Supreme Court New South Wales Medium Neutral Citation: PM v The Council of Trinity Grammar School [2020] NSWSC 1353 Hearing dates: 22 May 2020 Date of orders: 08 October 2020 Decision date: 08 October 2020 Jurisdiction: Common Law Before: Garling J Decision: (1) Refuse leave to the plaintiff to file the proposed Amended Statement of Claim entitled "Amended (34) Statement of Claim". (2) Grant leave to the plaintiff, if so advised, to file a Motion seeking orders permitting the amendment of a Statement of Claim, together with all affidavits in support, provided that such notice of motion is filed on or before 24 October 2020. (3) Grant leave for the Motion to be made returnable before Garling J at 9am on 6 November 2020. (4) Otherwise dismiss the Notice of Motion filed 19 May 2020. Catchwords: CIVIL PROCEDURE — Pleadings — Amendment - Form and content of pleading – s 5B of the Civil Liability Act 2002 - whether the proposed Amended Statement of Claim properly pleads the causes of action alleged – whether the amended Statement of Claim articulates the risk of harm – leave to file amended Statement of Claim refused Legislation Cited: Civil Liability Act 2002 Limitation Act 1969 Cases Cited: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 PWJ1 v The State of New South Wales [2020] NSWSC 1235 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: PM (P) The Council of Trinity Grammar School (D) Representation: Counsel: J Sharpe (P) J Sleight (D) Solicitors: Porters Lawyers (P) Thompson Cooper (D) File Number(s): 2018/87830 Publication restriction: Not Applicable Judgment 1. The plaintiff, given the pseudonym PM, commenced proceedings in 2018 claiming damages for physical and sexual assault from the defendant, the Council of Trinity Grammar School ("Trinity"). 2. The plaintiff claimed that, whilst a year 6 student at Trinity in or about 1975, he was sexually and physically assaulted by a teacher employed by the school. Current Notice of Motion 1. On 19 May 2020, the plaintiff filed an Amended Notice of Motion which sought the following orders: "1. The Plaintiff be granted leave to file and serve an Amended (3) Statement of Claim. 2. No order as to costs." 1. Annexed and marked with the letter "E" to that Notice of Motion was a document described as "Amended (3) Statement of Claim". It ought more properly be regarded as the fourth version, as counsel accepted. I will refer to it as the Amended (4) Statement of Claim, or else as the proposed pleading. 2. The defendant opposed the grant of leave to file the Amended (4) Statement of Claim in relation to the pleading of a cause of action for negligence. In particular, the defendant submitted that the failure to identify the risk of harm and the failure to plead facts which give rise to foreseeability meant that the amended statement in its current form was not appropriate for the grant of leave. Amended (4) Statement of Claim 1. The plaintiff pleads facts which allege that whilst a student in the class of Mr Neil Futcher (a teacher employed by Trinity) in or about 1975, he experienced physical and sexual assaults at the hands on Mr Futcher. Mr Futcher is not sued as a defendant. 2. The plaintiff pleads that the physical and sexual abuse was constituted by Mr Futcher caning him on his bare buttocks, at least once a week. The caning is alleged to have occurred in the classroom, whilst the plaintiff was bent over a desk, and instructed to pull his naked buttocks apart. 3. A particular of these assaults pleads that the plaintiff suffered bruising and lacerations on his buttocks as a result of the caning. 4. The factual context in which the assaults occurred are given by way of a brief description, nominating that they each were inflicted by Mr Futcher in the classroom, each involved the same conduct and occurred "at least once a week". 5. Details of specific times each week, whether there were other students present, or whether the assaults or alleged physical injuries were disclosed to anyone, are not provided. It may be that the descriptions that are given are the best which can be provided by the plaintiff, having regard to his age at the time and the length of time that has passed since those events. But if that is so, no such indication is given in the pleading. 6. The plaintiff alleges that, as a result of these assaults, he suffered psychiatric injury, psychological sequelae and physical injury. Direct Causes of Action 1. The plaintiff pleads against the defendant two separate and distinct common law causes of action alleging fault on the part of Trinity. They are each tortious. The plaintiff does not allege in the pleading of these causes of action that the provisions of the Civil Liability Act 2002 ("the CLA") do not apply. This is appropriate, as the terms of s 3B(1)(c) of the CLA do not apply to exclude the application of these causes of action. 2. In brief, the two causes of action pleaded by the plaintiff are: 1. the breach of a common law duty owed by the defendant to take reasonable care to avoid foreseeable (but not insignificant) risks of harm ("the common law duty"); and 2. the breach of a non-delegable duty owed to the plaintiff by Trinity which is described in two different ways, but in substance appears to be an allegation either that Trinity ought to have exercised reasonable care or else Trinity ought to have ensured that reasonable care was taken ("the non-delegable duty"). 1. These causes of action for a breach of either duty require proof of fault on the part of Trinity. They can conveniently be referred to as direct causes of action. Vicarious Liability 1. The plaintiff pleads an additional basis for the recovery of damages. He pleads that Trinity is vicariously liable for the injury, loss and damage caused by Mr Futcher. This cause of action does not require the plaintiff to prove fault on the part of Trinity. Rather, it concentrates on the liability created by the perpetrator to the plaintiff and whether the defendant is to be held legally liable for the consequences of the perpetrator's conduct. In that way, it can properly be described as an indirect cause of action. 