Clarke v GEO Australia Pty Limited

[2023] NSWSC 716

Supreme Court

New South Wales

Medium Neutral Citation:

Clarke v GEO Australia Pty Limited [2023] NSWSC 716

Hearing dates:

02 March 2023

Decision date:

27 June 2023

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Leave be granted to the plaintiff to file and serve a Second Further Amended Statement of Claim within 4 weeks of the date of this judgment.

(2)   Leave be granted to each defendant, to the extent advised, to file and serve a Defence to any Second Further Amended Statement of Claim within a period of 28 days after service.

(3)   The Motion, notice of which was filed by the first defendant on 19 September 2022, is dismissed.

(4)   The first defendant shall pay the plaintiff’s costs of and incidental to the Motion.

Catchwords:

CIVIL PROCEDURE – pleadings – personal injury – Motion to dismiss proceedings or strike out Statement of Claim – whether cause of action disclosed – whether material facts pleaded – except in relation to knowledge of risk Motion dismissed – leave granted to replead minor deficiency

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B(2), 5C(b)

Civil Procedure Act 2005 (NSW), s 56(1)

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Work Health & Safety Act 2011 (NSW)

Worker’s Compensation Act 1987 (NSW), s 151D

Cases Cited:

Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937

Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35

McGuirk v University of New South Wales [2009] NSWSC 1424

Medica Pty Ltd v Khedrlarian [2020] NSWCA 288

Moussa v Camden Council (2022) 162 ACSR 586 [2022] NSWSC 913

Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1968] HCA 74

PAO v Trustees of the Roman Catholic Church for the Diocese of Sydney [2011] NSWSC 1216

Penrith City Council v East Realisations Pty Ltd [2013] NSWCA 67

PWJ1 v The State of New South Wales [2020] NSWSC 1235

Richmond City Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761

Sanders-Pattinson v Brown [2012] NSWSC 443

Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited (2002) 96 ALJR 337; [2022] HCA 11

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272

Category:

Procedural rulings

Parties:

Anthony Clarke (Plaintiff)
GEO Australia Pty Limited (First Defendant)
State of New South Wales (Second Defendant)

Representation:

Counsel:
D Toomey SC / D Morgan (Plaintiff)
A Cheshire SC (First Defendant)
B Rickard (Second Defendant)

Solicitors:
Garling & Co Lawyers (Plaintiff)
Sparke Helmore Lawyers (First Defendant)
Moray & Agnew (Second Defendant)

File Number(s):

2020/00289728

JUDGMENT

1. HIS HONOUR: Before the Court for determination is an application brought by way of Motion on notice by the first defendant, GEO Australia Pty Limited (“GEO”) against the plaintiff, Anthony Clarke. GEO seeks orders summarily dismissing the proceedings commenced by the plaintiff, pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). In the alternative, GEO seeks that the plaintiff’s Further Amended Statement of Claim be struck out, insofar as it is against GEO, pursuant to r 14.28 of the UCPR. GEO also seeks its costs of the Motion and the proceedings generally to date.

2. GEO contends that the proceedings commenced by the plaintiff do not disclose a reasonable cause of action against it, and that the Further Amended Statement of Claim is defective. The Motion is resisted by the plaintiff.

Background

3. To give context to the application brought by GEO, it is necessary for me to summarise the history of the matter. I can be brief.

Plaintiff’s Claim

4. The plaintiff has brought proceedings against GEO and the State of New South Wales (“the State”) in respect of psychiatric injuries which he says were sustained whilst working as a nurse for Justice Health at Parklea Correctional Centre (“PCC”). It is alleged that GEO was the operator and/or manager of PCC, and it is sued in that capacity. The State is sued in its capacity as the plaintiff’s employer.

5. Without seeking to be exhaustive, the plaintiff’s claim against the defendants is that during the period between approximately November 2009 (when GEO commenced operations at PCC) and 24 July 2016 (when the plaintiff ceased working at PCC), the defendants failed to provide him with a safe place or system of work. He alleges that this was in a number of respects, such as changing or reducing security measures that were in place for staff. He says that as a result, he was subjected to stress, anxiety, fear, and ultimately, the development of a psychiatric injury.

Commencement of Proceedings

6. The proceedings were commenced by the plaintiff in this Court against GEO on 8 October 2020. On 8 April 2021 GEO filed a Defence denying that it had the care, control and management of PCC during the relevant period, and instead said that it was contracted to undertake the day-to-day correction management by the Commissioner of Corrections during the relevant period, which did not include any role or responsibility for inmate healthcare services.

7. On 18 May 2021, the plaintiff filed an Amended Statement of Claim which joined the State as the second defendant. On 20 May 2021, the State filed a Defence pleading contributory negligence against the plaintiff, and generally stating that the plaintiff’s claim was not maintainable as a result of s 151D of the Worker’s Compensation Act 1987 (NSW) (given that more than 3 years had passed between the alleged employment and the joinder of the State to the proceeding). GEO also filed a Defence to the Amended Statement of Claim.

