A customer claimant slipped on a shallot at a Woolworths supermarket. Liability was disputed.

The customer delivered numerous requests for information under section 27 of the Personal Injuries Proceedings Act (Qld) (PIPA). Woolworths answered some of the requests but declined to answer others on the grounds that they were irrelevant to the facts in dispute. The Queensland District Court allowed some of the disputed questions but refused the majority, agreeing that they were not relevant. The customer appealed, but in the interim, the parties attended a compulsory conference and the customer later filed court proceedings for damages.

There has been a series of cases analysing the relevance of section 27 questions since Haug v Jupiters Ltd. However, the Court of Appeal raised a new limitation which had not previously been considered. It had been assumed that the customer was entitled to ask the section 27 questions at any time, subject to the issue of relevance. This flowed from an earlier Queensland decision in Angus v Conelius. However, the Court preferred a 2013 ACT decision in Cleary v Rinaudo, which considered Angus v Conelius but reached a different conclusion; that the right to ask for information ceased once the pre-proceedings phase concluded.

Although the Court of Appeal discussed the relevance of the particular questions, it concluded they had ceased to be of utility as the claim had moved on. The compulsory conference had been held and Court proceedings had been commenced. The obligation to answer the section 27 questions had expired with the conclusion of the compulsory conference.

The customer had also asked for an inspection of the store to enable her ergonomics expert to conduct slip tests. Woolworths refused as it had already conceded that a shallot was a slip hazard and the debate was over the timing of the spill. The District Court agreed.

It had been common practice for PIPA claimants to request an inspection to bolster their claim (and fees). The previous court decisions had mixed results, with the judgments often turning upon very fine points of relevance.

However, instead of considering the relevance of an inspection to the claim, the Court of Appeal considered the source of the power to order an inspection. The District Court had relied on Rule 250 of the Uniform Civil Procedure Rules, but the Court of Appeal pointed out that Rule 250 only applied once Court proceedings were issued, not during the pre-proceedings phase.

The Court of Appeal then considered whether an inspection was a section 27 request for information. The Court noted that the specific wording of section 27 did not include an explicit right to inspect the property and therefore concluded that there was no power to order an inspection during the pre-proceedings phase.

Day v Woolworths & Ors (2016) QCA 337

The Queensland Court of Appeal has imposed significant and unexpected limitations on plaintiffs’ investigations under PIPA. The decision limits the ability to gather new information after a compulsory conference, but more interestingly, limits the ability to obtain expert liability evidence before a conference. The former can be remedied by careful preparation, but the latter now forces claimants to take a punt on liability prospects when making a mandatory offer to settle.