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The decision was about the form of the proposed pleading, not whether the alleged events occurred. On 19 May 2020, PM filed a motion seeking leave to file a further amended statement of claim. Trinity opposed leave in relation to the negligence claim. Its objection, as recorded by Garling J, was that the proposed pleading did not identify the relevant risk of harm and did not plead facts showing that the risk was foreseeable.

PM argued that the risk was obvious and could be inferred, and that foreseeability did not need further particularisation. Garling J rejected that approach in the circumstances of the pleading before the court. The proposed pleading did not make clear whether the risk was physical injury, psychiatric injury, or both. It also did not clearly state whether Trinity was alleged to have actual knowledge of the relevant risk or ought to have known of it.

The court refused leave to file that version of the pleading. The orders nevertheless allowed PM, if so advised, to file a further motion seeking permission to amend, with supporting affidavits, by 24 October 2020. That motion was to be returnable before Garling J at 9am on 6 November 2020. The judgment therefore records a procedural outcome, not a final determination of the underlying claims.

The supplied text does not include stable, sequential paragraph numbering for the judgment itself. Its numbered paragraphs reset under headings. For that reason, this analysis uses the judgment's headings and quoted language as locators rather than assigning unreliable paragraph numbers.

Why the court decided this way

Garling J's central concern was that the proposed pleading did not tell Trinity, with adequate precision, what case it had to answer. The court considered two connected defects in the direct causes of action alleging fault by Trinity: the failure to identify the risk of harm and the failure to plead the relevant foreseeability case.

First, the risk of harm was not expressly pleaded. The judge rejected the submission that it could simply be inferred. The factual allegations included caning and resulting physical injury, but also a general claim for psychiatric injury and psychological sequelae. The judgment explains that these possibilities might lead to different understandings of the precautions Trinity allegedly should have taken. The claim might concern a risk of physical injury with later psychological consequences, a separate risk of psychiatric injury, or a combination. The proposed pleading did not resolve that uncertainty.

The judge also noted that if the alleged risk concerned psychiatric injury, the provisions of Part 3 of the Civil Liability Act 2002 (NSW) might need to be considered. The point was not that one particular characterisation was established. Rather, the pleading needed to say what risk was being alleged so that the defendant could understand and answer the case.

Second, the proposed pleading did not clearly allege foreseeability in the sense relevant to s 5B(1)(a) of the Act. The court stated that Trinity was entitled to know whether PM alleged actual knowledge of the risk, and, if so, what particulars supported that allegation, or whether the allegation was that Trinity ought to have known about it. The pleading contained assertions about foreseeability, but the court found that they did not explain the allegation in a manner appropriate to the statutory claim.

The court linked those defects to the basic function of pleadings. It quoted Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664, which describes pleadings and particulars as providing a sufficiently clear statement of the case, defining the issues, helping determine the relevance and admissibility of evidence, and grounding any relief granted. Garling J used that authority to support the conclusion that Trinity could not properly identify what it needed to put in issue.

The judgment also addressed the proposed exemplary-damages claim. It observed that s 21 of the Civil Liability Act precludes an award of exemplary damages, and that the words in the pleading were inconsistent with the possible suggestion that Trinity was vicariously liable for exemplary damages recoverable directly from the alleged perpetrator. This was an additional drafting concern. The decision's principal reasons for refusing leave were the deficiencies concerning risk and foreseeability, together with the lack of precision in the pleading as a whole.

Before and after state of the law

The decision does not purport to announce a new general test for negligence or pleadings. Garling J expressly adopted the principles identified in his earlier decision, PWJ1 v The State of New South Wales [2020] NSWSC 1235. He directed attention in particular to PWJ1 at [57]-[66], concerning the careful pleading of risk of harm, and [73]-[75], concerning foreseeability under the Civil Liability Act. The present judgment applies those principles to the particular proposed pleading.

The supplied text does not reproduce those parts of PWJ1. It therefore supports a limited account of the principles used here: the risk of harm must be identified carefully in the pleading, and the foreseeability allegation must be set out clearly enough for the defendant to know the case being made. It would go beyond the supplied sources to give a more detailed account of the contents of those PWJ1 paragraphs.

A significant issue was expressly left unresolved. PM pleaded both direct causes of action alleging fault by Trinity and a separate claim that Trinity was vicariously liable for the teacher's conduct. Garling J distinguished these as, respectively, direct and indirect causes of action. He noted that the Civil Liability Act excludes certain direct claims against perpetrators under s 3B(1)(a), but stated that whether the Act applies to an institutional claim based on vicarious liability remained an open question. He also clarified that a suggestion in PWJ1 that he had reached a concluded view on that issue was unintended.

Accordingly, the judgment should not be read as deciding that the Act does, or does not, apply to institutional vicarious-liability claims. Nor did the court decide the merits of PM's direct or vicarious-liability causes of action. It refused permission to file a pleading that did not adequately articulate the case.

The judgment also referred to s 6A(1) of the Limitation Act 1969 (NSW), which it described as abolishing the limitation period for claims for damages for sexual abuse. In that context, Garling J observed that a defendant may need a properly formulated pleading to consider whether to seek a permanent stay. That observation explains why pleading clarity can remain important in a historical abuse claim even where the limitation period has been abolished. The court did not decide any application for a permanent stay.

