John William Sinclair v Coles Supermarkets Australia Pty Ltd [2024] QSC 175

Key findings/reminders:

• The parameters of a respondent’s disclosure obligations will be determined with reference to the specific allegations of negligence framed in the P1NOC.
• Under s 27(1)(b)(i):
  • Information about the existence of “prior, similar incidents” will likely fall within the scope of s 27(1)(b)(i);
  • The nature of information which a respondent is required to disclose about “prior incidents” is not confined simply to incidents carrying a causative effect in relation to the subject incident;
  • Generalised requests for information (such as for the disclosure of “any complaints made about safety”) that do not have regard to the particular incident and/or allegations subject to the claim will likely be deemed too broad; and
  • Information about why documents which a claimant thought existed, do not exist, or why such documents have since ceased to exist, are not matters about ‘the circumstances of, or the reasons for, the incident’.
• When drawing any such requests for information pursuant to s 27, authors should otherwise:
  • Remain mindful that the extent of the duty imposed by s 27(1)(b)(i) will be prescribed by the words used in that provision - and not the description given in a request purportedly made under that section; and
  • Ensure that the wording is confined to seeking “information” (and not confuse the issue by using words such as “records”). Records which are about the “incident” fall within the description “other documentary material” contained in section 27(1)(a)(i).
• If a respondent is found to have withheld information or documents then that party is liable to punishment under s 31 of the PIPA, and is prohibited from using such a document in a relevant court proceeding without leave.
• Verification by statutory declaration is to be made by a respondent under s 27(3), who is often an insurer or an incorporated entity. Such respondents can only comply with that requirement through an individual that it authorises - there is nothing in the PIPA which allows for a claimant to demand that a particular person or persons make such a statutory declaration.

Factual overview:

Mr John Sinclair (“the Applicant”) commenced pre-proceedings against Coles Supermarkets Australia (“the Respondent”)(“Coles”) subsequent to an incident said to have occurred on 12 February 2024, inside a premises occupied by the latter.

The mechanism of injury (as particularised by the Applicant in his Part 1 Notice of Claim) was described as follows:

• At approximately 7:30am, the claimant got a shopping trolley and walked to the fruit and vegetable department, and then walked past the lettuce and slipped over. The claimant went down hard on his right side. As the claimant was laying on the floor, he could feel his shirt and shorts wet. This is when the claimant realised there was water on the floor that made him slip over.

Requested information

In March 2024, the Applicant’s solicitors furnished a request for information and documentation pursuant to s 27 of the Personal Injuries Proceedings Act 2022 (“the PIPA”).

The request contained some 19 matters, and largely relied on the decision of SDA v Corporation of the Synod of the Diocese of Rockhampton (“SDA”).¹

In the ensuing months, further correspondence was exchanged between the parties, as well as disclosure from Coles. However, the Applicant ultimately maintained Coles had failed to fulfil its disclosure obligations and an Originating Application was filed therewith pursuant to s 35.

Application for Disclosure

On the subject application, The Applicant sought:

1. All records regarding any previous and/or similar incidents and complaints made about safety at the Coles, Hope Island store;
2. CCTV footage that was identified by Coles’ assistant manager as having been footage that ‘a report had been done’ in relation to;
3. Further CCTV footage from the cameras shown in an Exhibit to the affidavit of Mr Hynd (Coles’ solicitor); an
4. In the alternative, if the footage never existed, a statutory declaration from the store manager or another ‘appropriate individual with knowledge’ as to why such footage did not exist.

Evidence of CCTV Footage

The Applicant’s claims as to the existence of CCTV footage were based on:

1. Conversations Mr Sinclair (and his wife and son) recalled having with an Assistant Manager and Store Manager of Coles after the incident;
2. Assertions made by his solicitor about CCTV cameras in the store; and
3. A notation contained in the Coles ‘Incident Report’ which answered “Yes” in response to whether the incident was captured by CCTV. ²

Coles maintained that it had provided all relevant information, and denied there was CCTV footage of the actual incident. In support of the latter assertion, Coles provided (2) affidavits, one of which was sworn by an employee of the Public Liability team of Coles Legal & Safety Division stating inter alia that the store manager had made enquiries which had revealed none of the store’s cameras had captured the incident.