8. GEO and the State have each filed Cross-Claims against each other, the allegations contained in which do not bear on the application before me at present.

The Dispute Arises

9. The issues that I must now determine, namely whether or not the proceedings disclose a reasonable cause of action and/or if the pleadings are deficient, arose at a much later stage in these proceedings than one might normally have expected.

10. The issue was first raised by solicitors for GEO in a letter to the plaintiff’s solicitors on 30 August 2022, almost two years after the proceedings were commenced.

11. The proceedings have been somewhat delayed due to the fact that during late 2021 and early 2022, extensions were sought and granted for the plaintiff to serve expert liability evidence. The preceding sentence is not intended to be read as a criticism of any party. On 24 May 2022, the plaintiff served a report of Mr William Allgood dated 23 May 2022 in support of his claim.

12. On 5 July 2022, the plaintiff’s solicitors circulated a proposed Further Amended Statement of Claim for endorsement by the defendants. Relevantly, the solicitors for GEO provided that endorsement on 6 July 2022, indicating that they consented to the Further Amended Statement of Claim being filed.

13. It was not until after that endorsement was given that the solicitors for GEO wrote to the plaintiff’s solicitors outlining what they saw as the deficiencies in the claim, in the form of the 30 August 2022 letter to which I have already made reference.

14. Following that correspondence, another proposed Further Amended Statement of Claim was circulated for endorsement by the solicitors for the plaintiff on 7 September 2022. The solicitors for GEO did not take the view that the document had remedied what they saw as the deficiencies in the claim, and they wrote to the plaintiff’s solicitors outlining that position on 15 September 2022.

15. Irrespective of that communication, the Further Amended Statement of Claim was filed by the plaintiff on 19 September 2022, and subsequently on 20 September 2022 the solicitors for GEO filed this Motion.

Evidence on the Application

16. GEO, being the applicant on the Motion, relies on an Affidavit of solicitor Julian McGrath in support of the application. Similarly, the plaintiff relies on an Affidavit sworn by his solicitor, Matthew Garling.

17. The Affidavits each set out the procedural history of the matter and the correspondence between the parties which I have summarised above, as well as copies of evidence and other material relevant to these proceedings.

The Further Amended Statement of Claim

18. As I have already stated, GEO’s solicitor first alleged that the plaintiff’s pleadings do not disclose a reasonable cause of action in a letter dated 30 August 2022. At that stage, Defences to previous iterations of the claim and Cross-Claims had been filed, and the plaintiff had served his expert liability evidence as well as his evidentiary statement. The solicitor for GEO had also indicated his consent to the filing of a prior iteration of the Further Amended Statement of Claim.

19. One might think in such circumstances that GEO’s objections to the formulation of the plaintiff’s claim against it would be confined to limited matters which had just come to light. Instead, GEO’s objections to the pleadings were such that almost the entirety of the Further Amended Statement of Claim was impugned, including fundamental aspects which had formed part of the claim since it was filed in October 2020. The thrust of GEO’s argument was that there is a lack of material facts pleaded by the plaintiff, which is a criticism that, if proved, goes to the very heart of the Further Amended Statement of Claim, its earlier iterations and possibly the proceedings.

20. Given the number and variety of the criticisms of the Further Amended Statement of Claim, to aid the reader I have endeavoured to set out the parties’ submissions and the Court’s conclusions with reference to each general aspect of the claim which was alleged to be deficient.

Duty of Care

Parties’ Submissions

21. The Further Amended Statement of Claim deals with the scope of GEO’s duty of care at paragraphs 9 and 10 as follows:

“[9]    The nature and scope of the duty of care was to take all reasonable precautions against foreseeable and not insignificant risk(s) of injury.

[10]    Further, the content and scope of the duty of care was informed by statutory obligations arising under the Work Health & Safety Act, as GEO was a 'person conducting a business or undertaking' at PCC: (i) section 19(2). (ii) section 19(3).”

22. GEO’s submission was that it is not apparent how the provisions of the Work Health & Safety Act 2011 (NSW) can “inform” a duty of care or what the plaintiff means by that. GEO also said that the Work Health & Safety Act has an impermissibly retrospective approach to what would have prevented injury and does not go to what GEO should have done from a prospective standpoint. GEO says that such an approach would be inconsistent with the provisions of s 5C(b) of the Civil Liability Act 2002 (NSW), which are clear in prohibiting a retrospective assessment of liability.

23. In response to this assertion, the plaintiff submitted that there is clear authority for the proposition that a statutory obligation may bear on the existence of a duty of care and its breach. The plaintiff placed reliance on Penrith City Council v East Realisations Pty Ltd [2013] NSWCA 67 and Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35. In the former case, McColl JA said that while a breach of a statute is not conclusive as to the performance of a duty of care owed to another, it may be relevant to the assessment of that standard. ^[1] In the latter decision, the Court held that obligations under statutory enactments have relevance to determining the existence or scope of a duty, although caution should be exercised in translating the statutory obligation into a duty of care at common law. ^[2]

    1. Penrith City Council v East Realisations Pty Ltd [2013] NSWCA 67 at [4] per McColl JA.

    2. Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [49].

