Caffrey v AAI Ltd[2017] QSC 339

SUPREME COURT OF QUEENSLAND

HIS HONOUR:   This is a proceeding in which the plaintiff applicant sues the compulsory insurer of one vehicle, and the compulsory insurer of another vehicle, that were involved in accidents on different dates.  Presently I am concerned only with the first accident, which occurred on 17 February 2013. 

It is admitted that Mr Williams was driving his vehicle along a certain road, and collided with a tree.  Mr Williams died as a result of the accident, so this was a single vehicle collision which the plaintiff alleges was occasioned by Mr Williams’ negligence.  The first defendant, who is the respondent to this application, does not admit negligence.  The plaintiff alleges in paragraph 12 of his pleading that:

As a member of the Queensland Police Force it was necessary for him in the course of the performance of his duties as a police officer, to attend at the scene of the collision.

I emphasise his attendance.  What was required of him beyond that, is not clear.  Instead, what is then said is that in undertaking that duty to attend at the scene of the collision, he was:

…exposed to the aftermath of the collision, including the need to deal with fatal injuries suffered by Byron Neil Williams, and coordinate police operations at the scene.

The first defendant does not admit that allegation, which has been particularised.  The plaintiff alleges that as a result of the matters described in paragraph 12, he suffered a psychiatric or psychological injury. 

The present issue arises on an application to strike out certain parts of the defence on the grounds that the first defendant’s pleading to the allegation of a duty of care to take action to avoid risk of psychiatric harm is bad in law, or is otherwise liable to be struck out pursuant to rule 171. 

The alternative application made in the amended application is to seek the preliminary determination of this question:

 “That Byron Neil Williams, as the admitted driver of the Holden motor vehicle referred to in the amended statement of claim, owed the plaintiff a duty of care, breach of which would afford the plaintiff a cause of action in negligence for his injuries, if any sustained, as a result of the collision admitted in paragraph 3(a) of this amended defence.”

The first defendant submits, consistent with its pleaded case, that Mr Williams did not owe a duty of care to the plaintiff, but, in any event, the determination of that issue is one that ought take place after a trial. 

The principles governing an application to strike out on the ground that a pleaded matter is bad in law have been well established.  The relevant principles were conveniently summarised by Justice Bond in Lee v Abedian [2016] QSC 92.  These principles derive from seminal cases such as General Steel Industries v Commissioner for Railways (1964) 112 CLR 125, and Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91.  As was said by Justice Dixon in Dey:

The power cannot be exercised once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it.

Various expressions have been used in this context.  Sometimes it has been said that the matter must be so obviously untenable that it cannot possibly succeed or not admit of argument.  Often these expressions are used in the context of applications to strike out claims, but the same principles apply in relation to applications to strike out defences.

The plaintiff concedes that the power to strike out a pleading on the ground that it fails to disclose a cause of action is to be exercised sparingly and in only the clearest of cases, and concedes that the same should be said about the power to strike out a pleading on the ground that it is bad in law or discloses no reasonable defence.  The plaintiff submits, however, that there is nothing in the current application which falls foul of those principles. What is said is that the issue to be determined is a pure question of law, and it is submitted that there are no facts in respect of which there is not an admission which is determinative of the issue.

The discretion to strike out should not be lightly exercised.  It is a power which can be exercised in a matter in which prolonged argument is necessary in order to expose the lack of a claim or the lack of a defence.  However, it is a discretionary matter.  As was said by Lord Templeman in Williams and Humbert Ltd v W & H Trade Marks [1986] 1 AC 368 at 435 to 436, following earlier authority:

if an application to strike out involves a prolonged and serious argument, the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of a pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial, or will substantially reduce the burden of preparing for a trial, or the burden of the trial itself.

