PWJ1 v The State of New South Wales

Supreme Court of NSW|2020-05-22|Before: Garling J

A Saxton (D2) L Geary (D3)

Solicitors: Porters Lawyers (PP Crown Solicitors (D1) Meridian Lawyers (D2) Mills Oakley (D3) File Number(s): 2019/27055 Publication restriction: Not Applicable

Current Notice of Motion

On 20 May 2020, the plaintiff filed an Amended Notice of Motion which sought the following orders: "1. The plaintiff be granted leave to join the Second Defendant and Third Defendant in to the proceedings. 1A. The plaintiff be granted leave to join Sydney Anglican Home Mission Society Council as the Second Defendant. 1B. The plaintiff be granted leave to join the Salvation Army (New South Wales) Property Trust as the Third Defendant. 2. The plaintiff be granted leave to file and serve an Amended Statement of Claim, a copy which is next hereto and marked with the letter 'A'. 3. No order as to costs."
Annexed to that Notice of Motion was a document described as "Amended (4) Statement of Claim". At the hearing of the Motion, counsel for the plaintiff accepted that the document ought correctly be described as "Amended (5) Statement of Claim". This document represents the fifth attempt by the plaintiff to plead his causes of action.
The First Defendant, the State, opposed the grant of leave to file the Amended (5) Statement of Claim, but did not oppose the joinder of the additional defendants.
The Second Defendant, the Anglican Home Mission, did not oppose being joined as the Second Defendant, nor did it oppose the filing of the Amended (5) Statement of Claim.
The Salvation Army opposed being joined as the Third Defendant on the basis that the Amended (5) Statement of Claim was entirely deficient in articulating any arguable cause of action against it.
It is therefore necessary to consider what can be conveniently described as the pleading issues which are raised by the State and the Salvation Army and then, depending on those issues, determine what it is appropriate to do with respect to the orders sought in the Amended Notice of Motion.

Amended (5) Statement of Claim

The plaintiff pleads facts which describe a most miserable life that started just after his 13th birthday.
He identifies the following institutions where he spent time, and in each of which he was either physically assaulted, or both physically and sexually assaulted. They are: 1. from 8 June 1974 - 20 October 1974: Bexley Boys Home, which was then under the control and management of the Salvation Army; 2. from 4 November 1974 - December 1975: the Charlton Boys Home in Ashfield, which was under the care and control of the Anglican Home Mission; 3. from 1 March 1976 - 20 August 1976: the Daruk Training Centre, for which the State was responsible; 4. from 26 September 1977 - 29 November 1977: the Albion Street Children's Shelter, for which the State was responsible; 5. from 1 December 1977 - February/March 1978: Endeavour House, for which the State was responsible; and 6. from 26 February 1979 to about November 1979: Long Bay Jail, for which the State is responsible.
The alleged abuse does not need comprehensive description in this judgment. What is of significance is the nature of the abuse, whether it was sexual or physical or both, and the identity or role of the perpetrator for whose conduct it is alleged that the defendants are respectively said to be liable. None of the perpetrators are sued as defendants.
During his time at Bexley, the plaintiff alleges that he was physically abused. In respect of one episode of physical abuse pleaded, the plaintiff is unable to identify the perpetrator other than to say that it was one or more of the Salvation Army officers whose identities are unknown to him. A second episode of discrete physical abuse is alleged against a named Salvation Army officer, who was said to be the second in command at Bexley.
At Charlton, the plaintiff pleaded that he was sexually and physically assaulted by a man, whose name is not known to him but who is described as being the owner or manager of a service station situated at Kingsgrove about 8km or so from Charlton. On four occasions, the plaintiff pleads that, with the approval of those in charge of Charlton, he was taken from there to the service station where he was sexually assaulted. The plaintiff also pleads that on two occasions in early 1975, the identified man was allowed by officers of the Anglican Home Mission to visit him at Charlton and sexually assault him there.
The plaintiff claims that he was physically assaulted on a number of occasions whilst he was at Daruk. On some of those occasions he was physically assaulted by other boys at the Centre, whom he describes as "store boys", who were either encouraged or permitted by the officers in charge to carry out the assault. The plaintiff nominates a particular officer of the Centre as having physically assaulted him regularly throughout his time there. Finally, he names an officer whom he says sexually assaulted him on one occasion in his bed in a dormitory.
Whilst at Albion Street, the plaintiff pleads that he was taken with the permission of the staff at the Centre to the home of a lawyer (whom he names) who volunteered to assist children residing at the Centre with their legal matters. He says that on one occasion he was sexually assaulted whilst at the lawyer's home.
The plaintiff pleads that whilst at Endeavour, he was sexually assaulted on three occasions by a named officer who entered the plaintiff's room at the Centre and there sexually assaulted him.
Finally, the plaintiff pleads that whilst he was in custody at Long Bay Jail, within the first few weeks of arriving there, and at a time when he was still 17 years of age, a named prisoner brought three other adult prisoners who are not identified in any way into the plaintiff's cell. The plaintiff alleges that he was sexually assaulted by each of the four adult prisoners.
It is apparent from this brief description that the perpetrators vary between those who are said to have been employed at one or more of the State institutions, and those who are members of an organisation i.e. officers of the Salvation Army, visitors to or volunteers at the Institutions, or else fellow residents or inmates of the Institutions. The relationship between the State, the Anglican Home Mission and the Salvation Army, and the respective perpetrators is not further described in the Amended (5) Statement of Claim other than by the descriptions which I have given above.
The factual circumstances in which the sexual and physical assaults occurred are given only the briefest of descriptions, generally nominating the physical location where the assaults occurred but none of the surrounding circumstances. It may be that the descriptions that are given are the best which can be provided by the plaintiff, having regard to his age at the time and the length of time that has passed since those events. But if that is so, no such indication is given in the pleading. The period of time, it can be seen, is between June 1974 and March 1979 - being a period between 51 and 56 years ago.

