New decision on scope of respondents’ PIPA disclosure requirements
Anything to disclose?
A recent decision by the Queensland Court of Appeal has potentially broadened the obligations of pre-litigation disclosure in personal injury claims under the Personal Injuries Proceedings Act 2002 (PIPA). What information respondents may have previously thought was outside of what they needed to disclose when a claimant gives a PIPA notice of claim, may now need to be disclosed, according to the Court of Appeal.
PIPA disclosure information requirements
When a claimant gives a PIPA notice of claim, there are certain documents and information both the claimant and the respondent are required to disclose. The purpose of these disclosure requirements is to ensure the parties have enough information to make a judgment about whether (and to what extent) the respondent is liable for the claimant’s personal injury, and how much any likely damages are going to be.
The respondent’s obligation to disclose material to the claimant is governed by section 27 of PIPA. Section 27(1) has two limbs concerning what is to be disclosed by a respondent.
Section 27(1)(a) requires a respondent to disclose reports and other documentary material about the incident alleged to have given rise to the personal injury, about the claimant’s medical condition or prospects of rehabilitation, and about the claimant’s cognitive, functional or vocational capacity.
Section 27(1)(b) further requires a respondent, if asked by the claimant, to provide information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident. If the respondent is an insurer, the respondent must give the claimant the same information that can be found out from the insured. SDA v Diocese of Rockhampton concerned the width of these provisions, in particular section 27(1)(b).
This case concerned historical allegations of sexual abuse against a child who was a resident of St George’s Home for Children, by its then superintendent, Reverend “M”. Some 45 years after the alleged incident, the claimant gave the respondent, which then ran the children’s home, a PIPA notice of claim on the basis that the respondent breached its duty of care to the claimant by placing Reverend M in a position of power over the claimant and failing to take preventative measures to ensure Reverend M could not commit sexual abuse offences against the claimant.
The claimant’s solicitors made requests to the respondent for information about any other allegations and complaints of sexual abuse made against Reverend M about his time at the children’s home, on the basis that such information was relevant to whether the respondent breached its duty of care to the claimant. It was common ground that other complaints to the respondent from former child residents of the children’s home about sexual abuse by Reverend M had been made, but not at the time he was superintendent. Complaints against Reverend M were not received until more than two decades after his retirement (the first being in 1999). No complaints had been received by the respondent prior to Reverend M’s retirement in December 1974.
The respondent, by its solicitors, produced statutory declarations to the effect that there were no records of complaints about Reverend M prior to his retirement, and statutory declarations from former staff members at the children’s home from the time of Reverend M’s tenure, to the effect that they had no recollection of any complaints of sexual abuse ever being made against Reverend M.
The claimant submitted that section 27(1)(b) of PIPA obliged the respondent to disclose information about other complaints about sexual abuse by Reverend M, even if such complaints were made decades after Reverend M’s retirement. The obligation to disclose was not, in the claimant’s submission, restricted to complaints that may have been contemporaneous to the incident. The claimant filed an application in the Supreme Court for orders compelling disclosure of such information by the respondent.
First instance decision
At first instance, the Justice Crow dismissed the claimant’s application. His Honour considered that the words of section 27(1)(b) precluded an obligation to disclose information received by the respondent 25 years after the incident, where the issue was whether the respondent breached a duty of care to the claimant in 1973. His Honour also considered that the words ‘information … about the reasons for the incident’ contained in section 27(1)(b) only extended to matters which are a ‘strand in the rope of causation’; that is, matters that can be considered to have caused the incident to which the claimant’s notice of claim relates. As the other complaints were made for the first time at least 25 years after the incident, His Honour determined:
it cannot be considered that information received 25 years after the fact could have had any bearing on what the first respondent did or did not do at the time of the incident, nor could it be said to have put the first respondent on notice of the risk. In the present case, there is a lack of causative effect between the information sought and the incident such that the information sought could not be considered a strand in the rope of causation and as such is not disclosable under s 27(1)(b) of the PIPA.
The respondent appealed.
The Court of Appeal overturned the primary judge’s decision, finding in the claimant’s favour that information about complaints received 25 years after the incident was disclosable pursuant to the correct interpretation of section 27(1)(b). The Court of Appeal’s reasons were articulated in the leading judgment of Morrison JA, who reasoned:
- the word information in section 27(1)(b) extended to oral communications, even if no written record of that oral communication existed;
- the words reasons for the incident should be understood as referring to facts serving to explain the act, omission or circumstance alleged to have caused the personal injury – in other words, “why” the incident happened;
- it is true, as the primary judge reasoned, that for a fact to be a reason for the incident, it must be a strand in the rope of causation, but this is not limited to what the respondent did or did not do in the circumstances of the incident;
- where the allegation is an omission to take care, the reasons for the incident could extend to facts about other things that happened which served to put the respondent on notice of a risk.
His Honour concluded:
Here the claim in negligence particularises an alleged cause of the personal injury based on, inter alia, omissions to act in the face of actual or constructive knowledge that SDA was being sexually abused by M … In such a case the fact that there were complaints about M’s conduct, that is conduct during the period when SDA was at the Home, whenever those complaints were made, might be relevant information to explain the alleged cause of the injury, that is the failure to act. In other words, those complaints might be facts serving to explain the cause of the omission alleged to have caused the personal injury.
This decision has potentially broadened the scope of what a respondent will need to disclose when given a PIPA notice of claim. It is not sufficient to disclose only information about the circumstances of the incident (i.e. what happened). The respondent will also need to disclose information that may answer the question of why an incident happened, particularly if the claim relates to an alleged omission of the respondent to take care, even if such information has no direct connection to the specific circumstances of the incident.
This may include information about other similar incidents or complaints about similar incidents, even if the making of the complaint happened after the incident the claim relates to. If information in the respondent’s possession can serve to explain why the incident happened, even if it is not information about the incident itself, it may well fall within the scope of section 27(1)(b) and must be disclosed.