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  • Unreported Judgment

James v State of Queensland

 

[2015] QSC 65

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

James v The State of Queensland [2015] QSC 65

PARTIES:

PAUL ANTHONY JAMES

(Plaintiff)

v

The State of Queensland

(Defendant)

FILE NO/S:

No S390 of 2008

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

30 March 2015

DELIVERED AT:

Cairns

HEARING DATE:

28 January 2015

JUDGE:

Henry J

ORDER:

  1. Paragraphs 31 and 32 of the initial statement of claim are struck out.
  2. The whole of the amended statement of claim filed without leave on 3 April 2014 is struck out.
  3. The plaintiff has leave to file and serve an amended statement of claim, pleaded consistently with the reasons for these orders, by 4pm on 20 April 2015.
  4. I will hear the parties as to costs on a date to be fixed if costs cannot be agreed.
  5. Liberty to apply on the giving of two business days notice in writing.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – where the plaintiff seeks leave to amend his statement of claim to add a new cause of action after the expiration of the limitation period pursuant to r 376 of the Uniform Civil Procedure Rules 1999 (Qld) and or s 81 of the Supreme Court of Queensland Act 1991 (Qld) – where the defendant applies for orders striking out certain paragraphs of the amended statement of claim with leave being given to re-plead.

Allonnor Pty Ltd v Doran [1998] QCA 372, cited

Borsato v Campbell [2006] QSC 191, cited

Wolfe v State of Queensland [2009] 1 Qd R 97, applied

Civil Proceedings Act 2011 (Qld) s 16

Limitation of Actions Act 1991 (Qld) s 11

Supreme Court of Queensland Act 1991 (Qld), s 81

Uniform Civil Procedure Rules 1999 (Qld) r 376

COUNSEL:

G O’Driscoll for the Plaintiff

GW Diehm QC and A Luchich for the Defendant

SOLICITORS:

Hall Payne Lawyers for the Plaintiff

Crown Law for the Defendant

  1. The plaintiff applies for leave to amend his statement of claim to add a new cause of action after the expiration of the limitation period pursuant to r 376 of the Uniform Civil Procedure Rules 1999 (Qld)(“UCPR”) and or s 81 of the Supreme Court of Queensland Act 1991 (Qld).[1] 
  2. The defendant cross applies for orders striking out certain paragraphs of the amended statement of claim with leave being given to re-plead.

Background 

  1. The plaintiff claims damages for personal injury sustained in his employment as a paramedic.
  2. In 2004 he was stationed at Mount Isa and from time to time would relieve at the Doomadgee Ambulance Station.  He alleges there were three incidents which occurred over a seven week period in the course of his employment at Doomadgee. 
  3. The first incident, on 30 September 2004, involved the plaintiff attending upon a young naked male who had been badly mauled by a pack of dogs.  The boy’s testicles and part of his penis had been chewed off and his entrails ripped from his abdominal cavity. 
  4. The second incident, on 16 October 2004, involved the plaintiff attending to a three year old child victim of sexual assault, the details of which were described to him by the child’s father. 
  5. The third incident, on 13 November 2004, involved the plaintiff’s attendance upon a six year old victim of sexual assault whose genitalia were oozing blood.
  6. In his claim filed 19 August 2008, the plaintiff pleaded that in consequence of his involvement in the three incidents he suffered psychiatric injury, namely chronic post-traumatic stress disorder. He pleaded he was exposed to the risk of such injury as a result of his involvement in the incidents and the defendant knew or ought to have known of the risk. He pleaded, inter alia, any system the defendant had in place to obviate or ameliorate the risk was inadequate and not a sufficient response to the risk.[2] It was further pleaded the defendant failed to provide and maintain a safe system of work for the plaintiff and failed to provide appropriate assistance and support “following upon the plaintiff’s involvement in the incidents over an interval of less than seven weeks”.[3]
  7. In committing these and other acts and omissions, the defendant was alleged at paragraph 28 of the amended statement of claim to have been negligent and in breach of its duty of care to the plaintiff and further or alternatively at paragraph 28 to have been in breach of its statutory duty of care owed to the plaintiff and or its contract of employment with the plaintiff.  But for those breaches, it was pleaded, the plaintiff would not have suffered his illness or would have completely recovered from it or its extent and consequences would have been very much ameliorated.
  8. The defence included a pleading that the defendant had in place a system of counselling and peer support, called Priority One, under which employees experiencing traumatic or stressful events would receive support, counselling, debriefing or other psychological intervention. Components of the Priority One Peer Support Programme include a Critical Incident Stress Debriefing (“CISD”) and “Notification/Activation of Priority One/Peer Support” under Standing Operating Procedure 47 (“SOP 47”).
  9. As to causation, the defence pleaded, inter alia, that the plaintiff suffered other concerns which may have materially contributed to his illness, including:

