In the matter of BB6 v State of New South Wales [2021] NSWSC 1516 the plaintiff filed proceedings in which she made a number of broad allegations of brutal sexual, physical and verbal abuse against her parents for which she said the State of New South Wales (the State) is responsible. She also alleges that the State (and another) was responsible for acts of violence against the her whilst she was a resident of two separate institutions.
The plaintiff alleged that the State failed to intervene and protect her from physical, sexual, and emotional abuse:
- whilst she lived with her parents at home between the ages of 3 and 11 (“the first period”);
- whilst she lived at Institution A which was under the control of the unincorporated association (“the second period”); and
- whilst she lived at Institution B which was under the control of the State (“the third period”).
This matter came before the NSW Supreme Court because the plaintiff wanted to amend her claim to include another party who she said was responsible for care. When she originally commenced her claim, she had named the wrong party and then sought leave to include another party. Her application to make those amendments was refused by the Court because the proposed pleadings lacked detail and specificity, such that any defendant would have difficulty understanding the case against it.
His Honour pointed out the following deficiencies:
- The available causes of action to the plaintiff which was deliberate or reckless infliction of physical injury and trespass to the person. His Honour explained that the plaintiff erred in not pleading the case with clarity and precision and incorrectly pleading it in a general period.
- The duty of care as pleaded was defective as it failed to identify any provision of any statute or power that the State could have exercised in its duty of care to the plaintiff. His Honour said “… a defendant ought not be required to search out the duty alleged against it in that way.”
- Once a duty of care is pleaded, the plaintiff must then explain the related risk of harm, which in the above proceedings was pleaded as one, complex and convoluted pleading that attempted to cover all the risks. His Honour found that the Amended Statement of Claim was deficient on the basis that it did not properly explain the risk of harm.
- Once the plaintiff has proven the duty of care and its related risk of harm, the plaintiff must then prove the breach of duty. His Honour did not consider this as the plaintiff failed to properly plead the duty of care and its related risk of harm.
His Honour then concluded that the deficiencies in the plaintiff’s proposed amended claim did not meet the threshold of proper pleading principles or pleadings, so leave was refused. This meant that the plaintiff’s application to file a claim against the proposed third party was refused because the plaintiff failed to properly plead the case by having general facts and relying upon general risks of harm.
His Honour ordered that leave be refused to file the Amended Statement of Claim, the application dismissed and the plaintiff pay the defendants costs of the application.
In summary, it is the plaintiff’s obligation to properly and adequately plead her claim against the correct defendant/defendants. In doing so, she must carefully, and with precision, say how each of those defendants owed her a duty of care, the specific failure(s) to take precautions against the risk of the harm that she suffered, and that as a result of those failures, she suffered injury, loss and damage.
Pleading cases involving historic sexual abuse is technical and challenging. This is usually because the actual perpetrators are often not sued directly and the pleader seeks to allege that another (entity or otherwise) is responsible for the actual perpetrator’s actions, as was the case here. The plaintiff in this case was trying to establish that the State of New South Wales and another are responsible in negligence for breach of a duty owed to the plaintiff, or else vicariously for the conduct of their employees, officers or associates. As well, the defendants are sought to be made liable in negligence for the conduct of a visitor to the premises, or other residents of the premises.
Chamberlains Legal Directors Jon May and Alison McNamara are experts in personal injury law, with a particular focus on cases involving historic sexual abuse. If you or someone you know has suffered abuse, we urge you to contact us immediately for advice. We can offer you your first consultation for free. If we think your claim has merit, we can act for you on a No Win, No Fee Basis.
