This is an application by the State of New South Wales ("the State") for leave to file an Amended Statement of Cross-Claim.
By way of background, the plaintiff (to whom the pseudonym IZG2 has been given) commenced proceedings against the State as defendant seeking damages against it arising from the conduct engaged in by the cross-defendant, Mrs Helga Lam, whilst the plaintiff was a student at Maroubra Bay High School in 1978 ("the High School") and the cross-defendant was a teacher at that High School.
The State resolved that principal claim by admitting on the pleadings that it was liable to the plaintiff and agreeing to pay the plaintiff a sum of money. A consent judgment was entered.
The Amended Statement of Cross-Claim arises subsequently to, and out of the fact of that settlement. The State claims indemnity or contribution against the cross-defendant, Ms Lam, pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("the Act") together with interest and costs.
Section 5(1)(c) of the Act provides that where there are joint and/or several tort-feasors, one tort-feasor liable in respect of damage may recover contribution from any other tort-feasor who is, or would if sued, have been liable in respect of the same damage. Section 5 also provides that in proceedings for contribution, the amount of contribution recoverable from any person shall be such amount "as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage."
It is commonplace that cross-claims under s 5(1)(c) of the Act are brought during the existence of the principal proceedings with the intention that those cross-claims be determined ultimately when a Court delivers judgment on the primary claim. But the fact that the Court has not delivered a reasoned judgment after contested proceedings does not prevent a defendant, or a party in the position of the State, from pursuing such a cross-claim.
IZG2 v State of New South Wales [2024] NSWSC 1228 | Case summary | Zoe
What the party pursuing such a cross-claim must plead and prove is that they come within the relevant section because: first, they are a tort-feasor; and, secondly, that the cross-defendant was also a tort-feasor (either joint or several) and that the sum of money paid was a fair and reasonable one. Put differently, the cross-claimant invites the Court to engage in a balancing of the tortious conduct of it and the cross-defendant, subject to a finding that the sum paid was reasonable, so that the Court can then determine what proportions are just and equitable as between the tort-feasors.
The Amended Statement of Cross-Claim adopts a form of pleading which is commonly seen in cross-claims of this kind for indemnity or contribution. Namely, it adopts the style of repeating parts of the plaintiff's Statement of Claim against it as the defendant, thereby, in short form, incorporating the contents of those pleadings into the cross-claim. That is what occurred here in respect of paragraphs 4 to 61 of the proposed Amended Statement of Claim sought to be filed by the State.
Paragraphs 4 to 61 of the plaintiff's Amended Statement of Claim set out in considerable detail the conduct which the plaintiff alleged occurred between him and the cross-defendant whilst he was a student, and she was a teacher, at the High School in 1978. It pleads that such conduct constituted sexual abuse as that term is used in s 6A of the Limitation Act 1969, and also pleads that such conduct as was engaged in:
"amounted to physical and psychological abuse, sexual assault, battery, harassment and trespass to the person when the plaintiff was a child."
True it is that the factual pleading of conduct in paragraphs 4 to 61 is attended by the adjectival description or characterisation of the conduct as "sexual abuse", but that characterisation, which relates to a statutory legal concept, is in no sense inadequate as contended for by the cross-defendant because in my view the cross-defendant can readily understand the nature and content of the conduct which is alleged against her and to which she can sensibly plead.
I am satisfied that each of the paragraphs within the range nominated are relevant either because they set out the nature and content of the conduct engaged in by the cross-defendant relied upon to ground the claim by the State against her, and also because they provide material which is relevant if for no other purpose than that it informs the question of whether the sum paid in settlement of the principal proceedings was fair and reasonable in the circumstances. I see no reason to uphold any objection to the proposed Amended Statement of Cross‑Claim by reference to the contents of paragraphs 40 to 44, 48 to 53, 55 and 56 of the plaintiff's Amended Statement of Claim.
The specific objections by the cross-defendant to the proposed Amended Statement of Claim refer to paragraphs 5B and 8C. As well, the objections to paragraphs 8J and 8K depend upon the objections to those two paragraphs.
