Abuse: Further attention to pleadings & civil liability legislation.

PM v The Council of Trinity Grammar School [2020] NSWSC 1353 (on Caselaw) revisits some of the pleading amendment issues previously addressed in PWJ1 v The State of New South Wales [2020] NSWSC 1235 (also on Caselaw).

In PM, leave to file a proposed fourth amended statement of claim was refused for two reasons. The decision may be of assistance in matters governed by civil liability legislation other than abuse claims.

Firstly, the proposed pleading did not include any explicit pleading of the risk of harm. The Court said at [23]:

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.

Secondly, the proposed pleading did 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. The Court said at [25]:

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.