Foley by her next friend Cook v Propix Pty Ltd t/as Jamberoo Action Park

1. [1]

   This judgment concerns two Motions, one by each of the parties, in respect of a subpoena issued by the Plaintiff to the Defendant for production of documents.

Background

1. [2]

   The Plaintiff suffered injuries on 2 January 2011 when she alighted from a chairlift at Jamberoo Action Park run by the Defendant. The Plaintiff was aged almost 14 years at the date of the accident.

2. [3]

   She boarded the chairlift at the bottom station to ride to the top so that she could toboggan down to the bottom. The chairlift passes through a station halfway up. That station is not intended to be a place where those on the chairlift alight, but is used for emergency purposes only.

3. [4]

   The Plaintiff said that she understood before she boarded the chairlift how to place herself on the chair. She said that one of two park employees at that station said simply that she was to “place your feet on the outlines and sit as the chair comes around”. She and the person she was riding with, her half-brother, were given no other instructions. She said she had no idea how far it was to the top, what to expect when she got to the top or if there were any other platforms on the way up.

4. [5]

   She said that as she approached what she now knows to be the mid-station platform she saw one of the people in the chair in front of her lift the bar and attempt to step off. She does not know if the person ultimately did step off the chair onto that platform. That action together with a number of other factors made her think that the mid-platform was the exit point for the toboggan ride. Those factors were, first, as the chair approached the platform it got much lower to the ground, secondly, there was an exit ramp from the platform to the grassed verge area below and thirdly, she could see the toboggan ride immediately adjacent to the platform.

5. [6]

   She lifted the bar on the chair once it was over the middle of the wooden platform. She stepped down onto the platform as her feet when flat did not reach it. She recalls one of her feet catching on something on the platform and her stumbling forward. The next thing she recalls is waking up on a grassed area immediately in front of the platform and some distance below it. She said she was feeling winded, weak and nauseated and she was passing in and out of consciousness.

6. [7]

   The Plaintiff suffered injuries to her back including a compression fracture of the L1 vertebrae with a loss of up to 30% of the vertebral body height and some mild central disc bulging at L5-S1. She also suffered some consequential psychological problems more particularly detailed in the report of Dr David Champion of 21 January 2014.

The proceedings

1. [8]

   The Plaintiff commenced proceedings in the Supreme Court of the Australian Capital Territory on 23 December 2013. On 13 August 2015 the proceedings were cross-vested to this Court. The Plaintiff filed a Statement of Claim in this Court on 31 August 2015. An Amended Statement of Claim was filed on 23 October 2015. The Statement of Claim alleged that the Defendant owed the Plaintiff a duty to take reasonable care in respect of her safety with such duty extending to:

2. [9]

   The Defendant was alleged to have breached its duty by failing to operate the chairlift with reasonable care and skill and operating it in an unsafe and improper manner.

3. [10]

   It is important to set out the particulars of negligence alleged because of issues that arose when dealing with the present Motions. The particulars are these:

4. [11]

   The Plaintiff has served an expert report from Dohrmann Consulting who are described as Australia’s leading safety and ergonomics experts. The author of the report is Mark Dohrmann who is a professional consulting engineer with additional post-graduate qualifications in ergonomics. He claims expertise in matters to deal with trips, slips and falls, and says that he has taught that subject at university level as well as having published in relation to it.

5. [12]

   It is not necessary to do other than set out the measures which Mr Dohrmann says the Defendant could have taken to prevent exposing the Plaintiff to risk. These matters, set out in paragraph 7.14 of his report, are these:

The subpoena

1. [13]

   On 7 July 2016 solicitors acting for the Plaintiff issued and served a subpoena addressed to the Defendant. The subpoena required production of the following documents or categories of documents:

2. [14]

   When no documents had been produced in answer to that subpoena the Plaintiff filed a Notice of Motion on 24 May 2017 seeking that the defence filed by the Defendant be struck out pursuant to r 12.7 Uniform Civil Procedure Rules 2005 (NSW) by reason of the Defendant’s failure to comply with the subpoena and, in the alternative, an order that the Defendant comply with the subpoena and file an affidavit verifying its compliance,

3. [15]

   Subsequently, the Defendant filed a Motion on 6 June 2017 to set aside parts of the subpoena. Those parts were identified in prayer 1 of the Notice of Motion as follows:

4. [16]

   On 5 July 2017, the day before the Motions were to be heard, the solicitor for the Defendant, Renae Hamilton, belatedly swore and filed an affidavit detailing why the subpoena had not been complied with until a bundle of documents, in partial compliance, was produced to the Court on 8 June 2017. It should be said that the explanations offered were entirely unsatisfactory and clearly demonstrated failures that would be relevant for any consideration of ss 56 and 58 of the Civil Procedure Act 2005 (NSW) and the matter of costs.

