Clarke v GEO Australia Pty Limited

Clarke v GEO Australia Pty Limited - [2023] NSWSC 716 - NSWSC 2023 case summary — Zoe

[9]

Parties' Submissions

The Further Amended Statement of Claim deals with the scope of GEO's duty of care at paragraphs 9 and 10 as follows: "[9] The nature and scope of the duty of care was to take all reasonable precautions against foreseeable and not insignificant risk(s) of injury. [10] Further, the content and scope of the duty of care was informed by statutory obligations arising under the Work Health & Safety Act, as GEO was a 'person conducting a business or undertaking' at PCC: (i) section 19(2). (ii) section 19(3)."
GEO's submission was that it is not apparent how the provisions of the Work Health & Safety Act 2011 (NSW) can "inform" a duty of care or what the plaintiff means by that. GEO also said that the Work Health & Safety Act has an impermissibly retrospective approach to what would have prevented injury and does not go to what GEO should have done from a prospective standpoint. GEO says that such an approach would be inconsistent with the provisions of s 5C(b) of the Civil Liability Act 2002 (NSW), which are clear in prohibiting a retrospective assessment of liability.
In response to this assertion, the plaintiff submitted that there is clear authority for the proposition that a statutory obligation may bear on the existence of a duty of care and its breach. The plaintiff placed reliance on Penrith City Council v East Realisations Pty Ltd [2013] NSWCA 67 and Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35. In the former case, McColl JA said that while a breach of a statute is not conclusive as to the performance of a duty of care owed to another, it may be relevant to the assessment of that standard. [1] In the latter decision, the Court held that obligations under statutory enactments have relevance to determining the existence or scope of a duty, although caution should be exercised in translating the statutory obligation into a duty of care at common law. [2]
Senior Counsel for the plaintiff also articulated in oral submissions that GEO had already admitted that it owed a duty of care to the plaintiff in its Defence to a previous iteration of the Further Amended Statement of Claim, and also in that document made positive assertions as to the content of that duty. In those circumstances, the plaintiff says that there can be no doubt between the parties as to the way that the duty of care is said by each litigant to operate in this case.

[10]

Consideration

As submitted by Senior Counsel for the plaintiff, GEO has admitted in its Defence to a previous iteration of the Further Amended Statement of Claim that it owed a duty of care to the plaintiff. GEO did not admit the nature, scope or content of the duty alleged by the plaintiff, but did positively assert, inter alia, that its duty was limited by its function at the worksite, and also the provisions of an operating agreement that GEO had in place with the State. I am minded to agree with the plaintiff's submission that GEO's purported inability to understand this aspect of the plaintiff's case against it does not accord with GEO's admissions and assertions in that document.
The function of pleadings, as enunciated in McGuirk v University of New South Wales [2009] NSWSC 1424, is to identify the real issues between the parties and ensure that there is sufficient clarity for the case to be brought. In my view, that purpose has been achieved in the Further Amended Statement of Claim with respect to the nature and scope of the duty of care which the plaintiff alleges that GEO owed to him. The plaintiff asserts that GEO owed a duty akin to that which would be owed by an employer. Understandably, the plaintiff and GEO have differences of opinion about which interpretation of that duty is the correct one, but such differences are a matter for the trial judge to determine and are not appropriate to be resolved in an interlocutory application without the benefit of the relevant evidence.
Insofar as GEO has argued that the Further Amended Statement of Claim impermissibly conflates statutory obligations under the Work Health & Safety Act with the content of a duty of care at common law or under the Civil Liability Act, I accept (and am bound by) comments of the High Court that obligations under statutory enactments have relevance to determining the existence or scope of a duty. [3] While I agree with GEO that it would be incorrect to assert that a breach of a statutory obligation necessarily amounts to a breach of duty, paragraphs 9 and 10 of the Further Amended Statement of Claim go to scope and not breach, so this criticism does not arise in this aspect of the pleading.

[11]

