The Queensland Court of Appeal in SDA v Corporation of the Synod of the Diocese of Rockhampton [2021] QCA 172 considered a respondent’s obligation to disclose copies of documents and information verified by statutory declaration to a claimant under s 27 of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’).
His Honour Fraser JA delivered reasons and orders in paragraphs [1] to [35].
His Honour Morrison JA delivered different reasons to Fraser JA in paragraphs [36] to [134] but agreed with his orders.
Her Honour Lyons SJA at paragraph [135] agreed with the reasons and orders proposed by Fraser JA.
SDA is therefore a majority decision of the QCA and an important precedent for all Queensland personal injury law practitioners. It is important because it changes a previously commonly held understanding that information and documents about causation for injury but not those merely about the respondent’s duty to avoid the injury must be disclosed by a respondent under s 27 PIPA.
Background
SDA (‘the claimant’) made a personal injury claim for psychiatric injury caused by sexual abuse he suffered as a boy at St George’s Home for Children (‘the respondent’), where M was the superintendent of the home and alleged perpetrator of the abuse. M had been the superintendent of the home from December 1963 until his retirement in December 1974. The alleged abuse by M occurred from late 1973 to December 1974. The personal injury compensation claim regulated by the PIPA was commenced about 45 years later.
Notice of Claim Part 1
The claimant’s s 9 PIPA notice was summarised by Fraser JA at [13]: ‘The appellant’s notice of claim describes the “incident” as being that the claimant was subjected to sexual abuse perpetrated by carers, including M, whilst the appellant was a resident at the Home. The appellant alleges that the appellant was sexually abused regularly, including in the presence of other residents and other staff, and that caused the appellant to sustain a psychiatric injury. The term “incident” in s 27(1)(b)(i) therefore comprehends each alleged act of sexual abuse of the appellant by M (and others).’
Section 27 PIPA
His Honour Fraser JA at [7] set out s 27(1)(a)(i) and (b)(i) of the PIPA by merging in the schedule 1 PIPA dictionary’s definition for ‘incident’ as follows:
‘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 accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury] … to which the claim relates.’
‘A respondent must give a claimant- (b) if asked by the claimant- (i) information that is in the respondent’s possession about the circumstances of, or the reasons for, [the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury];’
Relevance and Scope
The starting point is the claimant’s s 9 PIPA notice. It defines the injury incident and says what injuries that incident is alleged to have caused. ‘The mere fact that complaints about M were made to the first respondent is “information” but, in circumstances in which those complaints were not made until long after the alleged sexual abuse of the appellant by M, that fact could not of itself amount to information “about the circumstances of, or reasons for” that alleged sexual abuse.’: at [15]. ‘the only potential candidate for information of that description comprises the statements made about M in the complaints… A questions arises whether “information” … is confined to matter that is accurate or believed to be accurate by the person who possess the information. In my opinion it is not.’: at [16]. ‘it does not exclude information about which the respondent’s belief falls short of knowledge that it is false.’: at [20]. ‘the required information about the reasons for and the circumstances of the incident must comprehend information relating to the question whether the respondent may or may not be found liable and the appropriate quantum of the claimant’s claim. In considering those matters, the statutory scheme requires reference to the claimant’s notice of claim.’: at [26].
Therefore, information that is about causation for the injuries claimed for, but also legal liability for those injuries, must be disclosed upon request to the claimant by the respondent. The claimant’s s 9 PIPA notice in essence alleged two reasons for the respondent’s liability:
- Direct liability due to a failure to take steps to reduce the risk of sexual abuse; and
- Vicarious liability because the respondent had placed M in a position that afforded him the opportunity to commit the abuse.
His Honour Fraser JA said: ‘information about the content of any complaint made to the first respondent is capable of being regarded as information about the reasons for M’s alleged sexual abuse of the appellant, at least if the complaint refers to sexual abuse by M of a different child at the Home committed before the last act of sexual abuse allegedly committed by M against the appellant. That is so because such information could bear on the question whether any of the steps it is alleged in the notice of claim the first respondent should have taken would have been effective to prevent the alleged sexual abuse by M of the appellant… Information that, before the last alleged acts of sexual abuse of the appellant, another respondent of the Home had been sexually abused by M, may contribute to an inference that the suggested system would have been used by that other resident, with the result that M would have been denied unsupervised access to children at the Home… That would be sufficient to justify describing such a complaint as information about the reasons for M’s sexual abuse of the appellant… If, in addition to the alleged sexual assaults of the appellant, M had previously sexually assaulted another child at the Home, that could tent to support a conclusion that, by the time the appellant arrived at the Home, the first respondent was allowing M to occupy such a position of authority, power and control over the children in the Home (a circumstance of the alleged incident) as to enable the alleged sexual abuse of the appellant (a reason for the alleged incident).’ at [31] – [33].
Broader Application
SDA will have broader application to other types of claims. For example, where there has been a slip and fall injury incident, information about prior slips or complaints about the slipperiness or the actual measured slipperiness of the floor will be disclosable if the claimant has drafted their s 9 PIPA notice to allege the respondent’s liability is that the respondent knew or ought to have known that the floor was unreasonably slippery. Even information about a suggested, but not implemented, system to avoid a slip and fall injury incident would be disclosable if the system suggested contained at least some information that is the same as a system the claimant alleges in their s 9A PIPA notice should have been implemented so as to avoid their injury incident.
It should be noted too that the schedule 1 PIPA dictionary defines ‘possession’ as ‘possession includes control.’ Another interesting obligation on a respondent is found in s 20 PIPA which states: ‘the respondent must— (a) take reasonable steps to inform himself, herself or itself about the incident alleged to have given rise to the personal injury to which the claim relates’ and this may extend to a respondent requesting information or documents from a third party or signing an authority for the claimant to access some information or documents from the third party. This can be considered to in the context of any relevant information privacy or right to information legislation which may give a respondent the legal right to access certain documents held by a third party.
A s 9 PIPA notice may also need to be amended if a claimant gains a new understanding about the nature of the incident that injured them or the circumstances or reasons for it. A change or development in the law might also trigger the need to amend that notice, for example in response to a decision such as Prince Alfred College Inc v ADC [2016] HCA 37 regarding vicarious liability for deliberate criminal acts of an employee or agent put in a position by a respondent that afforded the criminal the opportunity to commit the crime.
SDA confirms the purpose of division 2 of the PIPA (which includes s 27) which is stated in s 21: ‘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.’ The position respondents would hold that a disclosure request is not valid merely because it is about a prior incident cannot be sustained.