Boundary violation claim: Police & witnesses

Although not a claim involving medical treatment, Auditore v State of New South Wales [2017] NSWDC 150 is of interest for its pleading of an action in negligence against the State of New South Wales for psychiatric injury alleged to result from a police officer having a sexual relationship with a witness.

The interlocutory hearing saw comment by the court at [8] that despite several attempts at a claim in negligence requiring the plaintiff to plead a novel duty of care, the nature of the claim as demonstrated by the particulars such as “inappropriate” behaviour and “grooming” is not a claim for negligence but either an intentional tort or a claim for sexual harassment. The pleader’s attempt to address these issues by a negligence claim raises issues of coherence (Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 as well as the need to identify the precise acts and/or omissions in order to determine the nature of the wrong alleged, and thus the remedy sought.

After an overview of some earlier relevant cases,  the statement of claim was struck out with leave to re-plead.