24. Senior Counsel for the plaintiff also articulated in oral submissions that GEO had already admitted that it owed a duty of care to the plaintiff in its Defence to a previous iteration of the Further Amended Statement of Claim, and also in that document made positive assertions as to the content of that duty. In those circumstances, the plaintiff says that there can be no doubt between the parties as to the way that the duty of care is said by each litigant to operate in this case.

Consideration

25. As submitted by Senior Counsel for the plaintiff, GEO has admitted in its Defence to a previous iteration of the Further Amended Statement of Claim that it owed a duty of care to the plaintiff. GEO did not admit the nature, scope or content of the duty alleged by the plaintiff, but did positively assert, inter alia, that its duty was limited by its function at the worksite, and also the provisions of an operating agreement that GEO had in place with the State. I am minded to agree with the plaintiff’s submission that GEO’s purported inability to understand this aspect of the plaintiff’s case against it does not accord with GEO’s admissions and assertions in that document.

26. The function of pleadings, as enunciated in McGuirk v University of New South Wales [2009] NSWSC 1424, is to identify the real issues between the parties and ensure that there is sufficient clarity for the case to be brought. In my view, that purpose has been achieved in the Further Amended Statement of Claim with respect to the nature and scope of the duty of care which the plaintiff alleges that GEO owed to him. The plaintiff asserts that GEO owed a duty akin to that which would be owed by an employer. Understandably, the plaintiff and GEO have differences of opinion about which interpretation of that duty is the correct one, but such differences are a matter for the trial judge to determine and are not appropriate to be resolved in an interlocutory application without the benefit of the relevant evidence.

27. Insofar as GEO has argued that the Further Amended Statement of Claim impermissibly conflates statutory obligations under the Work Health & Safety Act with the content of a duty of care at common law or under the Civil Liability Act, I accept (and am bound by) comments of the High Court that obligations under statutory enactments have relevance to determining the existence or scope of a duty. ^[3] While I agree with GEO that it would be incorrect to assert that a breach of a statutory obligation necessarily amounts to a breach of duty, paragraphs 9 and 10 of the Further Amended Statement of Claim go to scope and not breach, so this criticism does not arise in this aspect of the pleading.

    3. Ibid, at [49].

Risk of Harm

Parties’ Submissions

28. In the Further Amended Statement of Claim, the plaintiff makes the following allegations about what he says was the relevant risk of harm:

“[14]    The plaintiff’s working conditions have caused him to suffer psychological injury (‘the work injury’). (Particulars omitted.)

…

[17]    The risk of the work injury to persons in the position of the plaintiff was in the circumstances not insignificant.

[18]    A reasonable person in the position of GEO would have taken various precautions, steps or measures against the risk of the work injury.” (Particulars omitted.)

29. GEO submitted that these paragraphs seem to define the relevant “risk of harm” for the purpose of the Civil Liability Act 2002 (NSW) as a risk of suffering psychological injury at work, which it says is so general a definition as to be effectively meaningless.

30. GEO relies on the comments of Leeming JA in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320, to the effect that caution should be exercised in having too narrow or too general a formulation of the risk of harm. ^[4] GEO also relies on the judgment of Ward CJ in Eq (as the President then was) in Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610, where her Honour expressed that unless the relevant risk of harm is clearly identified, it will be impossible to determine what steps ought reasonably have been taken to address that risk or for the court to determine the application of the reasonable care required. ^[5]

    4. Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [100] – [129] per Leeming JA.

    5. Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610 at [64] per Ward CJ in Eq.

31. The plaintiff submitted that the proper characterisation of risk is enunciated in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited (2022) 96 ALJR 337; [2022] HCA 11 and relates to the correct identification of the relevant risk of injury. ^[6] That case also held that a defendant cannot avoid liability by characterising a risk at an artificially low level of generality, that is, with too much specificity. ^[7]

    6. Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited (2002) 96 ALJR 337; [2022] HCA 11 at [106].

    7. Ibid, at [108].

32. In oral submissions, Senior Counsel for the plaintiff asserted that the pleading of the risk of harm is plain on its face, and should be understood in the context of the pleading as an assertion that the conditions of the plaintiff’s work created an insecure environment in which there was a risk that a person may develop a psychological injury.

Consideration

33. I accept the submission of the plaintiff that the correct approach to the characterisation of risk is the identification of the relevant risk of injury, as enunciated by the High Court in Tapp. ^[8]

    8. Ibid, at [106].

34. This is an endeavour which will necessarily depend on the facts of each case. The level of specificity or generality which is acceptable depends very much on the nature of the allegations being put as a whole. In a case such as a slip-and-fall upon a wet floor, the relevant risk would be of a person slipping and sustaining personal injury. In a case relating to medical negligence, the risk may relate to a patient suffering a particular complication of surgery, or developing a post-surgical infection, as the case may be. These trite examples illustrate that the risk relevant to the case at hand arises from the nature of the harm suffered.

