M v Australian Capital Territory [2012] ACTSC 20 (3 February 2012)

Supreme Court of the Australian Capital Territory

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M v Australian Capital Territory [2012] ACTSC 20 (3 February 2012)

Last Updated: 6 February 2012

M V AUSTRALIAN CAPITAL TERRITORY
[2012] ACTSC 20 (3 February 2012)

PRACTICE AND PROCEDURE – pleading – statement of claim – negligence – foreseeability of risk – personal injury – pure mental harm – application to amend statement of claim – whether new cause of action – whether arising out of the same or substantially the same facts as existing cause of action – whether proposed amended statement of claim compliant with rules of pleading – Court Procedures Rules 2006, rules 406, 502, 503.


Civil Law (Wrongs) Act 2002, Pt 3.2, ss 32, 33, 34, 35, 36, 42, 43,44,45,46, 110
Court Procedures Rules 2006, Div 2.6.2, rr, 6, 21, 406, 502, 503


Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Chappell v Coyle (1985) 2 NSWLR 73

Survival & Industrial Equipment (Newcastle) Pty Ltd (t/as SIE Liferaft Service) v Owners of the Vessel 'Alley Cat' [1992] FCA 242; (1992) 36 FCR 129
Meredith v Commonwealth of Australia [2009] ACTSC 168
Stone James (a firm) v Pioneer Concrete WA Pty Ltd [1985] WAR 233
Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1
Adam v Shiavon [1985] 1 QdR 1
Brickfield Properties Ltd v Newton [1971] 1 WLR 862
Golski v Kirk (1987) 72 ALR 443
Hamilton v Australian Capital Territory & Tonks [2011] ACTSC 45
Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 4 ACTLR 114



No. SC of 444 of 2009



Master Harper
Supreme Court of the ACT
Date: 3 February 2012
IN THE SUPREME COURT OF THE )
) No. SC of 444 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: M
Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Master Harper
Date: 3 February 2012
Place: Canberra

THE COURT ORDERS THAT:

1. the plaintiff provide to the defendant in draft form a further amended statement of claim within twenty-one days.
2. the application be stood over to 2 March 2012 for submissions about the draft further amended statement of claim and about costs.