Causes of Action

The plaintiff pleads as against the State and the two other defendants a number of separate and distinct causes of action. They are all tortious. Unsurprisingly, since the perpetrators are not sued or sought to be joined as defendants, the plaintiff does not plead that the provisions of the Civil Liability Act 2002 ("CLA") do not apply. I say unsurprisingly because the terms of s 3B(1)(c) of the CLA do not apply to exclude the application of the CLA to the claims being made in these proceedings. In summary, the three causes of action are: 1. the breach of a common law duty owed by the defendant responsible for the particular Institution to take reasonable care for the safety of the plaintiff, and to prevent him being assaulted ("the common law duty"); 2. the breach of a non-delegable duty owed to the plaintiff by the respective defendant to ensure that he was safe from being assaulted ("the non-delegable duty"); and 3. the vicarious liability of the respective defendants for the acts of each of the perpetrators ("vicarious liability").
The first two causes of action for breach of the common law duty and the non‑delegable duty require the proof of fault on the part of the State and each of the other defendants. They can conveniently be referred to as direct causes of action. The third cause of action does not require proof of fault; rather it concentrates on the liability created by the perpetrator to the plaintiff and whether the State and the other defendants are to be held legally liable for the consequences of the perpetrator's conduct. In that way, it can properly be described as an indirect cause of action.
The pleading alleges that in respect of all the Institutions, except for Bexley, the plaintiff was residing at those institutions as a consequence of orders made by the Children's Court. However, the particular orders, the legislation which gave the Children's Court the power to make those orders and the status of the institutions in accordance with that or other legislation is not pleaded or otherwise referred to.
The pleading is largely in identical term as against the State and each of the other defendants. It will be convenient to set out the direct causes of action pleaded against the State, which are in the following terms: "30. The relationship between the First Defendant and the plaintiff was that the First Defendant was responsible for the operation and management of the First Defendant's institutions whereby: (a) the First Defendant owed the plaintiff duty to take care to avoid foreseeable (but not insignificant) risks of harm; (b) the First Defendant owed the plaintiff a duty of care to exercise reasonable care for the safety of the plaintiff including to develop and maintain a safe system of caring for the plaintiff, and to protect him from sexual or physical abuse by those who were employed at the First Defendant's institutions; (c) the First Defendant owed the plaintiff a non-delegable duty to ensure that those who are employed at the First Defendant's institutions took reasonable care for the safety of the plaintiff from sexual or physical abuse."
It seems to me that sub-paragraphs (a) and (b), although pleaded separately, are pleadings that the State owes a single common law duty to the plaintiff to take reasonable care for his safety and to protect him from being assaulted. That is the common law duty cause of action. However, the use of the phrase in sub-paragraph (a) "foreseeable (but not insignificant) risks of harm", reflects words used in s 5B of the CLA. As the High Court of Australia pointed out in the joint judgment in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [12]-[13], the provisions of s 5B are directed to questions of breach of duty, and do not have any relevance to the existence or content of any alleged duty of care. This phrase therefore needs to be put to one side as being irrelevant in attempting to understand the common law duty of care which is being alleged.
Sub-paragraph (c) pleads the non-delegable duty cause of action.
The next paragraph of the Amended (5) Statement of Claim pleads precautions which, it is alleged, the State should have taken. It will be necessary to return to the detail of these in due course.
It is then pleaded that the failure of the State to adopt the precautions outlined constituted negligence. I assume that this is an inarticulate way of alleging that the failure to adopt precautions constituted breaches of the two duties of care, the common law duty and the non-delegable duty, which breaches caused, in the sense described in s 5D of the CLA, injury, loss and damage to the plaintiff.
The pleading then repeats the existence of the non-delegable duty of care but in terms different from, although similar in substance to, the earlier pleading.
The pleading then sets out what are described as "breaches of duty of care". These breaches seem to apply to both the common law duty and the non-delegable duty although, as can be observed, the duties are different in nature and content. These breaches are pleaded in the following terms: "35. The sexual and physical abuse, injury and harm to the plaintiff were caused by breaches of duty of care owed by the First Defendant. Particulars of the First Defendant's breaches of duty: (a) failing to institute and maintain a system where students were encouraged to report abuse (including sexual abuse) and misconduct; (b) failing to remove the abusers from situations where they were able to have personal contact with the plaintiff; (c) failing to make enquiries as to the abuser's suitability to work with children; (d) failing to remove the abusers from the first defendant's Institutions; (e) failure to supervise or adequately supervise the plaintiff; (f) failure to report the abusers to the Police or any other relevant authority; (g) failing to remove the abusers from duties at the first defendant's Institutions; (h) failure to supervise or adequately supervise the staff, agents and/or other employees at the first defendant's Institutions; (i) allowing the staff, agents and/or other employees to have unsupervised contact with the plaintiff; (j) failure to instruct its staff, agents and/or other employees not to sexually or physically abuse the plaintiff or children of the first defendant's Institutions; (k) failure to institute and maintain a system of mandatory reporting of child abuse or suspected child abuse; (l) failure to institute and maintain a program to educate children at the first defendant's Institutions in relation to their right to be free from sexual and other abuse and to report any abuse to an appropriate designated person or persons, or alternatively, to their parents or police; (m) in having the plaintiff as a child at the first defendant's Institutions, the first defendant, represented to the child plaintiff, through his parents, that he would be safe from harm whilst in the care of the first defendant's Institutions and in the care of those who worked there; (n) the second defendant (sic) placed the plaintiff in situations where he was in fear that he would be sexually or physically abused by the staff, agents and/or other employees of the first defendant's Institution; and (o) failing to make proper inquiries when the plaintiff complained of being assaulted."
I note with respect to (a), that there is no pleading or suggestion elsewhere that the plaintiff was a student at any of the named institutions. I note with respect to (m), that there is no pleading of a representation at any time, either express or implied, and that there is no claim for damages based on any tort of negligent misrepresentation. I further note with respect to sub-paragraph (o) that there is no pleading of any fact which suggests that at any time the plaintiff complained to anybody about what was happening to him.
After these pleadings, the claim based on vicarious liability is pleaded to which reference is made later in this judgment.
After each cause of action there is a recitation of the words and phrases to be found in s 5D of the CLA. However, there is no specific pleading of what is said to be the particular harm, how it is said that the particular harm was caused by the breaches, and if so which, of the pleaded duties of care.
The pleadings against the proposed second and third defendants follow a similar course.
In the case of the Anglican Home Mission, which was responsible for Charlton, the alleged abuser was not employed at Charlton but rather was a person who can be called a "stranger". Consequently, the duties are adjusted so as to include a duty to protect the plaintiff from individuals who were permitted or allowed to attend at Charlton or were permitted to remove the plaintiff from Charlton. Insofar as the particulars of breaches of duty are concerned, they are in identical terms to those against the First defendant which are set out at [31] above, subject to adjustments to represent the fact that the Anglican Home Mission operated Charlton and to include strangers. Sub-paragraph (c) is removed from the particulars of breach of duty.
So far as the Salvation Army is concerned, the pleadings are identical to those of the State save that the location is changed to Bexley from being any of the first defendant's Institutions. There is no other difference.