“[O]n 10th November 2004, during the course of the ISCP course, the plaintiff alleged that he was humiliated during his attempt to demonstrate the chest auscultation technique and that on the day that the plaintiff ceased work he received a grievance notice in respect to his conduct during the said ISCP course.”

  1. The initial statement of claim made no reference to the above in service training episode (“the training episode”).  However, the plaintiff had referred to it much earlier, in a statement for Workcover, dated 23 December 2004.
  2. In that statement, after describing the second episode, he said:

“14. Just a little bit after this event, I had to travel to Mount Isa to undergo some training. It’s called ISEP training and it’s a compulsory thing you have to do if you want to get promoted. During the 2 days training course, it was a Thursday or Friday I think (9-10 Nov), everything seemed to be going fine. My colleague and I were practicing a scenario, doing recovery from a full arrest, when the two Clinical Support officers started discussing something and gesturing in our direction. I remember being put off by their loud conversation and so asked what I had done wrong. A female CSO said I would have failed if that were an exam because I was listening for the heart beat in the abdominal area when clearly the heart is in the chest cavity. I felt at the time she was nit picking, that this was only a practice run, and that the latex dummy was not exactly according to scale anyway. However, she kept going on about it and why I was wrong. By that time, I was starting to get agitated and feeling somewhat belittled and humiliated in that I felt I was being deliberately put down in front of my peers. I remember getting up and walking out of the training room, and as I went through the office, I made the comment that they are a bunch of wankers.

15. As soon as I said this, I noticed Ross Vickers almost race inside to the training room to recite almost word for word what I had said, and now it has blown out of all proportion. There is now an investigation going on and I have lodged grievances in relation to the manner in which I was humiliated. Incidentally, I was told 2 weeks earlier that this was the last time ISEP’s training would be held, and that if I didn’t pass, I might lose my job. I didn’t perceive this to be an idle comment. In fact, I saw it as a threat, that I was being bullied if not intimidated, because I had this feeling that they wanted to get rid of me. To my way of thinking, there has been a history of harassment and intimidation in the Mount Isa Office of QAS for some time and there was no way that I was going to be put down like that. I then travelled back to Doomadgee with an uneasy feeling in my stomach. I was pretty stirred up by what I saw as the injustices being perpetrated.”

The plaintiff also referred to the training episode in a statutory declaration dated 29 January 2008, provided in support of his Workcover Notice of Claim for Damages.

  1. The plaintiff filed an amended statement of claim on 3 April 2014.  It is common ground that, if the amended statement of claim included a new cause of action, the amendment could not be effected without the leave of the court pursuant to r 376 of the UCPR.  The plaintiff does not concede he has included a new cause of action but, as a precaution, applies for leave pursuant to r 376.
  2. The amended statement of claim pleaded the occurrence of the training incident and that it should have caused the defendant to initiate its CISD or SOP 47 procedures.  Those newly pleaded matters were contained in paragraphs 17A to and including 17E of the amended statement of claim, now paragraphs 18 to 22 inclusive of a proposed further amended statement of claim, exhibited to an affidavit filed by leave on 28 January 2015.
  3. The amended statement of claim also introduced allegations that the plaintiff’s supervisor was aware of the first incident and was obliged to engage the CISD and SOP 47 procedures but failed to do so.  In the same part of the amended statement of claim were new allegations that the officer in charge was made aware of the training incident and was aware the plaintiff had been affected by the incident and had failed to initiate the CISD or SOP 47 procedures.  Those paragraphs, which were 20A to 20F inclusive of the amended statement of claim, now appear at paragraphs 26 to 31 inclusive of a proposed further amended statement of claim.
  4. The defendant contends the above-mentioned paragraphs have the effect of including a new cause of action and the leave required for that to occur, pursuant to r 376, ought not be given.
  5. The defendant’s cross application seeks the striking out of the abovementioned paragraphs, as well as paragraphs 30 and 31, which allege:

“30.A causal association exists between, on the one hand, the defendant’s negligence, breach of duty, breach of contract and/or breach of statutory duty and, on the other, the plaintiff’s suffering and psychiatric illness particularised in paragraph 24.

  1. Had it not been for the defendant’s negligence, breach of duty, breach of contract and/or breach of statutory duty—

(a)  the plaintiff would not have suffered his psychiatric illness;
       alternatively,

(b)  the plaintiff would have completely recovered from such illness;
       alternatively,

(c)  the extent and consequences of the illness would have been very much reduced when compared to his psychiatric status since 2004 and currently.”

  1. The defendant’s essential complaint in respect of paragraphs 30 and 31 was the plaintiff did not plead what the defendant should have done, and failed to do, to prevent the illness.

The initial hearing

  1. The application and cross application first came before the court on 19 November 2014.  In the course of argument it became apparent the plaintiff accepted the defendant’s complaints regarding paragraphs 30 and 31. Consideration of the issues relating to paragraphs 30 and 31 was thought likely to bear upon my consideration of the plaintiff’s application and the balance of the defendant’s application. It was therefore determined that the further hearing of the application should be adjourned until 28 January 2015.

Further hearing of the application

  1. I proceeded to hear the balance of the application on 28 January 2015.  On that occasion I gave leave for the filing and reading of an affidavit of the plaintiff’s solicitor exhibiting what would become, if it were filed, a further amended statement of claim.[4]  The further amended statement of claim replicated the amendments which appeared in the amended statement of claim in paragraphs 17A to 17E inclusive and paragraphs 20A to 20F inclusive, re-numbering them paragraphs 18 to 22 inclusive and 26 to 31 inclusive respectively. 
  2. It also extended the amendments by addition to former paragraph 29, the paragraph immediately preceding former paragraphs 30 and 31, which in the further amended statement of claim are re-numbered as paragraphs 41 and 42.  

The application for leave to include a new cause of action

  1. The limitation period of three years on the bringing of an action for damages for personal injuries has expired.[5]  The expiration would likely have been about 23 November 2007, three years after the plaintiff was allegedly forced to cease work because of his psychiatric illness. In fact, this action was not brought prior to that date because the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”) provides for alteration of the period of limitation to accommodate the delivery of a complying notice of claim and completion of other “pre-court” processes, culminating in the holding of a compulsory conference, before the issue of proceedings. The plaintiff commenced his proceeding within 60 days of the compulsory conference as required by s 302 of WCRA.  However, it is not disputed the relevant period of limitation has now ended within the meaning of r 376.
  2. Despite this, the court has the power to give leave to a party to amend a claim and pleading pursuant to s 16 Civil Proceedings Act 2011 (Qld):

“16Amendment for new cause of action or party

(1) This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.

(2) The court may order an amendment to be made, or grant leave to a party to make an amendment, even though -

(a) the amendment will include or substitute a cause of action or add a new party; or

(b) the cause of action included or substituted arose after the proceeding was started; or

(c) a relevant period of limitation, current when the proceeding was started, has ended.

(3) Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made.

(4) This section applies despite the Limitation of Actions Act 1974.”

  1. Rule 376 of the UCPR limits the circumstances in which such an amendment may be made if the amendment includes a new cause of action.  It relevantly provides:

376Amendment after limitation period

(1)This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.  …

(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;

(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.”