3. This is an application for leave to amend the plaintiff’s statement of claim. There is an issue between the parties as to whether the proposed amended statement of claim pleads a new cause of action. Senior counsel for the plaintiff submits that it does not, but that if it does, the court has a discretion to allow the amendment under rule 503 (4) of the Court Procedures Rules 2006.
4. Senior counsel for the defendant submits that even if the plaintiff persuades the court that no new cause of action is pleaded or that any new cause of action arises out of the same or substantially the same facts, leave to amend should not be granted.
5. The proceedings were commenced by originating claim on 10 May 2009. The plaintiff concedes that the limitation period for her claim has ended: that is to say, if the plaintiff had not already commenced proceedings, it would now be too late to do so.
6. The plaintiffs claim is for what is defined in s 32 of the Civil Law (Wrongs) Act 2002 as pure mental harm. There is no claim for any physical injury to the plaintiff. The mental harm is what used to be styled nervous shock. The plaintiff’s claim is that the mental harm was caused by the plaintiff learning of conduct perpetrated against her daughter by students at her school and (it appears although it is not entirely clear) by her dealing with and managing the sequelae of mental and physical injuries caused to her daughter.
7. The plaintiff’s claim is brought against the Territory as owner and occupier of the school, and responsible for the care, control and supervision of the school and its students including the plaintiff’s daughter.
8. The daughter has brought her own action, with which the present application is not concerned. Because of the daughter’s age, the limitation period for her action has not yet ended, and she will not face the same hurdles as the plaintiff if she seeks to make similar amendments to her statement of claim.
9. In both actions I have been persuaded that orders should be made forbidding publication of the names of the plaintiffs, principally because of the additional harm which I am satisfied would probably be caused to the daughter if her name became public. In these reasons I shall accordingly take some care not to record facts or assertions from which the plaintiff or her daughter could be identified. Because the reasons deal with issues relating to pleadings and their amendment in the context of the Civil Law (Wrongs) Act and the Court Procedures Rules which may be of general application and interest, I do not propose to suppress their publication.
10. The statement of claim which accompanied the originating claim asserted conduct by other students towards the plaintiff’s daughter between about February and May 2006. It was stated in the statement of claim that in about 2005 another female student had been treated in a similar fashion on the school premises, and that the school had been informed about this. The statement of claim went on to assert that the negligence of the Territory had caused and contributed to the injury to the child and hence the injury to her mother, the present plaintiff.
11. The particulars of the alleged negligence of the defendant and its servants, agents and employees were as follows:
(a) failing to supervise the area of the school in which the child was injured;
(b) exposing the child to a risk of injury which could have been avoided by reasonable care;
(c) failing to institute or maintain a system to provide adequate supervision of students within the school;
(d) knowing that students at the school were at risk of sexual and other abuse, failing to take any or any adequate precautions to protect the child;
(e) knowing that students at the school had access to mobile telephones which were capable of taking moving and still pictures, failing to monitor and control the use of those telephones;
(f) failing to supervise the grounds and facilities of the school and in particular the change rooms;
(g) failing to have in place any or any adequate mechanisms and protocols for the monitoring and reporting of bullying, abuse and sexual abuse;
(h) failing to deal adequately, or at all, with students known by the school to be at risk of causing harm to other students such as the plaintiff;
(i) failing to protect the child from risk of harm;
(j) exposing the plaintiff to risk of emotional, physical, and sexual abuse.
12. The particulars are a little confusing. It seems that in some of the paragraphs the word “plaintiff” has been used for the child, when the plaintiff is the mother. It is not easy to spell out from the particulars precisely what is said to have constituted the Territory’s duty of care to the plaintiff, as opposed to its duty of care to the child. I can assume that as to breach of duty, the same particulars will be relied on. Some of the confusion has been removed in the proposed amended statement of claim.
13. In February 2010 the Territory filed a defence. Its responsibility for the school was admitted, but generally the balance of the assertions in the statement of claim were either denied or not admitted. The Territory asserted that any acts performed by other students towards the plaintiff’s child were performed illegally, clandestinely and without the actual or constructive knowledge of the Territory. The defence also said that the Territory had no knowledge that students at the school were at any, or any other than the normal, risk of sexual or other abuse, and took adequate precautions in the light of that to protect the child and other students at the school. The defence went on to say that the Territory had no information or knowledge from which it could form the view that particular students were at risk of causing harm to other students such as the child.
14. The plaintiff’s solicitors put on an application to amend the statement of claim in March 2011, and an amended application, proposing somewhat different amendments, in April 2011. The solicitor with the carriage of the matter, Ms Blumer, says in an affidavit that the plaintiff was at some time told by the present principal of the school that during about 2005 another female student had been mistreated by other students in a similar fashion to her daughter. Following the filing of the defence, in May 2010 an affidavit of documents was filed by the defendant. It became apparent from scrutiny of the documents produced for inspection that the information the plaintiff had been given was probably incorrect as to timing. The assault on another female student had probably happened after the assault on her own daughter. However, the defendant produced a significant number of documents revealing knowledge by the school of what Ms Blumer describes as multiple and repetitive instances of bullying conduct involving verbal abuse, obscene and lewd comments and suggestions, inappropriate sexual conduct, physical and sexual assaults, threats and intimidatory behaviour by some or all of an identified group of students, against other students who were usually younger than the offending group. The offending group had also engaged in conduct towards school staff which was described in generally similar terms. Ms Blumer gleaned from the documents produced that the school had known of these incidents involving staff and students, and appeared to have taken inadequate steps to control the offending students or to protect the younger students and the staff. She took counsel’s advice, and on that advice obtained an expert report prior to making the application for amendment.
15. The proposed amended statement of claim, not including the non-contentious introductory material, needs to be re-produced and is as follows:

5. From about February 2005 to February 2006 and at all relevant times, the defendant knew that within the school there was a group of students (“the group of students”) who were engaged in multiple and repetitive acts which took place at the school directed at school staff involving inappropriate, non-compliant, harassing and aggressive behaviour (“the unacceptable conduct”).

