Between 1973 and 1980, SDA (a pseudonym for the claimant) resided in St George’s Home for Children (Home). The Home was run by the Corporation of the Synod of the Diocese of Rockhampton (Church). The second respondent was the State of Queensland.
Reverend M had been the superintendent at the Home for about a decade before SDA arrived. M retired about a year later.
Forty-five years afterwards, SDA gave the Church a notice of claim under the Personal Injuries Proceedings Act2002 (Qld) (PIPA). SDA claimed that he had suffered personal injury as a result of being sexually abused by M, other staff, and male residents at the Home.
The substance of SDA’s claim for negligent breach of duty was that the Church caused SDA’s psychiatric injury by failing to take specific steps alleged to be reasonably necessary to protect the residents of the Home, including SDA, from a risk of sexual abuse, in circumstances in which the Church knew or should have known there was such a risk.
In addition, SDA claimed that the Church was vicariously liable in that M committed the alleged sexual assaults by taking advantage of the position in which the first respondent had placed him in relation to SDA, which conferred upon him such authority, power and control as to enable him to sexually abuse SDA.
As a preliminary matter, SDA applied for orders requiring the Church to comply with what were submitted to be its obligations to give SDA information he had requested under PIPA, being information concerning complaints relating to M made by other residents of the Home.
The evidence showed that the Church did not receive any complaint against M at any time before M retired in or about December 1974, but decades after M’s retirement the Church received complaints about him from former residents of the Home. The Church acknowledged it did have some information in its possession about complaints concerning M.
The information required to be given under PIPA falls into 2 categories. One is information about “the circumstances of … the act, omission or circumstance, alleged to have caused all or part of the personal injury“. The second is information about “the reasons for … the act, omission or circumstance, alleged to have caused all or part of the personal injury“. As the legislature chose to use both formulations it was accepted by the Court that there was a difference between what is intended by the “circumstances of”, and the “reasons for”, the relevant act, omission or circumstance.
The primary Judge said that information about prior incidents did not have to be given unless it could be demonstrated that the prior incidents have a causative effect for the incident involving SDA. The primary Judge concluded that information such as the complaints about M received by the Church 25 years after the fact could not have any bearing on what the Church did or did not do at the time of the incident, nor could it be said to have put the Church on notice of a risk.
It is not clear as to what the complaints about M received by the Church actually contained.
The Court of Appeal held that there was a causative effect between the information sought and the incident of SDA. The nature of the information that should be available was not confined to information about prior incidents that had a causative effect in relation to the incident alleged by SDA, and that it could not be concluded that there was no causative effect between the information sought and the incident alleged in SDA’s notice of claim.
The Court of Appeal thus held that the primary Judge’s finding had been too restrictive (at ). If prior complaints revealed, for example, that someone had complained during the time that M was in charge, that could be argued to be relevant (at ):
“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…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 addition, such complaints would have put the Diocese on notice as to M’s actions (at ).
The consequence of this decision is that it has potentially broadened disclosure obligations in personal injuries claims under PIPA. It is not enough to disclose only information about the circumstances of the specific incident the subject of the claim (i.e. information about what happened in that instance). A respondent will now need to disclose information it holds that inform the question of why an incident happened, especially where the claimant alleges that the respondent omitted to do something in breach of its duty of care. This is so even if the information has no direct connection to the specific circumstances of the incident in the claim.
This may include information about other similar incidents or complaints about similar incidents which occurred prior to the incident in the claim, even if the making of the complaint happened after the incident in the claim.