Submissions

1. [17]

   The Plaintiff in helpful written submissions identified three principal grounds upon which the Defendant objected to various aspects of the subpoena. Those arguments were:

2. [18]

   The Plaintiff no longer relied on prayer 2 in the summons to strike out the defence in the light of the affidavit of Ms Hamilton of 5 July 2017.

3. [19]

   The Plaintiff frankly admitted that the subpoena was served in lieu of discovery. It appears that discovery is available in the ACT jurisdiction in personal injury matters whereas r 21.8 UCPR prevents discovery being ordered in personal injury matters unless the Court for special reasons orders otherwise. The Plaintiff submitted in that regard that it was a matter of lawyers acting for her doing the best they could to protect her interests by issuing a subpoena so that the outcome would be similar to what would be produced through discovery.

4. [20]

   The Plaintiff submitted in relation to the remoteness of time objection that, if there was a trail of earlier accidents going back long before 2006, documents concerning those accidents could only bolster the Plaintiff’s position in addressing general principles under s 5B of the Civil Liability Act 2002 (NSW) about risk of harm that was foreseeable and not insignificant.

5. [21]

   The Plaintiff submitted that it was appropriate for documents relating to accidents on the chairlift generally to be produced because such documents might point to systemic failures such as a failure to give proper instructions and have sufficient employees available on the chairlift. In relation to the objection relating to accidents and events since January 2011 the Plaintiff submitted that such documents might open up lines of enquiry particularly in relation to the practicality of being able to take certain precautions. The Plaintiff accepted that s 5C(c) of the Civil Liability Act 2002 (NSW) results in a limitation on evidence that can be given in relation to subsequent taking of action. The Plaintiff said that the Defendant did not take any point about oppression or prejudice in producing such material.

6. [22]

   The Defendant submitted that Plaintiff’s approach to the subpoena was misconceived because discovery was rarely ordered in personal injury matters and there was in the Rules a presumption against it. That was a matter that went to the form of the relief sought.

7. [23]

   The Defendant submitted that the relief that the Plaintiff sought concerning striking out the defence was always misconceived. Such an order would not be made, particularly in the light of the chronology showing that the Plaintiff did not on two occasions when the matter was before the Registrar for directions seek any directions or orders in relation to compliance with the subpoena.

8. [24]

   The Defendant submitted that much of what was sought by the Plaintiff was a fishing expedition particularly in relation to documents dealing with the construction of the chairlift when there was no allegation of negligence in that regard.

9. [25]

   In relation to the remoteness of time point, the Defendant pointed to the five year period prior to the accident specified by the Plaintiff in a number of places in the subpoena (suggesting that such period was the appropriate one) and said that there was no basis for requiring the documents as far as back as 1996 as paragraph 1 of the subpoena required.

10. [26]

    In relation to documents after 2 January 2011 the Defendant relied on the principle at common law, now enshrined in s 5C(c) of the Civil Liability Act that proof of action after the accident which might have avoided a risk of harm did not in itself give rise to or affect liability in respect of the risk.

Consideration

1. [27]

   This required any reports or documents concerning an accident in about July 1996 referred to in a copy of a magazine attached to the subpoena. The magazine was one in relation to the MX5 Club of New South Wales for Spring 1996. It made reference to a July run to Jamberoo Recreational Park where one of the club members was injured.

2. [28]

   The article relevantly said this:

3. [29]

   In some respects the description in the magazine of the accident has some uncanny similarities with the Plaintiff’s accident. There was a belief that the rider had reached the station where they were to alight and in endeavouring to alight from the chairlift they tripped and fell (although in a different way) and subsequently landed heavily on the grass beneath.

4. [30]

   Whilst I accept that this accident took place many years before 2011, the similarities identified make relevant any reports or other documents concerning this accident to enable the Plaintiff to see what if any changes were made to instructions or procedures associated with the mid-station. What is sought are documents relating to an incident specifically identified. The Defendant does not suggest there is any oppression about having to obtain documents about this incident if they are available. They should be produced.

5. [31]

   This paragraph requires reports and documents of any accident involving injury to any patron using the chairlift from a date five years before the accident to the present time. The Plaintiff seeks to justify it on the basis that documents may show systemic problems such as a failure to give proper instructions, lack of sufficient staff or signage deficiencies.

6. [32]

   What is required in this paragraph seems to me to involve a fishing expedition. The accident alleged is said to have occurred partly as a result of deficient instructions concerning the mid-station, a lack of an appropriate number of staff with the suggestion that there ought to have been a member of staff at the mid-station to prevent people alighting and an inadequacy of the signage as to its placement and, perhaps, as to the number of signs that should have advised the Plaintiff not to attempt to alight at the mid-station.