Vicarious Liability

The allegations of vicarious liability against the State and the other defendants are in substantially similar terms. The first fact pleaded is that the (relevant) defendant "engaged the abusers and as such the abusers were a servant and/or agent and/or in the service of the … Defendant".
The second fact pleaded is that the relevant sexual and physical abuse occurred in the course of the engagement and/or employment and/or service of the abusers. No particulars are provided which address how that may be so.
The third fact pleaded is that each defendant and the individuals who carried out the abuse were part of a joint common enterprise being "- the education and care of students at the … Defendant's institutions". It is said that the sexual and physical abuse occurred in the course of that joint common enterprise. I observe again that there is no earlier pleading of any fact or facts which suggest that the State or the other defendants were conducting an educational institution and that any were in the process of educating young men, and that the plaintiff was a student. No factual basis is pleaded for the existence of a "joint common enterprise".
The allegation is then made that each defendant is vicariously liable for the acts of those who carried out the abuse. Particulars of that vicarious liability are given in each case. Again these are largely in identical terms. Insofar as the particulars of vicarious liability are alleged against the State, they are in the following terms: "40. The first defendant is the vicariously liable for the acts of their employees in sexually and physically abusing the plaintiff and for the injury and harm suffered by the plaintiff. Particulars of vicarious liability: (a) There was a relationship of intimacy, power and subservience as between the plaintiff and the staff, agents and/or employees at the first defendant's Institutions making the plaintiff vulnerable to sexual and physical exploitation; (b) At the time and in the circumstances when the plaintiff was assaulted by staff, agents and/or other employees of the first defendant's Institutions, such staff, agents and/or other employees were a servant, agent and/or employee of the first defendant; (c) Alternatively to (a) and (b) above, at the time and in the circumstances when the staff, agents and/or other employees assaulted and injured the plaintiff, said staff, agents and/or other employees were acting as an agent of the first defendant for the purpose of the pursuit and furtherance of its undertaking, namely the education and care of children at the first defendant's Institutions, and providing care to the plaintiff; (d) The abuse of the plaintiff occurred when the abuser was interacting with the plaintiff ostensibly in performing a pastoral care and supervisory function; (e) There was a relationship of intimacy, power and subservience as between the plaintiff and the abusers making the plaintiff vulnerable to sexual exploitation; (f) The assaults upon and injury to the plaintiff by the staff, agents and/or other employees occurred in the course of their said employment/engagement; and (g) The first defendant placed the staff, agents and/or other employees in a position of authority, trust and intimacy in relation to the plaintiff."
Again, it ought be noted that sub-paragraph (c) suggests that the plaintiff was a student at an educational institution and the provision of care was an adjunct activity. The reference in sub-paragraph (d) to "pastoral care" is also inapt in a juvenile justice institution conducted by the State, unless specified facts or legal obligations are pleaded which make it either an obligation or else an integral part of the discharge of the functions of the employee of the State.
Identical particulars of vicarious liability were provided for the other two proposed defendants, except that minor changes were made to reflect whether or not the alleged abuser was employee. It can be seen that these particulars do not connect with, or refer to, any of the particular acts of physical and sexual abuse by any of the perpetrators. No difference in approach is to be seen between assaults perpetrated by non-employees, or fellow residents or inmates.
Against this background of fact and the outline of the proposed pleading, it is convenient to turn to the well identified principles of law which are relevant to the issue of whether the proposed pleading ought to be filed.

