Consideration
21 I commence by accepting a submission of counsel for the respondents that it is appropriate at this point in the proceeding to consider the respondents' objections to the form of the draft pleading in its totality, without regard to whether the objections strictly concern only the proposed amendments. It would be artificial and impractical to consider the amendments divorced from other parts of the draft pleading that retain existing allegations.
22 I have determined that the applicant should have leave to amend further the statement of claim, but that the applicant should have an opportunity to address a number of issues that I will identify. Accordingly, as a matter of form the application to file a statement of claim in the form of the draft pleading is not granted for the time being, but I will adjourn it and make directions for the applicant to prepare a further draft for the respondents' consideration, and if there are further disputes, then I will hear the parties.
23 I will consider the two issues of substance raised by the respondents before turning to the criticisms as to the form of the draft pleading. In addressing whether the draft pleading discloses a cause of action, or properly raises a claim of aggravated or exemplary damages based upon conduct that post-dates the administration of Acyclovir on 12 June 2018, the principles are well established. I should not allow an amended pleading to the extent that it would be futile; I should not give leave to amend a pleading if in its amended form it would liable to be struck out as failing to disclose a cause of action or as being embarrassing; and I should not allow an amended pleading if, for the purposes of s 31A of the Federal Court of Australia Act 1976 (Cth), there would be no reasonable prospect of successfully prosecuting the claims or components thereof in their amended form. In addressing the draft pleading appropriate caution should be exercised, where some of the questions of law raised by the respondents and their application to the facts do not admit of clear-cut analysis, and where the court has obviously not heard any evidence. The development and application of common law principles should ordinarily proceed by reference to concrete facts that are the subject of evidence and findings.
24 For the following reasons I do not accept the submissions of the respondents that the pleading of events after 12 June 2018 cannot form a permissible part of the applicant's claim. The primary reason is that I accept the principal argument advanced by counsel for the applicant, that the allegations are relevant to the applicant's claim for aggravated and exemplary damages. I will first address the claim for exemplary damages.
25 It is true, as senior counsel for the respondents submitted, that successful claims for exemplary damages in negligence cases, as opposed to intentional torts, are relatively rare. However, the availability of exemplary damages in negligence cases has been recognised by the High Court, and claims have been upheld by intermediate courts of appeal: Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [22] (Gleeson CJ. McHugh, Gummow and Hayne JJ); Backwell v AAA [1997] 1 VR 182; Trend Management Ltd v Borg (1996) 40 NSWLR 500. Although the cause of action in these cases was negligence, a common trait is that the particular conduct attracting the awards was deliberate. This is unsurprising given the criteria by reference to which exemplary damages might be awarded, which include proving that a tortfeasor showed a conscious and contumelious disregard for the claimant's interests, such as the claimant's health: see Trend Management v Borg at 503, 505 (Mahoney P). In this case, the allegations that the applicant proposes to advance in relation to the respondents' decision to transfer the applicant to Papua New Guinea rather than Australia go beyond mere negligence and into the realm of a deliberate decision that the applicant would contend was made in contumelious disregard for her health.
26 That brings me to the question whether the pleading discloses a sufficient connection between the tort and the conduct alleged to give rise to the claim for exemplary damages. It is not necessary that a claimant suffer compensable loss as a result of contumelious conduct that is alleged for the purposes of a claim for exemplary damages: Trend Management v Borg at 505 (Mahoney P). There must, however, be some close factual link to the conduct constituting the cause of action. Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 provides an illustration. In that case, which involved the intentional tort of trespass to the person, the plaintiff threw himself onto the bonnet of the defendant's car, and held on as the car travelled about 400 metres. The defendant braked sharply and the plaintiff fell on to the roadway. The defendant then drove off. The court at first instance made an award of exemplary damages, holding that the defendant had callously abandoned the plaintiff on the road and sped off in the night, leaving him lying on a darkened road. On appeal, the defendant submitted that leaving the plaintiff by the roadside constituted no tort, and for that reason could not support the award. The High Court rejected this argument, holding at 12 -
… Even if the act of leaving the plaintiff lying on a darkened road, when viewed separately, constituted no compensable wrong, there is no reason why it should be so viewed. Indeed, it is at least arguable that, having caused the plaintiff's injuries through what was held to be a tortious act, the defendant was under a duty to take reasonable steps to alleviate the effect of his wrongdoing. It was open to the master to regard the conduct of the defendant in abandoning the plaintiff in the manner in which he did as displaying a cruel or reckless disregard for the welfare of the plaintiff and an indifference to his plight and as colouring the whole of the conduct of the defendant, including the assault which was found to have been made upon the plaintiff. So regarded, the tort of which the defendant was guilty was committed in circumstances amounting to an insult to the plaintiff.