Parties' Submissions

In the Further Amended Statement of Claim, the plaintiff makes the following allegations about what he says was the relevant risk of harm: "[14] The plaintiff's working conditions have caused him to suffer psychological injury ('the work injury'). (Particulars omitted.) … [17] The risk of the work injury to persons in the position of the plaintiff was in the circumstances not insignificant. [18] A reasonable person in the position of GEO would have taken various precautions, steps or measures against the risk of the work injury." (Particulars omitted.)
GEO submitted that these paragraphs seem to define the relevant "risk of harm" for the purpose of the Civil Liability Act 2002 (NSW) as a risk of suffering psychological injury at work, which it says is so general a definition as to be effectively meaningless.
GEO relies on the comments of Leeming JA in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320, to the effect that caution should be exercised in having too narrow or too general a formulation of the risk of harm. [4] GEO also relies on the judgment of Ward CJ in Eq (as the President then was) in Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610, where her Honour expressed that unless the relevant risk of harm is clearly identified, it will be impossible to determine what steps ought reasonably have been taken to address that risk or for the court to determine the application of the reasonable care required. [5]
The plaintiff submitted that the proper characterisation of risk is enunciated in Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited (2022) 96 ALJR 337; [2022] HCA 11 and relates to the correct identification of the relevant risk of injury. [6] That case also held that a defendant cannot avoid liability by characterising a risk at an artificially low level of generality, that is, with too much specificity. [7]
In oral submissions, Senior Counsel for the plaintiff asserted that the pleading of the risk of harm is plain on its face, and should be understood in the context of the pleading as an assertion that the conditions of the plaintiff's work created an insecure environment in which there was a risk that a person may develop a psychological injury.

[16]

Consideration

There is some force in this submission, particularly when regard is had to the view that Garling J stated in PWJ1 [11] at [81] as follows: "I will now draw together these various sources to say that the phrase 'not insignificant' calls for a consideration of these matters, which where necessary need to be addressed in the pleading, at least as particulars of the pleaded assertion that an identified risk of harm is 'not insignificant': (a) the assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play. (b) the phrase 'not insignificant' is of a higher order than the common law test, and this was intended to limit liability being imposed too easily; (c) the phrase 'not insignificant' is intended to refer to the probability of the occurrence of the risk; (d) in the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may (but does not necessarily), reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning; and (e) whether a risk is 'not insignificant' must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula."
In this case, the allegation relating to the significance of the risk is framed in terms that in the circumstances of the case, the risk was not insignificant. It is necessary in dealing with the defendant's objection in this respect to return to fundamental principles. First, the pleadings define the issues between the parties. Secondly, a pleading must be brief and internally consistent.
The rules of procedure, and the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") require a pleading to allege all material facts, but not evidence. Where the pleading party asserts a conclusion, the conclusion should be pleaded and the material facts from which the conclusion was deduced.
The allegation that a risk is "not insignificant" is a conclusion based on the facts proved at trial. The facts proved at trial will depend on the evidence adduced and accepted. But the evidence should not be pleaded. Here the risk is that a worker on the premises would suffer mental illness as a result of the conduct of GEO. The conduct is pleaded. Whether the conduct (including the failure to take steps) gives rise to a "not insignificant" risk is to be determined at trial.
It is important to note that UCPR r 14.28 permits the Court to strike pleadings if those pleadings do not disclose a cause of action; are embarrassing (in the technical pleading sense); or amount to an abuse of process. Otherwise, a pleading, or part of a pleading, may be struck out because it is frivolous or vexatious. [12]
Lack of perfection, if there be any, is not a basis for striking out a pleading. Paragraph 17 of the Further Amended Statement of Claim, unsurprisingly, follows paragraphs 13-16. Paragraph 13 is in the following terms: "[13] During the plaintiff's work at PCC, subsequent to GEO commencing to operate PCC, he was to exposed to an unsafe workplace environment, events and circumstances causing fear for personal safety, stress/anxiety and insecurity at work ('the working conditions'). Particulars (i) The cessation of correctional officer escorts while the plaintiff moved about PCC performing his work duties. (ii) The removal of four armed towers as a security measure. (iii) The need to walk amongst groups of inmates without the presence of correctional officers or monitoring. (iv) An increase in response time to duress alarm activation. (v) A reduction of the ratio of correctional officers to inmates escorting cell visits by the plaintiff to perform his work duties. (vi) The ability of inmates to enter the clinic without a correctional officer present. (vii) The requirement that nursing staff have custody and control over keys providing access/exit from all areas of PCC. (viii) A failure to adhere to or enforce the 'sight and sound policy' leaving the plaintiff out of sight or sound of correctional officers when with or near inmates. (ix) A failure to maintain the correctional officer to inmate ratio during exercise periods in the yard. (x) The cessation of clearing the yard and then correctional officers escorting medical staff to attend an injured inmate leaving the plaintiff attending to an inmate amongst a large group of inmates. (xi) A significant increase in assaults by inmates on staff. (xii) A significant increase in security breaches giving inmates ability to access and possess contraband including weapons. (xiii) On or about 27 November 2104 the plaintiff was assaulted by an inmate (G Mailes) (incident report 1792318-20). (xiv) On or about 3 April 2015 the plaintiff raised concerns he had about interacting with an inmate (Jones) and the inmate's harassment of staff. (xv) The introduction of a smoking ban at PCC requiring the distribution of nicotine patches causing regular and routine conflict, harassment and a deterioration in inmate behaviour. (xvi) The introduction of a smoking ban at PCC causing the making and use by inmates of 'teabacco' to which the plaintiff was exposed. (xvii) On or about 21 October 2015 the plaintiff was threatened by an inmate (incident report 2002221-20). (xviii) On or about 12 December 2015 the plaintiff was threatened by an inmate (incident report 2034964-20). (xix) On or about 19 February 2016 the plaintiff was involved in an incident concerning a threat to staff (incident report 2074549-20). (xx) On or about 12 April 2016 the plaintiff was assaulted by an inmate (A Moussa) (incident report 2109882-20)."
Paragraph 13 of the Further Amended Statement of Claim sets out the alterations in working conditions allegedly effected by GEO. Paragraph 18 of the Further Amended Statement of Claim particularises the steps that should have been taken to avoid or ameliorate the risk. This is a prison environment in which, by definition, the safety of staff working there is an obvious issue. The claim does not relate to an unlit parking lot.
The facts leading to the risk are pleaded; the steps that ought to have been taken to overcome the risk are also pleaded. It is then sufficient, given the entirety of the pleading, to allege the conclusion.