The Court noted that The Applicant’s application (insofar as it related to the existence of CCTV footage) was based almost entirely on recollections of conversations that were disputed by the Coles employees who were party to them.

Application of s 27 (CCTV Footage)

As at the date of the hearing, the Court found The Applicant was in receipt of correspondence and affidavits confirming that no relevant CCTV existed.

It followed that Coles could not ‘disclose something which does not exist’.³

An application under the PIPA was not an application for further and better disclosure. It was a distinct and separate means by which relevant information could be provided to an applicant.⁴

The Court reiterated the purpose of s 27(3) was to allow a claimant to require information which had been provided under s 27 to be verified by statutory declaration. However, The Applicant’s request for a statutory declaration from Coles verifying how the CCTV footage went from being seen and marked by an employee to no longer existing was:⁵

• “… not a request for a statutory declaration verifying information provided by a respondent under s 27. It is a request for an explanation of something which Coles says is untrue ... What was sought in the letter from Littles was an “explanation” which is not the same as a verification by statutory declaration of information provided.”

The Court found that Coles was not required to provide a verification (or, indeed, an explanation) of information it had not given. It was required to verify by statutory declaration the information to the effect that there was no relevant CCTV footage if it had been asked to do so (which it had not).

In any event, once verification is made by statutory declaration, that is the end of the matter. Unless a respondent misconceives the obligation it is under, when it has effected disclosure in accordance with s 27 and verified same under s 27(3) then a claimant can take it no further.

Disclosure of previous and/or similar incidents and complaints

The balance of the Applicant’s application sought “any previous and/or similar incidents and complaints made about safety at the Coles Hope Island Store”.

With respect to this request, the parties’ respective positions at the hearing were as follows:

1. Mr Sinclair: Any such records constitute information about the circumstances of, or the reasons for, the incident within the scope of s 27(1)(b).
2. Coles: There should be a distinction drawn in s 27 between “records” and “information”, and documents that were not about the incident were not disclosable.

The Court rejected Coles’ submission, finding that the word “information” has a broad meaning and includes “records” which are “about the circumstances of, or the reasons for, the incident” (as set out in s 27(1)(b)(i)).

In reaching its determination that Coles was required to providing information about the existence of prior, similar incidents, the Court made particular reference to the matter of SDA and, in respect to what might constitute relevant information, Day v Woolworths Ltd,⁶ echoing the following findings expressed by Fraser JA and Jackson J:

• “… 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.” ⁷
• “[109] In my view the existence of prior similar incidents, if any, may be information about the circumstances or reasons for the incident. Those circumstances could include that the respondent was on notice of the risk in a way that made the measures adopted to avoid the risk inadequate.” ⁸

The Court further concluded that Coles was not required to provide information about “complaints made about safety” at the Hope Island store – as that was much broader than the requirement of the section.

Orders

The Applicant’s application failed insofar as it sought the provision of CCTV footage or, in the alternative, a statutory declaration verifying why such evidence no longer existed.

However, the Applicant succeeded with respect to the balance of the application.

The Court consequently made orders that Coles:

1. Provide information in its possession about previous incidents at the Hope Island store which were similar to the incident alleged by the Applicant within 14 days; and
2. Pay 20% of the Applicant’s costs on the Standard Basis.⁹

[1] [2021] QCA 172
[2] Paragraph [24]
[3] Paragraph [23] 
[4] Paragraph [23]
[5] Paragraph [28] 
[6] [2016] QCA 337
[7] Fraser JA in SDA at paragraph [26]
[8] Jackson J (with whom McMurdo P and Philippides JA agreed) in Day v Woolworths [2016] QCA 337
[9] While Coles failed to comply fully with s 27 on the issue of “previous, prior incidents”, the Court found that most of the application concerned the CCTV issue (which had failed).