Principles of Law

It is useful to commence an outline of the relevant principles of law with a reminder of the remarks of Gleeson CJ in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at [1]: "If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is 'No, never'. In Australia, at least until recently, an answer 'Yes always' would also have been surprising. More information would have been required."
Because neither answer is always and obviously correct, attention must be paid by the pleaders to the principles of law which are applicable and relevant, and also to the particular facts and relationships which have given rise to the abuse and the claims for legal responsibility for such criminal conduct.
These remarks of the Chief Justice are not only applicable to schools but are equally applicable to claims for damage for physical or sexual assault against institutions which have the care of juveniles or at which juveniles are present, including the plaintiff.
Where causes of action are pleaded to which the CLA relates, the pleading of a duty of care stands outside the terms of that Act notwithstanding the heading "Duty of Care" appearing immediately before s 5B: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [13].
Careful attention needs, therefore, to be first paid to the facts, matters and circumstances which upon which a plaintiff relies to give rise to a duty of care. In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [50], in a single judgment, the High Court considered whether a duty of care relied upon by a plaintiff existed. At [50] it said: "Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion to be arrived at as a matter of principle. …" (citations omitted)
At common law, it may be regarded as being well-settled that prison authorities owe a general duty to exercise reasonable care for the safety of prisoners held in their custody. This duty may extend to an obligation to take reasonable care to prevent harm arising from the unlawful activities of other prisoners. The basis of this duty is the relationship which exists between prisoners and prison authorities, stemming from the degree of control exercised by prison authorities pursuant to legislation and delegated legislation, such as Prison Regulations, and the corresponding vulnerability of prisoners: New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1; Cekan v Haines (1990) 21 NSWLR 296 at 297 (Kirby P); State of New South Wales v Napier [2002] NSWCA 402 at [75]; Watt v State of New South Wales [2018] NSWSC 1926 at [178]-[180].
It is not axiomatic that a duty with precisely the same content will apply to young offenders. On the contrary, it may be that the content of that duty is somewhat stricter. Put differently, the duty owed to juvenile offenders would likely require greater diligence on the part of the authority which is charged with the care and management of juveniles in the juvenile justice system.
The circumstances in which a party will owe a duty of care with respect to the criminal conduct of others is a matter of complexity. The same applies in a prison, or juvenile justice setting. As Gleeson CJ said in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [13]: "In other cases, of which the present as an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense."
At [14], Gleeson CJ noted that when there are difficulties with respect to the identification of the existence and measure of legal responsibility, one useful way to proceed is to begin by identifying the nature of the harm suffered by a plaintiff for which a defendant is said to be liable.
Here, as is obvious, the plaintiff claims to have suffered personal injury, the direct and immediate cause of which was the deliberate criminality of those who sexually or physically abused him. Because the defendants are not the perpetrators of the criminal conduct, the question arises as to what the facts, matters and circumstances are which become the integers upon which a duty of care is constructed, as between plaintiff and defendant, such that the defendant is liable for that criminal conduct of others.
In Binsaris v Northern Territory of Australia [2020] HCA 22, Kiefel CJ and Keane J noted at [17] in a case involving a tort inside a juvenile justice centre, that: "The words 'in the course of duty' are generally understood to refer to a function, which is to say the 'functions and proper actions which [the] employment authorizes"… Those functions and proper actions, which is to say those which are authorised, are to be found in the statute which governs … [the] officers …" (footnote omitted)
I also observe that the analysis undertaken in Binsaris jointly by Gordon and Edelman JJ concentrates on the terms of the relevant legislation in order to identify whether the conduct was tortious or not.
Once the integers of a duty are articulated, it is then essential to ensure that the risk of harm is identified and specifically pleaded, so as to inform the existence of, and content of a properly pleaded duty of care.
The Court of Appeal in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 held that the identification of the risk of harm, where claims are brought for causes of action to which the CLA relates, is an essential feature of such claims. At [7], Basten JA said: "Section 5B of the Civil Liability Act 2002 (NSW) requires identification of a risk of harm, against which a person has failed to take precautions. Given its context, the risk must be that which materialised in the case of the injured person seeking to claim in negligence. That is because s 5B is dealing with a breach of a duty of care, being the duty of care owed by the defendant to the injured plaintiff."