2. Any claim directly against a perpetrator for sexual assault or other sexual misconduct is, with limited exceptions, excluded from the provisions of the CLA – see s 3B(1)(a). Whether a claim for vicarious liability against an institution, such as Trinity, is caught by the CLA is a question which is as yet unresolved by any authority. My decision in PWJ1 v The State of NSW [2020] NSWSC 1235 at [22] may suggest that I had formed a concluded view that the CLA applies to claims based upon vicarious liability. To the extent that it does so, such suggestion was unintended. I regard the question of whether the CLA applies to claims for vicarious liability as being, at present, an open one. Submissions 1. As mentioned above, Trinity submitted that leave to file this Amended (4) Statement of Claim should not be given for two reasons. First, the plaintiff failed to properly identify and plead the risk of harm against which it was reasonable for it to take precautions. Secondly, the plaintiff failed to plead any facts which showed that Trinity had actual knowledge of, or ought to have known about, the abuse, such that the requirement of foreseeability which is necessary for the direct causes of action could be established. 2. The plaintiff made submissions that there was no need to specifically articulate the risk of harm element to any of the above causes of action, as it was "obvious" and could be inferred. The plaintiff submitted that the element of foreseeability did not need to be particularised in any additional way to that which was pleaded. Legal Principles 1. Against this background of fact, the outline of the proposed pleading and the summary of each party's position, it is convenient to note, without repeating, the extensive identification of the applicable legal principles which I have set out in PWJ1 from [45]-[93], and that those principles are entirely applicable here in the consideration of whether leave to file the proposed pleading should be granted. 2. In particular, [57]-[66] deal with the requirement to identify carefully and plead the risk of harm and [73]-[75] deal with the principles applicable to pleading foreseeability under the CLA. Discernment 1. Having regard to the legal principles identified in PWJ1 and the way in which the proposed pleading is expressed, the grant of leave to the plaintiff to file this proposed pleading must be refused. 2. The first reason for this conclusion is that the proposed pleading does not include any explicit pleading of the risk of harm. 3. Counsel's submission that the risk of harm could be inferred and not need specification is contrary to the principles and authorities to which reference has been made. It also, in the context of the content of the pleading, makes no sense. The plaintiff pleaded that he was the subject of a physical assault (caning on his buttocks) which ought to be understood as also being a sexual assault, presumably because his buttocks were bare when caned. He pleaded that he sustained bruising and lacerations resulting from the caning, but in a global way pleads that he suffered "psychiatric injury" and "psychological sequelae". Given that this global assertion is made in the context of a physical injury, Trinity is entitled to know what specifically the risk of harm was against which it was required to take precautions. Was the harm a physical one with psychological sequelae? Was the harm a psychiatric one which was caused separately and apart from the physical harm? Or was it perhaps some combination of the two? If the risk of harm is alleged to be one relating only to a psychiatric injury, then Trinity may need to have regard to the provisions of Part 3 of the CLA. 4. The absence of a risk of harm being pleaded specifically means that the proposed pleading is defective and would, if allowed, be likely to be struck out. 5. The second reason for refusing a grant of leave is that the pleading does not contain any clear allegation that the risk of harm was foreseeable, as that term is used in s 5B(1)(a) of the CLA. A defendant is entitled to know whether the pleaded risk of harm is one in respect of which it is alleged that it had actual knowledge, and if so, the particulars of that actual knowledge, or else whether it is one of which it ought to have known. 6. In the proposed pleading, there are assertions made in the course of dissecting the relationship between the plaintiff and Trinity of foreseeability, but nowhere is that term elaborated upon in a way which is appropriate to a claim under the CLA. 7. Finally, it can be seen that one of the consequences of the way in which the proposed pleading is formulated is that, although this is a pleading in which the plaintiff claims exemplary damages from Trinity, the CLA precludes any award of exemplary damages: s 21 CLA. If the pleading is meant to suggest that the plaintiff, if he had made a claim directly against the alleged perpetrator, would have been entitled to an award of exemplary damages against him, and that Trinity would be vicariously liable for such an award, then the words used in the pleading are entirely inconsistent with such a claim. 8. Looked at as a complete document, the proposed pleading does not enable a court or Trinity to understand, with any degree of precision, what exactly is being put as the plaintiff's case. Trinity is therefore not in a position to identify adequately what it ought to put in issue by a properly pleaded defence. 9. As I said in PWJ1, it is relevant to note what the High Court of Australia said nearly 40 years ago in Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664: "Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it… They define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial … They give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. … [T]he relief which may be granted to a party must be founded on the pleadings …" 1. In addition, it may be noted that in light of the abolition of the limitation period for claims for damages for sexual abuse – see s 6A(1) of the Limitation Act 1969, a defendant is entitled to a properly formulated pleading so that it can consider whether to seek a permanent stay of the proceedings. 2. The proposed pleading does not fall within the description of the High Court in Dare and cannot be allowed to be filed. Orders 1. I make the following orders: 1. Refuse leave to the plaintiff to file the proposed Amended Statement of Claim entitled "Amended (4) Statement of Claim". 2. Grant leave to the plaintiff, if so advised, to file a Motion seeking orders permitting the amendment of a Statement of Claim, together with all affidavits in support, provided that such Notice of Motion is filed on or before 24 October 2020. 3. Grant leave for the Motion to be made returnable before Garling J at 9am on 6 November 2020. 4. Otherwise dismiss the Notice of Motion filed 19 May 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2020