Particulars of the unacceptable conduct
The unacceptable conduct that took place involved acts of insubordination, uncontrollable behaviour, verbal abuse, harassment, sexual harassment, threatening, confronting and violent behaviour, verbal threats, property damage and physical assaults perpetrated against school staff by some or all of the group of students.

6. From about February 2005 to February 2006 and at all relevant times, the defendant knew that the group of students were engaged in acts which took place at the school directed at other students involving multiple and repetitive acts of harassment, sexual harassment and bullying (“the bullying conduct”).

Particulars of the bullying conduct

(a) The bullying conduct that took place involved acts of verbal abuse, obscene and lewd comments and suggestions, inappropriate sexual conduct, physical and sexual assaults, threats and intimidatory behaviour, perpetrated by some or all of the group of students against students who were usually younger than some or all of the group of students.
(b) Six individual members of the group of students were identified by the school as being involved in at least 17 separate incidents or acts involving harassment, sexual harassment, violence, intimidation perpetrated against other students.

7. At all material times the school knew or ought to have known that students of the school had or may have had in their possession mobile telephones that were or may have been capable of action, still visual recording of images and dissemination of such images.
8. From about February 2006 to 17 May 2006 the child was subjected at the school to the bullying conduct which included sexual assault, physical assault, various forms of psychological abuse, verbal, obscene and lewd insults, threats of physical violence and other intimidatory conduct by some or all of the group of students at the school (“the acts”).
9. The child has also suffered continued bullying conduct from persons including some or all of the group of students as a result of the acts, by verbal abuse, dissemination of that and other abuse by text message, email, postings on the internet regarding the bullying conduct perpetrated against the child at the school and wide dissemination of the images of the child being subjected to some of the sexual abuse at the school by some or all of the group of students (“the continuing bullying conduct”).
10. In the premises, the defendant breached the duty it owed to the child.
11. As a result of the acts and the continuing bullying conduct the child has suffered mental and physical harm including severe depression, suicidal ideation, several suicide attempts and self-mutilation (“the sequelae).
12. On 17 May 2006 the plaintiff learned from others about the acts which had been perpetrated against the child.
13. From May 2006 and continuing, the plaintiff has learned from the child of the continued bullying conduct.
14. From May 2006 the plaintiff has attempted to deal with and manage the sequelae.
15. In the premises the defendant owed the plaintiff a duty not to cause her mental harm.
16. In the premises, it was reasonable for the defendant’s school to have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances, suffer recognisable psychiatric illness, if reasonable care were not taken to protect the child from the harm she suffered which gave rise to the sequelae.
17. The acts, continuing bullying conduct and sequelae were caused by and contributed to by the negligence of the defendant.

Particulars of negligence of the defendant, its servants, agents and employees:

(a) failing to supervise the area of the school in which the child was injured;
(b) exposing the child to a risk of injury which could have been avoided by reasonable care;
(c) failing to institute or maintain a system or any adequate system to provide adequate supervision of students within the school;
(d) knowing that students at the school were at risk of sexual and other abuse, failing to take any or any adequate precautions to protect the child;
(e) knowing that students at the school had or may have had access to mobile telephones which were or may have been capable of taking moving and still pictures and dissemination of such images, failed to monitor and control the use of those telephones;
(f) failing to supervise the grounds and facilities of the school and in particular the change rooms;
(g) failing to have in place any or any adequate mechanisms and protocols for the monitoring and reporting of conduct in the nature of the acts, the bullying conduct and the continuing bullying conduct;
(h) failing to deal adequately with some or all of the group of students known by the school to be at risk of causing harm like the acts and the bullying conduct directed towards other students such as the child;
(i) failing to have in place any policy, protocols, mechanisms or systems to deal with and to prevent or to assist in dealing with preventing conduct in the nature of the continuing bullying conduct;
(j) failing to protect the child from risk of harm;
(k) exposing the plaintiff to risk of emotional, physical, and sexual abuse including the bullying conduct.

18. The plaintiff has suffered and continues to suffer injury, loss and damage as a result of learning of the acts, the continuing bullying conduct and managing and dealing with the sequelae.