In Uniting Church and Australia Property Trust (NSW) v Miller [2015] NSWCA 320, Leeming JA, at [102]ff, recognised that central to the determination of civil liability for failure to exercise reasonable care and skill is the identification of the risk of harm. His Honour said at [103]: "'Risk' and 'risk of harm' recur throughout Pt 1A of the [Civil Liability] Act, including in provisions which set out necessary elements of liability, such as s 5B. Other provisions, such as ss 5H (obvious risks) and 5I (inherent risks) … are not relevant to this appeal, but they illustrate, once again, that the legislation makes liability dependent upon the identification of the risk of harm." (emphasis added)
Having set out the entirety of s 5B of the CLA, Leeming JA said at [105] that each of the seven sub-paragraphs in s 5B must be considered by a court before a defendant is found to have been negligent. Of the provisions in s 5B, His Honour said that the three matters specifically identified in s 5B(1) were "necessary preconditions to liability". His Honour remarked that the matters set out in s 5B(2) were "a non-exhaustive but mandatory list of factors to which the court is required to have regard".
His Honour then cited with approval what Meagher JA said in Garzo at [22], namely: "To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed."
What the Court of Appeal said in Miller was not novel. Garzo, both at the first instance ([2011] NSWSC 292) and on appeal, addressed the same issue. A number of other cases in the Court of Appeal also identified and addressed the issues including: Shoalhaven City Council v Pender [2013] NSWCA 210 at [68]-[72] and Port Macquarie/Hastings Council v Mooney [2014] NSWCA 156 at [50]-[51], where at [52], Sackville AJA said: "In order to apply both ss 5B and 5C of the Civil Liability Act it is necessary, just as it was under the pre-existing general law, to identify the relevant 'risk of harm'."
The Court of Appeal again emphasised the need for the identification of the risk of harm in Collins v Clarence Valley Council [2015] NSWCA 263 per McColl JA at [126]-[135].
In the Nominal Defendant v Buck Cooper [2017] NSWCA 280, Payne JA at [89] described the identification of the risk of harm, and its articulation, as being an "uncontroversial proposition". His Honour, in the same paragraph, said that the issue of breach of duty could not properly be considered unless "the relevant risk of harm is first identified and characterised with adequate precision".
These propositions have not been revised or diminished, nor have they disappeared at any time since then. In Coles Supermarket Australia Pty Limited v Bridge [2018] NSWCA 183, Leeming and Payne JJA at [17]-[22] said that the provisions of the CLA required the analysis to start with a risk of harm.
Recently in Menz v Wagga Wagga Show Society Ltd [2020] NSWCA 65, Leeming JA (with whom Payne and White JJA agreed) again touched on this question at [48]-[51], where his Honour said: "48. The problem arises because the legal rule (here, the liability-defeating rule imposed by s 5L) is necessarily expressed in fixed statutory language, while the state of affairs to which the rule is said to be applicable may be described more or less generally or specifically without undue artificiality. It would be reasonable to describe Ms Menz's harm as being caused by her spooked horse falling while she was in the saddle, just as it would be reasonable to describe it as being caused by children making noise spooking the horses in the warm-up area. There is in short no canonical, or a priori correct, way of formulating the risk which materialised to cause Ms Menz's injury. Much may depend upon the degree of generality or precision with which the obvious risk is characterised, as was noted in Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 at [142] and by J Dietrich, "Personal Injuries and Recreational Activities" (2013) 115 Precedent 32 at 34. 49. That may seem rather abstract, but the issue is immensely practical. The Civil Liability Act makes the specification of the risk of harm important in every case. That applies at the threshold in every case in which a failure to take reasonable care is alleged, by reason of the three mandatory matters in s 5B(1) that a plaintiff must establish, and the four matters in s 5B(2) which a court is required to consider, all of which are addressed to a "risk of harm". Four of the seven matters invoke risk of harm in terms, while the other three, s 5B(1)(c) and 5B(2)(a) and (b), deal with taking precautions against a risk and the consequences of failing to do so, which cannot be assessed without regard to the risk. The importance of identifying the risk of harm has been stressed in, inter alia, Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [52]; Bitupave Ltd t/as Boral Asphalt v Pillinger at [153]; Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]-[107]; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [87]; Fairall v Hobbs [2017] NSWCA 82; 347 ALR 151 at [74]-[76] and Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [20]-[22]. 50. This is one of the signal changes effected by the Civil Liability Act. While the correct identification of the risk of harm was stated to be essential to identify a reasonable response in decisions to which the statute did not apply (for example, Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59]), the statute crystallises the position. It is not surprising that most of the decisions on the way in which the risk of harm is to be formulated have been decisions to which the civil liability legislation applied. 51. Neither party's pleadings sought to identify what the risk of harm was - either for the purpose of identifying how ss 5B and 5C were satisfied, or for the purpose of identifying how the specific defences were made out. There was no reply, despite the extensive specific defences. Thus, the critical issue on this appeal - how is the 'risk of harm' to be identified - was unaffected by the pleadings."
