The level of detail required in pleadings: PWJI v The State of NSW
24th Jun 2021
Pleadings must clearly set out the stated cause of action, the elements of that cause of action, the facts and circumstances to prove the elements, and the remedy being sought. Careful attention should be paid to the applicable principles of law and the particular facts that go to prove such elements.
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 on the level of detail required in pleadings. These judgments are of benefit to all personal injury lawyers, and, in particular, to abuse lawyers. The first judgment is discussed below. The second judgment will be shared next week.
PWJ1 v NSW
In PWJ1 v The State of New South Wales  NSWSC 1235 (PWJ1), the plaintiff claimed damages as a result of sexual and physical assault in various State-run residential institutions for children. The plaintiff was refused an application for leave to file a proposed amended statement of claim on the basis that it did not properly plead:
- the causes of action alleged; and
- the risk of harm, per s5B and s5C of the Civil Liability Act 2002 (NSW) (the CLA).
As to duty of care, Garling J emphasised the importance of pleading the principles of law applicable to the facts and relationships that gave rise to the abuse and to claims for legal responsibility for the criminal conduct. Garling J referred to the High Court judgment of Sullivan v Moody, which states:
‘Different classes of case give rise to different problems in determining the existence and nature or scope, [sic] of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, [such] as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion to be arrived at as a matter of principle’ (at ).
Referring to Gleeson CJ’s comment in Modbury Triangle Shopping Centre Pty Ltd v Anzil (at ), Garling J stated that where an issue arises as to the scope of legal responsibility, this issue cannot be resolved by a detailed recitation of facts, repetition of the standard rubrics of negligence or an appeal to common sense. Where the scope of legal responsibility is an issue, the pleader should first identify the nature of the harm suffered by a plaintiff for which the defendant is said to be liable.
As to the pleaded breaches of duty, it is pertinent to ensure that any facts or matters raised have been pleaded earlier, in the cause of action and its particulars. In PWJ1, Garling J criticised the references made to:
- ‘students’, where there was no earlier pleading to suggest that the plaintiff was a student;
- a representation to the child plaintiff, where a tort of negligent misrepresentation had not been pleaded; and
- the failure to make enquiries when the plaintiff complained of assault, where there was no earlier pleading to suggest that the plaintiff had complained.
A pleader should address the three elements set out in s5B of the CLA, with reference to the particular factual circumstances, namely that:
- The risk was foreseeable. A plaintiff must establish either actual knowledge of the risk of harm in the defendant, or else constructive knowledge in the defendant (ie, the defendant ought to have known) of the risk of harm.
- The risk was not insignificant. Such an assessment should be made in prospect and not in retrospect, and refers to the probability of the occurrence of the risk from the defendant’s perspective. Such a probability of a risk ‘depends upon the context of facts, matters and circumstances for its meaning’ (PWJ1 at ).
- In the circumstances, a reasonable person in the person’s position would have taken those precautions. In determining this element, there must be consideration of the probability of the harm occurring if care were not taken (CLA, s5B2(a)); the likely seriousness of the harm (CLA, s5B2(b)); the burden of precautions taken to avoid risk of harm, and the social utility of the activity that created the risk of harm (CLA, s5B2(c) and (d)).
As to causation, while the plaintiff’s pleadings had made references to causation per s5D of the CLA, Garling J noted that the pleadings did not identify the particular risk of harm and how such a harm was caused by the breaches and, if so, which of the pleaded duties of care. The pleading of causation, pursuant to s5D, should therefore address each element of the pleaded cause of action.
The relevant principles of vicarious liability are set out in the High Court decision of Prince Alfred College. Their Honours reviewed the early English and Australian authorities, together with recent Canadian and UK case law, on vicarious liability at –, and also considered the earlier decision of NSW v Lepore. In Prince Alfred College, their Honours stated:
‘[T]he relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.’ (at ).
While the pleadings in PWJ1 incorporated the principles set out in Prince Alfred College, Garling J noted that as the particulars do not connect with, or refer to, any of the particular acts of sexual abuse by any of the perpetrators, there is no difference in the approach that is to be seen between assaults perpetrated by non-employees, fellow residents or inmates.
Garling J stated that particulars ought to be provided to address how the sexual and physical abuse occurred in the course of the engagement, employment and/or service of the abusers. Any further pleading of law must refer to an earlier pleading of fact.
In historical institutional abuse cases, the detail and specificity of the pleadings are of critical importance. Where there are statutory powers being exercised by the institutions and individuals, this must be addressed, as the statutory duties are a necessary condition in determining the extent of the relationship between the institutions and the plaintiff and whether the institutions should be held vicariously liable to the plaintiffs (at [97(d)]).
In any pleading as to vicarious liability, the roles of each perpetrator and the nature of their employment or engagement should be pleaded.
Given that the defendants are not the perpetrators of the criminal conduct, Garling J stated (at ) that the question arises as to which of the facts, matters and circumstances are to become the integers upon which a duty of care is constructed, as between plaintiff and defendant, such that the defendant is liable for the criminal conduct of others. Close consideration should be paid to whether the tortious acts occurred ‘in the course of duty’, which generally refers to the ‘functions and proper actions which [the] employment authorises’ (Binsaris v Northern Territory at ). Such an authorisation is to be found in the statute which governs the officers, as noted in Binsaris.
Garling J’s judgment in PWJ1 clarifies the level of detail required in pleadings, which can be summarised as follows:
- Pleadings of breach should refer to and pay close regard to earlier pleaded duties and facts.
- The risk of harm must be identified, as well as how such a harm was caused by the breaches of any of the pleaded duties (per s5B and s5D of the CLA).
- The identification of risk of harm is particularly important where the scope of liability is not clear.
- The three elements set out in s5B of the CLA should be addressed with reference to the pleaded facts, matters and circumstances, namely that the risk of harm was foreseeable and not insignificant; and a reasonable person in the circumstances would have taken such precautions.
- Precautions to avoid risk of harm should be articulated, pursuant to s5C of the CLA, outlining: the burden of taking precautions; the fact that the risk of harm could have been avoided; and the reasons such action would have avoided the risk of harm.
- Where vicarious liability is alleged, close regard should be paid to the roles and nature of the employment or engagement held by each respective perpetrator, such that the employment or engagement is sufficient to enable a conclusion of vicarious liability to be reached. Where there is an existence of statutory duties owed by the specific perpetrator, this should be pleaded.
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).