Paragraph 5B of the Amended Statement of Cross-Claim is pleaded in the following way:
"The State is a tortfeasor liable to the plaintiff in relation to the allegations of negligence made against the State by the plaintiff in the amended statement of claim."
The cross-defendant submits, and I agree, that without any further particularisation of the basics upon which the State claims to have been a tort feasor, she is simply unable to form a view as to how that paragraph can be pleaded responsively to, in one way or another. Nor can she form a sensible view as to the respective conduct of the tort-feasors such as to assess any likely or possible contribution between tort-feasors.
I note that the context in which to view the submission is that in paragraph 72 of the Amended Statement of Claim between the plaintiff and the State there are 12 specifically pleaded breaches of duty against the State.
Whilst it may be that the establishment by the State of one of those particulars making itself a tort-feasor would be sufficient to enable recovery to some extent, equally, the establishment of many more of those particulars of breach may well lead to an entirely different assessment of the extent to which the State was in breach of its obligations, and thereby directly affect any apportionment.
In my view, the pleading in the proposed Amended Cross-Claim requires that the State plead by way of particulars to paragraph 5B, the respect or respects it pleads that it is a tort-feasor liable to the plaintiff. It may be that the State does not plead any of the breaches pleaded by the plaintiff but pleads a different breach which formed a central integer in its assessment of whether or not it should admit liability and enter into settlement negotiations. However, it is necessary for the State to clearly plead and specify the respect or respects in which it was a tort-feasor.
The second complaint made by way of objection by the cross-defendant is in relation to paragraph 8C of the proposed Amended Cross-Claim. Paragraph 8C is in the following form:
"8C. The risk of harm was foreseeable.
Particulars
(a) The State repeats paragraph 8 and 8A above."
Paragraph 8 is a pleading that the cross-defendant owed the plaintiff a duty to take reasonable precautions to protect his safety, physical and mental wellbeing, and not to engage in sexual conduct with him. Paragraph 8A identifies seven "salient features" which the State relies upon as supporting the imposition of a duty upon the cross-defendant which it pleads in paragraph 8.
The particulars provided to the pleading that the risk of harm was foreseeable - namely, the existence of a duty and the circumstances in which a duty may be imposed - do not of themselves and without more provide any particulars of the actual or constructive knowledge of the cross-defendant with respect to the risk of harm which is alleged.
In this proposed Amended Cross-Claim, the risk of harm which is pleaded is in paragraph 8B. It is described as "the risk of mental harm to the plaintiff by engaging in sexual conduct with the plaintiff".
It is that risk of harm which the Civil Liability Act 2002 requires which was either known to a tort-feasor or else ought to have been known. There are decisions of this Court, including PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [71]-[75]; PM v Council of Trinity Grammar School [2020] NSWSC 1353 at [25]-[26], which require a pleader to clearly particularise whether the knowledge amounting to foreseeability is actual knowledge of a tort-feasor or something which the tort-feasor ought to have known, and if the latter, the matters and circumstances which gave rise to such constructive knowledge. Paragraph 8C, commendably brief and concise, fails to meet the requisite standard of an appropriate particularisation of the foreseeability of the risk of harm.
In those circumstances, I am not prepared to grant leave to file the proposed Amended Statement of Cross-Claim in the form in which it currently appears, and it follows the Notice of Motion filed 30 August 2004 must be dismissed.
[2]
Orders
I make the following orders:
1. Order that any proposed Amended Statement of Cross-Claim is to be served on cross-defendant on or before 4pm 27 September 2024.
2. Order that the solicitors for the cross-defendant are to notify the solicitors for the cross-claimant of their attitude to the proposed Amended Statement of Cross-Claim on or before 4pm 4 October 2024.
3. In the event that the solicitors for the cross-defendant oppose the fling of the Amended Statement of Cross-Claim, they are to set out basis of their opposition.
4. Direct that at the time the proposed Amended Statement of Cross-Claim is served and letter of response is sent, a copy is to be provided digitally to my Chambers.
5. Defendant's Notice of Motion filed 30 August 2024 is dismissed.
6. Order the defendant/cross-claimant is to pay the cross-defendant's costs of that Motion.
[3]
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Decision last updated: 09 October 2024