Cutting the strand in the rope of causation? Court of Appeal considers requests for information about prior incidents

16 September 2021

Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.

In Issue

  • The Queensland Court of Appeal considered the ambit of a request for information about prior incidents under section 27(1)(b) of the Personal Injuries Proceedings Act 2002.

The background

SA (the appellant) was a resident of the St George’s Home for Children (the home), an orphanage in Rockhampton, from November 1973 until March 1980. The home was managed by the Corporation of the Synod of the Diocese of Rockhampton (the respondent).

The appellant alleged that he was physically and sexually abused whilst he was a resident at the home by Reverend M, superintendent of the home, other staff and older male residents of the home. Relevantly, Reverend M retired and left the House in December 1974.

On 16 August 2019, the appellant served a notice of claim on the respondent pursuant to the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). Solicitors for the appellant later clarified that the appellant’s claim only related to when both himself and Reverend M were at the home (November 1973 to December 1974).

During the course of the pre-proceedings, solicitors for the appellant made a request for information and documents pursuant to section 27 of the PIPA, including the following request for information (the request for information):

all information about a report, complaint, warning, concern or investigation regarding any act of sexual or physical abuse on a child committed or alleged to have been committed by [M] at St George’s Home for Children, Rockhampton, Queensland, between 18 December 1963 and 10 January 1975.

Relevantly, the appellant and Reverend M only co-existed at the Home between November 1973 to December 1974 and the request for information extended 10 years before the alleged abuse period.

Solicitors on behalf of the respondent replied that the request for information was too broad as it ‘extends beyond ‘the circumstances of, or the reasons for” the incidents’ as defined by section 27(1)(b) of the PIPA; however, informed the appellant’s solicitors that searches undertaken by the respondent did not show that the respondent was aware of the behaviour of Reverend M before December 1974 (the end of the abuse period). Importantly, the respondent only became aware of Reverend M’s alleged conduct in 1999 as part of the Commission of Inquiry into Abuse of Children in Queensland Institutions.

The decision at trial

The appellant applied to the Supreme Court of Queensland for orders requiring the respondent to provide the information sought pursuant to section 27(1)(b) of the PIPA.

The application was heard before the Rockhampton Supreme Court at first instance. The primary judge considered that the respondent was not required to respond to requests for information about prior incidents unless ‘the prior incidents have a causative effect, in the sense of being a strand in the rope of causation’. In this circumstance, the primary judge found that information received 25 years after the fact could not have had any bearing on what the respondent did or did not do at the time of the incident.

The issues on appeal

The plaintiff appealed the primary judge’s decision to the Court of Appeal. The Court of Appeal considered the ambit of requests for information regarding prior incidents under section 27(1)(b) of the PIPA.

The Decision on appeal

The Court of Appeal undertook an examination of section 27(1)(b) of the PIPA. The Court of Appeal examined the wording of section 27(1)(b) of the PIPA, specifically that a respondent is required to provide upon request, “information that is in the respondent’s possession about the circumstances of [the incident], or the reasons for, the incident”. The Court of Appeal noted that the PIPA defined ‘incident’ to mean ‘the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury’.

The Court of Appeal considered that upon the plain ordinary reading of section 27(1)(b), a request for information is not merely limited to what the respondent did and did not do, nor does the section exclude information relevant to the respondent’s duty. The Court of Appeal pointed out that in circumstances of an alleged ‘omission’ such as an employer failing to take reasonable steps to prevent sexual abuse from happening, it was possible to see how such an alleged omission could comprehend that other things happened which served to put a respondent on notice.

The Court of Appeal found that the approach taken by the primary judge was too restrictive. The Court of Appeal held that the content of any complaint made about Reverend M’s conduct whilst he was at the home, irrespective of when the complaints were made, may be relevant information to explain the failure to act. The Court of Appeal reasoned that if complaints made 25 years after the alleged incidents occurred, these could be argued to be a fact that would have put the respondent on notice regarding Reverend M’s conduct.

Implications for you

The decision of the Court of Appeal provides an expansive interpretation of section 27(1)(b) of the PIPA in relation to disclosure of prior incidents. This decision marks a departure from previous decisions such as Oliver v Mulp Pty Ltd1 and Wright v KB Nutt Holdings Pty Ltd which considered that section 27(1)(b) was concerned with what a respondent did or did not do, as opposed to what it ought to have done.2 We consider when responding to a request for information, it is important to look at the scope of the allegations made by a claimant in their notice of claim.

1 [2009] QSC 340

2 [2010] QDC 91

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