[18]

Consideration

Section 5B(2) of the Civil Liability Act outlines factors that the Court is to take into account when assessing whether or not a reasonable person would have taken precautions against a risk of harm. Those factors are not exhaustive. As I have noted above, GEO relies on authority to the effect that the matters within s 5B(2) of the Civil Liability Act may well need to be pleaded, depending on the circumstances of the case and how it is framed by the plaintiff. [13]
Paragraph 18 of the Further Amended Statement of Claim alleges that a reasonable person would have taken precautions, and the particulars to that paragraph set out the precautions that the plaintiff says would have been taken. The Further Amended Statement of Claim is otherwise silent on the factors expressed in s 5B(2), namely the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity that creates the risk of harm.
Pursuant to the terms of s 5B(1) of the Civil Liability Act, it is for the plaintiff to satisfy the Court that a reasonable person in GEO's position would have taken precautions against the risk of harm, in order for GEO to be found negligent. That will necessarily involve taking the Court through the matters contained in s 5B(2).
As stated in Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70: "Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it… They define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial … They give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. … [T]he relief which may be granted to a party must be founded on the pleadings …."
The comments already made in these reasons in relation to the issue of "insignificant risk" are relevant to consideration of this issue. The Court is not concerned with imperfection - pleadings need not be perfect, although it is difficult to imagine what else could be pleaded to allege that a reasonable person would take the precautions in paragraph 18, or some of them.
Those precautions are either reasonable or they are not. The "reasonableness" of the particular precaution is to be evaluated by the Court. The Civil Liability Act, and in particular s 5B thereof, is to be satisfied at the conclusion of the trial, on the basis of the evidence adduced; not on the pleadings.
The pleadings are required, as already stated, only to allege the conclusion sought and the material facts upon which the conclusion is based. This has been done.

[19]