35. In a case such as this where no specific incident is relied upon, and the harm is said to arise from the nature and conditions of a particular environment, it seems to me that the only sensible way to characterise the risk is the risk of a kind of injury arising from persons being subjected to such conditions. Here the plaintiff claims that the staffing levels employed by GEO and other aspects gave rise to a real fear in the plaintiff for his safety and, eventually, caused the psychiatric injury.

36. The Further Amended Statement of Claim permits the relevant risk of harm in this case to be ascertainable and capable of being understood in the context of the document as a whole, and therefore GEO’s criticism on this issue is not made out.

Foreseeability of Risk

Parties’ Submissions

37. In respect of foreseeability of risk, the Further Amended Statement of Claim alleges as follows:

“[16]    The risk of the work injury to persons in the position of the plaintiff was in the circumstances foreseeable.”

38. GEO submitted that this allegation makes no attempt to plead material facts as to whether GEO had actual or constructive knowledge of the risk. It relies on the judgment of Garling J in PWJ1 v The State of New South Wales [2020] NSWSC 1235, wherein his Honour stated at [75] that a plaintiff must plead that the defendant either knew of the alleged risk of harm as at the date of the negligence, or by reference to other matters, facts or circumstances ought to have been aware of it.

39. In respect of this criticism, the plaintiff drew the Court’s attention to authority that the precise and particular character of the injury or the precise sequence of events leading to the injury need not be foreseeable, and that it is sufficient if the kind or type of injury was foreseeable. ^[9]

    9. Ibid.

38. Senior Counsel for the plaintiff also asserted that the issue of whether GEO knew or ought to have known about the risk of harm is a matter which will ultimately be explored in the evidence.

Consideration

41. The assertion that the risk of harm was foreseeable is not properly pleaded. Paragraph 16 of the Further Amended Statement of Claim is merely an assertion that the risk was foreseeable.

42. I have had regard to the comments of Garling J which were relied upon by GEO. His Honour was clear that a proper pleading of the foreseeability of risk must include details of whether the defendant either knew of the alleged risk of harm as at the date of the negligence, or by reference to other matters, facts or circumstances ought to have been aware of it. The Further Amended Statement of Claim does not do so, and in light of this authority which I accept, the plaintiff’s assertion that this deficit will be cured by evidence is not appropriate to ameliorate the shortcoming in the pleading.

43. An assertion that a risk of harm was actually within a defendant’s knowledge or was a risk of which the defendant ought to have known are two quite different allegations. Putting a case on one basis or the other prompts the prosecuting party to particularise the basis upon which the method of foreseeability is propounded. This allows the defendant to understand the case it is required to meet and gather evidence accordingly.

44. A plaintiff is not restricted to one only of the allegations. Thus, the plaintiff here could, were he so advised, plead knowledge of the risks and, in the alternative, if there were not actual knowledge, then the defendant ought to have known.

45. In that scenario, the required pleading may not limit the work required by the defendant and, in some senses, seems unnecessary. Nevertheless, the plaintiff should specify whether he alleges there was actual knowledge of the risk and how the foreseeability arises.

Risk Not Insignificant

Parties’ Submissions

46. Paragraph 17 of the Further Amended Statement of Claim states:

“[17]    The risk of the work injury to persons in the position of the plaintiff was in the circumstances not insignificant.”

47. In respect of this issue, GEO relies on authority that the concept of a “not insignificant” risk calls for a prospective assessment of the risk of harm, at least in the form of particularisation of an assertion that it was not insignificant. ^[10] GEO submitted that the plaintiff has failed to plead any material facts going to this issue and that this should have been provided. GEO submitted that the failure to do so amplifies the failure to properly plead the risk of harm.

Consideration

10. PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [81] per Garling J.

48. There is some force in this submission, particularly when regard is had to the view that Garling J stated in PWJ1 ^[11] at [81] as follows:

“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’:

(a)    the assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play.

(b)    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;

(c)    the phrase ‘not insignificant’ is intended to refer to the probability of the occurrence of the risk;

(d)    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

(e)    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.”

11. PWJ1 v The State of New South Wales [2020] NSWSC 1235.

49. In this case, the allegation relating to the significance of the risk is framed in terms that in the circumstances of the case, the risk was not insignificant. It is necessary in dealing with the defendant’s objection in this respect to return to fundamental principles. First, the pleadings define the issues between the parties. Secondly, a pleading must be brief and internally consistent.

50. The rules of procedure, and the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) require a pleading to allege all material facts, but not evidence. Where the pleading party asserts a conclusion, the conclusion should be pleaded and the material facts from which the conclusion was deduced.

51. The allegation that a risk is “not insignificant” is a conclusion based on the facts proved at trial. The facts proved at trial will depend on the evidence adduced and accepted. But the evidence should not be pleaded. Here the risk is that a worker on the premises would suffer mental illness as a result of the conduct of GEO. The conduct is pleaded. Whether the conduct (including the failure to take steps) gives rise to a “not insignificant” risk is to be determined at trial.