7. [33]

   It is difficult to see how negligence could be shown by identifying a deficiency in instructions concerning other aspects of the chairlift, or by showing that there was an inadequate number of staff in relation to other aspects of the chairlift, perhaps at the top to assist people to alight, or by demonstrating that there was inadequate signage for some other aspect of the use of the chairlift. The claim made in the present proceedings concerned a specific accident involving a person wrongly attempt to alight at the mid-station. Although success or otherwise by the Plaintiff will turn to some extent on issues of credit, those issues will be related to the instructions given or not given in relation to the mid-station and where to alight from the chairlift.

8. [34]

   Paragraph 1(c) should be set aside.

9. [35]

   The Plaintiff indicated that she wished to amend paragraph 2 to omit the words “OH&S assessments or”. The paragraph, therefore, seeks documents evidencing advice from engineers or other consultants relating to any signage in connection with the safe use by patrons of the chairlift or any other aspects about safe use by patrons of the chairlift from the point of initial construction and in relation to any alterations, modifications or repairs in the five year period before the accident and since the accident. The Defendant resists the production of any documents before 2 January 2006 and after 2 January 2011.

10. [36]

    In my opinion the proper construction of paragraph 2 of the subpoena is that the sub-paragraphs marked “A” and “B” are referable to both paragraphs (a) and (b) (the Defendant’s counsel expressed doubt about that).

11. [37]

    Signage in connection with the safe use by patrons of the chairlift is an issue raised on the pleadings. If any of the signage concerning safe use that could possibly be relevant to the mid-station has remained as it was at the time of the accident from construction or some later point in time, then it seems to me that advice from engineers or consultants relating to that signage will be relevant from the time the signage was installed.

12. [38]

    I do not, however, see that the pleadings and particulars make relevant documents relating to advice about other aspects of the safe use of the chairlift prior to five years before the accident. I note that the Defendant does not seek to set aside the whole of paragraph 2(b) but only to the extent that it seeks documents before 2 January 2006 and after 2 January 2011.

13. [39]

    As far as the period after 2 January 2011 is concerned, I note first Section 5C of the Civil Liability Act which relevantly provides:

14. [40]

    The learned author of the annotated Civil Liability Act 2002 (NSW), Mr Dominic Villa, observes that that paragraph does little more than restate the position at common law. The position at common law was made clear in New South Wales by the Full Court of the Supreme Court in Davis v Langton (1911) 11 SR (NSW) 149 at 161-162 where the Chief Justice, following some earlier English and American authorities, said:

15. [41]

    The principle has been reaffirmed more recently in the context of the Civil Liability Act in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited (2009) 77 NSWLR 360; [2009] NSWCA 263 at [297].

16. [42]

    As to paragraph (a), it is very difficult to see why changes in the approach to signage after the accident would need to be proved by what in fact happened to show that they were practicable. There could be no practical impediment to an alteration or addition to a sign wording, nor to the sign’s placement. The position is rather different if, as in Davis, one is determining whether it was feasible or practicable to install an extra guard on a machine with dangerous, moving parts.

17. [43]

    As to paragraph (b), ascertaining what “any other aspect of the safe use by patrons of the Chairlift” encompasses, requires resort to the particulars of negligence. It can be seen that all but three of them deal with activities and behaviour of employees of the Defendant. Self-evidently, any changes in directions to be given or followed by employees are practicable without need of proof in a Davis sense.

18. [44]

    Of the other particulars, particular (i) was similarly practicable without further proof. Neither particular (g) or (j) is understood. Both conflict with the case put forward by the Plaintiff that she should have been prevented from alighting at the mid-station. Moreover, the Plaintiff’s case is that she did lift the bar when the chair reached the mid-station.

19. [45]

    The result is that the only purpose for which the Plaintiff would be able to use changes of the sort I have identified since the accident in January 2011 would be to suggest that the Defendant was negligent in not having made those changes prior to the accident.

20. [46]

    There was a faint suggestion that if matters occurring after the accident were required to be produced the Plaintiff might discover a change had been made to the mechanical way that the chairlift operated that may have prevented the Plaintiff being able to alight at the middle station. However, in the absence of any particulars of negligence in that regard or of any assertion by the Plaintiff’s expert that such a mechanical change was possible and/or feasible, it would be assisting the Plaintiff to engage in a fishing expedition to require production of these documents.

21. [47]

    Accordingly, paragraph 2 should be set aside to the extent that it seeks documents after 2 January 2011.

