Abuse Law – Case Law Update – Cross Claim Pleadings – IZG2 v State of New South Wales [2024] NSWSC 1228

In the recent related matters of IZG2 v State of New South Wales [2024] NSWSC 1228, the plaintiff, IZG2 (a pseudonym), brought proceedings against the defendant, the State of New South Wales, in relation to sexual abuse the plaintiff suffered whilst a student at Maroubra Bay High School.

The plaintiff commenced proceedings against the defendant seeking damages against it arising from the conduct engaged in by the cross-defendant, Mrs Helga Lam, whilst the plaintiff was a student at Maroubra Bay High School in 1978 and the cross-defendant was a teacher at Maroubra Bay High School.

The defendant resolved that principal claim by admitting on the pleadings that it was liable to the plaintiff and agreeing to pay the plaintiff a sum of money. A consent judgment was entered.

The Amended Statement of Cross-Claim arises subsequently to, and out of the fact of that settlement. The State claims indemnity or contribution against the cross-defendant, Mrs Helga Lam, pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) together with interest and costs.

Section 5(1)(c) of the Act provides that where there are joint and/or several tort-feasors, one tort-feasor liable in respect of damage may recover contribution from any other tort-feasor who is, or would if sued, have been liable in respect of the same damage. Section 5 also provides that in proceedings for contribution, the amount of contribution recoverable from any person shall be such amount “as may be found by the Court to be just and equitable having regard to the extent of that person’s responsibility for the damage.”

When considering the application by the defendant for leave to file an Amended Statement of Cross-Claim, the Court provided as follows:

The cross-defendant submits, and I agree, that without any further particularisation of the basics upon which the State claims to have been a tort feasor, she is simply unable to form a view as to how that paragraph can be pleaded responsively to, in one way or another. Nor can she form a sensible view as to the respective conduct of the tort-feasors such as to assess any likely or possible contribution between tort-feasors (at [14]).

Whilst it may be that the establishment by the State of one of those particulars making itself a tort-feasor would be sufficient to enable recovery to some extent, equally, the establishment of many more of those particulars of breach may well lead to an entirely different assessment of the extent to which the State was in breach of its obligations, and thereby directly affect any apportionment. (at [16]).

In my view, the pleading in the proposed Amended Cross-Claim requires that the State plead by way of particulars to paragraph 5B, the respect or respects it pleads that it is a tort-feasor liable to the plaintiff. It may be that the State does not plead any of the breaches pleaded by the plaintiff but pleads a different breach which formed a central integer in its assessment of whether or not it should admit liability and enter into settlement negotiations. However, it is necessary for the State to clearly plead and specify the respect or respects in which it was a tort-feasor (at [17])

The particulars provided to the pleading that the risk of harm was foreseeable – namely, the existence of a duty and the circumstances in which a duty may be imposed – do not of themselves and without more provide any particulars of the actual or constructive knowledge of the cross-defendant with respect to the risk of harm which is alleged (at [20]).

It is that risk of harm which the Civil Liability Act 2002 requires which was either known to a tort-feasor or else ought to have been known. There are decisions of this Court, including PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [71]-[75]; PM v Council of Trinity Grammar School [2020] NSWSC 1353 at [25]-[26], which require a pleader to clearly particularise whether the knowledge amounting to foreseeability is actual knowledge of a tort-feasor or something which the tort-feasor ought to have known, and if the latter, the matters and circumstances which gave rise to such constructive knowledge. Paragraph 8C, commendably brief and concise, fails to meet the requisite standard of an appropriate particularisation of the foreseeability of the risk of harm (at [22]).

In those circumstances, I am not prepared to grant leave to file the proposed Amended Statement of Cross-Claim in the form in which it currently appears, and it follows the Notice of Motion filed 30 August 2004 must be dismissed (at [23]).

Ultimately, on 23 September 2024, the New South Wales Supreme Court ordered as follows:

1. Order that any proposed Amended Statement of Cross-Claim is to be served on cross‑defendant on or before 4pm 27 September 2024.
2. Order that the solicitors for the cross‑defendant are to notify the solicitors for the cross-claimant of their attitude to the proposed Amended Statement of Cross-Claim on or before 4pm 4 October 2024.
3. In the event that the solicitors for the cross-defendant oppose the fling of the Amended Statement of Cross-Claim, they are to set out basis of their opposition.
4. Direct that at the time the proposed Amended Statement of Cross-Claim is served and letter of response is sent, a copy is to be provided digitally to my Chambers.
5. Defendant’s Notice of Motion filed 30 August 2024 is dismissed.
6. Order the defendant/cross-claimant to pay the cross-defendant’s costs of that Motion.

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