52. It is important to note that UCPR r 14.28 permits the Court to strike pleadings if those pleadings do not disclose a cause of action; are embarrassing (in the technical pleading sense); or amount to an abuse of process. Otherwise, a pleading, or part of a pleading, may be struck out because it is frivolous or vexatious. ^[12]

    12. Uniform Civil Procedure Rules 2005 (NSW), r 4.15.

53. Lack of perfection, if there be any, is not a basis for striking out a pleading. Paragraph 17 of the Further Amended Statement of Claim, unsurprisingly, follows paragraphs 13-16. Paragraph 13 is in the following terms:

“[13]    During the plaintiff’s work at PCC, subsequent to GEO commencing to operate PCC, he was to exposed to an unsafe workplace environment, events and circumstances causing fear for personal safety, stress/anxiety and insecurity at work (‘the working conditions’).

Particulars

(i)    The cessation of correctional officer escorts while the plaintiff moved about PCC performing his work duties.

(ii)    The removal of four armed towers as a security measure.

(iii)    The need to walk amongst groups of inmates without the presence of correctional officers or monitoring.

(iv)    An increase in response time to duress alarm activation.

(v)    A reduction of the ratio of correctional officers to inmates escorting cell visits by the plaintiff to perform his work duties.

(vi)    The ability of inmates to enter the clinic without a correctional officer present.

(vii)    The requirement that nursing staff have custody and control over keys providing access/exit from all areas of PCC.

(viii)    A failure to adhere to or enforce the ‘sight and sound policy’ leaving the plaintiff out of sight or sound of correctional officers when with or near inmates.

(ix)    A failure to maintain the correctional officer to inmate ratio during exercise periods in the yard.

(x)    The cessation of clearing the yard and then correctional officers escorting medical staff to attend an injured inmate leaving the plaintiff attending to an inmate amongst a large group of inmates.

(xi)    A significant increase in assaults by inmates on staff.

(xii)    A significant increase in security breaches giving inmates ability to access and possess contraband including weapons.

(xiii)    On or about 27 November 2104 the plaintiff was assaulted by an inmate (G Mailes) (incident report 1792318-20).

(xiv)    On or about 3 April 2015 the plaintiff raised concerns he had about interacting with an inmate (Jones) and the inmate’s harassment of staff.

(xv)    The introduction of a smoking ban at PCC requiring the distribution of nicotine patches causing regular and routine conflict, harassment and a deterioration in inmate behaviour.

(xvi)    The introduction of a smoking ban at PCC causing the making and use by inmates of ‘teabacco’ to which the plaintiff was exposed.

(xvii)    On or about 21 October 2015 the plaintiff was threatened by an inmate (incident report 2002221-20).

(xviii)    On or about 12 December 2015 the plaintiff was threatened by an inmate (incident report 2034964-20).

(xix)    On or about 19 February 2016 the plaintiff was involved in an incident concerning a threat to staff (incident report 2074549-20).

(xx)    On or about 12 April 2016 the plaintiff was assaulted by an inmate (A Moussa) (incident report 2109882-20).”

54. Paragraph 13 of the Further Amended Statement of Claim sets out the alterations in working conditions allegedly effected by GEO. Paragraph 18 of the Further Amended Statement of Claim particularises the steps that should have been taken to avoid or ameliorate the risk. This is a prison environment in which, by definition, the safety of staff working there is an obvious issue. The claim does not relate to an unlit parking lot.

55. The facts leading to the risk are pleaded; the steps that ought to have been taken to overcome the risk are also pleaded. It is then sufficient, given the entirety of the pleading, to allege the conclusion.

Whether a Reasonable Person Would Take Precautions

Parties’ Submissions

56. GEO also submitted that there is a general lack of pleadings of material facts for each of the matters relevant to s 5B(2) of the Civil Liability Act (save perhaps (d), being:

1. the probability that the harm would occur if care were not taken,

2. the likely seriousness of the harm, and

3. the burden of taking precautions to avoid the risk of harm.

4. the social utility of the activity that creates the risk of harm.

57. GEO referred to Garling J’s comment in PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [83], that:

“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.”

Consideration

58. Section 5B(2) of the Civil Liability Act outlines factors that the Court is to take into account when assessing whether or not a reasonable person would have taken precautions against a risk of harm. Those factors are not exhaustive. As I have noted above, GEO relies on authority to the effect that the matters within s 5B(2) of the Civil Liability Act may well need to be pleaded, depending on the circumstances of the case and how it is framed by the plaintiff. ^[13]

    13. PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [83].

59. Paragraph 18 of the Further Amended Statement of Claim alleges that a reasonable person would have taken precautions, and the particulars to that paragraph set out the precautions that the plaintiff says would have been taken. The Further Amended Statement of Claim is otherwise silent on the factors expressed in s 5B(2), namely the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity that creates the risk of harm.

