Klein & 6 Ors v State of NSW

Jacqueline Anne Soltys (Third Plaintiff)

David Antony Klein (Fourth Plaintiff) PARTIES : Adrian Joseph Klein (Fifth Plaintiff)

Heather Klein (Sixth Plaintiff)

Christian Damian Klein (Seventh Plainitff)

State of New South Wales (Defendant) FILE NUMBER(S) : SC 20544/2001 Mr A Scotting (Plaintiffs) COUNSEL : Mr M Hutchings (Defendant) Mr T Phillips, Hansons Lawyers (Plaintiffs) SOLICITORS : Mr R Rodgers, Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20544/2001 - TERESA KLEIN & 6 ORS v STATE OF NEW SOUTH WALES

JUDGMENT (Strike out pleading - public policy - nervous shock - media) 1 MASTER: By notice of motion filed 30 October 2003 the defendant seeks an order pursuant to Part 15 r 26 of the Supreme Court Rules 1970 (NSW) (SCR) that the plaintiffs' statement of claim (or parts thereof) be struck out; in the alternative, an order that the plaintiffs' claim be stayed or dismissed. The plaintiff relied on two affidavits of Tyrone Francis Phillips sworn 4 June 2003 and 27 April 2004. The defendant did not rely upon any affidavit evidence. The pleading referred to in this judgment is the ASC Ex 1. At this stage, the defendant is seeking to stay proceedings or strike out specific paragraphs of the ASC. 2 The first plaintiff is Teresa Klein. The second plaintiff is Karl Erwin Klein. The third plaintiff is Jacqueline Anne Soltys. The fourth plaintiff is David Antony Klein. The fifth plaintiff is Adrian Joseph Klein. The sixth plaintiff is Heather Klein. The seventh plaintiff is Christian Damian Klein. All plaintiffs are members of the Klein family. The defendant is the State of New South Wales. 3 The first and second plaintiffs were the mother and father of the late Paul Simon Klein. The third, fourth, fifth and seventh plaintiffs were the siblings of the late Paul Simon Klein. The sixth plaintiff is the wife of the fourth plaintiff and was the sister-in-law of the late Paul Simon Klein. The second plaintiff is also the administrator of the estate of Paul Simon Klein and brings an action under the Compensation to Relatives Act 1897 (NSW) for the benefit of himself and the first plaintiff. 4 The plaintiffs sue pursuant to s 5 of the Crown Proceedings Act 1988 (NSW) in respect of the Police Service of New South Wales. The plaintiffs plead that the defendant is vicariously liable for negligence of the Police Service and the individual police officers involved in the events giving rise to this claim by reason of the operation of ss 6 and 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). 5 The first plaintiff and the deceased were present at the first plaintiff's mother's house in the Wollongong area. While at his grandmother's house it is alleged the deceased was suffering from a disturbed state of mind. The first plaintiff telephoned the police for assistance. Upon arrival, at about 9.10pm, the police officers attempted unsuccessfully to communicate with the deceased with a view to getting him to leave the house. After arriving at the scene it is alleged the police became aware that the deceased was in possession of two knives with which he was inflicting injury to himself and that he had lit a fire within the house. Various members of the Police Service called on the deceased without success to abandon the knives. At about 11.00pm two police officers, Sergeant Rumbel and Senior Constable Wild, fired three bullets into Paul Klein's chest killing him. 6 The first to seventh plaintiffs claim damages for nervous shock, arising from the negligence of the servants and agents of the NSW Police Service in dealing with the deceased. In addition, the first and second plaintiffs claim damages pursuant to the Compensation to Relatives Act. 7 Relevantly, Part 15 r 26 of the SCR provides that the Court may strike out the whole or any part of the pleading in three situations. These include: firstly, where no reasonable cause of action is disclosed; secondly, where the proceedings have a tendency to cause prejudice, embarrassment or delay; and thirdly, where the proceedings are an abuse of the process of the Court. In this strike out or dismissal application the test is a demanding one because in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Barwick CJ stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 8 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 9 Similar statements have been made in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel and Webster & Anor v Lampard (1993) 177 CLR 598. 10 Also the Court should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development - see Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374 and Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 35. 11 At the hearing I gave short reasons in relation to the following paragraphs. In my view Paragraphs 9, 10, 12(e) and (f), 26(f) and (m) had been adequately pleaded and should not be struck out. The pleadings in Paragraph 26(e) and (m) are to be amended. Paragraph 26(k) is to be amended or deleted. Paragraph 26(p) is to be deleted (see plaintiff's submissions paragraph 3). Paragraph 26(t) is to be amended to identify the police officers. Paragraph 29(b) the words "in fact" are to be deleted. Paragraphs 29(c) to (f) are to be repleaded so as to identify the police officers. 12 Both parties have provided written submissions on two issues namely that the allegations concerning the activities of the media in paragraphs 21, 22, 24 and 25 insofar as they relate to paragraphs 21 and 22 of the ASC and the particulars of aggravated damages pleaded in paragraph 28.

