Russell v Murrindindi Shire Council
[2019] VSC 560
•4 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2019 00061
| JOHN (JACK) RUSSELL | Plaintiff |
| v | |
| MURRINDINDI SHIRE COUNCIL | First Defendant |
| CRAIG LLOYD | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 June 2019 |
DATE OF JUDGMENT: | 4 September 2019 |
CASE MAY BE CITED AS: | Russell v Murrindindi Shire Council |
MEDIUM NEUTRAL CITATION: | [2019] VSC 560 |
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PRACTICE AND PROCEDURE – Summary judgment sought by defendants pursuant to the Civil Procedure Act 2010 (Vic) – Whether the plaintiff’s claim has any real prospect of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, referred to – Alternative application by the defendants to strike out statement of claim pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Statement of claim struck out with leave to amend.
PERSONAL INJURY – Whether the tort of intentional infliction of harm a recognised cause of action – Wilkinson v Downton [1897] 2 QB 57, Northern Territory v Mengel (1995) 185 CLR 307 and Magill v Magill (2006) 226 CLR 551, referred to – Whether there is a recognised psychiatric injury – Tame v New South Wales (2002) 211 CLR 317 and Giller v Procopets (2008) 24 VR 1, referred to – Requirements for pleading of tort of intentional infliction of harm.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the First and Second Defendants | Mr I Munt | Maddocks |
HER HONOUR:
Introduction
The plaintiff, Mr Russell is a retired person, and a resident of Yea. He represents himself in this proceeding.
The first defendant, Murrindindi Shire Council (‘Council’) operates various public services, including a library in the town of Yea (‘Yea library’). The second defendant, Mr Lloyd, is the chief executive officer of the Council (‘CEO’).
There is a history of disputation and litigation between the plaintiff and the defendants. This proceeding concerns the Council’s decision to restrict the plaintiff’s hours of access to the Yea library. The restriction was imposed by the Council for the purposes of protecting its staff, following an incident on 13 April 2016, where the plaintiff allegedly assaulted Ms Tull, a member of Council staff employed at the Yea library.[1] As a result of this alleged incident, the Council decided to prohibit the plaintiff from entering any Council premises for a period of twelve months (‘prohibition’). The Council then reviewed and renewed the prohibition in April 2017 and April 2018.
[1]On 14 November 2016, a magistrate convicted the plaintiff of unlawful assault and wilfully trespassing in a public place, and imposed fines of $1,500.00. A County Court judge set aside the orders, and imposed a fine of $500.00 without a conviction. On 26 July 2019, while judgment was reserved, McDonald J dismissed an application for judicial review of the County Court judge’s decision.
On 24 October 2018, the CEO invited the plaintiff to make submissions as to whether the prohibition ought to be varied, and the plaintiff did so. On 9 November 2018 the CEO notified the plaintiff that the Council had determined to vary the prohibition.
In his letter of 9 November 2018, the CEO wrote on behalf of the Council to the plaintiff as follows:
I note that your response letters to me on the 24th and 25th of October 2018 made submissions on the following:
1)You indicated that you were generally supportive of any easing of restrictions;
2)You asked for reasoning of why the proposed changes did not include a lifting of restrictions of visiting the Yea Library, and limited access to the Alexandra Library;
3)You asked for consideration of your inability to travel due to being restricted to an electric wheelchair.
In response to the matters you have raised, I provide the following advice.
1)Access to Yea Library – I understand your position related to the end of court orders/restrictions related to a member of or staff, however, and despite the IVO being allowed to lapse, I have an ongoing duty of care towards my staff. I will therefore not allow you to access the library during her hours of work;
2) I acknowledge your advice regarding your inability to travel.
In reviewing your submissions, and following further consideration, I have made determination that with effect from 1 December 2018, the previous restrictions that applied to your access to Council premises be lifted in full, with the exception of the following:
1)Access to the Yea Library and Customer Services Centre is permitted between the hours of 10am and 12pm each Friday;
2)Attendance at Council Meetings will be allowed, including submission of written Questions of Council in accordance with the relevant Local Law, however I will not allow participation in Public Forum at this time.
