Simundic v University of Newcastle

LEGISLATION CITED : Supreme Court Rules 1970 (NSW) - Part 13 r 5, Part 15 r 26

Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Dey v Victorian Railways Commisioners (1949) 78 CLR 62 CASES CITED : General Steel Industries Inc Commissioner for Railways (1964) 112 CLR 125 New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; (2003) 195 ALR 412; (2003) 77 ALJR 558; (2003) 24(3) Leg Rep 2; (2003 Aust Torts Reports 81-684; [2003] HCA 4 Webster & Anor v Lampard (1993) 177 CLR 598

Vesna Simundic (Plaintiff) PARTIES : University of Newcastle (Defendant)

Mr M Kearney (Plaintiff) COUNSEL : Mr R Glasson (Defendant)

Mr H Martin, SOLICITORS : Phillips Fox (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20372/2004 - VESNA SIMUNDIC v UNIVERSITY OF NEWCASTLE

JUDGMENT (Dismiss statement of claim - duty of care between University and student)

1 HER HONOUR: Originally on 18 October 2004, the plaintiff filed a statement of claim seeking damages and costs for personal injury, medical negligence and defamation caused by the defendant. That document was poorly drafted and incomprehensible. On 8 February 2005, I requested that the plaintiff be given pro bono assistance for the redrafting of her statement of claim. 2 By notice of motion filed on 3 December 2004, the defendant seeks firstly, to have the proceedings dismissed or stayed pursuant to Part 13 r 5 of the Supreme Court Rules 1970 (NSW) (SCR); in the alternative, the defendant seeks that the statement of claim be struck out pursuant to Part 15 r 26 of the SCR. 3 The plaintiff claims that she suffered personal injury caused by the defendant's actions. She pleads causes of action in tort, contract and defamation. Part of the statement of claim (between paragraphs [32] to [35]) pleads a claim for defamation. The defamation claim is not the subject of this strike out application. 4 Part 13 r 5 of the SCR provides that the Court may dismiss the proceedings in three situations. These include: firstly, where no reasonable cause of action is disclosed; secondly, where the proceedings are frivolous or vexatious; and thirdly, where the proceedings are an abuse of the process of the Court. 5 Part 15 r 26 of the SCR provides that the Court may at any stage of the proceedings strike out the whole or any part of the pleading in three situations. These include: firstly, where no reasonable cause of action, defence or case is disclosed; secondly, where the pleadings have a tendency to cause prejudice, embarrassment or delay in the proceedings; and thirdly, where the proceedings are an abuse of the process of the Court. 6 In an application to have the statement of claim dismissed or struck out before trial, the onus on the defendant is high. As noted by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130: "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 [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91], 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." 7 Barwick CJ also said at 129: "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 a 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.'" 8 Similar statements have been made in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998); Dey v Victorian Railways Commissioners (1949) 78 CLR 62; and Webster & Anor v Lampard (1993) 177 CLR 598. 9 The amended statement of claim (ASC) is a marked improvement upon the original statement of claim. The plaintiff was enrolled as a student at the defendant between 1996 and 2000 in the social work faculty. During 1998 the plaintiff undertook a course of study towards the degree known as a placement under the auspices and direction of the defendant at the Royal Newcastle Hospital (the placement). 10 In mid August 1998 a meeting between representatives from the defendant and the plaintiff took place. Subsequently on 26 August 1998, at a meeting Flynn, a lecturer in the Department of Social Work and Nicole McLauren, a field educator were allegedly critical of the plaintiff. On the same day (26 August 1999) Gaha (Head of Department of Social Work) allegedly wrote and circulated an email critical of the plaintiff. 11 In mid 1999, Bryant (Director of the University Counselling office) diagnosed the plaintiff as suffering from PTSD and informed Ramsland and the Dean of Students of that diagnosis. A further meeting between the plaintiff and the employees of the department was pleaded but it is not necessary to refer to it in details. 12 At paragraph [31.3-6] it is pleaded that the defendant owed the plaintiff a duty of care to protect her from conduct of an abusive, defamatory or otherwise harmful nature; to protect her from conduct such as to cause injury to her in the course of her studies; to provide her with appropriate and proper medical assistance for difficulties being experienced by her as a consequence of the actions of the employees, servants and agents of the defendant and otherwise; and to provide her with a procedure and process for the resolution of her complaints that did not expose her to risk of injury. 13 The breaches of duty of care or the terms of its contract with the plaintiff are specified as being by (a) failing to provide the plaintiff with a safe place of study; and (b) failing to provide the plaintiff with a course of study permitting her to complete the requirements necessary for the award of the degree of Bachelor of Social Work. Although the introductory paragraphs of the ASC refer to the plaintiff as being an employee of the defendant the balance of the ASC does not plead a case in negligence as between employee/employer. 14 The defendant submitted that the cause of action was statute barred. As the cause of action arose in about 1998, the causes of action in personal injury appear to be statute barred. This impediment may be overcome by the plaintiff applying for an extension of the limitation period. I make no comment on the success or otherwise of any potential application. At this stage, I would not strike out the ASC on this ground alone, but rather, allow 2 months for the plaintiff to file a notice of motion seeking that the limitation period be extended. 15 The defendant submitted that there is no recognised duty of care between a student and a university unless the university has specific knowledge of a danger to the student. The defendant, by way of example, submitted that the University would owe a duty of care to a student if it was aware that a darkened staircase caused night students to trip and hurt themselves but did not take any steps to have the staircase illuminated. 16 However, New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; (2003) 195 ALR 412; (2003) 77 ALJR 558; (2003) 24(3) Leg Rep 2; (2003) Aust Torts Reports 81-684; [2003] HCA 4 at [100] and [102] Gaudron J stated:

"Within the law of negligence, certain relationships have been identified as giving rise to duties which have been described as "non-delegable" or "personal", including master and servant (in relation to the provision of a safe system of work), adjoining owners of land (in relation to work threatening support or common walls), hospital and patient and, relevantly for these appeals, education authority and pupil. The relationships which give rise to a non-delegable or personal duty of care have been described as involving a person being so placed in relation to another as "to assume a particular responsibility for [that other person's] safety" because of the latter's "special dependence or vulnerability."

The law of negligence is concerned with a duty to take reasonable care to avoid a foreseeable risk of injury to another. As the law of negligence has developed, however, it has become possible, in the case of some relationships, to identify more precise duties of care. Thus, for example, it is not unusual to speak of an employer's duty to take reasonable care to provide a safe system of work. And in Introvigne, Murphy J identified the duties of an education authority as duties "[t]o take all reasonable care to provide suitable and safe premises ... to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and ... to see that the system is carried out." 17 Thus there are recognised categories of duties of care such as doctor/patient, employer/employee, education authority and pupil. But the categories of duty of care relationship are not closed. Hence, it is arguable that there is a duty of care between the defendant and their students to provide a suitable safe place of study. 18 Even if I am wrong, the knowledge element as contended by the defendant is present in this pleading. By mid September 1999, the defendant had knowledge that the plaintiff was suffering from an injury as a consequence of trauma suffered by her in her dealings with the University. In paragraph [20] it is pleaded that after the defendant was made aware that the plaintiff was suffering from PTSD, Gaha and the defendant caused or permitted the contents of the email to be available to a number of other employees of the defendant, thereby allegedly causing further injury to the plaintiff.

19 It is my view that the claim as pleaded is not hopeless. It should be permitted to go to trial, provided that the plaintiff is successful in her application for an extension of time. In this regard, the plaintiff is granted leave to file and serve such an application, together with supporting affidavits within 2 months. If such notice of motion is not filed, the statement of claim should be dismissed. 20 Costs are discretionary. The plaintiff is to pay the defendant's costs thrown away by the adjournment granted on 8 February 2005 and the costs incurred by the amendment to the statement of claim, but otherwise the defendant is to pay the plaintiff's costs of the notice of motion to date. 21 My Associate has provided another referral certificate (a copy is attached to the end of this judgment) to the Registrar seeking pro bono legal assistance in drafting the application to extend the limitation period and affidavits in support if the plaintiff chooses to proceed with such an application.

(1) The plaintiff is to file and serve an application for an extension of time together with supporting affidavits within 2 months. (2) The matter is stood over to 23 August 2005 at 10.00m before Associate Justice Harrison for mention.

(3) The plaintiff is to pay the defendant's costs thrown away by the adjournment granted on 8 February 2005 and the costs incurred by the amendment to the statement of claim, but otherwise the defendant is to pay the plaintiff's costs of the notice of motion to date. **********

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