Abuse: Interlocutory decision on disclosure under PIPA (Queensland).

With thanks to Courtney Jenkins for drawing my attention to yesterday’s decision of the Queensland Court of Appeal in the matter of SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor [2021] QCA 172 (available on the Supreme Court Library).

The appellant was a resident of an orphanage where he was alleged to have been sexually abused. The Court was required to determine whether disclosure of prior similar incidents is considered “circumstances of, or reasons for, the incident” hence whether such information ought to be disclosed under s 27(1)(b) of the Personal Injuries Proceedings Act 2002 (QLD).

The decision appealed from.

The primary judge had held that “the [first] respondent is not obliged to provide information in response to a request under s 27(1)(b)(i) which relates to prior similar incidents, unless it can be demonstrated that the prior incidents have causative effect, in the sense of being a strand in the rope of causation” (and) “it cannot be considered that information received 25 years after the fact could have had any bearing on what the first respondent did or did not do at the time of the incident, nor could it be said to have put the first respondent on notice of the risk”, and there was “a lack of causative
effect between the information sought and the incident … such that the information sought could not be considered a strand in the rope of causation and as such is not disclosable under s 27(1)(b) of the PIPA”. (as summarised by Fraser JA, [4]).

On appeal.

Frasfer JA (with Lyons SJA agreeding) at [5] concluded that the nature of information about prior similar incidents which is required to be given by a respondent to a claimant under s 27(1)(b)(i) is not confined to information about prior incidents that have a causative effect in relation to the incident alleged by a claimant and that, upon the evidence supplied to the Court in this matter (which does not presently comprehend the content of any prior complaint) it cannot be concluded that there was no causative effect between the information sought and the incident alleged in the appellant’s notice of claim.

It is necessary next to identify potentially relevant “information” in the first respondent’s possession. The mere fact that complaints about M were made to the first respondent is “information” but, in circumstances in which those complaints were not made until long after the alleged sexual abuse of the appellant by M, that fact could not of itself amount to information “about the circumstances of, or reasons for” that alleged sexual abuse. Tthe only potential candidate for information of that description comprises the statements made about M in the complaints (at 15] – [16]).

Furtther at [20], the better construction of the word “information” in s 27(1)(b)(i) is that, whilst it excludes information which the respondent knows is false, it does not exclude information about which the respondent’s belief falls short of knowledge that it is false.

Given the vicarious liability assertion ([28]), information about the content of any complaint made to the first respondent is capable of being regarded as information about the reasons for M’s alleged sexual abuse of the appellant, at least if the complaint refers to sexual abuse by M of a different child at the Home committed before the last act of sexual abuse allegedly committed by M against the appellant. ([31]).

Morrison JA was also of the view that the legislature cannot have intended that a respondent’s obligation to provide information could be met by the provision of information known to be false ([103]).. However as to the issues generally, Justice Morrison also disagreed with the primary judge,, saying at [132] – [133]:

Here the claim in negligence particularises an alleged cause of the personal injury based on, inter alia, omissions to act in the face of actual or constructive knowledge that SDA was being sexually abused by M: see paragraphs [62] and [63] above. In such a case the fact that there were complaints about M’s conduct, that is conduct during the period when SDA was at the Home, whenever those complaints were made, might be relevant information to explain the alleged cause of the injury, that is the failure to act. In other words, those complaints might be facts serving to explain the cause of the omission alleged to have caused the personal injury.

In my respectful view, the learned primary judge took an unduly constrained view of such complaints. His Honour reasoned that “information received 25 years after the fact could have had any bearing on what the [Diocese] did or did not do at the time of the incident, nor could it be said to have put the [Diocese] on notice of the risk”. But if those complaints revealed, for example, that someone had complained during the time M was in charge, that could be argued to be a fact that would have put the Diocese on notice as to M’s actions.