Media 13 This is a novel case where matters of public policy and an individual's claims for nervous shock collide. It is pleaded that the involvement of the media filming and photographs the events gave rise to a duty of care by Police to members of the deceased's family and that the repeated media interest, both television and print, have caused the plaintiffs to suffer exemplary and aggravated damages (para 21). 14 Paragraph 22 pleads that on the morning of 27 May 1998 and on various occasions thereafter, each of the plaintiffs saw on television and in the print media graphic images depicting the events leading up to and surrounding the death of Paul Klein. 15 The plaintiff has pleaded that the media representatives were non-essential personnel present at the scene of the shooting of the deceased that exacerbated the danger to members of the public (see paragraphs 26(m)-(o) ASC). The particulars of the alleged breach of duty are a failure to establish a perimeter around the scene to exclude all other than essential personnel, restrict access to the scene and to clear the area surrounding the grandmother's house. 16 The plaintiff submitted that they are entitled to rely on paragraph 21 as a factor relevant to the existence and scope of the duty of care and referred to Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 where Gleeson CJ at 18 stated: "I agree with Gummow and Kirby JJ that the common law of Australia should not, and does not, limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock, or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. It does not follow, however, that such factual considerations are never relevant to the question whether it is reasonable to require one person to have in contemplation injury of the kind that has been suffered by another and to take reasonable care to guard against such injury. In particular, they may be relevant to the nature of the relationship between plaintiff and defendant, and to the making of a judgment as to whether the relationship is such as to import such a requirement." 17 Paragraph 21 would be of little value to the plaintiffs if they had not viewed the media footage on various occasions after the death of Paul Klein. The plaintiffs submitted that paragraphs 21 and 22 are relevant as to foreseeability as it is applied in assessing duty of care and assessing breach of duty of care. 18 The defendant submitted that the ASC does not describe a relationship which could be said to impose upon the NSW Police a duty of care to prevent "the media" (whether public or private) from filming, photographing, writing, televising or publishing "the events surrounding the death of Paul Klein" in order to prevent injury to the plaintiffs. The defendant submitted that the relevant enquiry is upon what basis do the plaintiffs assert that NSW Police could have prevented the media from filming, photographing, writing, televising or publishing "the events surrounding the death of Paul Klein?" It is pleaded and it is at least arguable that the Police could erect a perimeter around an area of risk and preclude unauthorised persons from entering this area. It is my view that this pleading should be permitted to go to trial.

Particulars of aggravated damages 19 Broadly speaking, the plaintiffs plead an entitlement to aggravated damages based on the effect that their exposure to media broadcasts and publications concerning the death of Paul Klein and continued dealings with the media. The proliferation of the footage is also relevant to the question of damage in respect of each of the plaintiffs. If it is held that the Police owed a duty of care to cordon off the area so that photographers were kept back from the scene of the crime it is arguable that these images would not have appeared in the media. 20 Part 16 r 5B of the SCR required particularisation of the facts and matters relied on to establish a claim for aggravated damages. 21 In State of New South Wales v Riley (2003) 57 NSWLR 496, Hodgson JA relevantly held that:

(a) compensatory damages include damages for injury to feelings;

(b) aggravated damages can be awarded where compensatory damages have been awarded for injury to feelings;

(c) to avoid double compensation for injury to feelings, aggravated damages should only be awarded in cases where the actions of the defendants have amounts to "serious misconduct"; and

(d) aggravated damages are a matter of degree depending on the seriousness of the defendant's conduct (paragraphs [129] to [133]). 22 The plaintiffs submitted that these particulars are sufficient to ground the aggravated damages claim but they can be improved and in the circumstances the plaintiffs seek leave to amend the particulars of aggravated damages. Such leave is granted. Thus paragraphs 21, 22, 24 and 25 are at least arguable and should not be struck out. The paragraphs relating to aggravated and exemplary damages are to be repleaded. The plaintiffs are to file and serve a FASC within 28 days. Costs of this motion are reserved.

(1) The plaintiffs are to file and serve a FASC within 28 days.

(2) Costs of this motion are reserved. **********

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