Sydney Skydivers’ rough landing – key defence evidence excluded by deficient PIPA disclosure

By Paul Baxter, Hannah Peddie and Robert Porter

There have been several disputes before the courts over the scope and interpretation of the narrower PIPA disclosure obligations as opposed to broader litigation disclosure requirements. The recent decision in Eyles v Sydney Skydivers Pty Ltd [2022] QDC 1 shows the consequences of getting this wrong can be serious.

In October 2016, the plaintiff sustained injuries while landing during a skydiving course in Bowen, Queensland. He sought damages from course operators Sydney Skydivers Pty Ltd alleging negligence and breach of contract. The parties failed to reach a settlement during the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) phase and therefore the plaintiff issued proceedings in the District Court of Queensland.

Shortly after filing its defence, the defendant served a list of documents which contained material which had not been disclosed during the PIPA phase. The plaintiff subsequently applied to the court for orders under s 32(2) that the defendant be precluded from using these documents in the court proceedings. The defendant submitted it was not required to disclose the documents, or alternatively, sought the court’s leave under s 32(2) to use the documents at trial, notwithstanding its failure to comply with s 27(1)(a).

The relevant documents included a questionnaire relating to skydiving safety procedures, various federation and club waivers, federation membership details and a reserve log.

In determining whether the documents were required to be disclosed during the PIPA phase, Chief Judge Devereaux considered the intentions of PIPA, the legislative framework of PIPA and the obligations imposed on both a claimant and respondent regarding disclosure. Specifically:

• the Personal Injuries Proceedings Bill 2002 (Qld) which provides that ‘the main purpose of PIPA is to facilitate the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury’;
• s 4(2)(c) which provides that the main purpose of the PIPA process ‘is generally achieved by ensuring that a person may not start a proceeding in a Court based on a claim without being fully prepared for resolution of the claim by settlement or trial’;
• chapter 2 which establishes pre-court claims procedures and emphasises the obligation of the respondent to try and resolve the claim;
• division 2 which imposes obligations on the parties, the purpose of which is to put them in a position where they have enough information to assess liability and quantum in relation to a claim;
• s 27 which requires the respondent to disclose certain documents relevant to the matter. This includes reports and documentary material about the incident, and if asked by the claimant, disclosure of information about the circumstances of, or reasons for the incident;
• s 37 which requires that before a compulsory conference, the parties must exchange copies of all documents and provide a certificate of readiness confirming they have complied with their disclosure obligations under PIPA.

His Honour also considered Haug v Jupiters Limited^[1] which found in respect of disclosure ‘the statutory obligation is not as broad as an obligation to give a claimant copies of documents that are directly relevant to a matter in issue in the claim, where those are not documents about the incident’.

Chief Judge Devereaux held that all documents except the questionnaire were not required to be disclosed under PIPA and could be relied upon by the defendant at trial. This is because they related to the contractual relationship between the parties and were not about the incident. His Honour did however note that some of these documents might actually have been disclosable if the plaintiff made a request under s 27(1)(b), but no such request was ever issued.

The questionnaire completed by the plaintiff however contained questions regarding the safety procedures associated with skydiving and specifically, foot and leg positions during landing. It also contained an acknowledgement by the plaintiff that he was responsible for landing his parachute unassisted. His Honour found that this questionnaire was captured by s 27(1)(a), as the information contained within it related to the incident and was directly relevant to a matter in issue, namely, whether the plaintiff acted contrary to his training and thereby contributed to the cause of his injury. Additionally, his Honour said that it was ‘precisely the kind of document to be disclosed for the purposes of the pre-court procedures of the PIPA’.

The outcome of the applications were that the defendant was prevented from using the questionnaire in evidence at trial, with the court declining to exercise its discretion under s 32(2). Chief Judge Devereaux held that ‘the interests of justice do not require the defendant to be exempt from the application of section 32’. The defendant was able to rely on the other contested documents.

This decision confirms the narrower scope of the PIPA disclosure obligations but demonstrates the harsh consequences of an over-sight or making the wrong call on whether or not a document is required to be disclosed.

[1] [2007] QCA 199; [2008] 1 Qd R 276.