  1. The new allegations, which the defendant complains include a new cause of action here, are, in summary, those that relate to the training episode and CISD and SOP 47.  Do they introduce a new cause of action?
  2. The term “cause of action” in r 376 does not merely include the category of action involved, for example, damages for personal injury occasioned by negligence.  It also includes facts which are material to proof of the elements of the action.  As much was explained by PD McMurdo J in Borsato v Campbell[6] where his Honour said:

“The term “cause of action” was defined in Cooke v Gill (1873) LR 8 CP 107 at 116 as being “every fact which is material to be proved to entitle the plaintiff to succeed”, a definition which many judgments have employed in the context of this rule or its equivalent: see e.g. Allonnor Pty Ltd v Doran [1998] QCA 372 at [3] per McPherson JA.  But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4).  So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland [2001] QCA 336 at [19] subsequently endorsed as a “fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended”. The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described.”

  1. Those observations were cited with approval by Keane JA, with whom Muir JA and Douglas J agreed, in Wolfe v State of Queensland.[7]  In Wolfe the plaintiff was suing the State of Queensland alleging that a single vehicle collision in which he was injured arose from the state of the road.  One of the plaintiff’s allegations related to work which should have been done to the surface of the road to correct welts that had formed.  The amendment at issue in Wolfe related to work which should have been done in relation to the sub-surface of the road in order to prevent the welts forming at all.  Keane JA explained that additional allegation was not merely a further particular of the cause of action already pleaded in relation to the negligent maintenance of the surface of the highway.   He observed:

“One may test the point by considering what would have happened if, at trial, Mr Wolfe’s counsel sought to lead evidence of the failure to maintain the sub-surface drainage of the highway, without having made the amendment in question.  That evidence would clearly be objectionable on the ground of surprise.  It would also be objectionable on the ground that the evidence was simply irrelevant to the case of breach of duty raised by the pleading against the State.  It was not part of Mr Wolfe’s pleaded case to put in issue the condition of the sub-surface of the highway and the acts of maintenance which should have been taken by the State in respect of that sub-surface area in order to prevent welts from forming on the surface.”[8]

  1. His Honour explained the determination of the question of whether an act or omission involves a breach of a duty of care depends upon the identification of the particular facts said to reveal a breach of the duty.[9]  His Honour considered the newly pleaded facts revealed a quite different breach of duty from the breach previously pleaded. 
  2. A different outcome occurred in Allonnor Pty Ltd v Doran,[10] which was referred to in both Borsato and Wolfe.  In Allonnor the plaintiff sought damages for personal injuries occasioned by negligence, breach of contract of employment or breach of statutory duty on the part of the defendant employer.  In the initial statement of claim the plaintiff’s back and neck injury was said to have arisen when he delivered a table and chairs to a customer in the morning.  After the initial pleading in Allonnor the defendant alleged the plaintiff had continued to work when he knew he had already hurt his neck and or his back earlier in the day and he failed to inform his employer that he had so hurt his neck and or his back. The amended pleading then sought to introduce a further incident, when, later on the same day, in the course of delivering a garden shed to a customer the plaintiff suffered a shoulder injury.  The Court of Appeal doubted this introduced a new cause of action but in any event concluded it arose from substantially the same facts. 
  3. Williams J noted the potentially cumulative effect of the separate incidents was a feature implicitly recognised in the pleading in the defence that the plaintiff continued to work after the first incident.[11]  In observations which resonate in any personal injury case where the injury arises from an accumulation of factors McPherson JA observed:

“It would, in my opinion, be an unduly refined application of the definition of “cause of action” to regard those two lifting incidents as giving rise to distinct causes of action.  To do so it would be necessary to assume the pain suffered by the plaintiff in those parts of his body was quite unrelated.  Common experience in cases of this kind suggest the contrary.  Injury to a person’s back of neck commonly impose a stress on other parts of the human body, such as the shoulder, rendering it more vulnerable to injury from the effects of the additional stress that is in consequence imposed on that other part. … On any view of what is pleaded, the plaintiff was, at the end of the day in question, left with physical injury to his body, which resulted from the same cause, which was lifting (on one or more than one occasion) in the course of the same employment with the same employer. … In any event even if the second incident can be said to have given rise to a new cause of action, it was one that arose out of substantially the same facts.”[12]