Applicable Legislative Provisions
16. There are relevant provisions in chapter 3 of the Civil Law (Wrongs) Act, which deals with liability for death or injury, and also chapter 4, which deals with negligence. Part 3.2 contains provisions about mental harm. S 33 provides that in an action for personal injury, a plaintiff is not prevented from recovering damages only because the injury arose completely or partly from mental or nervous shock. At common law such a claim would have failed in the absence of physical injury.
17. Other relevant provisions are:

34. Mental harm – duty of care
(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include –
(a) whether or not the mental harm was suffered as the result of a sudden shock; and
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and
(c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3) [Not relevant]
(4) This section does not affect the duty of care a person (the defendant) has to another person (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.
35. Mental harm – damages
(1) Damages must not be awarded for pure mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness.
(2) [Not relevant]
36. Extensions of liability under pt 3.2 in certain cases
(1) A person’s liability in relation to any injury caused by a wrongful act or omission by which someone else (“A”) is killed, injured or put in danger includes liability for injury arising completely or partly from mental or nervous shock received by –
(a) A parent of A; or
[Not relevant]

18. In the present case, the plaintiff’s claim is for pure mental harm, whereas her daughter in her separate action claims for physical injury as well as mental harm.
19. Mental harm to a person is defined in s 32 to mean impairment of the person’s mental condition. Pure mental harm to a person is defined to mean mental harm to the person other than consequential mental harm. Consequential mental harm is defined to mean mental harm that is a consequence of bodily injury to the person.
20. Chapter 4 of the act deals with negligence generally, and is not limited to personal injury claims. Sections relevant to the plaintiff’s claim are:

42. Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43. Precautions against risk – general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless –
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
44. Precautions against risk – other principles
In a proceeding in relation to liability for negligence –

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm would have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.

45. General principles
(1) A decision that negligence causes particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2) [Not relevant]
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
46. Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

21. Section 110 of the Act, which sets out principles about resources and responsibilities of public authorities (defined to include the Territory) may also come into play in determining whether the Territory breached a duty of care upon the facts ultimately established at trial.
22. The application for leave to amend the statement of claim is made pursuant to rule 502 of the Court Procedures Rules. If I accept the submission of senior counsel for the defendant that the proposed amendment would include a new cause of action, rule 503 will also be applicable. The relevant provisions are:

502 Amendment – of documents
(1) At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process, anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.
(2) The court may give leave, or give a direction, on application by the party or on its own initiative.
(3) The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
(4) [Not relevant]
(5) [Not relevant]

(6) This rule is subject to rule 503 (amendment – after limitation period).

503. Amendment – after limitation period
     • (1) This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
     • (2) [not relevant]
     • (3) [not relevant]
     • (4) The court may give leave to make an amendment to include a new cause of action only if –
       • (a) the court considers it appropriate; and
       • (b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
23. These rules are to be read subject to rule 21, which provides that the purpose of chapter 2 of the Rules (of which they form part) is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. It was not suggested on behalf of the defendant that the present application fell into the same category as the application in Aon, or that it should be refused for the reasons the application in Aon should have been refused.

A new cause of action?