Key passages with plain-English translation

Risk of harm not specified. Garling J said: “The proposed pleading does not include any explicit pleading of the risk of harm.” In plain English, the pleading needed to identify the kind of harm Trinity was said to have had to guard against. Describing the alleged conduct and its consequences did not, in the judge's view, answer that question clearly enough.

Different possible forms of harm. The judgment asked whether the alleged harm was “a physical one with psychological sequelae”, a psychiatric injury caused separately, or a combination. In plain English, the court could not tell which harm was said to have been foreseeable and preventable. The distinction mattered to understanding the negligence case and the applicable statutory context.

Knowledge and foreseeability. The judge stated that Trinity was entitled to know whether actual knowledge was alleged, and, if so, its particulars, or whether the allegation was that Trinity ought to have known of the risk. In plain English, a pleading should make clear whether the case relies on what the defendant allegedly knew in fact or on what it allegedly should have known.

Function of pleadings. The judgment quoted Dare v Pulham for the proposition that pleadings provide a clear statement of the case, define the issues, assist with evidentiary questions, and ground the relief a court may grant. In plain English, pleadings are not just a summary of grievances: they identify the case the other party must meet and the matters the court will decide.

Overall lack of precision. Garling J said that the proposed pleading did not enable the court or Trinity to understand “with any degree of precision” what PM's case was. In plain English, the defects operated together. It was not simply that a phrase was missing; the defendant could not reliably determine the case to answer.

What fact patterns trigger this precedent

The decision is most directly relevant to a pleading-stage dispute where a plaintiff alleges institutional negligence for historical abuse, and the proposed claim refers to multiple kinds of harm without identifying which risk is said to have been foreseeable. The trigger in this judgment was the combination of alleged physical assault and physical injury with broad allegations of psychiatric injury and psychological sequelae.

It is also relevant where a negligence pleading uses the language of foreseeability but does not explain the basis of the allegation. The judgment highlights a distinction between alleging actual knowledge and alleging that the defendant ought to have known. In the case before Garling J, the court considered that the defendant was entitled to know which basis was advanced and, for actual knowledge, what particulars supported it.

The decision also matters where a pleading combines different routes to liability. PM relied on direct causes of action alleging Trinity's fault, as well as a claim for vicarious liability for the teacher's conduct. The court treated them as distinct forms of claim and noted that the statutory position for the vicarious-liability claim was unresolved. A pleading involving both routes may therefore raise questions about which factual and legal allegations attach to each cause of action. This judgment does not determine how those allegations should be pleaded in every case.

The decision does not establish that any specific abuse allegation, by itself, must be pleaded in a particular form. Its reasoning concerns the adequacy of the proposed pleading in front of the court, including its failure to state the risk and foreseeability case clearly. It should not be treated as a finding about the truth of the allegations, the ultimate liability of an institution, or the general availability of any remedy.

How later courts have treated it

The supplied judgment and accompanying material do not identify any later decisions considering or applying PM v The Council of Trinity Grammar School. No claim about later treatment can therefore be made on the available sources.

The judgment itself discusses PWJ1 v The State of New South Wales [2020] NSWSC 1235 as an earlier decision. Garling J said its identified principles were applicable to the question of leave in PM's case. He also clarified that PWJ1 should not be understood as having resolved whether the Civil Liability Act applies to institutional vicarious-liability claims. That is the only stated relationship to later or related treatment available from the supplied text: PM applies the pleading principles discussed in PWJ1 while expressly preserving the vicarious-liability issue as open.

The judgment also cites Dare v Pulham for the functions of pleadings. It does not purport to replace or expand the quoted High Court statement. Rather, it uses that statement to explain why the lack of precision in PM's proposed pleading mattered procedurally.

Any account of subsequent appellate consideration, later decisions, or changes in the statutory setting would require legal sources beyond those provided here.

Still-open questions

The most explicit open question is whether the Civil Liability Act applies to claims against institutions based on vicarious liability. Garling J stated that the question was unresolved and that his earlier remarks in PWJ1 should not be read as a concluded view. This decision did not require him to decide it because the motion was resolved on the inadequacy of the proposed pleading.

The judgment also does not decide what the plaintiff's eventual amended pleading would allege, whether a later amendment motion would succeed, or whether the claims could be established at trial. The order permitted a further motion to be filed within a specified period, but the text supplied contains no account of any later motion or its result.

The decision does not determine whether Trinity had actual knowledge of the alleged conduct or ought to have known of a risk. It identifies those as matters a sufficiently clear pleading would need to address, depending on the case advanced. Nor does it determine what evidence might support either form of knowledge.

The judgment notes that s 21 of the Civil Liability Act precludes exemplary damages, but does not finally resolve the legal basis or availability of any exemplary-damages claim against an alleged perpetrator or through vicarious liability. Its point is that the language of the proposed pleading was inconsistent with the possible way that claim appeared to be framed.

Finally, the court's observation about a possible permanent-stay application in light of the limitation provisions is not a ruling that a stay was available or appropriate on PM's facts. No stay application was before Garling J in this motion.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.