I pause to note that even if I harboured real doubts about the soundness of the defence, I would not be satisfied that striking out the defence will obviate the need for a trial, or will substantially reduce the burden of preparing for a trial, or the burden of a trial itself.  A finding by me that there was a duty of care beyond argument would inform the parties.  It would not necessarily lead to the resolution of the trial because many other issues remain to be determined as between the plaintiff and the first defendant, and between the plaintiff and the second respondent;  and, indeed, as between the first defendant and the second defendant, by way of contribution or indemnity.

The effect of striking out part of the defence would, leaving aside questions of appeal, simply have the matter go to trial, in which the first defendant was not   permitted to argue that no duty of care to avoid psychiatric harm was owed in the circumstances.  The position in relation to the second defendant is different.  There is a different accident and different matters are pleaded.  Nonetheless, in that context, not dissimilar issues arise, and the second defendant, in that context, whilst admitting certain things and admitting that the plaintiff stopped at the scene of the second accident to lend assistance and observed the aftermath of the accident, denies certain matters, specifically in paragraph 5(f) and following of the amended defence of the second defendant, filed 22 September 2017.

It denies that there was a foreseeable risk of certain matters, and asserts that there was no reasonably foreseeable risk, nor in the alternative, a not insignificant risk that the plaintiff, as a QPS officer attending the scene, alternatively as a person who attended the scene, and says he was not engaged in any rescue but, rather, was observing persons deceased, would suffer such psychiatric injury.

Accordingly, at any trial, issues concerning the existence and nature and content of a duty of care owed by a police officer attending at the scene of an accident will arise for determination. 

Returning to the case before me, and the issue of whether it is, to put it in very simple terms, beyond argument that the driver, Mr Williams, owed a duty of care to avoid psychiatric harm in the pleaded circumstances, there is often an understandable reluctance to decide the existence or absence of a duty of care on the basis of pleadings, even comprehensive pleadings.

In Agar v Hyde (2000) 201 CLR 552, in a different context the High Court was considering issues of whether a duty of care was owed. It noted that in some cases that issue can be decided on what was a demurrer.  Their Honours Justices Gaudron, McHugh, Gummow and Hayne went on to say at 578:

The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a Court considering an application for summary termination of the proceedings to be sure that all of the possible nuances of the plaintiff’s case are revealed by the pleading.  Further, and no less importantly, any finding about duty of care will often depend upon the evidence which is given at trial. 

Other statements of principle have been made in the context of applications to strike out plaintiffs’ pleadings which allege a duty of care. But the same general principles must apply, in that there is often a reluctance to dismiss summarily a claim or a defence advancing a novel argument concerning the existence or absence of a duty of care.  A Court will often be reluctant to summarily determine that issue at an early stage in litigation.  See New South Wales v Spearpoint [2009] NSWCA 233 at [26]. 

In King v Philcox (2015) 255 CLR 304; [2015] HCA 19 at [29] – [30], Chief Justice French, and Justices Kiefel and Gageler referred generally to the variables which can be taken into account for the purpose of determining the existence of a duty of care, and expressed caution about arguments based upon analogical arguments.  Justice Nettle at [80], referring to Wick’s case (2010) 241 CLR 60, noted that the issue of duty of care owed to those present at the aftermath of an accident was not dealt with in detail.  His Honour referred to the fact that the question of whether a duty of care is owed is a matter that is ultimately decided by value judgments of matters of policy and degree.

Consideration can be given to:

“the features of the relationships between the parties and the factual circumstances of the case, prompting a judicial evaluation of the factors that tend for or against a conclusion that it is reasonable … for a duty of care to arise.”

His Honour said that:

These considerations may be tempered or assisted by policy considerations and value judgments.

That is not to say that the existence of a duty of care depends upon discretionary decision-making in individual cases. However, it is to emphasise that whilst a question of law arises, that question is informed by careful attention to the factual circumstances of the case.  In a case like this, it includes the nature of the relationship between the victim, who is a claimant, and the defendant. 