24. It is necessary for me to decide whether the proposed amended statement of claim pleads a new cause of action, or whether the cause of action would remain unchanged following the amendment. If the latter, I need not concern myself with rule 503. If the former, sub-rule 503 (4) would preclude me from granting leave unless I am satisfied that the new cause of action arises out of the same facts or substantially the same facts as the existing cause of action. I should mention in passing that rule 6 gives the court discretion to dispense with the application of a provision of the rules. Neither party submitted that the intention of sub-rule 503(4) could be got around in that way. It has been held that the dispensing power should not be used to achieve a purpose which is contrary to the obvious purpose or intention of a specific rule: Chappell v Coyle (1985) 2 NSWLR 73 at [85-86]. The dispensing power should generally be used only to relieve a party, in a proper case, of an obligation to comply with a particular provision of the rules: Survival & Industrial Equipment (Newcastle) Pty Ltd (t/as SIE Liferaft Service) v Owners of the Vessel 'Alley Cat’ ([1992] FCA 242; 1992) 36 FCR 129 at [138].
25. There is no real issue on the facts of the present application that the original statement of claim was drawn on the basis of certain information which turned out to be incorrect. There seems no argument that the actual state of affairs was at all times, at least notionally, within the knowledge of the defendant. In the circumstances the court would lean towards permitting the portion of the statement of claim which asserts facts now known to be incorrect to be replaced by paragraphs which set out what those advising the plaintiff now expect to be able to prove at trial, to the extent that the assertions form part of or are relevant to the cause of action.
26. Refshauge J was faced with a similar issue in Meredith v Commonwealth of Australia [2009] ACTSC 168. The plaintiff’s claim arose from representations said to have been made to him by agents of the defendant in the course of his temporary employment with the defendant many years earlier. His case was that he had been told by his superiors that he was not eligible to be a member of the then Commonwealth Superannuation Scheme. He said that he would have joined if he had realised that he was in fact eligible. He had pleaded that he had been given incorrect advice between 1966, when he started employment, and about 1977. On the first day of his trial he applied to amend his statement of claim to assert a separate occasion, some eight years after the previously pleaded representations, when he was again given incorrect advice by a superior. The cause of action in relation to each representation was negligent misrepresentation.
27. His Honour refused to allow the amendment, necessarily giving ex tempore reasons on the following morning so that the trial could proceed. His Honour expressed some concern that he would have preferred further time to consider the issues raised but with respect appears to me to have summarised the principles correctly and adequately notwithstanding the relative urgency with which the application had to be determined.
28. His Honour reviewed the case law in some detail with a note of caution arising from the fact that the rules of court vary from jurisdiction to jurisdiction within Australia, and have varied at different times within the same jurisdiction. After citing decisions of other Australian courts, his Honour said:

[23] Is the claim here a new cause of action? . . . one approach to the question of whether there is a new cause of action is to ask the following question. If a plaintiff fails to prove to the court’s satisfaction the material facts, not including prefatory averments or matters of inducement, in respect of the pleaded cause of action to the requisite satisfaction of the trial court or at least substantially as to all [of] them, yet does prove the material facts proposed to be included in the amendment, would the plaintiff still be entitled to relief from the court? If the answer is no, then that is a strong indication that what is pleaded is not in the relevant sense a new cause of action. Conversely if the answer is yes it seems likely that it is a new cause of action.

