PIPA & Issues Regarding Disclosure Rules

PIPA & Issues Regarding Disclosure Rules

PIPA & Issues Regarding Disclosure Rules

Some would say that the introduction of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) caused a lot of disruption to the practical running of a general personal injury claim. With the aim of reducing the amount of matters that proceed to trial, instead, it may be argued that it created difficulties in resolving smaller claims in a timely manner, thus resulting in much higher costs for all parties involved.

Within this article, I will aim to highlight what I believe to be one of the main imperfections within PIPA, surrounding disclosure rules.

Section 27 of PIPA outlines the Respondent’s disclosure obligations to the Claimant. In summary, this section outlines the requirements that a Respondent must provide all documents in its possession that are directly relevant to the claim at hand. This includes documents such as CCTV footage, reports and any other documentary material about the incident.

The issue surrounding the disclosure rules in PIPA, and the discussions surrounding whether or not a particular document is disclosable, becomes a main point of contention between parties. It is often seen that Claimant’s solicitor can make unreasonable requests for the disclosure of documents that the Defendant may argue to be either legally privileged,[1] or just unrelated to the incident at hand. This issue was discussed within the recent case of Day v Woolworths Ltd (2016) where it was argued that the request for documents relating to prior similar incidents was not related directly to the case at hand, and therefore were not classified as disclosable documents.

Disclosure obligations have also seen to create issues surrounding the disclosure of reports. The main concern here being that PIPA does not specifically define the term ‘report’ creating ambiguity, and yet another aspect that can delay the claim.  Under PIPA, investigative reports are required to be disclosed, even if they may be privileged at common law. The only exception to this rule is if the report can be argued to be a statement of opinion. This issue sparked the need for lawyers to give detailed and specific instructions to investigators in the course of any personal injury investigations.

This was highlighted by the decision made by His Honour Justice Boddice, in the Supreme Court case of Mahoney v Salt (2012). This case explored an example where instructions provided by a lawyer to the investigator were made clear in that the investigator is to keep any opinionated statements separate from the main report. If these instructions had not been so closely followed, it may have meant that the statements were considered disclosable alongside the main report under Section 30 of PIPA.

Of course disclosure is a very important step in any personal injury claim, and it must be completed properly and thoroughly by all parties involved. A failure to do so could prejudice your defence in any matter. However, I believe that the provisions surrounding disclosure within PIPA can be ambiguous and contentious, creating difficulties for all parties involved to resolve the claim in a timely and effective manner.

In saying so, the disclosure rules under PIPA are there and must be followed. In order to assist in complying with these rules, it is important that we continue to remind all our clients of the importance of early reporting, immediate collation of documents and instant preservation of CCTV footage.

A great example of how this was seen to have a favourable effect on a claim was in a recent claim we handled for one of our Shopping Centre clients. After receiving a compliant PIPA Part 1 Notice of Claim, we approached the Centre to request all evidentiary documentation to assist us in defending the matter. The Centre took a very proactive approach of saving the CCTV footage very early on and provided us with a copy of it instantaneously. After reviewing the footage we were able to confirm that the incident took place within a tenancy at the Centre. We were then able to defend our strong liability position and settle the claim with an offer of NIL, a day before the Compulsory Conference took place.

Proclaim provides claim management services throughout the PIPA process, utilising our legal skills to proactively investigate and negotiate – all without having to retain law firms as it is not yet in the Court process. The benefit to our clients are that their smaller nuisance value claims can be promptly assessed, negotiated, defended and resolved without litigation and the costs that arise from an often protracted and expensive approach. In addition, the claims that are more complex will be thoroughly investigated and a clear strategy recommended. Our clients gain comfort that their claims will be significant reduced and retained and many will be settled early on especially if liability is in doubt. One retail client had their average claim costs reduce from $25,000 per claim to $5,000 after one year of our services.

If you have any queries regarding disclosure rules within PIPA, or any queries regarding PIPA in general, please feel free to reach out to our Corporate Team at Proclaim. Our team are all legally trained and qualified and are always happy and willing to answer any questions regarding personal injury claims. Please contact Marianne Emerson on 02 9287 1311 or memerson@proclaim.com.au for further assistance.

 

[1] Section 30, Personal Injuries Proceedings Act 2002 (Qld).

 

Written by Eden Smith