AZW v State of Queensland [2025] QSC 161

SUPREME COURT OF QUEENSLAND CITATION: AZW v State of Queensland [2025] QSC 161 PARTIES: AZW (Plaintiff) v STATE OF QUEENSLAND (Defendant) FILE NO/S: 11396/23 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 15 July 2025 DELIVERED AT: Brisbane HEARING DATE: 17 June 2025 JUDGE: Smith J ORDER: 1. Paragraphs 8, 8A(a)-(f), 13(a)-(d), 13(g) and 20A are struck out. 2. The Plaintiff is given leave to replead. 3. I will hear the parties on the question of costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – STRIKING OUT PLEADINGS – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE - where the plaintiff alleges he was sexually abused as a child by a parent aide engaged by a parent aide unit – where the parent aide was removed for inappropriate conduct but where the mother of the plaintiff was not told this – where the sexual abuse occurred after the parent aide was removed – whether there was a duty of care to continue to supervise the parent aide – whether there was a duty of care to inform the mother of the dismissal and the reasons thereof – whether a cause of action can be pleaded – whether the plaintiff’s further amended statement of claim or paragraphs of it should be struck out – whether the plaintiff should be given leave to replead TORTS – ESSENTIALS OF ACTION FOR NEGLIGENCE – relationship of proximity – standard of care – causation – whether a cause of action available where an individual commits sexual assaults on a child after the individual’s engagement is terminated by the defendant – where no -- 1 of 17 -- 2 requirement to continue supervising the individual - whether an action is available for failing to warn the plaintiff’s mother that the man had been terminated and the reasons thereof Uniform Civil Procedure Rules 1999 (Qld) r 171 A v New South Wales [2007] HCA 10; (2007) 230 CLR 500, considered Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, considered Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151, cited Body v Mount Isa Mines Ltd [2014] QCA 214, cited Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07, applied Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, cited CAL (No 14) Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390, cited Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, considered Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, cited Collins v Insurance Australia Ltd [2022] NSWCA 135; (2022) 109 NSWLR 240, cited Faruqi v Latham [2018] FCA 1328, cited Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91, cited GLJ v Roman Catholic Church [2023] HCA 32; (2023) 414 ALR 635, cited Graham v New South Wales [2001] NSWCA 248; (2001) 34 MVR 198, cited Graham Barclay Oysters Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, cited Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549, applied March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, cited Minister for the Environment v Sharma [2022] FCAFC 35; (2022) 291 FCR 311, considered Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254, applied Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631, cited Queensland Taxi Licence Holders v Queensland [2020] QSC 94, cited Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, considered Royalene Pty Ltd v Registrar of Titles [2007] QSC 59, cited Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, applied Swain v Waverley MC [2005] HCA 4; (2005) 220 CLR 517, applied Sydney Water Corp v Turano [2009] HCA 42; (2009) 239 CLR 51, cited -- 2 of 17 -- 3 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, cited Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368, applied Wodonga Regional Health Service v Hopgood [2012] VSCA 326; (2012) 37 VR 284, cited Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, applied COUNSEL: Mr G Mullins KC and Ms S Anderson for the plaintiff Ms C Heyworth-Smith KC and Mr J R Moxon for the defendant SOLICITORS: Restore Legal for the plaintiff Gadens for the defendant Introduction [1] This is an application by the defendant to strike out the plaintiffs fifth further amended Statement of Claim pursuant to rule 171 of the UCPR or in the exercise of the court’s inherent jurisdiction. The defendant also seeks an order that there be no leave to replead. Summary [2] The plaintiff alleges that when he was about 10 years old he was unlawfully sexually abused by a man, Shane Casey, from about June 1999 until November 1999. Mr Casey was an enrolled nurse who worked at the Royal Children’s Hospital (“RCH”). [3] It is alleged Mr Casey had a propensity to sexually assault boys and pleaded guilty to indecently dealing with another child and was convicted of indecently dealing with two other boys (one was the plaintiff’s brother). [4] The plaintiff was born on 13 June 1989 and is the son of the SKQ. His siblings include ATX born 21 March 1986, ACV born 17 November 1990, two younger sisters and a younger half-sister. [5] ACV suffered from ADHD and was difficult for SKQ to manage. As early as 