As I have previously remarked at some length, the other provisions in ss 5B and 5C have to be pleaded and addressed in any claim made which is the subject of the CLA: see Garzo v The Liverpool Campbelltown Christian School Ltd [2011] NSWSC 292 at [63]ff.
Because the CLA commences with an acknowledgement that there are a number of separate steps which must be taken to establish a breach of duty, each of these steps must be addressed in a pleading which is to be regarded as satisfactory.
I have already called attention to the first step, which is that a plaintiff must identify and then plead the risk of harm against which he (or she) alleges a defendant would be negligent for failing to take precautions.
The next step is to address by pleading each of the three elements in s 5B(1) of the CLA.
Section 5B presupposes the existence of the law of negligence and operates against its background: RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263 at [173] per Campbell JA (McColl JA agreeing). However, the statute requires that a trial judge must be satisfied that each of the elements in s 5B(1) are satisfied before a finding of a breach of duty can be made: Refrigerated Roadways at [442]-[444] per Sackville JA.
The three separate elements in s 5B(1) represent the concepts of foreseeability, probability and reasonableness of precautions: see the Final Report of the Review of the Law of Negligence ("the Ipp Report") which was published in September 2002 at paragraph 7.11. These concepts are each represented in the common law, and are often conflated in the term "reasonable foreseeability" but the statute makes it clear that each must be separately addressed.
The first element is that a plaintiff must establish that the risk of harm was foreseeable to the defendant. Foreseeability is described in the statute differently from the common law description. In the CLA, s 5B(1)(a) describes a foreseeable risk as a risk of which the defendant knew or ought to have known. A plaintiff must establish either actual knowledge in the defendant of the risk of harm, or else constructive knowledge (i.e. the defendant ought to have known) in the defendant of the risk of harm.
The Ipp Report was the source of this provision of the CLA. In paragraph 7.10, the following remarks were made: "Whereas probability is a scientific concept, foreseeability is a matter of knowledge and inference. For instance, no matter how likely it is that something will occur, it is foreseeable by a person only if that person knows or ought to know that it might occur. (Knowledge must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences."
In my opinion, the plaintiff must plead (and then prove at trial) that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the prior behaviour of an institution with respect to similar behaviour by the perpetrator or even another perpetrator, common knowledge and experience of others in the similar position of the defendant, an accumulation of complaints being made, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant's position and the obviousness or the likelihood of the event happening in the application of common sense.
The second element, which is cumulative on the first, is whether the alleged risk of harm was "… not insignificant". This must also be judged from the perspective of a reasonable person in the defendant's position, and in prospect not retrospect: Stojan v Kenway [2009] NSWCA 364 at [136] per McColl JA.
In Bunnings Group Ltd v Giudice [2018] NSWCA 144, at [53]-[54], the Court (Leeming JA, White JA and Emmett AJA) said: "53. Prior to the Civil Liability Act, the question was whether that risk was a real one, as opposed to one that was far-fetched or fanciful. That was the undemanding test enunciated by the Privy Council in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] 1 AC 617 at 643, confirmed by the High Court in Wyong Shire Council v Shirt 1980) 146 CLR 40; [1980] HCA 12 and from which a majority of that Court declined to depart in New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 (at [79] and [127]-[128]; cf [225]-[227]). There is no doubt that s 5B(1)(b) altered the law of negligence from that undemanding test, despite a suggestion that it might not have done so in Roads and Traffic Authority v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 at [186]. The Ipp Report made it clear that a change was intended, and said this of it: 'The Panel favours the phrase 'not insignificant'. The effect of this change would be that a person could be held liable for failure to take precautions against a risk only if the risk was 'not insignificant'. The phrase 'not insignificant' is intended to indicate a risk that is of a higher probability than is indicated by the phrase 'not far-fetched or fanciful', but not so high as might be indicated by a phrase such as 'a substantial risk'. The choice of a double negative is deliberate. We do not intend the phrase to be a synonym for 'significant'. 'Significant' is apt to indicate a higher degree of probability than we intend.' 54. The change has been said to impose a more demanding test, but "not by very much": Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Rep 82-065 at [44]. It is "not particularly high": Sibraa v Brown [2012] NSWCA 328 at [49], Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [153], Stenning v Sanig [2015] NSWCA 214 at [32]. It is "not particularly demanding": Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140].
I would, with respect to the Court in Guidice, add the following references. Kirby J in Harriton v Stephens (2006) 226 CLR 52 at 94 [136]-[138], noted that the CLA made "… substantial alterations to the [common law] principles of reasonable foreseeability …". His Honour also noted that the CLA was fundamentally restrictive and that "… obstacles for plaintiffs seeking damages in tort, especially where the damages are sought in respect of personal injury, have been considerably increased".