27 In the context of a claim based upon a non-delegable duty of care to ensure that reasonable care was taken in relation to the welfare and medical treatment of the applicant, I do not accept that the treatment of the applicant on Nauru and her later management must be dissected in the way suggested by the respondents. In my view, the question raised by the claim is a triable issue. On the applicant's case, upon causing or at least exacerbating her illness by reason of the late diagnosis of her condition, and the delay in the administration of appropriate treatment, reasonable care required that the respondents follow the specialist medical advice and arrange for the applicant to be transferred to a first world tertiary hospital where adequate facilities were available, including diagnostic equipment that was capable of being deployed on a paediatric patient. That claim is supported by the expert reports that were tendered on the application. The tenor of the expert medical opinion on which the applicant proposes to rely is that the monitoring of the applicant's condition was an integral and necessary part of her treatment. On the applicant's case, the exercise of reasonable care required that the applicant should undergo brain MRI imaging and an EEG during the acute stage of infection so as best to understand the nature and extent of the acute neurological insult, to guide treatment, and to determine long term outcome. That is the subject of the plea in the particulars under [33] of the draft (see [13] above). The applicant's case is that, by ignoring the medical advice, the respondents denied her that opportunity. In my view, it is arguable that the respondents' decision to transfer the applicant to Papua New Guinea is a sequelae to the claimed negligent treatment of the applicant with a sufficiently close factual connection as to support a claim for exemplary damages. It is also arguable that, on the assumptions underpinning the applicant's claim, having failed to ensure that reasonable care was taken for the applicant's health and welfare by way of provision of reasonable medical treatment, the respondents came under a duty to take reasonable steps to ameliorate the effects of the negligence in the way the applicant claims, including by following the medical advice to evacuate the applicant to Australia. The contrary view is that the respondents' conduct was not directly related to the wrong which the applicant claims caused her injury, and that to award exemplary damages in respect of a separate wrong is to make an award for a claim that does not give rise to a cause of action: see Davis v Russell McVeagh McKenzie Bartleet & Co [1994] 2 NZLR 175 at 180 (Henry J). On the assumption that liability is established, the questions whether the applicant's claim for exemplary damages can succeed, or whether the respondents' arguments should be accepted, are matters for trial upon an examination of all the facts. In this case, the claim does not fail at the pleading stage.
28 I can deal with the proposed claim for aggravated damages more succinctly. The distinction between aggravated and exemplary damages may be stated, but in the application of the principles it is not always easy to preserve a rigid distinction between the two heads of damages because the factors that inform their assessment often overlap: see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 (Windeyer J); David Syme v Mather [1977] VR 516 at 523-524 (Lush J). Aggravated damages may be founded upon conduct of the tortfeasor that increases the harm caused to the claimant, including by conduct that occurs after the completion of the tort. Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: Lewis v Australian Capital Territory [2020] HCA 26; 271 CLR 192 at [112] (Gordon J), and the cases cited therein. The conduct supporting an award of aggravated damages does not have to be actionable in itself: Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 at [441]. By the draft pleading, the applicant alleges in support of her claim for aggravated damages that the respondents' conduct prolonged, worsened, and aggravated her suffering. Like all facts in issue, the evidence supporting a claim of aggravation of a claimant's injury need not be direct, but may be circumstantial. For substantially the same reasons I have given in relation to the proposed claim for exemplary damages, I consider that the applicant's claim for aggravated damages has a sufficiently close factual connection to the tortious injury that is alleged with the result that it is maintainable. Again, the objections that the respondents have raised are triable issues.