29. On the pleadings before his Honour, he held that each separate representation made by a superior to a plaintiff gave rise to a new cause of action. His Honour acknowledged that if proved the amended pleading would not sound in additional or different damages, but came to the view that every statement by a different relevant person was a cause of action on which the plaintiff could rely to found his claim against the Commonwealth. His Honour went on to hold that the proposed amendment could not be regarded as arising out of the same or substantially the same facts as the existing causes of action. His Honour referred to three decisions in which an amendment sought had been held to arise out of substantially the same facts as the existing cause of action. In Stone James (a firm) v Pioneer Concrete WA Pty Ltd [1985] WAR 233 the court permitted an amendment to plead a breach of contract three years after an earlier breach already pleaded. The court considered that as it was the same contract, and the breaches were a failure to prepare the contract with due care and a breach of the contractual duty of care in giving the advice which led to the instruction to prepare the contract, the facts pleaded amounted to substantially the same facts.
30. His Honour then referred to Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1, in which the court had permitted an amendment to add a plea of novation of a contract following assignment to an earlier count against the assigning company, on the basis that the two causes of action arose out of substantially the same facts.
31. Another example referred to by his Honour was Adam v Shiavon [1985] 1 QdR 1, where an amendment was permitted adding a personal injury claim to an existing action for property damage arising out of a motor vehicle collision. The court accepted that it was a new cause of action but held that it arose out of substantially the same facts.
32. A further example was Brickfield Properties Ltd v Newton [1971] 1 WLR 862, in which the court allowed an amendment to add a claim for negligent design of a building to an existing court of negligent supervision by the architect. Again, this was justified by the fact that it could fairly be said that it arose substantially out of the same facts as the existing cause of action, by reason of the significant overlap of facts out of which the two causes of action arose.
33. On the other hand, the Federal Court of Australia (Kelly, Beaumont and Ryan JJ) in Golski v Kirk (1987) 72 ALR 443 set aside an order of this court allowing an amendment to a statement of claim to add to an existing count against a surgeon in negligence in the performance of a surgical operation a further count of failing, when recommending the operation, to advise the patient of the risks involved. The court held that this was a separate cause of action. It was a matter of significance that the failure to warn was earlier in time, and logically separate from, the performance of the operation. No issue under the then Supreme Court Rules arose as to whether the new cause of action arose out of the same or substantially the same facts as the existing cause of action.
34. In Hamilton v Australian Capital Territory & Tonks [2011] ACTSC 45, Refshauge J granted leave to a plaintiff to make limited amendments to a statement of claim in a hospital and medical negligence case. The plaintiff originally alleged negligence in the course of treatment or care by the ACT Community Nursing Service during the period leading up to his admission to hospital for surgery. A separate count was included in negligence against the surgeon in respect of his treatment whilst at hospital. The amendment he sought was to add a further count against the Territory as responsible for the nursing service, for negligent care after his discharge from hospital. His Honour found that this was a new cause of action which could be said to have arisen out of facts which had already been pleaded. Leave to add the new cause of action was granted.
35. In the present case, I have come to the view that the amendment which is proposed will not plead a new cause of action. The plaintiff’s cause of action against the Territory may be summarised in the following way: the Territory knew, through staff of the school which were its agents, that there were a group of students who were engaging regularly in behaviour which included harassment and aggression towards school staff, and regular behaviour which included sexual harassment and bullying involving verbal abuse, obscene language, physical and sexual assaults, threats and intimidation against younger students at the school. The Territory had similar knowledge, or should have known, that the offending students had mobile telephones which could be used to photograph or film incidents. The plaintiff’s daughter was subjected to conduct which included sexual assault, physical assault and psychological abuse by the offending students on the school grounds. The plaintiff’s daughter was subjected to continued bullying by the offending students and by others which included dissemination of the daughter being sexually assaulted and abused which had been recorded on mobile telephones. As a result the plaintiff’s daughter suffered personal injury including mental harm, and the plaintiff suffered mental harm. The Territory through the school should have foreseen the risk that the plaintiff would suffer harm and should have taken precautions against the risk that the plaintiff would suffer harm. The Territory failed to take adequate precautions and was hence negligent.
36. If I have correctly analysed the basis of the plaintiff’s claim against the Territory, it seems to me that the original incorrect assertion that the Territory through the school knew about an earlier sexual assault on a student, whilst part of the factual matrix, was not itself a essential material fact for the plaintiff’s cause of action against the Territory. Similarly, the facts now sought to be pleaded generally about the behaviour of the offending students, and the school’s knowledge of that behaviour prior to the assault on the plaintiff’s daughter, is in the same category. The cause of action against the Territory, as I see it, is unchanged.
37. If I were mistaken about whether or not there is a new cause of action, I world have no hesitation in finding that the plaintiff’s cause of action as pleaded following the amendment arises out of the same or substantially the same facts as the original cause of action. Damage is an essential ingredient of the tort of negligence, and the tort is not complete until at least some damage has been occasioned. The differences between the assertions of fact in the original statement of claim and those made in the proposed amended statement of claim relate solely to the period prior to the alleged sexual assault on the plaintiff’s daughter, and thus prior to any damage having been suffered by the daughter herself or by the plaintiff. That is the essential difference between the facts in the present application and those in decided cases to which I have referred, for example Golski (distinction between failure to warn and negligence in performance of surgery) and Meredith (negligent misrepresentations to employee by superiors). In those cases one can identify a specific incident occurring at a specific time for the commission of each tort. In the present case no tort is alleged to have been committed until the sexual assault on the plaintiff’s daughter.