On this aspect of the CLA, the then Premier of NSW said in his Second Reading Speech when debating the Bill: "We have adopted the approach in the Ipp Report to the duty of care and causation. A risk has to be not insignificant before a court can find that it was reasonably foreseeable. This will send a clear message to the courts that, under the current common law, liability for insignificant risk is too easily imposed. Our new formulation will emphasise the community's reasonable expectation that people should have to guard only against risks that are a real possibility."
Spigelman CJ, speaking extra judicially at Lincoln's Inn, London on 16 June 2004, said of the phrase "not insignificant" this: "The not 'far-fetched or fanciful' test for foreseeability has been replaced by a test that a risk be 'not insignificant' which, despite the double negative, is of a higher order of possibility."
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": 1. the assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play. 2. 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; 3. the phrase "not insignificant" is intended to refer to the probability of the occurrence of the risk; 4. 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 5. 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.
The third element of s 5B(1) which requires attention is the conduct of a reasonable person. This element is perhaps the one which most closely reflects the common law: Refrigerated Roadways at [177] per Campbell JA. Any consideration of this element also requires attention to the provisions in s 5B(2) of the CLA.
Section 5B(2) provides a non-exhaustive list of factors which a court is required to take into account in deciding if this step is made out: Refrigerated Roadways at [173] per Campbell JA; [445] per Sackville AJA; Erwin v Iveco Trucks Australia (2010) 267 ALR 752 at [81] per Sackville AJA (Basten and Campbell JJA agreeing). Where relevant, these matters may well need to be pleaded, but the necessity to do so will depend upon the facts in the particular case, and the way in which the plaintiff articulates their cause of action.
It is now appropriate to turn to and consider the claim which does not involve fault on the part of the defendants, but which nevertheless seeks to impose liability upon them for what is pleaded as having occurred to the plaintiff. This is the claim for vicarious liability.
Vicarious liability was considered by the High Court of Australia in Prince Alfred College Incorporated v ADC [2016] HCA 37 (2016) 258 CLR 134. The issue which fell for consideration in the High Court was the allegation of vicarious liability of Prince Alfred College for sexual abuse carried out upon a student by a staff member in the boarding accommodation facility.
In the judgment of the plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ), their Honours dealt with the principles relating to vicarious liability. At [39] their Honours said: "Vicarious liability is imposed despite the employer not itself being at fault. Common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for negligent acts of an employee, let alone for intentional, criminal acts."
After considering a range of authorities both in Australia and in other jurisdictions, their Honours returned to the issue, at [80] and said: "In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. … Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. … Even so, …, the role given to the employee and the nature of the employee's responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act."
At [81], their Honours identified one relevant approach saying: "Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-a-vis the victim. In determining whether the apparent performance of such a role may be said to give the 'occasion' for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable."
The particular case with which their Honours were there concerned was an offender who was engaged in the role of a Housemaster at a boarding school, and the duties which he was given to fulfil as part of his role. This lead their Honours to describe the relevant approach in this way at [84]: "… The relevant approach requires a careful examination of the role that the [College] actually assigned to housemasters, and the position in which [the perpetrator] was thereby placed vis-à-vis the respondent and the other children."
The remarks of Gageler and Gordon JJ are particularly pertinent to the issue being considered in this application. In Prince Alfred College at [128] they said: "the course of decisions in this Court …reveals that decisions concerning vicarious liability for intentional wrongdoing are particularly fact specific." (emphasis added)
It is clear that it is only by the articulation of these matters that, if it becomes necessary, a determination can be made as to whether a defendant, after a very long period of time, can plead a defence and have a fair trial. In Prince Alfred College, an extension of time was not granted to a plaintiff because of inter alia the delay in bringing proceedings. The High Court upheld that refusal to grant the extension of time to bring the claim.
As recent decisions show, the question of whether a permanent stay should be granted, in cases of significant age, require close attention to the pleadings and the facts: The Council of Trinity Grammar School v Anderson [2019] NSWCA 292.
And so it is that the detail and specificity of the pleadings in each individual case are of critical importance. There is no room for general, broadly phrased pleadings which are applied to a broad range of claims without discrimination, and which do not pay careful attention to the relevant facts. Mere rubrics and hollow incantations are not a substitute for proper pleadings which pay attention to the principles discussed as well as the requirements of the CLA and the Uniform Civil Procedure Rules 2005.

