Workpower Incorporated v Minister for Disability Services Commission
[2007] WADC 176
•8 OCTOBER 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : WORKPOWER INCORPORATED |
Plaintiff
AND
MINISTER FOR DISABILITY SERVICES
COMMISSIONDefendant
Catchwords:
Practice - Practice under the Rules of the Supreme Court, O20 r19 - Application to strike out parts of a pleading - Turns on its facts
Legislation:
Nil
Result:
Application successful
[2007] WADC 176
Representation:
Counsel:
| Plaintiff | : | Mr C Fraser |
| Defendant | : | Mr G Porter |
Solicitors:
| Plaintiff | : | Williams Handcock |
| Defendant | : | Talbot Olivier |
Case(s) referred to in judgment(s):
Nil
[2007] WADC 176
DEPUTY REGISTRAR HARMAN
DEPUTY REGISTRAR HARMAN: By its claim the plaintiff seeks an indemnity under s 93 of the Workers Compensation and Injury Management Act and/or alternatively damages for breach of contract. The claim emerges in the context of an alleged assault. Both the assailant and the victim were employees of the plaintiff. The plaintiff alleges that prior to its engagement of the assailant he had been referred to the plaintiff by the defendant. The plaintiff asserts that at the time of referral the defendant knew or ought to have known that the person was "capable of violent behaviour".
2 The defendant has applied to strike out parts of the statement of
claim. It carries the onus of persuasion that the particular parts should be struck as they disclose no reasonable cause of action; will prejudice, embarrass or delay the fair trial of the action; or are an abuse of process.
3 As part of its case for the indemnity the plaintiff pleads the
negligence of the defendant, particulars of which reveal three cases. The first, that the defendant referred to the assailant at all. The second, that it failed to warn the plaintiff that he was prone to fits of aggression and/or violence. The third that it failed to provide the plaintiff with sufficient to enable it to make an informed employment decision.
The first contested part of the pleading is of the allegation of the duty said to have been breached. It is as follows:
"In referring persons with disabilities to the Plaintiff for employment, the Defendant had a duty to the Plaintiff, its servants or agents not to expose the Plaintiff, its servants or agents to a risk of injury or harm by referring to the Plaintiff persons whom the Defendant knew or ought to have known had a history of violent and/or aggressive behaviour."
5 The defendant contends that it is not clear whether the plaintiff
contends that the duty would emerge simply from the referral of disabled persons or from the more limited circumstance expressed in the last part of that paragraph. It might be considered that because it would be relatively easy to substitute the words "whom the Defendant knew or ought to have known had a history of violent and/or aggressive behaviour" for the word "disabilities" in the first line and conclude the paragraph at the word "harm", that the defendant ought to anticipate such a case along with one that does not depend upon a finding in relation to the pleading of knowledge; and that recent judicial statements as to the desirability of contesting pleadings ought to tell against the applicant.
[2007] WADC 176
DEPUTY REGISTRAR HARMAN
I have no difficulty with the prospects but still subscribe to the view that pleadings are the datum in civil litigation. Where an application is justified it would be inappropriate to withhold a remedy merely because of "policy". I accept the defendant’s contention that the emergence of a duty of care from the pleaded context would be novel. It is appropriate that the plaintiff puts a clearly articulated case or cases.
6 The next feature of the defendant’s concern with that paragraph
draws into consideration a broader scope of the pleading. It is that there is no plea of any incident of the process of referral which would found a special or proximate relationship between the parties. It contended that to that extent the pleading was inadequate. I might commence by commenting that it is remarkable that the plaintiff has later utilised the term "client" in order to define the alleged assailant. I accept that the plaintiff has not so pleaded but simply utilises the term for the purpose of definition. In context the term "client" must derive from an unspecified relationship between that person and the defendant. In context the term "referred" may connote no more than "sent" and thereby amount to a feature of that relationship. However that term might also speak for the existence of a relationship between the plaintiff and defendant. In my opinion absent any pleaded relationship the use of the term "referred" in the pleading is troublesome.
7 The case founded upon contract is also the subject of attack. As I
understand the history preceding the application, the defendant had communicated its concern as to the sufficiency of the plea and it had sought particulars of the contract. It is appropriate to reflect upon the fact that it is at least a standard of pleading practice to identify a contract by reference to at least some feature of the circumstances of its generation. Further that if the existence of a contract is likely to be contentious that there would be a comprehensive pleading. In this case the allegation is no more than that:
"there was a contract in existence between the Plaintiff and the Defendant pursuant to which the Defendant would refer people with disabilities to the Plaintiff for employment."
8 I appreciate that from the point of view of the plaintiff that allegation
may have been introductory of the immediately following allegation of the existence of an implied term. Be that as it may, the defendant having sought particulars, in my opinion, it was inappropriate for the plaintiff to ignore the standard.
[2007] WADC 176
DEPUTY REGISTRAR HARMAN
As for the allegation that there was an implied term, there is no pleaded basis for its implication.
10 The next contest raised by the defendant relates to the particular of
the allegation of breach of duty expressed at par 13(a): that having regard for the history of the client’s violent and/or aggressive behaviour the defendant knew or ought to have known that it was exposing the plaintiff to risk of injury. I do not need to consider the difficulties presented by the term "referred". The plaintiff has not pleaded the material facts that relate to the alternative allegations as to knowledge. At par 8 the plaintiff has specified particular information provided to it by the defendant at the time of referral as follows:
"an 'Employment Referral Form' to the plaintiff which
indicated, inter alia:(i) that the client had displayed inappropriate behaviour in the past;
(ii) that the client had been verbally aggressive in the past and that this behaviour may escalate to physical aggression;"
and:
"a Management Strategies form to the plaintiff which indicated
inter alia:(i) that the client had displayed inappropriate behaviour in the past;
(ii) that the client had been physically and verbally aggressive towards staff and support people in the past;
(iii) that the client had committed acts of physical harm in the past."
It fails to specify whether those particulars of provision are the datum for the purposes of each of its cases.
12 The next contested pleading is the next stated particular of the same
allegation: that the defendant failed to warn the plaintiff that notwithstanding the fact that the client was on medication, he was prone to fits of aggression and/or violence. It is the sole reference to medication in the pleading. The defendant’s complaint is that the pleading fails to
[2007] WADC 176
DEPUTY REGISTRAR HARMAN
articulate the suggested relationship between the medication and the specified propensities. In the absence of a pleaded relationship the case put against the defendant is unclear.
At each point the application is successful.
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