3) I will review participation in Open Forum again in 6 months.
...
I will continue to review the remaining restrictions.
On 10 January 2019, the plaintiff commenced this proceeding, alleging that the defendants had caused him mental harm resulting from the decision to restrict his access to the Yea library. As can be seen from the following, the plaintiff prepared the statement of claim without the benefit of legal assistance.
In his statement of claim, the plaintiff stated (reproduced verbatim, with headings and underlining omitted):
(1)That this claim is brought under the Wrongs Act S 67 - VBA deliberate act Personal Injury – Mental Harm/Injury and for a breach of the Plaintiff’s Human Rights Charter.
...
(7)The 2nd defendant was the decision maker & acted outside his scope of authority & without obtaining a formal Resolution of Council to grossly limit the plaintiff’s access to the Yea Library & in contravention of Civil Rights.
(8)The decision maker &author of the ‘Review’ – Mr Craig Lloyd, the C.E.O. of ‘Council’, did cause to resist the plaintiff’s access to the Yea Library to 2 hours only per week of opening of 6 days & of 43 ½ hours of operation
(9)That the plaintiff is unable to attend on those 2 hours nominated due to other personal commitments
(10)That such decision made – that states that – ‘I have an ongoing duty of care towards my staff – I will therefore not allow you (the plaintiff) to access the (Yea) library during her hours of work’ – (close quote) - & unfounded & Malicious & meant to harm.
(11)That a current Supreme Court action @ S CI/17/03875 for certiorari is to quash a County Judgement (sic) of Justice Mallaly & naming Mrs K Tull, employed by Council (+ 3 separate others) & who is the employee of Council that Mr Lloyd has now identified as the same person, Mrs Tull & whom he claims, he has an ‘ongoing duty of care (to shelter)’.
(12)That no evidence was tended to support the ‘Decision’.
(13)That no end date was given for the restrictions enforced upon the plaintiff.
(14)That no right of Review is available to the plaintiff, other than to litigate. & before a Judge & Jury off @5A!
(15)That I am disadvantaged, extremely distressed & humiliated by the improper action of Mr C. Lloyd.
(16)That the mental impairment is considered to be stabilised!
(17)That an agreement to waive the ‘Panel’ assessment of impairment is pleaded.
(18)That the plaintiff pleads for that discontinuance of restrictions placed on access to the Yea Library & for the benefit of his recovery from mental stress & disability and each defendant, The Murrindindi Shire council & Mr Craig Lloyd the following:
(a) Damages
(b) Aggravated damages
(c) Punitive damages
(d) Costs
(e) & such other orders as the Court deems fit
(19)That the plaintiff now suffers with mental harm, distress, separation phobia & fear of unwarranted confrontation with the named employee – Mrs Tull, - who is vindictive & a known liar by her own admission, as conflict of sworn evidence & who has free access to all Council facilities & not just her ‘place of work’ – as being the Yea library.
(20)That by virtue of the plaintiff’s mental impairment & suffering, & of the breach of The Wrongs Act = personal injury claim for damages is claimed as being as follows. @ (18) (a) (b) (c) (d) & (e) above
(21)The plaintiff claims from & of assessment of Mental Impairment, he pleads for a ‘Certificate of Assessment’ by a qualified psychological expert as the degree of damage to the plaintiff.
(22)The plaintiff claims for impairment, distress & loss of Human Rights due the restrictions placed for open access to the Yea Library & to Council open forum & which will be detailed prior to trial.
The Supreme Court action referred to in the statement of claim is a proceeding brought by the plaintiff seeking judicial review of a decision of the County Court, which heard an appeal from the Magistrates’ Court imposing a conviction and fines upon the plaintiff with respect to the incident at the Yea library referred to in paragraph 3 of these reasons. Judge Mullaly of the County Court set aside the conviction and reduce the fine payable by the plaintiff. On 26 July 2019, while judgment in this application was reserved, McDonald J dismissed the application for judicial review.[2]
[2][2019] VSC 464. The plaintiff has lodged an application for leave to appeal.