29 There are two further issues that I should raise. The first issue is that, as I mentioned, senior counsel for the applicant accepted that it was not claimed that the respondents' conduct in transferring the applicant to Papua New Guinea rather than Australia, or the applicant's treatment while in Papua New Guinea resulted in an injury. That acceptance was made in response to a question from the court. However, depending upon context, the term "injury" might be understood as meaning personal injury to the applicant in the sense of a physiological change. However, again depending upon context, damage may be a broader concept, extending to include economic loss: see, FJ v Commonwealth [2017] VSCA 84; 55 VR 108 at [75]-[123] (Tate, Santamaria and Beach JJA). The applicant's claims of loss and damage should be read together with the applicant's particulars of special damages, which claim damages for the costs of necessary ongoing neurological review, referring to and relying on the expert reports that have been filed. Those expert reports include a report of Dr Michael Harbord, the paediatric neurologist to whom I referred earlier, dated 10 March 2022. Dr Harbord states that if an MRI head scan had been performed on the applicant on 12 June 2018, a lumbar puncture performed, and an EEG performed on that or the following day, then it is likely that the full extent of the applicant's herpes encephalitis would have been evident. Dr Harbord expresses the opinion that because those investigations were not performed, it is left to clinical follow up to determine how severe the initial herpes encephalitis actually was. It is not clear whether the claimed costs of follow up treatment include increased costs as a result of the claimed failure, when the applicant's condition was acute, to undertake the tests to which Dr Harbord refers. This is a matter which the applicant can clarify.
30 The second matter that I should raise is the injunctive relief that the applicant seeks in addition to her claim for damages. Indeed, injunctive relief is the first item in the applicant's prayer for relief in both the existing and proposed pleading. The relevance of the injunctive relief to the claims made by the applicant was not addressed by the parties on the application for leave to amend further the statement of claim.
31 The orders made by Murphy J on 3 July 2018 in the nature of mandatory injunctive orders were interlocutory, and were made upon the basis of an acceptance by the respondents that there was a prima facie case that the respondents owed the applicant a duty of care to provide her with healthcare at an appropriate level to treat her diagnosed condition of herpes encephalitis and that the content of that duty included a duty to ensure within a reasonable time that the applicant was in a place where she could receive appropriate medical tests and continuation of treatment for that condition, and that appropriate testing in this case included an MRI and an EEG: see DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050 at [12]. The undertaking given by the respondents on 3 July 2018 not to take steps to return the applicant to Nauru pending the outcome of the proceeding was complementary to the interlocutory relief that was given. However, there has been no final determination of the applicant's claims for injunctive relief, which she maintains by her originating application and her amended statement of claim. Interlocutory injunctions are ordinarily granted in aid of final relief. Ordinarily, an applicant for an interlocutory injunction is required to give an undertaking as to damages in the usual form by which the applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation to any person affected by the operation of the order or an undertaking given. In this case, no undertaking as to damages was recorded. In view of the Commonwealth's capacity as an informed model litigant, and the fact that the applicant was then a child of two years of age, it may well be that the respondents made a considered decision not to seek an undertaking as to damages. Whatever may be the position, it may be the case that the respondents have no remedy should it be found hereafter that the interlocutory orders should not have been made: National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 574 (Kaye J), 601-603 (Brooking J).
32 By her amended statement of claim, and also by the draft pleading, the applicant seeks an injunction requiring the respondents to take and to continue to take all steps within their power to ensure that the Applicant receives treatment, including long-term care and follow-up, in a location with access to quality, multi-disciplinary specialist paediatric care. There was no submission by the respondents that this claim was not maintainable. The basis for seeking such orders might conceivably be in the exercise the court's powers under s 23 of the Federal Court of Australia Act by reference to equity's auxiliary jurisdiction, in the first instance to prevent the commission of a tort, and thereafter to prevent the occurrence of further damage as a result of a tort already committed: see, Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [33] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), and see also the obiter dicta in Minister for Environment v Sharma [2022] FCAFC 35; 400 ALR 203 at [759]-[760]. However, none of this was argued on this application, and it is unclear the extent to which the applicant maintains the claim that led to the making of the interlocutory orders by Murphy J. This is a further matter which the applicant can clarify.