Other criticisms of the proposed amended statement of claim

38. Senior counsel for the defendant submitted that leave to amend should be refused for failure to comply with the formal rules of pleading set out in division 2.6.2 of the Court Procedures Rules. The principal criticism of the pleading is that it fails to comply with the provisions of rule 406, which require that it must contain a statement in a summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved, and must state specifically any matter that if not stated specifically may take another party by surprise. The submission on behalf of the defendant is that much of the proposed statement of claim pleads rolled-up conclusions rather than material facts. Examples are the description and particulars of the “unacceptable conduct” in paragraph five, the “bullying conduct” in paragraph six, the “acts” in paragraph eight and the “continuing bullying conduct” in paragraph nine. The defendant also complains that the statement of claim fails to articulate in clear terms the precise risk of harm against which the Territory should have taken precautions. Further, the defendant says that the statement of claim fails to identify the factual basis on which the plaintiff will rely in asserting that senior school staff foresaw or ought to have foreseen the risk of harm, and fails to identify with reasonable precision the precautions which the plaintiff says the Territory should have taken.
39. It is clear that the plaintiff’s case is a foreseeable risk case to which s 43 of the Civil Law (Wrongs) Act applies. It is not a case based on the Territory or school having actively done anything which directly caused the harm the plaintiff alleges. Rather, the harm was done by others but the plaintiff says that the school or the Territory should have foreseen this and taken precautions against it, or perhaps steps to prevent it happening. This brings s 43 squarely into play. The section, as I read it, sets out elements which a plaintiff in such a case must establish by evidence. It follows that the facts the plaintiff intends to prove should be specifically stated in summary form in the pleading.
40. This is a clear and simple matter when a negligence case arises from a frank incident such as a motor vehicle collision. It is more complex when a plaintiff puts forward a foreseeable risk case like the present one, but it seems clear enough to me that the effect of s 43 is that a plaintiff must set out the facts proposed to be proved from which the court will be asked to find that there was a foreseeable risk against which the defendant should have taken precautions. Further, it seems to me reasonable to require the plaintiff to tell the defendant what precautions the plaintiff will say the defendant should have taken. It is insufficient, for example, simply to allege failure to supervise the area of the school where the child was injured, and it is insufficient to assert a failure to institute and maintain an adequate supervisory system. For the plaintiff to succeed at trial, the court will need to be satisfied that there were available precautions which a reasonable person in the position of the defendant would and should have taken. The precautions will need to be identified and the identification should commence at the pleading stage, so that the defendant will know precisely what case it is to meet.
41. The defendant’s criticisms of the proposed amended statement of claim were summarised in a letter between solicitors of 22 July 2011, and were addressed by senior counsel for the plaintiff in her written submissions. Senior counsel for the plaintiff foreshadowed in the submissions some further proposed amendments to paragraphs 8 and 9 of the draft. Refshauge J went into some detail in Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 4 ACTLR 114 about the importance of pleadings, and the rules and functions of pleadings and particulars (at [24] – [35]). His Honour was there dealing with a building dispute in relation to work on commercial premises, but the principles are equally applicable to the present application.
42. I do not propose to go through the draft amended statement of claim paragraph by paragraph, but will simply indicate that in my view the pleading inadequately sets out the material facts the plaintiff proposes to prove at trial, even in summary form. My views as to the shortcomings generally, I think, emerge sufficiently from these reasons. As I have mentioned, senior counsel for the plaintiff acknowledged that at least some improvements could be made.
43. I propose in the circumstances to stand the application over for twenty-eight days to provide the plaintiff with an opportunity to prepare a further draft amended statement of claim in the light of these reasons.
44. I shall hear the parties as to costs at that time. I note that each party has had some success, in that the defendant has not persuaded me that the plaintiff has attempted to plead a new cause of action, or that the proposed changes do not arise out of the same or substantially the same facts. At the same time the plaintiff has not persuaded me that leave should be granted for the draft amended statement of claim to be filed in its present form. A further consideration is that whilst generally speaking an application to amend a pleading seeks an indulgence from the court, this is an unusual case where the circumstances leading to the application to amend arose from no fault of the plaintiff or her solicitors or counsel, but rather from additional information which became available to the plaintiff and her advisers through the discovery process. My provisional view is that the costs of the application should be costs in the cause, but I shall hear the parties before making any such order.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.

Associate:

Date: 3 February 2012

Counsel for the plaintiff: Ms HL Donohoe SC
Solicitor for the plaintiff: Blumers
Counsel for the defendant: Mr RL Crowe SC
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 28 July 2011
Date of judgment: 3 February 2012