On 27 March 2019, the plaintiff filed an affidavit exhibiting a proposed amended statement of claim dated 18 March 2019. In addition to the damages stated in his original statement of claim, the plaintiff also claimed ‘damages for non-economic loss’ and ‘ongoing treatment’. The plaintiff stated that the harm suffered included fear of confrontation with Ms Tull at the Yea library. Further, the plaintiff sought the waiver of the requirement to serve a certificate of assessment under s 28LZMA of the Wrongs Act 1958 (Vic) (‘Wrongs Act’).
In their defence filed on 27 March 2019, the defendants largely denied or did not admit the allegations in the statement of claim. In particular, the defendants pleaded as follows:
As to paragraph 12, they deny the allegations made therein and say:
(a) On 13 April 2016 the Plaintiff assaulted Kerry Tull at Yea Library.
PARTICULARS
The Plaintiff grabbed Ms Tull’s arm, twisted it, and refused to
let go when asked by Ms Tull to do so.
(b)On 13 April 2016 Ms Tull was an employee of the First Defendant.
(c)On 28 April 2016 Ms Tull obtained an interim intervention order against the Plaintiff.
(d)On 14 November 2016 the Plaintiff was found guilty of trespass and common assault in the Magistrates’ Court of Victoria.
(e)On 18 April 2016 the First Defendant removed the Plaintiff’s licence to enter all premises of the First Defendant, including Yea Library, until 18April 2017.
(f)On 13 April 2017 the First Defendant removed the Plaintiff’s licence to enter all premises of the First Defendant, including Yea Library, until 18 April 2018.
(g)The intervention order pleaded at paragraph 12.c., above, lapsed on 21 September 2018.
(h)On 24 October 2018 the Second Defendant invited the Plaintiff to make a submission to the Second Defendant on whether the Plaintiff ought to be permitted to access the premises of the First Defendant.
...
(m)As at 9 November 2018 Ms Tull worked at Yea Library from Monday to Thursday, 9am to 5pm.
(n)As at 9 November 2018 the First Defendant owed a duty of care to Ms Tull in her capacity as an employee of the First Defendant.
(o)On 9 November 2018 the Second Defendant determined that the First Defendant should protect Ms Tull from contact with the Plaintiff at Yea Library.
Further, the defendants alleged that the risk that the plaintiff would suffer the alleged harm due to the access arrangements to Yea library imposed on the plaintiff was not foreseeable, that the risk that the plaintiff would suffer the alleged harm was insignificant, and that a reasonable person in the defendants’ position would not have permitted the plaintiff to access the Yea library during Ms Tull’s working hours.
Also on 27 March 2019, the defendants filed a summons seeking the following relief:
1.summary judgment pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) and ss 62 and 63 of the Civil Procedure Act 2010; or, in the alternative
2.an order striking out the Plaintiff’s statement of claim pursuant to r 23.02 of the Rules; or, in the alternative
3.an order that the proceeding be permanently stayed, pending provision of a Certificate of Assessment, pursuant to s 28 LZMA of the Wrongs Act 1958; and
On 14 June 2019, the plaintiff issued a summons seeking that the defendants make discovery and answer interrogatories. Given the nature of the relief sought by the defendants in their summons, I decided to defer consideration of the applications in the plaintiff’s summons pending the outcome of the defendants’ application for summary judgment.
Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) provides as follows:
(1) Where a proceeding generally or any claim in a proceeding—
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
Rule 23.02 of the Rules provides as follows:
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a)does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
In addition, the defendants rely upon s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), which provides as follows:
Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
The test under s 63 of the CPA is governed by the statement of the Court of Appeal in the oft-cited decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[3] as follows:
(a)the test for summary judgment under section 63 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[4]
[3][2013] 42 VR 27.
[4]Ibid [35].
Further, Neave JA (who otherwise concurred with the statements made by the majority above) stated as follows:
… I am concerned that undue emphasis on the caution with which a Court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s.63 have little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s.1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purposes of [the CPA], imposed by s.8.[5]
[5]Ibid [41].
