Opinion
The level of detail required in pleadings against the Crown: Niass v State of NSW
1st Jul 2021
Pleadings must facilitate the just, quick and cheap resolution of real issues in the proceedings. To achieve such an objective, a pleader must ensure that the nature and content of their claims are sufficiently clear to the defendant/s so that they understand what is being alleged and consequently have a fair opportunity to meet the case.
In 2020, the Supreme Court of NSW dismissed two separate applications for leave to file an amended statement of claim. In his judgments, Garling J provided clarification regarding the level of detail required in pleadings. These judgments are of benefit to all personal injury lawyers, and, in particular, to abuse lawyers. The second judgment will be discussed below.
Niass v NSW
Niass v State of New South Wales [2020] NSWSC 1753 (Niass) involved a claim against the Crown for sexual abuse by a number of persons in service of the Crown. The plaintiff alleged negligence by the Crown and/or vicarious liability of the Crown for the actions of the perpetrators.
In his judgment, Garling J noted that claims against the Crown must pay close regard to the existence of a statutory duty (at the time of the subject incident) which is said to, or could, give rise to a claim for damages. In this case, the relevant statutory duties were derived from s8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) (Law Reform Act) and ss4, 6, 7, 9 and 10 of the Child Welfare Act 1939 (NSW) (Child Welfare Act).
The Child Welfare Act prescribes the different roles, power and functions of the Minister, the Director and various officers and employees appointed under s5 of the Act. A pleader should allege the existence of a separate duty of care owed by each individual.
In Niass, the plaintiff was an inmate within an institution, and as such the pleaded duty of care ought to have been confined to inmates and not be so broad as to capture all wards, for example.
Pursuant to s5B of the Civil Liability Act 2002 (NSW) (CLA), the plaintiff must prove that the:
- risk of harm was foreseeable; and
- tortfeasor knew of the pleaded risk of harm at the relevant date, or else ought to have known of it, by reference to other facts, matters and circumstances.
The pleadings in Niass suggested, inter alia, that by reason of the fact that many people regularly sexually and physically abused inmates at Daruk, Daruk did not have a safe system in place to eradicate child abuse nor an appropriate reporting or monitoring system. The particulars of negligence were pleaded against ‘persons appointed pursuant to s5 of the Child Welfare Act’.
A pleader must not plead facts that suggest that they were well known to the community or to the persons in the position of those who owed a duty to the plaintiff. Any assertions ought to be anchored in a point of time, and in any relevant fact or circumstance that could lead to any conclusion of either actual or constructive knowledge on the part of those who owed a duty to the plaintiff. Where pleadings suggest a failure by employees, particulars should be anchored by reference to individual staff members rather than to all employees under the Child Welfare Act. Further, reference ought to be made to the individual employees’ functions and powers.
Pleadings should be set out so it can be readily understood who is said to have had actual knowledge, or otherwise ought to have had actual knowledge, of the risk of harm, or whether previous sexual abuse to which reference has been made gives rise to constructive knowledge.
Further, pleadings should set out, with reference to s5B of the CLA, the facts, matters and circumstances that identify how attribution can or ought to arise, with specificity regarding to whom the knowledge ought to be attributed.
In Niass, the pleadings identified failures by the superintendent in preventing certain punishments from occurring or allowing certain punishments to occur, with reference to the duties set out in s56 of the Child Welfare Act. However, the earlier pleadings did not allege that the plaintiff was subjected to certain punishments. To this extent, there was no apparent connection to anything alleged to have happened to the plaintiff and no obvious connection to the pleaded causes of action.
As to vicarious liability, the pleadings clearly addressed the elements prescribed in Prince Alfred College. However, Garling J stated that where general law is relied upon, rather than statute, this ought to be made clear, as complex issues may arise from the perspective of the named defendant as to its liability.
In Niass, the pleadings had asserted that statute law was the basis for the existence of vicarious liability in the defendant. To this extent, the latter pleadings must address the requirements of statutory vicarious liability. Ultimately, Garling J dismissed the application for leave to file an amended pleading, stating:
‘Pleadings which are ill-defined, vague and prolix, or which contain assertions which are not directly relevant to any pleaded cause of action, have a tendency to cause prejudice and embarrassment to the opposing party, and to delay the proceedings. Such a pleading cannot accord with the overriding purpose in s 56 of the Civil Procedure Act’ (at [88]).
Summary
Garling J’s judgment clarifies the level of detail required in pleadings against the Crown, which can be summarised as follows:
- Pleadings against the Crown ought to play close regard to the statutory duties of care prescribed by the relevant legislation, and, in particular, the different roles, powers and functions of each respective role pursuant to statute.
- The duty of care pleaded should not be so broad as to capture a large group of persons, and should be confined to the plaintiff’s circumstances.
- If it is alleged that the defendant, by its employees, knew or ought to have known about the risk of harm, it will be necessary to identify who specifically knew or ought to have known about the risk of harm.
- Allegations of breaches of duties must refer to any earlier pleadings and particulars of the duties of care.
- Where general law is relied upon, this must be clearly stated.
Amanda Do is a lawyer in the abuse law team at Maurice Blackburn’s Parramatta office.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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