1999, SKQ received assistance in respect of ACV from Dr Jim McKenna a psychologist at the Child and Youth Mental Health Service in Nundah (“CYMHSN”). [6] The Parent Aide Unit (“PAU”) was established to assist parents in managing their children and was run from the RCH and with the exception of a paid coordinator, the PAU was staffed by volunteers. [7] Mr Casey was assigned to the plaintiff’s family by Bronwyn Herbert, the coordinator of the PAU, as a volunteer parent aide from about February 1999 to May 1999. It is alleged that Mr Casey sexually abused the plaintiff between June 1999 and November 1999. -- 3 of 17 -- 4 [8] The plaintiff alleges that the State is liable in negligence in respect of the abuse, despite the fact that Mr Casey was no longer employed as a parent aide by the PAU when the abuse occurred. [9] The defendant submits that the plaintiff has failed to plead a maintainable cause of action. It is submitted that there are central flaws in the allegations of the duty of care, breach of duty and causation, problems which cannot be remedied by particulars or amendment. This is primarily because the sexual abuse occurred after Mr Casey was terminated as a parent aide. [10] The plaintiff opposes the application and submits the pleading is sufficient. [11] For the reasons which follow, I consider that some of the paragraphs of the Statement of Claim should be struck out as they disclose no reasonable cause of action. [12] Despite this being the seventh attempt to finalise the Statement of Claim, I will allow the plaintiff a further chance to replead its case as I consider it would be wrong of the court to shut out the plaintiff from his claim. Statement of Claim [13] It is admitted that the defendant operated the RCH; that the PAU was within the RCH; that the PAU was established to recruit, select, train and supervise volunteers to work as part of a team; that the defendant directed the parent aides to engage in the tasks mentioned in paragraph 2 (b)(vii) and operated the CYMHSN. [14] Paragraph 2(g) pleads that in or about early 1999, Dr McKenna recommended that Ms Herbert appoint Mr Casey as a volunteer parent aide to be assigned to the plaintiff’s family. His responsibilities were to assist SKQ with the management of ACV’s behaviour; to support SKQ in the management of the five children; to require him to be present in the home of the plaintiff and to interact with the plaintiff’s family. [15] It is admitted that the CYMHSN and Dr McKenna assisted SKQ with the management of ACV and that in the first half of 1999, Dr McKenna specifically recommended that SKQ engage Mr Casey. SKQ did so in about March 1999. [16] It is alleged in paragraph 4 that Dr McKenna advised SKQ that Mr Casey was a nurse; had experience working with children; and would assist her with the management of ACV’s behaviour. [17] Paragraph 5 alleges that, based on Dr McKenna’s recommendation and advice, Mr Casey was engaged as a parent aide. [18] In paragraph 6 it is alleged that in the course of his engagement as a parent aide, Mr Casey commenced providing services to SKQ and her children, including the plaintiff, at their house at Zillmere.1 [19] It is admitted that CYMHSN had a duty of care to SKQ which was a duty to exercise reasonable care and take precautions against a risk of injury that was foreseeable. 1 The defendant admits that Mr Casey was a volunteer parent aide from 16 March 1999 until 10 May 1999. -- 4 of 17 -- 5 [20] In paragraph 8 it is alleged that the defendant and its employees, in operating the CYMHSN, owed the plaintiff a duty of care to exercise reasonable care for his safety in the provision of services including the allocation of a parent aide, to avoid a risk of injury to the plaintiff that was foreseeable and not insignificant.2 [21] The content of the duty of care is pleaded in paragraph 8A. The duty required the defendant to: (a) engage and retain parent aides who: (i) were trained in caring for the safety and wellbeing of the children they were engaged to assist with; (ii) were capable of establishing and maintaining and who did establish and maintain a reasonable standard of care with respect to the children they were engaged to assist with. (iii) were capable of protecting and did protect the children they were engaged to assist with from physical and emotional harm. [22] It is alleged in paragraph 8A(b) there was a duty to supervise parent aides in the conduct of their duties and dealings with the children. [23] It is alleged in paragraph 8A(c) there was a duty to devise and implement audit procedures and monitoring and quality assurance measures in respect of parent aide services. [24] It is alleged in paragraph 8A(d) there was a duty to devise and implement a confidential and secure complaint and follow-up system whereby children could report relevant incidents to the defendant. [25] It is alleged in paragraph 8A(e) that the defendant had a duty to investigate all reports and complaints of a sexual nature alleged about parent aides. [26] It is alleged in paragraph 8A(f) the defendant had a duty to ensure parent aides were not allowed to sleep in the same room or in the same bed as children such as the plaintiff. [27] It is further alleged in paragraph 8A(g) there was a duty to notify the parents who were allocated a parent aide when that parent aide ceased to be a parent aide connected with the defendant. [28] It is alleged in paragraph 8A(h) there was a duty to advise and update parents on the obligations of a parent aide and their roles and responsibilities including the circumstances and status of their engagement. [29] It is alleged in paragraph 9 that Ms Herbert, as the PAU coordinator, was responsible for the selection, training, monitoring, supervision and termination of parent aides; receiving reports from parent aides, and communicating with parents to whom parent aides were allocated. [30] Paragraph 9A sets out the alleged facts which lead to this inference. 2 These last three words are surplusage as it is agreed the Civil Liability Act 2003 (Qld) does not apply. -- 5 of 17 -- 6 [31] It is alleged in paragraph 9B that on or about 10 May 1999, Mr Casey was terminated from the PAU program by Ms Herbert because: (a) He was not reporting to the PAU. (b) He was getting too involved with the plaintiff and his brothers. (c) Ms Herbert did not feel comfortable with him working with the plaintiff’s family. (d) He did not come to monthly meetings. (e) He was not cooperative with Ms Herbert. [32] Ms Herbert informed Dr McKenna she was putting Casey off and told him of the reasons. [33] It is alleged that Ms Herbert did not communicate with the plaintiff’s mother to inform her that she was putting Casey off and the reasons for that decision. [34] In paragraph 9C, it is alleged that Dr McKenna continued to have fortnightly or monthly contact with SKQ from March to November 1999 and knew that SKQ was unaware that Mr Casey had been terminated from the PA program because SKQ told him that Mr Casey continued to act as a parent aide. [35] It is further alleged that Dr McKenna did not tell SKQ that Mr Casey was no longer a parent aide, and it is alleged that he had a responsibility to tell her. It is further alleged that he knew that Mr Casey was sleeping over night at her home and did not tell SKQ that this was not appropriate, and he had a duty to do so. He also did not tell SKQ that Mr Casey was no longer working as a nurse at the RCH and should have told her this. It is further alleged that Dr McKenna did not direct Mr Casey to cease having contact with the family when he was terminated as a parent aide, and it was his responsibility to do so. [36] In paragraph 10, it is alleged that between June 1999 and November 1999, in the course of his engagement as a parent aide, Casey sexually abused the plaintiff on multiple occasions at the family home and also during an overnight trip at Kingscliff. [37] In paragraph 11, it is alleged that between April 1999 and November 1999, Casey also sexually abused ATX, ACV and JKL, one of ATX’s school friends. [38] In paragraph 12, it is alleged that on 23 April 2001 Mr Casey was charged in the District Court of Queensland with sexual offences relating to the plaintiff and ATX. [39] In paragraph 12A, it is alleged Casey pleaded guilty to two counts involving GHI. [40] In paragraph 12B, it is alleged that Mr Casey was found guilty on 18 February 2002 of one count of indecent treatment of ATX and one count of indecent treatment involving JKL. [41] It is alleged in paragraph 12C that Mr Casey had a propensity or tendency to sexually assault children, particularly young boys with whom he spent time and was supervising, such as the plaintiff. -- 6 of 17 -- 7 [42] Paragraph 12D alleges that in or about late August 1999, Mr Casey acted sexually to AM, a male child who was an inpatient at the RCH, which was reported to Michelle Donaldson, a registered nurse. There were also allegations concerning a patient SW. These matters were investigated. [43] Paragraph 12E alleges that on 29 August 1999, Mr Casey’s employment as an enrolled nurse at the RCH was terminated by the defendant. [44] Paragraph 12F alleges that in or about late August or September 1999 the assistant director of the child protection unit of the RCH discussed her concerns about Mr Casey and the investigation into Casey’s behaviour relating to AM and SW with Ms Herbert. [45] Paragraph 13 alleged that the defendant breached its duty of care to the plaintiff in that: (a) It failed to carry out supervision of Mr Casey in the performance of his duties. (b) It failed to instruct parents to restrict Mr Casey’s access to the children. (c) It failed to take steps to reduce the likelihood of abuse by (i) engaging aides who did not sexually abuse children; who were trained in caring for the safety and wellbeing of children; who maintained a reasonable standard of care with respect to the children and who were capable of protecting the children. (ii) It failed to supervise Mr Casey. (iii) It failed to devise and implement audit procedures, monitoring and quality assurance measures. (iv) It failed to devise and implement a complaint and follow up system. (v) It failed to ensure that parent aides did not sleep in the same room or same bed as a child such as the plaintiff. (d) It exposed the plaintiff to abuse of a sexual nature because of the above. (e) It failed to inform SKQ (by Dr McKenna) that Mr Casey was no longer a parent aide. (f) It failed to inform SKQ (by Ms Herbert) that Mr Casey was no longer a parent aide. (g) It failed to direct Mr Casey to cease contact with the plaintiff and her family. (h) It failed to inform SKQ in August 1999 that Mr Casey had acted inappropriately with two male children at the RCH and his employment had been terminated. [46] In paragraph 14, it is alleged the defendant is vicariously liable for the negligent acts of its employees including Ms Herbert and Dr McKenna. [47] It is alleged in paragraph 15 that as a result of the abuse and the breaches of the defendant’s duty of care, the plaintiff suffered psychiatric and emotional injuries -- 7 of 17 -- 8 including chronic post-traumatic stress disorder, chronic polysubstance dependence abuse and possible attention deficit disorder. [48] In paragraph 20A, it is alleged that had the defendant, through its employees, before June 1999: (a) Advised SKQ that Mr Casey was not to stay overnight at her home. (b) Provided Mr Casey with training and supervision as described in paragraph 13. (c) Adequately investigated Mr Casey’s personal and criminal history. (d) Advised SKQ that Mr Casey had been terminated as a Parent Aide in May 1999, or (e) Not appointed Casey as a Parent Aide until training was complete. Then the abuse would not have occurred and the plaintiff would not have suffered injury. Submissions by the defendant [49] The defendant submits that the sexual abuse of the plaintiff, his two brothers and friends occurred from June 1999 until November 1999. Mr Casey was terminated as a parent aide on 10 May 1999 and thus the abuse occurred after that point. [50] The defendant submits that paragraph 8 poses a difficulty for the plaintiff because it pleads the duty to take reasonable care occurred with respect to the provision of services including the allocation of a parent aide and yet the abuse here occurred after the termination. [51] It is submitted that a duty to take reasonable care in the provision of services cannot be taken to extend to a period when those services are no longer being provided. The defendant relies on Collins v Insurance Australia Ltd,3 Geyer v Downs4 and Graham v New South Wales.5 [52] It is submitted the plaintiffs case reduces to the notion that the State ought to be liable in respect of Casey’s conduct because it was responsible for introducing the plaintiff and his family to Casey and therefore it was responsible for whatever happened thereafter. This is too wide a basis to sustain a duty of care. [53] It is submitted in reliance on Minister for the Environment v Sharma6 that there is insufficient proximity to impose a duty of care. It was SKQ who allowed access to the children, not the defendant. [54] It is submitted that paragraph 8 should be struck out. [55] As to paragraph 8A, it is submitted that the allegations of content contravene fundamental principles in the cases. There is an importance in separating breach and 3 [2022] NSWCA 135; (2022) 109 NSWLR 240. 4 [1977] HCA 64; (1977) 138 CLR 91. 5 [2001] NSWCA 248; (2001) 34 MVR 198. 6 [2022] FCAFC 35; (2022) 291 FCR 311. -- 8 of 17 -- 9 duty.7 It is submitted that paragraph 8A of the statement of claim ought to be struck out. [56] On the issue of breach, the defendant submits that paragraph 13 is liable to be stuck out because the abuse did not occur until after Casey had ceased to be a parent aide. Any lack of supervision and similar allegations are accordingly irrelevant. [57] It is further alleged that paragraph 9 should be struck out as well. This paragraph relates to the allegation that Ms Herbert was responsible for communicating with the parents. Paragraphs 9A and 9B relate to Ms Herbert not telling SKQ of the decision to terminate Mr Casey and 9C to Dr McKenna. It is submitted these paragraphs are deficient as there is no pleading justifying the requirement to inform SKQ. It is submitted there are insufficient facts pleaded as to why both Ms Herbert and Dr McKenna had a duty to inform SKQ as alleged. There was also no power in Dr McKenna to direct Casey to cease having contact with the plaintiff and the family. [58] As to paragraphs 12D to 12F, it is submitted these events occurred in August 1999, well after Mr Casey’s termination and even after the commencement of the sexual abuse. The plaintiff does not allege the allegations are true and, in any event, they are irrelevant as the damage to the plaintiff had already been done. [59] It is alleged that paragraphs 12D to 12F and 13(h) should be struck out. [60] On the issue of causation, it is submitted that paragraph 20A is deficient. It is submitted that a causal link between breach and harm must be pleaded.8 It is submitted the paragraph does not sufficiently plead causation. It is also submitted that the paragraph is deficient as the references to training and supervision are irrelevant as the abuse occurred after Mr Casey ceased to be a parent aide. There is insufficient justification to allege that Mr Casey had a relevant personal and criminal history before 1999. There is nothing in the pleading to suggest that the abuse would not have occurred if SKQ was advised that Mr Casey should not stay overnight. [61] It is submitted that once these paragraphs are struck out, what would be left is a confusing residue that does not disclose a cause of action and it would be appropriate to strike out the whole pleading.9 [62] It is submitted that the plaintiff should not be given leave to replead. This is the seventh version of the pleading.10 Plaintiff’s Submissions [63] The plaintiff submits that he was sexually abused by a man introduced to his family by a psychologist employed by the defendant. 7 Neindorf v Junkovic [2022] HCA 75; (2005) 222 ALR 631 at [52]-[55]. 8 Wodonga Regional Health Service v Hopgood [2012] VSCA 326; (2012) 37 VR 284 at [31]. 9 Faruqi v Latham [2018] FCA 1328 at [198]-[200]. 10 Queensland Taxi Licence Holders v Queensland [2020] QSC 94 at [11]. -- 9 of 17 -- 10 [64] It is submitted that the power to strike out pleadings is to be sparingly exercised and only in clear cases. A party should not be improperly deprived of the opportunity for trial of the case. [65] The plaintiff notes that the defendant admits that the CYMHSN and Dr McKenna were assisting the plaintiff’s mother with respect to ACV. It is submitted that Dr McKenna specifically recommended that SKQ engage with Mr Casey in about March 1999 and SKQ relied on this recommendation. Thereafter, he stayed at the house on multiple occasions. [66] Ms Herbert terminated Mr Casey’s engagement, but SKQ was not told of this or the reasons for it. [67] The plaintiff says that the relationship between the parties gave rise to a duty to exercise reasonable care to avoid a foreseeable risk of injury that was not insignificant. It is submitted that the defendant’s submission that the duty of care ceased on termination ignores the fact that SKQ continued to receive services and was not advised of the termination. Dr McKenna was aware that SKQ did not know. [68] It is submitted that it is appropriate to plead the content of the duty. [69] It is submitted that it was a breach of the duty on the part of Ms Herbert and Dr McKenna to not inform SKQ of the termination of Mr Casey. Paragraphs 2, 9, 9B and 9C plead the source material for this. Also, 9C is justifiable. [70] Paragraphs 12D to 12F are important also as this increased the defendant’s knowledge. [71] It is submitted that 20A sufficiently pleads a counter factual in this case. [72] When one reads the pleadings as a whole, they do raise a justifiable cause of action and are sufficiently clear. [73] It should be borne in mind that there should be some flexibility accorded as more facts may be discovered during disclosure or on the delivery of interrogatories. Discussion [74] In reaching my decision, I have had regard to all of the evidence and the submissions made to the court. [75] When I consider a strike out application, I need to bear in mind the following principles: (a) The court’s discretion to strike out pleadings should only be exercised in clear cases.11 (b) The discretion to strike out pleadings should not be exercised lightly.12 11 Royalene Pty Ltd v Registrar of Titles [2007] QSC 59 at [6]; Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549 at [38]. 12 Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 386. -- 10 of 17 -- 11 (c) A party should not be shut out from an arguable cause of action.13 (d) The decision to strike out or not strike out a pleading is a value judgment for the judge.14 (e) Relevant to the discretion includes whether the striking out will substantially reduce the burden of preparing for trial or the burden of the trial itself.15 (f) A court should not shrink from striking out a defective pleading where it does not disclose a reasonable cause of action.16 [76] In order to analyse the pleadings, I need to first turn to the issue of duty of care. [77] In Wyong Shire Council v Shirt17, Mason J said that a duty of care arises between the plaintiff and the defendant where there exists a sufficient relationship of proximity, such that a reasonable man in the defendant’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff. The test is an “undemanding” one and injury may be foreseeable even if unlikely or a remote possibility. [78] There is no doubt that there is a particular difficulty in this case as Mr Casey was terminated as a parent aide prior to the alleged sexual abuse occurring. [79] The defendant relied on a number of cases to support the contention that the duty to take reasonable care could not extend to the period after the termination of Mr Casey’s services. [80] In Collins v Insurance Australia Ltd18, Kirk JA noted that a lack of temporal or geographic proximity can be relevant to the existence or the scope of the duty of care. [81] Also, in Geyer v Downs19 Stephen J noted that the temporal ambit of the duty of the schoolmaster depended on whether the relationship of schoolmaster and pupil was in existence. [82] In Minister for the Environment v Sharma20, the Federal Court was concerned with a case where the judge at first instance had concluded that the Minister was under a duty of care to exercise her powers with reasonable care so as not to cause the plaintiff children harm. The Full Court overturned this decision. It was held at [344]: “Ultimately, however, all these considerations: lack of control over the harm (as opposed to the tiny contribution to the risk), the conduct of countless others around the world, the lack of any special vulnerability, and lack of reliance, are really only features or reflections of the essential problem for the respondents: the relationship that founds the duty is one between the government and the governed and lacks the relevant nearness and proximity necessary for the 13 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]. 14 GLJ v Roman Catholic Church [2023] HCA 32; (2023) 414 ALR 635 at [16]. 15 Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 at pages 435-436. 16 Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549 at [39] 17 [1980] HCA 12; (1980) 146 CLR 40 at page 44. 18 [2022] NSWCA 135; (2022) 109 NSWLR 240 at [24]. 19 [1977] HCA 64; (1977) 138 CLR 91 at pages 93-94. 20 [2022] FCAFC 35; (2022) 291 FCR 311 at [344]. -- 11 of 17 -- 12 imposition of a duty of care. At one level of abstraction we all rely on an elected government to develop and implement wise policy in the interests of all Australians, in one sense especially the children of the country who are its future. That is not the foundation of the law of torts. It is the foundation of responsible democratic government.” [83] Finally, in Bradford-Smart v West Sussex County Council21 it was noted that a school cannot owe a general duty to its pupils or anyone else to police their activities once they have left its charge. That is principally the duty of parents. [84] Having examined these cases and the allegations by the plaintiff, I conclude on the state of the pleadings that it is not possible for the plaintiff to run a case relying on a duty of care to prevent prospective harm as the conduct of the defendant during the time of the engagement of Mr Casey lacks the necessary proximity required to create such a duty. [85] Analysed in this way, I consider a number of the paragraphs of the pleading, as it is, make it hard to see any cause of action available based on allegations of failure to supervise or putting in place systems of work etc. [86] For example, how could the defendant, through its agents, supervise Mr Casey when he was no longer employed as a parent aide? How could they direct him not to visit SKQ’s house? How could they audit him when he was not employed by them as a parent aide? They had no power or duty to do so. [87] As Gleeson CJ said in Modbury Triangle Shopping Centre Pty Ltd v Anzil22 “But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions.” [88] It was argued by the plaintiff that he could rely on acts which occurred before the termination such as Mr Casey should have been properly trained or supervised or audits should have been conducted. But to my mind, there are real difficulties with these allegations, for example how could training in March 1999 have meant he would not commit sexual offences on the plaintiff after he was terminated? Another problem was it seems that the defendant did supervise or audit/monitor Mr Casey because this is how they found out the matters pleaded in paragraph 9B, which lead to his termination. [89] It seems to me that it is farfetched to say that a training program in March 1999 would have stopped the abuse by a man (with the propensity to molest boys) in the months after he had been terminated as a parent aide or that supervision or audits earlier during the year would have stopped this later abuse. The fact he was supervised or audited, and the issues pleaded in paragraph 9B were picked up by the defendant and they acted on them. [90] Also, what was the duty during Mr Casey’s engagement to prevent the likelihood of sexual acts committed by him after his engagement? I conclude there was none. 21 [2002] EWCA Civ 07 at [32]. 