In contrast with r 23.01 of the Rules and s 63 of the CPA, r 23.02 of the Rules is concerned with the sufficiency of a pleading rather than the viability of a claim.
In the alternative, the defendants applied for a stay of the proceeding pending provision of a certificate of assessment pursuant to s 28LZMA of the Wrongs Act (‘significant injury certificate’). Notwithstanding the plaintiff’s assertion to the contrary, the defendants have expressly refused to waive the requirement for the plaintiff to serve a significant injury certificate.
For the reasons which follow, I will strike out the statement of claim. However, at this stage, I do not propose to order summary judgment in favour of the defendants. Rather, the plaintiff should have an opportunity to re-plead his claim, preferably with legal assistance. Further, I will direct that if he wishes to pursue a claim for personal injury arising out of the alleged negligence or breach of statutory duty of the defendants, he must serve a significant injury certificate within a certain period of time.
Submissions
In their written outline of submissions dated 27 March 2019, the defendants identified the deficiencies in the plaintiff’s statement of claim, as follows:
The statement of claim:
a.does not plead any of the elements of a duty of care under ss 72 or 48 of the [Wrongs] Act. The Defendants do not know whether the claim (which appears to seek relief for both mental harm and emotional distress) alleges the existence of a duty of care which may be affected by one, both, or either of those provisions.
As a consequence, the statement of claim does not plead that one or both Defendants owed the Plaintiff a duty of care and, as such, does not and cannot allege that one or both Defendants breached that duty of care;
b.does not plead whether any duty of care said to have been owed by one or both Defendants arose under the common law or by virtue of legislation;
c.does not identify what mental harm the Plaintiff is said to have suffered, let alone whether it is a recognised psychiatric illness;
d.does not identify a causal link between the mental harm the Plaintiff says he has suffered and the Second Defendant’s determination of the Plaintiff’s access arrangements to Yea Library. At best, paragraph (15) of the statement of claim alleges a causal link between that decision and some kind of emotional distress;
e.does not identify whether the emotional distress the Plaintiff is said to have suffered is consequential mental harm...
f.does not comply with the requirements of Part VBA of the [Wrongs] Act despite seeking damages for non-economic loss;
g.does not identify which of the damages, aggravated damages, and punitive damages the Plaintiff seeks are for economic loss or non-economic loss; and
h.pleads no facts relevant to any assessment of damages, aggravated damages and punitive damages.
Counsel for the defendants submitted that it would be a waste of the Court’s resources for the proceeding to continue, given among other things, the state of the pleadings, the contents of Dr Ingram’s report (which suggests that any impairment to the plaintiff’s mental health was caused by events unrelated to the prohibition), and the fact that the decision complained of actually involved a relaxation of the restrictions imposed upon the plaintiff’s access to Council facilities. The remedy for the plaintiff’s grievances against the Council are not to be found in a proceeding of this nature.
The plaintiff filed numerous affidavits and submissions in opposition to the defendants’ application, some of which were repetitive and almost unintelligible. It is not necessary for present purposes to traverse the contents of documents filed by the plaintiff in any detail, including the additional documents filed by the plaintiff after the hearing of the application.
On 14 June 2019, the plaintiff filed a written outline of submissions, stating as follows:
(1)The plaintiff suffers from a diagnosed serious mental impairment & as a consequence of a deliberate act of the defendants’ to grossly limit the plaintiff’s access to the Yea Library & in contravention of his Civil & Human rights & as an aggravation of a pre existing injury.
(2)That a Psychiatric Report of Dr Ingram dated the 17/1/19 is evidence – Exhibit T (a) & plus Russell Rebuttals Exhibit III(b).
(3)That the 1st defendant has caused to enforce continuous unfounded bans & since April 2016, upon the plaintiff.
(4)That the 2nd defendant acted outside his scope of authority in extending the period of the bans & without evidence of an appropriate authority of council.
(5)That evidence will prove that a serious (sic) of lies, fabrication & deceit were perpetuated by the defendants.