60. Pursuant to the terms of s 5B(1) of the Civil Liability Act, it is for the plaintiff to satisfy the Court that a reasonable person in GEO’s position would have taken precautions against the risk of harm, in order for GEO to be found negligent. That will necessarily involve taking the Court through the matters contained in s 5B(2).

61. As stated in Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70:

“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 ….”

62. The comments already made in these reasons in relation to the issue of “insignificant risk” are relevant to consideration of this issue. The Court is not concerned with imperfection – pleadings need not be perfect, although it is difficult to imagine what else could be pleaded to allege that a reasonable person would take the precautions in paragraph 18, or some of them.

63. Those precautions are either reasonable or they are not. The “reasonableness” of the particular precaution is to be evaluated by the Court. The Civil Liability Act, and in particular s 5B thereof, is to be satisfied at the conclusion of the trial, on the basis of the evidence adduced; not on the pleadings.

64. The pleadings are required, as already stated, only to allege the conclusion sought and the material facts upon which the conclusion is based. This has been done.

Breach and Precautions

Parties’ Submissions

65. The Further Amended Statement of Claim deals with the issue of reasonable precautions that the plaintiff says GEO ought to have taken as follows:

“[18]    A reasonable person in the position of GEO would have taken various precautions, steps or measures against the risk of the work injury.

(i)    Performing a detailed risk assessment of security arrangements and procedures for the safety, protection and wellbeing of persons in the position of the plaintiff.

(ii)    Performing a detailed risk assessment of the workplace environment for the safety, protection and wellbeing of persons in the position of the plaintiff.

(iii)    Investigating, assessing and addressing any incident reports or concerns expressed in relation to the safety and wellbeing of persons in the position of the plaintiff.

(iv)    Providing adequate correctional officer ratio, presence, support and monitoring during the plaintiff’s movements about PCC and interaction with inmates.

(v)    Providing an adequate response time to duress alarm activation.

(vi)    Controlling and restricting access by inmates to the healthcare facility.

(vii)    Enforcing the ‘sight and sound’ policy.

(viii)    Enforcing clearing the yard prior to the plaintiff attending an inmate in need of medical attention.

(ix)    Devising and enforcing security procedures to control inmates to prevent threatening behaviour by inmates towards staff.

(x)    Devising and enforcing security procedures to control inmates to prevent assaults by inmates on staff.

(xi)    Devising and enforcing security procedures to control the obtaining and use of contraband by inmates.

(xii)    Performing a detailed risk assessment prior to the implementation of the smoking ban.

(xiii)    Performing a review of problems and concerns arising as a result of the smoking ban and addressing them.

(xiv)    Periodically reviewing, assessing and addressing risks of harm faced by staff in the position of the plaintiff.

(xv)    Complying with section 19(2) and (3) of the Work Health & Safety Act.”

66. GEO submitted that these allegations are not sufficiently supported by material facts and are otherwise defective, as they do not contain sufficient particularisation. GEO criticised the lack of specificity as to the dates or relevant periods in which the plaintiff says that GEO should have taken the precautions, as well as a failure to identify the actual operation of each precaution. By way of example, GEO says that in respect of sub-paragraph (i), the plaintiff has not identified what “risk assessment” that he says GEO should have performed, what that risk assessment ought to have shown, and what subsequent steps would have been taken. GEO’s critiques of sub-paragraphs (i) to (xiv) (both inclusive) are framed in similar terms.

67. In relation to sub-paragraph (xv), GEO submitted that the allegation does not identify how it is said that a failure to comply with the Work Health and Safety Act is relevant to an analysis under section 5B of the Civil Liability Act, nor how it is said that there was a failure to comply with the Work Health and Safety Act.

68. GEO calls on the authority expressed by Basten and Meagher JJA in Bauer Medica Pty Ltd v Khedrlarian [2020] NSWCA 288, where their Honours said at [15]:

“The judge rejected the second objection as ‘in the event, irrelevant.’ It may be that this arose from the fact that the third objection was treated as significant. The judge described it as ‘more subtle’ and as engaging with ‘the unfortunate practice of many experts who recite platitudes as evidence of failings by defendants.’ He also noted that the particulars of negligence pleaded ended without informing the defendant of ‘the precise action required to prevent the plaintiff’s injuries.’ The judge aptly quoted Isaacs ACJ in The Metropolitan Gas Company v City of Melbourne Corporation for the proposition that ‘[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done.’ The judge noted the complaint that the particulars failed to identify what was a proper system of task rotation, a problem which was not resolved by Mr Cockbain’s report.”

Consideration

69. The plaintiff has particularised some 15 precautions that ought to have been implemented in the circumstances pertaining to the prison as a worksite. While the plaintiff does not specify the contents of the risk assessment or security measures, for example, their contents must be the subject of evidence and possibly expert evidence. But the common understanding of the terms, which are well-known and, in the case of risk assessments, “well-litigated”, is sufficient for present purposes.