33 I will now address the miscellaneous matters raised by the respondents that go to the form of the draft pleading. As to each of those, the applicant will have an opportunity to prepare a further draft in light of the following -
(a) I accept the submission of counsel for the respondents that at [30.3] of the draft pleading the applicant has alleged a duty in absolute terms to achieve a specified outcome, rather than a duty to ensure that reasonable care was taken. I also accept that by pleading in this way the applicant has conflated duty and breach, against which Justices of the High Court have warned: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [192] (Gummow and Hayne JJ); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [68] (Hayne J); Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [48] (French CJ, Gummow, Hayne, Crennan and Bell JJ). Generally speaking, the "duty" in negligence is always the same - a duty to take reasonable care: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at [49] (Gummow J). In the case of a non-delegable duty, that translates to a duty to ensure that reasonable care is taken: see the formulation by Mason J in Kondis at 687. I understood senior counsel for the applicant to accept that [30.3] could be readily re-drafted to separate the allegation of the existence of the non-delegable duty, which is a conclusion of law, from the allegations of what reasonable care required, which is a question of fact.
(b) I accept the submission of counsel for the respondents that [30] of the draft pleading, which is preliminary to the allegation in [30.3] of the non-delegable duty of care, is unclear in its use of the preface "in the premises", which does not specify exactly what facts are relied on by the applicant to support the existence of the non-delegable duty. Again, I understood senior counsel for the applicant to accept that this could be remedied, perhaps by specifying those paragraphs of the pleading containing the allegations that are to be relied upon to support the claim.
(c) I also accept the criticism that allegations of breach of duty are dispersed throughout the pleading, and the particulars of breach under [32] do not directly correspond to the allegations in [31] concerning the standard of care. I would not disallow the amendments on this basis, because although not ideally expressed, I consider that the pleaded case is just adequate. However, the applicants might consider addressing the criticism as to the way in which breach has been alleged when preparing a further draft.
(d) As to other infelicities in the draft pleading raised by the respondents, namely an allegation in [32] that the respondents "acted negligently" and an allegation in [33] that that the applicant's loss was as a result "of the respondents' negligence" which were said to give rise to confusion in the context of a non-delegable duty of care, these are no more than drafting points. The applicant's case should be clear enough to the respondents. If there is any difficulty, then the respondents' solicitors can seek clarification by way of correspondence. In any event, the applicant will have the opportunity to review the forms of words that have been employed to allege that the respondents were in breach of their non-delegable duty of care because reasonable care was not taken.
(e) I do not accept the respondents' submission that the allegations of causation in [31A] and [31B] of the draft pleading are conclusory because they do not address why or how the steps that are alleged should have been taken would have had the results which are therein alleged. Pleadings may be terse. Their role is to plead material facts and not evidence, still less to argue the case. I doubt that there could be any confusion as to what the applicant's causation case is, especially having regard to the expert opinion evidence that has been filed. If there is any specific cause for confusion, then it was not developed by counsel for the respondents in argument.
(f) The respondents complained about the use of the term "adequate" throughout the draft pleading, claiming that it was used on 21 occasions, and claiming that this led to confusion because it was unclear whether this erected a different standard to that of reasonable care. The submission that the respondents advanced was a broad-brush submission that did not differentiate between the different contexts in which the word "adequate" is employed in the draft pleading. I have already dealt with the applicant's plea of the non-delegable duty of care at [30.3] of the draft pleading which does employ the term "adequate" rather than "reasonable". I expect this will be re-drafted so as to conform with what I have said. However, there are other instances where the term "adequate" is employed, but not in substitution for a plea of a standard of reasonable care. For instance, it is open to the applicant to allege that the duty to ensure reasonable care was taken required that there be medical services on Nauru that were adequate to assess and treat the applicant's condition. It is open to the applicant to allege that reasonable care required that there was an adequate assessment of the applicant's condition when she first presented to the IHMS medical clinic on Nauru. It is open to the applicant to allege that reasonable care required that adequate enquiries be made of the Pacific International Hospital as to its facilities prior to the decision to transfer the applicant to Port Moresby. And it is open to the applicant to allege that the facilities at the Pacific International Hospital in Port Moresby were not adequate to treat the applicant's condition. Whether the claimed inadequacies departed from the standard of reasonable care is a separate question.
(g) Finally, I understood senior counsel for the applicant to accept that the applicant's particulars of loss and damage, to the extent that it made a claim for loss "which is not yet known", will be reviewed.