  1. In the present case the newly pleaded references to the CISD and SOP 47 procedures and the failure to implement them undoubtedly introduce more factual detail than was previously pleaded.  However, it will be recalled the plaintiff had pleaded not merely that any system the defendant had in place to obviate or ameliorate the risk was inadequate.  He had also pleaded the defendant failed to provide and maintain a safe system of work and failed to provide appropriate assistance and support.  The introduction of specific reference to the CISD and SOP 47 procedures and the failure to implement them in substance amounts to more detailed pleading of what system was in place and how there was a failure to provide it or to use it to provide assistance and support. 
  2. Using Keane JA’s rule of thumb from Wolfe to test the point, had the plaintiff sought to lead evidence of those systemic procedures and the failure to use them, the defendant could hardly have professed surprise.  They are part of the defendant’s system of counselling and peer support known as Priority One, the only relevant system of the defendant and the very system pleaded at paragraph one of the defence.  Further, such evidence would have been relevant to proof of the system and the failure to provide it or to use it to provide assistance and support. 
  3. The newly pleaded references to the CISD and SOP 47 procedures and the failure to implement them after the first two incidents do not introduce a new cause of action.  Rather they involve more detailed pleading of the same pathway to liability already pleaded.  Leave to plead them is not required pursuant to r 376.
  4. What of the pleading of the training episode and that it should have prompted the initiation of the CISD and SOP 47 procedures?  That feature of the proposed pleading goes beyond merely providing more particulars as to how there was a failure to provide the system.  It raises the training episode, as distinct from the first two incidents, as a reason why the system should have been activated.  In so doing it founds a different pathway to liability than that hitherto pleaded.  I therefore conclude the pleading of the training episode and that it should have prompted the initiation of the CISD and SOP 47 procedures includes a new cause of action and leave was therefore necessary to plead it. 
  5. The next issue is whether it arises out of substantially the same facts as the existing cause of action and whether it is appropriate to give leave to plead it.
  6. It was inherent in the allegations of the existing pleading that the plaintiff’s circumstances should have been known by the defendant and were such as to have called for the provision of assistance and support.  Even on the face of the initial pleading it was obvious the first, second and third episodes and their impact upon the plaintiff would not fall for consideration in isolation, either from each other or from the plaintiff’s work related behaviours and the operation of a workplace assistance and support system during the era in question.  The potential relevance of such matters may on the one hand have been to demonstrate some unassociated cause of the plaintiff’s developing illness.  On the other hand, the relevance may have been to demonstrate behaviours that were an incident of the developing illness and such as to have prompted an employer’s enquiry into and support of the plaintiff’s wellbeing.  Either way such matters have an integral connection with and form part of the same continuum of developments relevant to the onset of and cause of the plaintiff’s illness and the adequacy of his employer’s support.  The training episode and that it should have prompted the initiation of the CISD and SOP 47 procedures are matters that arise out of substantially the same facts as the existing cause of action.  
  7. The integral connection those matters have with the continuum of developments relevant to the onset of the plaintiff’s illness and the adequacy of his employer’s support also support the conclusion it is appropriate that leave be given.  So too does the fact the defendant has long known of facts relevant to those matters and the fact that the defendant partly relies on the training episode in its defence.  It is appropriate that leave be given to make the amendments. 
  8. I would give leave to make the amendments pursuant to r 376, subject to one qualification.  From the discussion of the strike out application below it will be apparent that the final form of the pleading of the link between breach and causation is to be re-pleaded.  It is conceivable that the way in which that aspect is eventually pleaded may be inconsistent with the factual premises of the above reasoning and granting of leave.  The defendant should have the benefit of a liberty to apply order to cater for that hopefully unlikely possibility.
  9. As to the mechanism by which leave should be given it is unnecessary to consider whether leave can or should be given retrospectively in relation to the amended statement of claim which was filed without leave on 3 April 2014.  That is because the plaintiff seeks to advance further amendments in any event.  The tidier course is to strike out the whole of the amended statement of claim which was filed without leave on 3 April 2014 and start afresh, giving leave for the filing of an amended statement of claim pleaded consistently with these reasons.