22. [48]

    The objection taken by the Defendant in respect of all of these paragraphs is for the production of documents since 2 January 2011. It can be seen that paragraph 3 concerns itself with signage and other aspects of the safe use by patrons of the chairlift. Paragraph 7 is concerned with training manuals for staff who worked on the chairlift. Paragraph 8 is concerned with instruction manuals for those who worked as first aid attendants and paragraph 9 is for instruction manuals for staff generally working at Jamberoo. Given the terms of paragraphs 7 and 8 the staff being referred to in paragraph 9 must be those other than first aid attendants and people working on the chairlift.

23. [49]

    For the reasons given [39] to [47] above these paragraphs should also be set aside.

24. [50]

    Quite apart from that, I cannot see any relevance at all to paragraphs 8 and 9 of the subpoena when there is no allegation made of wrongdoing by the first aid attendants nor of staff and employees other than those working on the chairlift. The need for the latter was said to relate to whether or not there were systemic problems with staffing the park. However, the only relevance in terms of staffing concerns the operation of the chairlift because that is how the Plaintiff’s accident is said to have occurred. Nevertheless, the Defendant has not sought to set these paragraphs aside generally but only in respect of the period from the date of the accident.

Costs

1. [51]

   The result is that the Plaintiff has been partly successfully in having orders made to have the Defendant comply with the subpoena but the Defendant has been partly successful in having aspects of the subpoena set aside. What is, however, clear from Ms Hamilton’s affidavit is that it was not until after the Plaintiff’s Notice of Motion had been served that Ms Hamilton did anything about producing the documents to the Court which she, on behalf of the Defendant, considered were the documents properly required to be produced pursuant to the subpoena.

2. [52]

   Not only had there been the unacceptable delay not satisfactorily explained from the time of service of the subpoena on 7 July 2016 until that production of the documents, but having compiled the bundle of documents that she considered should be produced on 19 May 2017 she failed to produce them, saying that they were being reviewed, and asked the Plaintiff’s solicitors to refrain from filing any Motion in relation to the subpoena. A warning letter was sent by email as well as facsimile and post by the Plaintiff’s solicitors to the Defendant’s solicitors on 24 May 2017 and, although it might have made demands which the Defendant regarded as unacceptable, it does not appear that Ms Hamilton gave any indication in response that certain documents would be produced in answer to the subpoena.

3. [53]

   In all those circumstances, it was entirely reasonable for the Plaintiff to have filed a Notice of Motion seeking that the defence be struck out. The Defendant submitted that that was an order which would never have been made but why that is so was not apparent when at the time of filing the Motion the subpoena had not been complied with for a period of more than ten months.

4. [54]

   I consider, however, that the Plaintiff’s solicitors were dilatory in pressing for compliance with the subpoena. During the period the subpoena was outstanding there were two directions hearings before the Registrar and on neither occasion was there an appearance from the Plaintiff. At one of those directions hearings consent orders were handed up by a lawyer for the Defendant where no order was sought by the Plaintiff for compliance with the subpoena. Nevertheless, that does not seem to me to provide any excuse or reason for the failure of the Defendant to comply with the subpoena. For those reasons the Defendant should pay the Plaintiff’s costs of the Plaintiff’s Motion.

5. [55]

   As far as the Defendant’s Motion is concerned, I have noted that the Defendant has been partially, or more accurately expressed, largely successful on its Motion in setting aside those parts of the subpoena to which it objected. One principal reason that the Plaintiff was largely unsuccessful was a misconception by the Plaintiff of its right to use the subpoena procedure as a substitute for discovery when, as a general rule, discovery is not given in personal injuries matters.

6. [56]

   In the circumstances, I consider that the appropriate costs order on the Defendant’s Motion should be that 70% of the costs of the Defendant’s Motion should be the Defendant’s costs in the cause. The effect of that order is that the Plaintiff will not recover any costs of the Defendant’s motion if she is successful in the proceedings but, if the Defendant is successful, it will recover 70% from the Plaintiff. That appears to me to represent the extent of the Defendant’s success on its motion.

Orders

1. [57]

   Finally, it is necessary to say something about the form of the orders sought by the Plaintiff given that I have not set aside all of those parts of the subpoena objected to by the Defendant. Prayer 3 in the Plaintiff’s Motion is based again on the misconception that a subpoena can be used in substitution for discovery. Ordinarily it is inappropriate for one party to issue a subpoena to another party for documents. That is what Notices to Produce under r 21.10 UCPR or 34.1 UCPR are concerned with. Generally speaking a Notice to Produce served at the stage the present proceedings have reached would be served under r 21.10 and would be limited by that rule. However, it would be possible for the Court to make a direction to enable a more general Notice to Produce under r 34.1 to be served. In neither case, however, is there a requirement that any list or affidavit be prepared as rules 21.3 and 21.4 require. The order sought is misconceived.

2. [58]

   Accordingly, I make the following orders: