THE IMPORTANCE OF PROPERLY PLEADING YOUR CASE

BB6 v State of New South Wales [2021] NSWSC 1516

In the matter of BB6 v State of New South Wales [2021] NSWSC 1516 the plaintiff, BB6, attempted to file an Amended Statement of Claim with the Supreme Court of New South Wales before the Honourable Justice Galing, on the 25 March 2021. In June 2020, BB6 commenced proceedings claiming damages against the State of New South Wales (“the State”) and a Catholic Archdiocese (“the second defendant”) for injuries sustained as a consequence of sexual, physical, verbal and emotional abuse which she alleges took place while she was a resident of two separate institutions, Institution A and Institution B.

The plaintiff alleged the State failed to intervene and protect her from the physical, sexual and emotional abuse. The matter came before the NSW supreme court when BB6 wanted to amend her claim to include another party who she alleges was responsible for her care.

BB6 had named the wrong party in her original claim and sought leave of the court to amend her Statement of Claim. Her application was refused by the Court which ruled her pleadings lack specificity to a point the defendant would have difficulty understanding and defending the proceedings against it.

His Honourable Garling J found the following deficiencies:

1.????Causes of action were found to have been deficient in pleading the case with clarity and precision and incorrectly pleading it in a general period.

2.????Duty of care was pleaded defectively as it failed to identify any statute or power the State could have exercised in its duty of care towards BB6.

3.????Risk of harm is expected to be pleaded to explain the duty of care and its relation to the risk of harm. The Honourable Garling J found that BB6’s amended Statement of Claim failed as it did not properly explain the risk of harm.

4.????Breach of duty was not considered as the Court found BB6 had failed to properly plead the duty of care and its related risk of harm.

It was then concluded the deficiencies in BB6’s proposed amended Statement of Claim did not meet the threshold of proper pleading principles, so leave to amend her Statement of Claim was refused. BB6 had her application for leave to amend her Statement of Claim dismissed and was ordered to pay the defendant’s costs of the application.

This case is a good example of procedural matters and why it is important to be specific with claims and the duty of care owed with the specific failure(s) to take precautions against the harm suffered and to demonstrate as a result of those failures there was injury, loss and damages.

By Jennifer Finucane, 3rd August 2022.