The strike out application

  1. Despite the fact the whole of the amended statement of claim filed without leave on 3 April 2014 is to be struck out, some further consideration of the merits of the defendant’s strike out application is necessary because it bears upon the permissible content of the amended statement of claim to be filed. 
  2. It is unnecessary to further consider the merits of the application to strike out paragraphs 17A to 17E inclusive (now paragraphs 18 to 22 inclusive) and paragraphs 20A to 20F inclusive (now paragraphs 26 to 31).  That feature of the application was premised on those paragraphs introducing a new cause of action without leave, a matter determined above.
  3. It is however necessary to consider the merits of the strike out application in respect of paragraphs 30 and 31 (now paragraphs 41 and 42), the complaint being those paragraphs did not plead what the defendant should have done and failed to do to prevent the plaintiff’s illness.  The bald assertion of a “causal association” is insufficient in the context of a negligent failure to act.  In such a context, as was observed by Maxwell P in Findlay v Victoria,[13] the causal link between the breach and damage can only be established by a counterfactual hypothesis, identifying what the defendant should have done, had reasonable care been exercised, and how that action would have prevented the damage.
  4. It will be recalled the plaintiff accepted that complaint at the initial hearing on 19 November 2014 and sought to remedy the problem through amendment to paragraph 29 (now paragraph 40).  The amendment in its tracked form is as follows:

2940.    Further or alternatively

(a)   the defendant breached its statutory duty of care owed in the premises to the plaintiff pleaded in paragraph 5; and/or in that it did not institute

(i)  SOP 47; and/or

(ii)  CISD, 

after incidents 1 and 2 which would have prevented the Plaintiff from suffering psychiatric injury, or alternatively, reducing its severity.  Further and/or in the alternative, the Defendant was obliged after the training incident to institute:

(i)  SOP 47; and/or

(ii)  CISD,

(iii) and/or remove the Plaintiff from Doomadgee to prevent him from being exposed to further similar incidents which would have prevented the Plaintiff from suffering psychiatric injury, or alternatively reducing its severity;

 and/or

(b)  the defendant breached the term of its contract of employment with the plaintiff pleaded in paragraph 6(b) in that it did not institute-

(i)  SOP 47; and/or

(ii)  CISD,

after incidents 1 and 2 which would have prevented the Plaintiff from suffering psychiatric injury, or alternatively, reducing its severity.  Further and/or in the alternative, the Defendant was obliged after the training incident to institute:

(i)  SOP 46; and/or

(ii)  CISD,

(i)(iii) and/or remove the Plaintiff from Doomadgee to prevent him from being exposed to further similar incidents which would have prevented him from suffering psychiatric injury, or alternatively reducing its severity.

