Slip and falls and workplace injuries often occur in circumstances where the injured person may need to have an expert such as a mechanical engineer or ergonomist inspect the injury location to take measurements or perform tests. The expert will then write a report about the level of contribution to the risk of the injury incident posed by the floor, stairs or other environmental or machinery factor that the claimant blames for the injuries.
The Personal Injuries Proceedings Act 2002 (Qld) contains disclosure obligations covering documents and information verified by statutory declaration. It does not contain any mechanism for the claimant to compel an inspection of an injury incident location by an expert.
Rule 250 of the Uniform Civil Procedure Rules 1999 (Qld) does provide a mechanism for an injured person to obtain a slip test or other such inspection by an expert. The claimant and their solicitor may also need to attend and it can facilitate that as well. Another example it would cover would be a repetitive strain injury from working in an abattoir – an ergonomist may need to attend and inspect while the workers are performing the duties alleged to have caused the injury.
Rule 250 can be utilised by way of an originating application against the respondent whose consent has not been granted and who has the legal authority to agree to or deny the inspection. You would generally ask them for permission first and only file the application if it is unreasonably withheld.
An example of such an application for a slip test could be drafted as follows:
- Pursuant to r 250 of the Uniform Civil Procedure Rules 1999 (Qld), the applicant is authorised to enter the respondent’s premises at [insert address or location] together with his/her solicitor or solicitor’s employee and an engineer, for the purpose of an inspection of that part of the respondent’s premises where it is alleged the applicant slipped, fell and was injured on [insert date of injury] in the part 1 notice/s of claim dated [insert date/s of pre-court claim notice/s].
- The applicant’s engineer be permitted to take measurements and photographs of the relevant parts of the respondent’s premises, including wet friction testing using a British pendulum slip resistance tester.
- The parties have liberty to apply on 2 clear business days’ notice in writing.
- Such furhter or other orders as the Court considers appropriate.
- The respondent pay the applicant’s costs.
There is no requirement that a pre-Court claim for a workplace or premises liability injury etc have been commenced prior to the r 250 application and the rule could also be used to obtain disclosure of documents from an employer prior to the commencement of a common law damages pre-court claim. When r 250 is used against an entity that is not the respondent to a current pre-court claim, the applicant may be required to agree to pay the respondent’s costs for the inspection of disclosure of documents. The applicant may then seek to recover those costs (which could be very substantial and include legal costs for advice and representation at the hearing) from the injury claim respondent as part of the costs of their injury claim.