Parties' Submissions

The Further Amended Statement of Claim deals with the issue of reasonable precautions that the plaintiff says GEO ought to have taken as follows: "[18] A reasonable person in the position of GEO would have taken various precautions, steps or measures against the risk of the work injury. (i) Performing a detailed risk assessment of security arrangements and procedures for the safety, protection and wellbeing of persons in the position of the plaintiff. (ii) Performing a detailed risk assessment of the workplace environment for the safety, protection and wellbeing of persons in the position of the plaintiff. (iii) Investigating, assessing and addressing any incident reports or concerns expressed in relation to the safety and wellbeing of persons in the position of the plaintiff. (iv) Providing adequate correctional officer ratio, presence, support and monitoring during the plaintiff's movements about PCC and interaction with inmates. (v) Providing an adequate response time to duress alarm activation. (vi) Controlling and restricting access by inmates to the healthcare facility. (vii) Enforcing the 'sight and sound' policy. (viii) Enforcing clearing the yard prior to the plaintiff attending an inmate in need of medical attention. (ix) Devising and enforcing security procedures to control inmates to prevent threatening behaviour by inmates towards staff. (x) Devising and enforcing security procedures to control inmates to prevent assaults by inmates on staff. (xi) Devising and enforcing security procedures to control the obtaining and use of contraband by inmates. (xii) Performing a detailed risk assessment prior to the implementation of the smoking ban. (xiii) Performing a review of problems and concerns arising as a result of the smoking ban and addressing them. (xiv) Periodically reviewing, assessing and addressing risks of harm faced by staff in the position of the plaintiff. (xv) Complying with section 19(2) and (3) of the Work Health & Safety Act."
GEO submitted that these allegations are not sufficiently supported by material facts and are otherwise defective, as they do not contain sufficient particularisation. GEO criticised the lack of specificity as to the dates or relevant periods in which the plaintiff says that GEO should have taken the precautions, as well as a failure to identify the actual operation of each precaution. By way of example, GEO says that in respect of sub-paragraph (i), the plaintiff has not identified what "risk assessment" that he says GEO should have performed, what that risk assessment ought to have shown, and what subsequent steps would have been taken. GEO's critiques of sub-paragraphs (i) to (xiv) (both inclusive) are framed in similar terms.
In relation to sub-paragraph (xv), GEO submitted that the allegation does not identify how it is said that a failure to comply with the Work Health and Safety Act is relevant to an analysis under section 5B of the Civil Liability Act, nor how it is said that there was a failure to comply with the Work Health and Safety Act.
GEO calls on the authority expressed by Basten and Meagher JJA in Bauer Medica Pty Ltd v Khedrlarian [2020] NSWCA 288, where their Honours said at [15]: "The judge rejected the second objection as 'in the event, irrelevant.' It may be that this arose from the fact that the third objection was treated as significant. The judge described it as 'more subtle' and as engaging with 'the unfortunate practice of many experts who recite platitudes as evidence of failings by defendants.' He also noted that the particulars of negligence pleaded ended without informing the defendant of 'the precise action required to prevent the plaintiff's injuries.' The judge aptly quoted Isaacs ACJ in The Metropolitan Gas Company v City of Melbourne Corporation for the proposition that '[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done.' The judge noted the complaint that the particulars failed to identify what was a proper system of task rotation, a problem which was not resolved by Mr Cockbain's report."

[28]

Striking Out of Proceedings

If an absence of a reasonable cause of action is established, the discretion to strike out the whole of the proceedings is still only exercised where it would be in the interests of justice to do so. [17] For example, in Wentworth v Rogers (No 5) [18] the Court held that it is not appropriate to dismiss proceedings if the pleadings are merely poorly expressed. Similarly, in Mutual Life & Citizens Assurance Co Ltd v Evatt [19] the Court found that it would be inappropriate to dismiss proceedings if the deficiency could be cured by way of a legitimate amendment to the offending pleading.
The fundamental principle underlying these applications was enunciated by Cross J in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944, wherein his Honour held that: "prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases".
In a similar fashion, it has previously been held that in cases such as this where there is more than one defendant, it is not appropriate to exercise the discretion to strike out a proceeding on the application of only one of them, even when there is no clear case against it. [20] This is often referred to as the Wickstead principle, after the judgment of the Court of Appeal. The rationale for the principle is that any gaps in the case against one defendant may be filled by the evidence to be called by the other defendant when the matter eventually goes to trial. [21]
However, it is important to note that this principle is a qualified one, and does not preclude one defendant from successfully applying for summary dismissal if it can prove that there is a deficiency in the case against it, as well as satisfy the court that the evidence to fill such deficiency would be "unlikely to be forthcoming". [22] As explained by S G Campbell J in Sanders-Pattinson v Brown [2012] NSWSC 443 at [28]: "The principle…. can be excluded if the applicant for summary judgment demonstrates that the evidentiary gap in the plaintiff's case, which the applicant has exposed, will not be closed at the trial. Presumably, this demonstration must achieve the same high degree of certainty required to be achieved by the applicant for summary dismissal for the application to be made good."

[34]

Endnotes

Penrith City Council v East Realisations Pty Ltd [2013] NSWCA 67 at [4] per McColl JA.
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [49].
Ibid, at [49].
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [100] - [129] per Leeming JA.
Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610 at [64] per Ward CJ in Eq.
Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited (2002) 96 ALJR 337; [2022] HCA 11 at [106].
Ibid, at [108].
Ibid, at [106].
Ibid.
PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [81] per Garling J.
PWJ1 v The State of New South Wales [2020] NSWSC 1235.
Uniform Civil Procedure Rules 2005 (NSW), r 4.15.
PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [83].
Richmond City Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761 at [130] per Williams J.
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.
Ibid, at 134.
Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48.
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 631; [1968] HCA 74.
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272.
Moussa v Camden Council (2022) 162 ACSR 586 [2022] NSWSC 913 at [59] per Garling J.
PAO v Trustees of the Roman Catholic Church for the Diocese of Sydney [2011] NSWSC 1216 at [106] per Hoeben J.
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2023

At a glance

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Judgment (34 paragraphs)

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Legislation Cited (5)

Cases Cited (28)

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