(6)That reasons given for the bans & restrictions & the time frames, were a fabrication meant to harm the plaintiff & far in excess of any benefit expected to be achieved & I example the following, but not necessarily limited to –
(a)Yea Library restricted Wednesday 9am to 1pm & whilst reason given was not consistent with time period of 10am to 12 noon (later to 11am to 12 noon) & meant to decision
(b)Enforced bans to 43 nominated facilities wrongly claimed to be owned outright fee simple by Council & later proven to be a fabrication & meant to deceive.
(c)Yea Library – Council wrongly enforced restrictions for each Friday from 12 noon to 5pm & whilst the reason given was not consistent with the total period of available time as being from 9am to 5pm of each Friday – refer exhibit JR II 1/4/19 of the Court file & as a decision meant to deceive.
(7)That a parallel action @ S CI/17/0387[6] brought by the plaintiff, as part heard, has the portent to nullify this substantive action @ S ECI/19/00061.
[6]The reference to this proceeding is the judicial review proceeding dismissed by McDonald J on 26 July 2019.
On 17 January 2019, Dr Nicholas Ingram, a consultant psychiatrist, conducted a psychiatric assessment of the plaintiff in relation to a slip-and-fall accident that was not the subject of this proceeding. At the commencement of his report, under the heading ‘Presenting Complaint’, Dr Ingram stated as follows:
Mr Russell stated that his problem related to a fall he had had on the 26th September 2018.
Further, Dr Ingram summarised the plaintiff’s psychiatric history and condition as follows:
Mr Russell is an 80-year-old man who presents nearly a year and a half since an accident in the city where he tripped on a depression in a pavement, injuring his left shoulder, his left knee, and ankle and his neck. Since then he has had chronic pain in these areas and has become more limited in what he can do physically, which has left him feeling more vulnerable and helpless and led him to withdraw from some of his previous interests.
Psychologically he has become more depressed and anxious following his injury and his limitations, though he has still been able to look after himself and pursue some of his previous interests, such as taking on other peoples’ legal cases, though to a lesser degree.
There was a history of many previous trauma in his life, starting when he was six and was run over by a tram and then developed diphtheria while in hospital, leading to a long hospital admission where he was away from his family. His wife then died of pre-eclampsia when he had been 37 and their three children had been young, he believes as a result of medical misadventure, for which he was awarded compensation.
He was then involved in two motorcar accidents in 1998 and 2003 following which he had ongoing injuries and developed depression and there was then an incident in 2005 where he had a falling out with his son-in-law, who charged him with attempted murder, following which he had spent six months incarcerated in remand, during which time his son-in-law sold all his possessions. Following this he had started a new relationship, which had been very happy, but his new partner had then died from a heart attack about two years before his fall, following which he had again become depressed, though there had been some improvement in the depression in the year prior to his fall, when he started going to the gym and became more physically active.
Of relevance to the current proceeding is the following excerpt from Dr Ingram’s report:
His depression and anxiety had become a little worse in the last three weeks, since the local council had disallowed him access to the town library, because of an accusation of an assault made against him by one of the library workers in regard to an incident about two and a half years ago, though he thought there were no grounds for this complaint.
Dr Ingram assessed the plaintiff as having an overall psychiatric impairment of ten percent, six percent of which could be attributed to the slip-and-fall incident. However, Dr Ingram did not assess whether any psychiatric impairment could be attributed to the Council’s decision to restrict the plaintiff’s access to the Yea library.
The plaintiff also provided to the Court psychiatric reports prepared by Dr Nigel Strauss dated 12 October 2006 and by Dr David Weissman dated 2 May 2007. Given the age of these reports, and the significant life events referred to in Dr Ingram’s report which post-date these reports, I have not had regard to these reports for the purposes of the current application.
The plaintiff submitted that Dr Ingram’s report was sufficient evidence of the mental harm that he has suffered by reason of the defendants’ conduct. Further, given that he alleges that the defendants’ conduct is deliberate, no significant injury certificate is required.