Particular reliance was placed on this application upon the decision of the High Court in Wicks, and I have regard to that case.  I note immediately that the issue that was considered by the High Court, but not decided by it, concerned whether the Rail Authority owed serving police officers, who were rescuers, a certain duty of care.  I emphasise that they were described as rescuers.  In that context, the Court said at [33]:

To resolve this question, it would require consideration of whether it was reasonably foreseeable that a rescuer attending a train accident of the kind that might result from State Rail’s negligence … might suffer recognisable psychiatric injury as a result of his experiences at the scene.

The issue or question was framed concerning reasonable foreseeability, that sights of the kind a rescuer might see might cause a person of normal fortitude to develop a recognised psychiatric illness.  Whatever authority Wicks has in relation to a duty of care owed to a rescuer cannot be simply applied by analogy to someone who is not said to have been a rescuer, but instead someone who attended the scene as a matter of duty, as a police officer, and then embarked upon certain matters, and in doing so was exposed to the aftermath of the collision.

I emphasise that I am not presently deciding the issue.  What I am saying, in accordance with the authorities that I have earlier cited, is that the existence or absence of a duty of care of the kind contended for here may be informed by evidence given at trial by, amongst others, the plaintiff, concerning what he was required to do upon attending the scene, and what he felt obliged to do, and what he may have done no differently to other persons who were in attendance. 

It seems to me that the pleading supplemented as it is by the particulars, does not necessarily reveal all the possible nuances of the plaintiff’s case. The determination of the existence or absence of a duty of care should depend upon the evidence given at trial.  In saying that, I do not wish to be understood as placing the plaintiff in necessarily the same situation as a bystander to whom it might be said no duty of care was owed, or a citizen who did some things that the plaintiff was obliged to do or felt obliged to do, such as aiding traffic control.  It is simply to say that the facts of this case beyond the material facts which are pleaded and particularised require exploration in order to ultimately decide the question of law of whether a duty of care was owed. 

In the circumstances, I consider that this is not a matter in which I should, as a matter of discretion, decide because further facts will illuminate the issue. A Court should not summarily decide a claim or defence at such an early stage in litigation, in the absence of agreed facts which may bear upon the legal issue to be decided.  Even if I harboured great reservations about the defence which denies the existence of the pleaded duty of care, an additional discretionary reason is the one to which I have alluded. The determination of this matter in favour of the plaintiff would not obviate the need for a trial, and I am not persuaded that it would substantially reduce its length.  There still will be an argument about the duty of care.

In short, the plaintiff has not persuaded me that the denial of a duty of care is beyond argument.  It seems to me that it is arguable on the basis of the pleaded facts that no duty of care was owed. 

I turn to the application for a separate determination of this issue.  The procedure for having a separate prior determination of questions of law or fact is a procedure which can, on occasions, be usefully engaged.  The principles governing whether issues should be set for prior determination have been stated in a number of cases, including  Reading Australia Pty Ltd v AMP (1999) 217 ALR 495. 

A number of considerations arise, and I will not delay to essay them.  They include the potential for a multiplicity of appeals and a fracturing of proceedings.  They also raise the question of whether a party or a witness may be required to give evidence at different stages of the trial, with assessments of reliability and credibility.  Here, for the reasons I have already alluded to, some basic and material facts are pleaded, but there has not been an exploration of the kind that would be expected in evidence concerning what was required of the plaintiff in attending, and what he felt he needed to do. 

The fact that he did all that he says he did in his particulars, and thereby exposed himself to the risk that he asserts, is not to say that he was necessarily required to do all of those things.  It may be that he was, but it may be that he was not required in securing the scene or doing other things by way of a preliminary investigation, to see as much as he unfortunately did.  It is sufficient to say that the High Court in a number of authorities has cautioned against the determination of issues in circumstances where the facts are not proven or agreed. Here the facts beyond certain matters admitted in the pleadings, are not agreed.  I mention in passing, that in Wicks (2010) 241 CLR 60, there was an agreed statement of issues, including an agreement that Mr Wicks was a rescuer. 