  1. The plaintiff explained in submissions[14] the above reference to a “statutory duty of care” is erroneous (s 267(a) Work Health Safety Act 2011 (Qld)[15] explicitly precludes that act from conferring a right of action in civil proceedings).  Where that form of words appears it is apparently intended to read “duty of care”, not “statutory duty of care”.
  2. The above proposed amendment does not cure the problem complained of. 
  3. It appears in light of the proposed amendments the plaintiff’s case will generally rely on the following reasoning.  The plaintiff sustained a psychiatric injury.  The injury was caused by his exposure to traumatic events in the course of his work as a paramedic.  The risk of him suffering the injury was reasonably foreseeable.  His employer had an obligation to him to provide a safe system of work and take reasonable care to avoid such injury.  The magnitude and probability of such an injury called for a system of work which did more than reactively provide employees at their request with support and assistance, including counselling, to safeguard their mental well-being.  It also called for a proactive system which adequately trained employees in detecting potential signs of the onset of such an injury, adequately monitored the extent of the trauma to which employees were exposed and adequately monitored employee behaviours so as to ensure employees whose mental well-being was at heightened risk self-identified or were identified by others and provided with support and assistance, including counselling, to safeguard their mental well-being (“an adequate proactive system”).  The defendant either did not have an adequate proactive system or, if it did, it did not enforce the operation of that system.  If it did, the plaintiff contends, it would have resulted in the plaintiff receiving timely support and assistance in support of his mental well-being and he either would not have suffered the injury or its severity would have been significantly reduced. 
  4. It remains unclear whether or not the plaintiff accepts the defendant’s Priority One Peer Support Programme was an adequate proactive system.  It seems implicit in the above proposed amendment the plaintiff accepts it was an adequate proactive system, if enforced.  Yet the pleading of systemic deficiencies at paragraph 27 (now paragraph 37) suggests otherwise.  If the plaintiff wishes to preserve an alternative stance in that regard then it should be made clear in the amended statement of claim which will be filed subsequent to this decision. 
  5. More particularly two other matters remain unclear.  Firstly, what it is that should have occurred in this case pursuant to the defendant’s Priority One Peer Support Programme if enforced properly or, if that system is not accepted as adequate, pursuant to an adequate proactive system?  The above proposed amendment speaks of not instituting the SOP 47 and CISD but it does not describe what actions should have actually occurred through instituting those elements of the Priority One Peer Support Programme.  If the plaintiff accepts the Priority One Peer Support Programme was an adequate proactive system then remedying this deficiency will be as simple as referring to the elements of it which were relevant in a case such as this, considering what actions they should have given rise to in this case and describing those actions in the pleadings. 
  6. Secondly, if those actions were taken, how would they have prevented the plaintiff’s injury or reduced its severity?  For example, as flagged in the above proposed amendment, an action involving the plaintiff’s removal from Doomadgee might be said to have done this by avoiding exposure to further similar traumatic incidents there.  Presumably the plaintiff also contends the defendant’s actions should have involved forms of support and assistance. If so, then the beneficial nature of that support and assistance may be sufficiently clear from the description of what form that support and assistance should have taken, and otherwise should be described sufficiently, so as to explain how it would have prevented or reduced the severity of the plaintiff’s injury.
  7. The defendant has made good its complaint in respect of paragraphs 31 and 32 in the initial statement of claim.  They should be struck out and the plaintiff should have leave to replead them.  For reasons already given the plaintiff will in any event be filing a newly pleaded amended statement of claim.  Its content should be consistent with the reasons just given.

Orders

  1. It will be necessary to hear the parties as to costs if costs cannot be agreed.
  2. My orders are:
    1. Paragraphs 31 and 32 of the initial statement of claim are struck out.
    2. The whole of the amended statement of claim filed without leave on 3 April 2014 is struck out.
    3. The plaintiff has leave to file and serve an amended statement of claim, pleaded consistently with the reasons for these orders, by 4pm on 20 April 2015.
    4. I will hear the parties as to costs on a date to be fixed if costs cannot be agreed.
    5. Liberty to apply on the giving of two business days notice in writing.

Footnotes

[1] The Supreme Court of Queensland Act (Qld) 1991 was substantially amended in 2011 and the content of the old s 81 of that act is now found in s 16 Civil Proceedings Act 2011 (Qld).

[2] Further Amended Statement of Claim [37] formerly [26].

[3] Further Amended Statement of Claim [38] formerly [27].

[4] The document appearing in the affidavit is styled “Statement of Claim” but is referred to in this decision as a further amended statement of claim to avoid confusion.

[5] Limitation of Actions Act 1974 (Qld) s 11.

[6] [2006] QSC 191 [8].

[7] [2009] 1 Qd R 97.

[8] Ibid [12].

[9] Ibid [13]; as is well illustrated in the analysis of the authorities by McMeekin J in Edwards v State of Qld & Anor [2012] QSC 248.

[10] [1998] QCA 372.

[11] Ibid [16]-[17].

[12] Ibid [7]-[8].

[13] [2009] VSCA 294, [2]-[3].

[14] T1-12 L16.

[15] Formerly s 37A Workplace Health and Safety Act 1995 (Qld).

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Editorial Notes

  • Published Case Name:

    James v The State of Queensland

  • Shortened Case Name:

    James v State of Queensland

  • MNC:

    [2015] QSC 65

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    30 Mar 2015

Litigation History

No Litigation History

Appeal Status

No Status