The plaintiff’s contentions are, in summary, as follows:
(a) the Council owes him a duty of care;
(b) in imposing the prohibition, the defendants have intentionally caused him mental harm;
(c) no evidence has been provided in support of the decision to limit his ability to visit the Yea library; and
(d) in the absence of any right to review the Council’s decision, he has no choice but to litigate.
Consideration
It goes without saying that the statement of claim as it is currently pleaded is deficient, in that it is close to unintelligible, and fails to plead the necessary facts giving rise to any cause of action known to the law. As such, it should be struck out. However, the real question is whether the plaintiff should be given an opportunity to replead his claims, or whether the proceeding should be dismissed on the basis that it has no real prospects of success, and cannot be saved by an amended pleading.
I agree with the submissions advanced on behalf of the defendants that:
(a) the plaintiff does not plead any of the factual matters which would establish that the defendants, or either of them, owed the plaintiff a duty of care to avoid causing the plaintiff mental harm.
(b) the plaintiff does not plead sufficient facts to show how the defendants’ conduct breached any duty by them to the plaintiff;
(c) the plaintiff does not identify whether he suffers from a recognisable psychiatric or psychological condition;
(d) the plaintiff does not plead how the defendants’ conduct caused any psychiatric or psychological condition suffered by him; and
(e) the plaintiff does not plead how the conduct of the defendants gives rise to a claim for aggravated and/or exemplary damages.
Section 72 of the Wrongs Act provides as follows:
(1)A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff pure mental harm unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2)For the purposes of the application of this section, the circumstances of the case include the following—
(a)whether or not the mental harm was suffered as the result of a sudden shock;
(b)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger;
(c)the nature of the relationship between the plaintiff and any person killed, injured or put in danger;
(d)whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3)This section does not affect the duty of care of a person (the defendant) to another (the plaintiff ) if the defendant knows, or ought to know, that the plaintiff is a person of less than normal fortitude.
It is not completely outside the realm of possibility that an organisation in the position of the Council could be held to owe a duty of care to a resident of the local government area with respect to access to Council services and facilities, such as the Yea library. However, the plaintiff has not pleaded the necessary facts said to give rise to such a duty. Further, it is also necessary for the plaintiff to plead the necessary elements of s 72 of the Wrongs Act, including any allegation that the plaintiff suffers a recognised psychiatric illness, and, if he intends to rely upon s 72(3) of the Wrongs Act, how the defendants did know or should have known that he was a person of less than normal fortitude.
It is possible to glean from the statement of claim and the plaintiff’s affidavits and submissions that the plaintiff considers that the defendants conduct was malicious, intentional, and intended to cause him harm. The tort of intentional infliction of harm is known to the law.[7] However, it is necessary for the plaintiff to establish that he has suffered a recognised psychiatric injury in order to recover any damages for intentional infliction of mental harm.[8]
[7]See Wilkinson v Downton [1897] 2 QB 57; Northern Territory v Mengel (1995) 185 CLR 307; Magill v Magill (2006) 226 CLR 551; Wainwright v Home Office [2004] AC 406.
[8]Tame v New South Wales (2002) 211 CLR 317; Giller v Procopets (2008) 24 VR 1.
The plaintiff relies upon the report of Dr Ingram to establish that he has a mental impairment. Of course, this report is no substitute for a proper pleading, nor does it constitute a significant injury certificate. While it appears from correspondence received from the plaintiff while this judgment was reserved he takes issue with Dr Ingram’s report, it is clear from this report that Dr Ingram considers that the plaintiff suffers from mild depression and anxiety, the primary cause of which was the fall he had in 2018, with other stressors in his life (including the Council’s decision to restrict access to the Yea library) also being contributing factors.
Further, as noted above, if the plaintiff wishes to press his claim that he has suffered non-economic loss as a consequence of the defendants’ negligence and/or breach of statutory duty, he will not be able to recover damages unless he obtains a significant injury certificate. A summary of the relevant statutory framework is contained in the decision of Rush J in Wilson v Liquorland Australia Pty Ltd,[9] as follows:
Section 28LE of the Act states that a person cannot recover non-economic loss damages for personal injury unless they have suffered a ‘significant injury’. Section 28LF of the Act defines significant injury by reference to the degree of whole person impairment resulting from the injury as assessed by an approved medical practitioner or, upon referral, by a medical panel.