I am not persuaded that I should exercise my discretion to decide the question.  I am not persuaded that I have sufficient evidence before me to do so, or that the facts are agreed. 

Again, if I was to determine the issue in favour of the plaintiff, the matter would still proceed to trial. Alleged savings may prove illusory, if there was an appeal which overturned that decision.  In any event, even if there was no appeal, as I have said, issues of duty of care and their content, will be issues at trial between the plaintiff and the second defendant. 

If I decline to strike out the pleading, and positively found that there was a duty of care, then one might expect an appeal.  Either way, the prospects of appeals from a determination of the proposed separate question one way or another are high. It is unlikely to, in my view, enhance the resolution of the real issues in dispute between the parties with a minimum of expense.  I apprehend it is likely to fracture the proceedings and not do much to assist their expeditious determination. 

In my view, the expeditious determination of the real issues in dispute between the plaintiff and the first defendant, and the real issues in dispute between the plaintiff and the second defendant, will be assisted by the expedited preparation of the matter for trial, whereby the precise circumstances in which the plaintiff attended upon the scene, and precisely what he did thereafter, are established by the evidence, and agreed if possible, and if not agreed, are subject to factual determination at the trial.

I should add this, insofar as some aspects of this application have the flavour of a summary determination of a question of law. Even if I was persuaded that on the facts pleaded in this case, there was a strong argument that a plaintiff was owed a duty of care, analogous to the duty of care owed to a rescuer, it seems to me that it would be inappropriate even in that circumstance to grant, in effect, summary judgment.  The parties are entitled to have their rights determined at trial, unless there is good reason to summarily decide a case or a case is so manifestly hopeless that it should be struck out, or a defence struck out.

The helpful arguments which I have had presented to me today indicate to me that whatever view might be taken of the strength or weaknesses of the arguments concerning the presence or an absence of a duty of care, that this is a complex issue of law.  In the different context of a summary dismissal of proceedings under the Federal Court Rules, the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at 132, observed:

Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter.  Existing authority may be overruled, qualified or further explained.  Summary processes must not be used to stultify the development of the law. 

It seems to me that that general principle is apposite here. The summary determination of what may be a complex issue of law should not be engaged upon.  However, I do not harbour the significant doubts which would be necessary to embark fully upon an application to strike out or to embark upon the separate question.  It seems to me that to do so would deprive the first defendant of a trial and the opportunity to establish on the evidence advanced at trial that the driver did not owe a duty of care in the circumstances, and that on the facts not only pleaded but proven at trial, as a matter of principle and evaluation, even if it was something reasonably foreseeable, that no duty of care was owed.

In those circumstances it should be open to the defendant to argue that the law of Australia is such that no duty of care should be found.  Therefore, even if I thought that the present argument was strongly against the first defendant’s position, I would still be disinclined to dismiss its defence, or strike out its defence.  I am not in a position where the present issue has been authoritatively determined.  There may be cases involving rescuers.  There are other cases, such as Bowditch v McEwan [2001] QSC 448; [2003] 2 Qd R 615, which concern a different issue of owing a duty of care. In some cases the existence of a duty of care may be capable of resolution on the basis of agreed and uncontentious facts.  This is not such a case.

For these reasons I decline to exercise the discretion to strike out the defence, and I decline to exercise the discretion to order that the proposed question be decided separately from other questions arising in the proceeding.  So I dismiss the application.

...

It seems to me that notwithstanding the success which was enjoyed in relation to the since deleted paragraph 2 of the original application, the first defendant has enjoyed substantial success in this matter, and its pleading has survived the challenge. I have upheld its essential argument that the determination of whether a duty of care was owed ought to take place at a trial. For those reasons the ordinarily principle embodied in the rules, that as a starting point costs should follow the event, should not be displaced.  The appropriate order for costs in relation to the plaintiff’s application will be that the plaintiff pay the first defendant’s costs of the application, to be assessed on the standard basis.