Circumstances Leading to Harm

Parties’ Submissions

70. Paragraphs 13 and 14 of the Further Amended Statement of Claim outline the circumstances that the plaintiff says led to him sustaining personal injury. Paragraph 13 has already been recited. Paragraph 14 is in the following terms:

“[14]    The plaintiff’s working conditions have caused him to suffer psychological injury (‘the work injury’).

Particulars

(i)    Post-Traumatic Stress Disorder.

(ii)    Persistent Depressive Disorder with Anxious Distress.”

71. In respect of these paragraphs, GEO submitted that the circumstances pleaded pick up concepts of breach and causation but do not reference any material facts or proper pleading in that regard. GEO also said that the plaintiff’s particularisation of the “working conditions” is inadequate as precisely the matters relied upon in terms of the detail, content and timing are not identified.

Consideration

72. The details that the plaintiff has provided of the “working conditions”, including the alteration in conditions by GEO, that are said to have led to the harm amount to 20 individual assertions, traversing both particular incidents (such as in sub-paragraphs (xiii), (xvii), etc) and more general aspects of the working environment (for example, sub-paragraphs (i) and (ii), etc).

73. I do not consider that they are imprecise such that GEO would not be able to understand the basis upon which the plaintiff contends that the “working conditions” are said to have led to him suffering harm. The paragraphs are plain on their face and in my view, adequately outline the issues agitated against GEO on this issue.

Causation

Parties’ Submissions

74. On the matter of causation, the plaintiff’s contentions are formulated as follows:

“[19] The failure of GEO to take one or more of the precautions referred to caused the work injury within the meaning of the section 5D(1) of the Civil Liability Act, in that those failure(s) were a necessary condition of the work injury and it is appropriate for the scope of GEO’s liability to extend to the work injury suffered by the plaintiff.

[20]    Alternatively, the failure by GEO to take one or more of the precautions referred to caused the work injury within the meaning of section 5D(2).”

75. In its submissions, GEO said that these allegations amount to no more than a bald assertion of causation. It submitted that the plaintiff failed to meet the obligation enunciated by Williams J in Richmond City Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761, that a pleading must contain a direct and unambiguous identification of the material facts relied upon to establish the causal link between the defendant’s impugned conduct and the plaintiff’s alleged loss. ^[14]

    14. Richmond City Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761 at [130] per Williams J.

76. Senior Counsel for the plaintiff submitted that this case is not one in which there is a single viable causal pathway which needs to be established, as the plaintiff’s case is that the nature and conditions of his employment created a general environment of insecurity and therefore fear on his part, the combination of which led to his psychological decompensation.

Consideration

77. It is well-established law that a pleading of causation must go beyond a mere assertion that a defendant’s negligence led to a plaintiff suffering harm. A pleading must use material facts to establish the causal link which will be used at trial to sheet liability home to the defendant. The requirement to do so accords with the overarching purpose of the pleading to identify the issues to be tried.

78. However, the plaintiff has sufficiently pleaded causation and done so in a manner that permits the defendant to understand the case it is to meet and to prepare and present its own case.

Other Criticisms

79. Otherwise, GEO generally submitted that the deficiencies in the claim persist despite GEO setting them out in correspondence to the respondent. GEO says that this is aggravated by the level of generality provided in the plaintiff’s evidentiary statement and expert liability report, which do not assist it in understanding the case that it is required to meet.

80. GEO also submitted that the Further Amended Statement of Claim cannot be allowed to stand and should be struck out, and if the plaintiff is unable to put forward a properly pleaded claim, the proceedings should be dismissed,

81. The plaintiff submitted in response that the Further Amended Statement of Claim adequately pleads the cause of action, namely the source, content, and breach of the alleged duty of care, and the alleged injury and harm caused to the plaintiff. The plaintiff also submitted that the pleading is readily capable of being understood, and therefore there is no basis for striking it out.

82. The plaintiff says that GEO cannot now say that it does not understand the claim in circumstances where it has filed a Defence to a previous iteration of the Further Amended Statement of Claim, filed a Cross-Claim and Defence to Cross-Claim, and instructed medical experts.

Legal Principles

83. The power of this Court to strike out a pleading or a proceeding arises in the context of the obligation placed upon the Court, practitioners, and the parties to facilitate the just, quick, and cheap resolution of the real issues in proceedings, as required by s 56(1) of the Civil Procedure Act 2005 (NSW). The real issues are those defined by the pleadings.

No Reasonable Cause of Action

84. In the exercise of either discretion on the basis of a lack of a reasonable cause of action, the commentary of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) ^[15] is authoritative:

“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’.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’.”^[16]

15. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.

16. Ibid, at 134.

85. As this passage illustrates, to make a finding that either a pleading or a proceeding as a whole does not disclose a reasonable cause of action, the Court must be satisfied that it is plainly and irreparably hopeless. This is a stringent test, and it is the test which GEO must meet to be successful in this application.