To be deemed a significant injury under the Act, the permanent impairment caused by that injury must meet the required threshold level...[10]
[9][2014] VSC 545.
[10]Ibid [8]-[9].
Section 28LB of the Wrongs Act provides that the threshold level in the case of psychiatric injury is an impairment of ten percent or more.
Section 28LC(2) provides as follows:
This Part does not apply to the following claims for the recovery of damages for non-economic loss—
(a)a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct (emphasis added).
Accordingly, a person may recover damages for mental harm if the claim is for mental harm arising out of an intentional act that has been done with the intention of causing harm without obtaining a significant injury certificate.
The difficulty with the current statement of claim is that it is not clear whether the plaintiff alleges that the defendants’ conduct was negligent (in which case the plaintiff must establish that the defendants, or at least the Council, owed him a duty of care, and that the other elements of s 72 of the Wrongs Act have been satisfied) or intentional. If the conduct was said to be intentional, it would be necessary to plead the facts, matters and circumstances by which it is said that the conduct was intentional, and by which it is said that the defendants had intended to cause him mental harm. Given the rules governing the pleading of a party’s state of mind, it will be difficult for a person in the position of the plaintiff to adequately comply with those requirements without the benefit of legal assistance. Further, if the plaintiff wishes to pursue a claim in negligence, he must obtain a significant injury certificate.
For completeness, I note that, despite the reference to a breach of the plaintiff’s human rights in the statement of claim, the Charter of Human Rights and Responsibilities Act 2006 (Vic) does not give rise to an independent cause of action: that is, it does not enable to bring a civil claim for damages based upon an alleged breach of human rights.
The plaintiff’s claims against the defendants do not appear to be particularly strong, given the nature of the matters pleaded by the defendants in their defence and the contents of Dr Ingram’s report. I also have significant reservations about the plaintiff’s ability to properly plead his allegations. However, there are recognisable causes of action discernible from the matters referred to in the statement of claim, the various affidavits and the plaintiffs submissions and materials. The pleading of course is inadequate, but I consider that it would be premature to shut the plaintiff out completely, at least at this stage, given the need for caution when faced with an application for summary judgment. Of course, there may come a point, in the not too distant future, where the inability of the plaintiff to advance a properly pleaded statement of claim will be fatal to his case.[11]
[11]See, for example, Knorr v CSIRO (No 3) [2012] VSC 529.
The plaintiff may also wish to consider whether a more effective remedy for his grievances lies elsewhere, such as through an application for judicial review of the Council’s decision to impose the prohibition (or its decision not to revoke the prohibition entirely). Such an application would be out of time, and would not enable the plaintiff to bring a claim for damages, but as the plaintiff’s primary objective appears to be to gain access, or less restrictive access, to the Yea library, then such a proceeding may be a more appropriate vehicle to ventilate his grievances than a claim for personal injury.
Accordingly, I propose to make the following orders.
(a) the statement of claim be struck out;
(b) the plaintiff has leave to file an amended statement of claim which:
(i) sets out the facts which the plaintiff says gives rise to a duty of care on the part of the defendants to avoid causing him mental harm;
(ii) sets out the facts, matters and circumstances by which it is said that the defendants intended to cause him mental harm, and/or had breached any duty to avoid causing him mental harm;
(iii) identifies a recognised psychological or psychiatric injury suffered by him; and
(iv) says how the defendants’ conduct caused that psychological or psychiatric condition.
(c) in the event no amended statement of claim is filed by 4 November 2019, the proceeding is dismissed;
(d) if the plaintiff intends to pursue a claim against the defendants in negligence and/or breach of statutory duty, the amended statement of claim must be accompanied by a significant injury certificate; and
(e) the defendants’ applications in their summons filed 27 March 2019, and the plaintiff’s applications in his summons filed 14 June 2019 be adjourned to a date to be fixed not before 11 November 2019.
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