Discernment

Having regard to the principles outlined and the way in which the proposed pleading is expressed, an order will not be made permitting the plaintiff to file the proposed pleading.
The order will apply to the document as a whole, notwithstanding that the Anglican Home Mission did not oppose being joined as a defendant, nor did it oppose the filing of the Amended (5) Statement of Claim. The relief sought by the plaintiff, namely leave to file the proposed pleading, does not seek orders which differentiate the basis for its claim for relief between the existing and proposed defendants.
Only one pleading is sought to be filed applying to all defendants. In those circumstances, as my reasons show, if I am not satisfied that the pleading is in proper terms to enable the defendants to understand the cause of action against them, and to plead to it, the consent of one of the parties is not determinative of that issue.
I am of the opinion that leave to join the proposed defendants, and leave to file the proposed pleading Amended (5) Statement of Claim, which is the document by which the proposed defendants are to be joined, ought not be granted because: 1. the proposed pleading does not include any articulation of the "risk of harm" to which s 5B of the CLA applies; 2. the proposed pleading does not include any material which, when dealing with the common law duty relied upon, adequately pleads the elements required to be pleaded and proved for a claim of negligence to which ss 5B and 5C of the CLA apply; 3. it includes allegations which are irrelevant to any of the facts pleaded, as described in [32], [40] and [42] above; 4. it fails to identify with respect to the perpetrators at any of the Institutions, except Bexley, the existence of the statutory powers being exercised by the Institutions, and any statutory functions or powers being exercised by the individuals, including those affecting their duties and obligations. These statutory powers and functions are a necessary consideration in determining the extent of the obligation between the Institutions and the plaintiff and whether the Institutions ought be held vicariously liable to the plaintiffs; 5. insofar as a non-delegable duty is pleaded and is to be relied upon, the proposed pleading fails to identify the role of each perpetrator and the nature of their employment or engagement, such that the employment or engagement was not just, the provision of an opportunity to commit the alleged offences, or engage in the alleged conduct, but rather is sufficient to enable a conclusion of vicarious liability to be reached; 6. the pleading resorts to generalisations and formulaic words and phrases - paragraph 40 of the proposed pleading is a good example of this. Allegations of the particulars of the existence of a relationship between the defendant and the perpetrator, and with the plaintiff as well, are formulaic, do not refer to any particular facts and matters, but simply state conclusions in a formulaic way apparently derived from statements from judgments without being anchored in the particular facts of this case; and 7. the claim of a causal link between the conduct of the defendant, pleaded as constituting a breach of duty, and the occurrence of the particular harm, which is undefined, pays no regard to the requirements of s 5D of the CLA.
Looked at as a complete document, the proposed pleading does not enable a court or any of the defendants to understand satisfactorily what the basis is for the alleged liability of any of the defendants, nor does it allow the defendants to identify with clarity what it ought to put in issue by a properly pleaded defence.
It is here relevant to note what the High Court of Australia said nearly 40 years ago in Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664: "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 proposed pleading does not fall within this description and cannot be allowed to be filed.
By proposing to rely upon the proposed Amended (5) Statement of Claim, it seems that the plaintiff no longer wishes to rely upon the existing pleading. In those circumstances, it is appropriate to grant the plaintiff leave to file any further pleading that may be advised.

Orders

I make the following orders: 1. Refuse leave to the plaintiff to file the proposed Amended Statement of Claim entitled "Amended (5) Statement of Claim". 2. Grant leave to the plaintiff, if so advised, to file a Motion seeking orders permitting the amendment of a Statement of Claim, together with all affidavits in support, provided that such notice of motion is filed on or before 23 September 2020. 3. Grant leave for the Motion to be made returnable before Garling J at 9am on 2 October 2020. 4. Order the plaintiff to pay the costs of the defendant, the State of NSW, and the proposed second and third defendants.

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: 10 September 2020

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