Knight v Commonwealth of Australia
[2014] ACTSC 403
•19 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Knight v Commonwealth of Australia |
Citation: | [2014] ACTSC 403 |
Hearing Date: | 19 September 2014 |
DecisionDate: | 19 September 2014 |
Before: | Mossop M |
Decision: | See [14] |
Category: | Interlocutory application |
Catchwords: | PRACTICE AND PROCEDURE – Application to amend statement of claim and add defendants – whether relationship which might give rise to vicarious liability can exist between a military officer and another military officer – whether the law may be developed so as to impose such a liability – turns on own facts |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 223 |
Parties: | Julian Knight (Plaintiff) Commonwealth of Australia (Defendant) |
Representation: | Counsel: Self-represented (Plaintiff) Mr R Crowe SC (Defendant) |
| Solicitors: Self-represented (Plaintiff) Australian Government Solicitor (Defendant) | |
File Number(s): | SC 176 of 2014 |
The plaintiff commenced proceedings by originating claim dated 23 May 2014 against the Commonwealth for what was described as an employment personal injury claim. That was accompanied by a statement of claim suited to an employment personal injury claim. The statement of claim alleges negligence on the part of the defendant arising out of assaults on the defendant by other cadets at the Royal Military College Duntroon, which are alleged to have occurred in February 1987, on 17 March 1987 and on 31 May 1987.
On 15 August 2014 I made some directions in response to complaints made by the Commonwealth about the adequacy of the pleadings. In particular, I directed that the plaintiff provide a statement identifying what was alleged to amount to a breach of duty of care by the Commonwealth. That was ultimately done in a letter dated 22 August 2014, sent to the Court and the defendant by fax on 8 September 2014. The plaintiff also sent to the Court by facsimile dated 1 September 2014 a statement of claim in Form 2.6, as provided for under the Court Procedures Act 2004 (ACT), which the plaintiff had sought to file in the registry.
The plaintiff indicated that he sought leave to amend his claim so as to put it in the form of the statement of claim annexed to the fax, or alternatively, to file new proceedings based on that statement of claim. The statement of claim purported to identify as parties, in addition to the first defendant, 16 other defendants, each being persons who were, in one way or another, involved in the operation of the Royal Military College in 1987. No amended originating application was sought to be filed.
At the directions hearing on 5 September 2014 the defendant identified that it objected to the amendment to the statement of claim in the manner sought and to the joinder of additional parties. I directed that the defendant file and serve written submissions relating to the joinder of other parties and that the plaintiff have the opportunity to file written submissions in response. The defendant did file written submissions 11 September 2014. No submissions were filed by the plaintiff.
In order to understand the submissions it is necessary to say something more about the proposed amended statement of claim. The statement of claim amends the number of assaults alleged to include assaults on 30 May 1987 and to particularise in more detail the other assaults. The additional defendants fall into three categories. There are those defendants who are said to be liable to the plaintiff by way of the tort of trespass to the person, namely the 9th, 11th, 13th, 14th, 15th, 16th and 17th proposed defendants. The 1st to 10th proposed defendants are said to be vicariously liable for the tortious actions of the 11th of the 17th proposed defendants. The 11th and 12th proposed defendants are said to be vicariously liable for the tortious actions of the 13th to 17th proposed defendants.
In relation to the application to join the 9th, 11th, 13th, 14th, 15th, 16th and 17th defendants, r 223 of the Court Procedures Rules 2006 (ACT) requires that the plaintiff serve a copy of the application on the person proposed to be joined. This has not been done.
In relation to the claims based on vicarious liability, the first defendant submits that the relationship which might give rise to vicarious liability does not extend and could not exist between military officers and another military officer. While it has long been accepted that an employer is vicariously liable for the tortious acts of an employee, there is no authority that the defendant can locate ‑ or, I interpose, that the plaintiff could locate ‑ for the proposition that an employee may be vicariously liable for the tortious acts or omissions of a fellow employee, regardless of whether or not the employee is in a position of seniority or authority vis-a-vis the other employee.
While the defendant points out that the status of cadets at the Royal Military College is not, strictly speaking, that of employees of the Commonwealth, it accepts that because of the nature of the relationship between the Commonwealth and members of the armed forces, the Commonwealth may be held to be vicariously liable for the breach of duty of care owed by one of its service members to another.
The pleading also includes, as a component of the claim, that the defendants are vicariously liable to the plaintiff and that was because there was a non-delegable duty of care to the plaintiff. A non-delegable duty of care has been summarised as not only a duty to take care, but also to ensure that care is taken. Non-delegable duties of care arise out of relationships between employers and employees, principals and employees of independent contractors, school authorities and pupils, hospitals and patients, occupiers and contractual entrants. While the categories of relationship giving rise to non-delegable duties are not closed, the Court is slow to expand them.
The mixing up of concepts of vicarious liability and non-delegable duty in the pleadings is, to say the least, confusing. However, for the present purposes, in the absence of either party pointing me to an authority consistent with the arguability of the proposition that a more senior military officer was vicariously liable for the conduct of a more junior officer, I am not satisfied that it is appropriate to permit the joinder of the parties on the basis of the current pleadings.
In reaching that conclusion, I have not ignored the submission of the plaintiff that even if there is not current authority, the law may be developed so as to impose that liability. While I accept that the law is capable of development and the categories of vicarious liability are not necessarily closed, the proposition for which he contends would only be arguable in circumstances where there was a reasonable prospect of the principled development of the law to achieve the imposition of liability that he sought. He pointed out the circumstances that may exist where a ship was involved in an accident and a more junior officer was at the helm of the ship. He submitted that it would be unreasonable for the captain to escape vicarious liability in circumstances where the captain had overall responsibility for what the more junior officer was doing.
That submission does not quite address the question in the present case, which is whether that liability should be imposed by reason of the principle of vicarious liability. It may well be that in the circumstances posited the captain of the ship would be liable if the captain, him or herself, owed a duty of care, but not by reason of the imposition of liability by reason of vicarious liability. Therefore, the existence of that hypothetical situation does not indicate that the law of vicarious liability would be necessary to plug a gap in those circumstances, and in my view does not provide a principled basis on which it might reasonably be arguable that the law should be developed so as to impose a liability in the present case.
In summary, the reasons that I will refuse leave to the plaintiff to file the amended statement of claim provided in his facsimile of 1 September 2014 are:
(a)the amendment would necessitate an amendment of the originating claim joining additional parties;
(b)I would refuse to make an order joining the 2nd to 10th and 12th defendants because I am not satisfied that the claim against them would be an arguable one;
(c)I would also refuse leave to join the 11th and 13th to 17th defendants because r 223 of the Court Procedures Rules 2006 (ACT) has not been complied with; and
(d)in relation to the allegations of vicarious liability against the 11th defendant, in my view they also lack an arguable basis, although in relation to the joinder of the 11th defendant, the failure to comply with r 223 is also a basis for the refusal of leave.
As a consequence I refuse Mr Knight leave to amend his statement of claim or to amend the originating application to join the parties identified in that statement of claim.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 13 April 2015 |
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