Striking Out of Proceedings

86. If an absence of a reasonable cause of action is established, the discretion to strike out the whole of the proceedings is still only exercised where it would be in the interests of justice to do so. ^[17] For example, in Wentworth v Rogers (No 5) ^[18] the Court held that it is not appropriate to dismiss proceedings if the pleadings are merely poorly expressed. Similarly, in Mutual Life & Citizens Assurance Co Ltd v Evatt ^[19] the Court found that it would be inappropriate to dismiss proceedings if the deficiency could be cured by way of a legitimate amendment to the offending pleading.

    17. Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48.

    18. Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.

    19. Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 631; [1968] HCA 74.

87. The fundamental principle underlying these applications was enunciated by Cross J in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944, wherein his Honour held that:

“prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases”.

88. In a similar fashion, it has previously been held that in cases such as this where there is more than one defendant, it is not appropriate to exercise the discretion to strike out a proceeding on the application of only one of them, even when there is no clear case against it. ^[20] This is often referred to as the Wickstead principle, after the judgment of the Court of Appeal. The rationale for the principle is that any gaps in the case against one defendant may be filled by the evidence to be called by the other defendant when the matter eventually goes to trial. ^[21]

    20. Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272.

    21. Moussa v Camden Council (2022) 162 ACSR 586 [2022] NSWSC 913 at [59] per Garling J.

89. However, it is important to note that this principle is a qualified one, and does not preclude one defendant from successfully applying for summary dismissal if it can prove that there is a deficiency in the case against it, as well as satisfy the court that the evidence to fill such deficiency would be “unlikely to be forthcoming”. ^[22] As explained by S G Campbell J in Sanders-Pattinson v Brown [2012] NSWSC 443 at [28]:

“The principle…. can be excluded if the applicant for summary judgment demonstrates that the evidentiary gap in the plaintiff’s case, which the applicant has exposed, will not be closed at the trial. Presumably, this demonstration must achieve the same high degree of certainty required to be achieved by the applicant for summary dismissal for the application to be made good.”

22. PAO v Trustees of the Roman Catholic Church for the Diocese of Sydney [2011] NSWSC 1216 at [106] per Hoeben J.

Striking Out of Pleadings

90. In the context of the foregoing, it should come as no surprise to the reader that the related power of the court to strike out pleadings for want of a reasonable cause of action is exercised only in cases that are plain and obvious. ^[23]

    23. Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937

91. In circumstances where the defects in the pleading can be corrected by an amendment, it is preferrable for the court to grant leave to amend the pleading, rather than strike it out. ^[24]

    24. Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.

Consideration of Strike Out

92. A finding that a proceeding or pleading does not disclose a reasonable cause of action is not made lightly by the Court. The right of an aggrieved person to have their case determined on its merits is a foundational aspect of the system of justice that we enjoy in this State. It is for that reason that the test for doing so requires the Court to be satisfied that the case is manifestly groundless and clearly untenable. The Court, in doing so, takes into account that defendants should not be subjected to the expense and inconvenience of defending proceedings that are doomed to fail or are otherwise frivolous or vexatious, as provided for by r 13.4 of the UCPR.

93. I am not persuaded that the plaintiff’s case is manifestly groundless, or one in which the discretion to strike out would be appropriately exercised. Objectively, the Further Amended Statement of Claim raises a real issue to be tried between the plaintiff and GEO, namely whether the nature and conditions of the working environment at the premises managed by GEO caused the plaintiff’s alleged psychological injury and whether GEO were negligent in implementing those conditions. As such, the striking out of the proceedings at this stage is not warranted.

94. The striking out of a pleading is also not undertaken except in the clearest of cases. GEO’s application to strike the Further Amended Statement of Claim out is on the basis that it does not disclose a reasonable cause of action, and in my view GEO has not made good on that assertion. The Further Amended Statement of Claim does contain a reasonable cause of action against GEO. While there is a defect in the Further Amended Statement of Claim to which I have earlier referred, in my view it is possible for this to be cured by amendment, and the discretion to strike out the pleading should not be exercised.

Determination

95. In all the circumstances, I am satisfied that the striking out of the Further Amended Statement of Claim or the proceedings generally is not warranted. For that reason, I have determined to grant leave to the plaintiff to file any Second Further Amended Statement of Claim within 4 weeks of the date of these orders, with any Defences to that document to be filed 28 days thereafter.

Costs

96. Given that GEO has not been successful on its Motion in securing a strike out of the proceedings or the Further Amended Statement of Claim, prima facie the plaintiff would be entitled to a costs order on the usual basis that costs follow the event. The Court must make an overall assessment. The “defect” I have identified can easily be cured, and were the objection confined to that defect, I have little doubt that litigation would have been unnecessary.

Orders

97. I make the following orders:

1. Leave be granted to the plaintiff to file and serve a Second Further Amended Statement of Claim within 4 weeks of the date of this judgment.

2. Leave be granted to each defendant, to the extent advised, to file and serve a Defence to any Second Further Amended Statement of Claim within a period of 28 days after service.

3. The Motion, notice of which was filed by the first defendant on 19 September 2022, is dismissed.

4. The first defendant shall pay the plaintiff’s costs of and incidental to the Motion.

**********

Endnotes

Decision last updated: 27 June 2023