. [23] In respect of this document, the interests of justice do not require the defendant to be exempt from the application of s. 32. -- 9 of 12 -- 10 [24] The same cannot be said of the other documents that remain in contention. [25] Document 30 is an Australian Parachute Federation Waiver dated 30 June 2017. It is a one-page document containing statements including that in the course of skydiving, ‘serious accidents can and often do happen which may result in injury…’ and ‘except where provided or required by law and as such cannot be excluded, the plaintiff agrees that it is a term of his/her membership of APF that APF is absolved from all liability however arising out of his/her membership…’. [26] Document 31 is a Skydive Airlie Beach Club Waiver dated 26 June 2018. It is a seven- page document that refers by name to the plaintiff: ‘you, JAMES RICHARD EYLES, hereby agree to be bound by the terms of this contract with SKYDIVE AIRLIE BEACH’. [27] Document 32 is an Australian Parachute Federal Ltd Waiver dated 29 June 2018. It is a one-page document that says that ‘parachuting and flying in parachuting aircrafts is dangerous’ and ‘the applicant undertakes parachuting activities entirely at his/her own risk’. [28] Document 34 is an Australian Parachute Federation Ltd Member Lookup of the plaintiff. It is a single page document containing details about the plaintiff’s membership. [29] Document 37 is an Australian Parachute Federation Member Details document in respect of the plaintiff. It is 3 pages in length and includes a colour photograph of the plaintiff’s face. [30] Document 38 is a Sydney Skydivers reserve log. It is a handwritten document. -- 10 of 12 -- 11 [31] Some of these documents might be considered directly relevant to a matter in issue in the claim, namely the relationship between the plaintiff and defendant. Indeed, Counsel for the defendant described the documents as ‘about the contractual relationship between the plaintiff and defendant’. However, the remarks of Jerrard J in Haug are unequivocal: “the statutory obligation is not as broad as an obligation to give a claimant copies of documents that are directly relevant to a matter in issue in the claim, where those are not documents about the incident.” [32] Section 27(1)(a) requires disclosure of a report about the claimant’s medical condition or prospects of rehabilitation,10 a report about his cognitive, functional, or vocational capacity,11 or a report or other documentary material about the incident alleged to have given rise to the personal injury.12 In my view, the documents do not constitute reports about the plaintiff’s condition, rehabilitative prospects, or capacity, and they are not about the incident. [33] Some of the documents might have been disclosable if the plaintiff had requested so under s 27(1)(b). However, no request was made and the parties are agreed that only s 27(1)(a) is relevant in these circumstances. [34] I will hear the parties as to the precise orders and costs. Pending those submissions, I would be minded to order as follows: 1. In respect of the plaintiff’s amended application filed 25 June 2021 and the defendant’s application filed 25 June 2021, the defendant is precluded from using Document 26 in the defendant’s list of documents filed on 19 February 2019 at any trial of the claim; 10 S 27(1)(a)(ii) PIPA. 11 S 27(1)(a)(iii) PIPA. 12 S 27(1)(a)(i) PIPA. -- 11 of 12 -- 12 2. The defendant has leave to replead. -- 12 of 12 --