22 [2000] HCA 61; (2000) 205 CLR 254 at [26] -- 12 of 17 -- 13 [91] The plaintiff sought to argue that I should read the pleading as whole including those allegations which have been admitted.23 But even when I do this, I do not think it surmounts the difficulties I have mentioned. [92] However, when I read the pleading in its entirety, it is my opinion that it is reasonably arguable there was a duty of care on the part of Ms Herbert and/or Dr McKenna to advise SKQ of the termination of Mr Casey and the grounds for this. It seems to me that where “alarm bells” are raised about conduct like this, it may be argued that there is a duty on the supervisor of such a person to advise a parent of such conduct and even to warn them at that stage to cease contact to avoid a foreseeable risk of injury. I consider it may be argued that a relationship of proximity existed between the defendant and the plaintiff in light of the particular vulnerabilities of the plaintiff and the knowledge of the defendant. [93] The pleading makes it clear in paragraph 9B that Casey was terminated from the parent aide program because: (a) He was not reporting to the parent aide unit. (b) He was getting too involved with the plaintiff and his brothers. (c) Ms Herbert did not feel comfortable with him working with the plaintiff’s family. (d) He did not come to monthly meetings. (e) He was not cooperative with the parent aide coordinator, Ms Herbert. [94] There is also relevant evidence annexed to Ms Skordou’s affidavit as follows: (a) A letter from Mr Casey to Dr McKenna stating that he intends to continue to see SKQ and her family.24 (b) A statement from SKQ confirming that Dr McKenna recommended Mr Casey as a parent aide; that she trusted Dr McKenna and the CYMHSN; that Mr Casey made excuses to stay overnight; that she continued to see Dr McKenna and told him that Mr Casey was sleeping over; and after she discovered the abuse by him she felt betrayed by the CYMHSN.25 (c) Records concerning the alleged sexual assault at the RCH by Mr Casey in August 1999. [95] I therefore consider it is arguable that there was such a relationship of proximity between Ms Herbert and/or Dr McKenna (as agents of the State) and SKQ (and the plaintiff) such that there was a duty on her to inform SKQ that Casey had been terminated and the reasons for this. In this regard, I note that paragraph 2(g) pleads that Dr McKenna recommended to Ms Herbert that Mr Casey be appointed as a volunteer parent aide to be assigned to the plaintiff’s family and his responsibilities included, inter alia, supporting SKQ in managing the five children; requiring him to 23 Body v Mount Isa Mines Ltd [2014] QCA 214 at [20]-[21]. 24 MS38.This may well justify an allegation that Dr McKenna should have at that stage told Casey not to continue to see the family. 25 MS41. -- 13 of 17 -- 14 be present in the home and requiring him to interact with the plaintiff’s family. I also note paragraphs 4, 5 and 6 of the pleading. [96] As the plaintiff points out in Rogers v Whitaker26, the law can impose a duty of care on, for example, a doctor to advise or provide appropriate information to a patient. Of course, that case relates to the doctor/patient relationship. [97] But I note that in Modbury Triangle Shopping Centre Pty Ltd v Anzil27, Gaudron J said: “There are situations in which there is a duty of care to warn or to take other positive steps to protect another against harm from third parties. Usually, a duty of care of that kind arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both.” [98] The case of Caltex Refineries (Qld) Pty Ltd v Stavar28 provides an example of where a duty of care was found to exist and whether a means of obviating the risk would have included a requirement to warn the plaintiff of the dangers of exposure to asbestos. The plaintiff was the wife of a man who worked with asbestos which infiltrated his clothing. The plaintiff dealt with the clothing when the husband came home from work. She developed malignant mesothelioma. At [103] Allsop P set out salient features which may be considered on whether a legal duty of care is imposed. I have regard to those. [99] I also consider it may be proved that the failure to tell SKQ of these facts meant that she did not herself dismiss Mr Casey or stop him from seeing the plaintiff and as a result, the sexual abuse occurred and the consequent damage. [100] In that way it may be seen the duty of care, breach of the duty and causation may be established in this matter. The parties agreed that on the question of causation a commonsense test is to be applied.29 It was also agreed that it is necessary for the plaintiff to plead what the defendant would have done had reasonable care been exercised and how the taking of the action would have averted the loss and damage suffered by the plaintiff.30 [101] In light of my analysis, I now turn to the challenged paragraphs. [102] As to paragraph 8, the defendant contends this is not maintainable as it relates to the provision of services to the Plaintiff as distinct from SKQ and thus pleads a duty arising only during the engagement period. The plaintiff contends it is not so limited and could encompass the period after termination. On my reading (including reading the pleading as a whole), the paragraph is not clear. It refers to “including allocation of a parent aide.” I conclude the paragraph insufficiently pleads how the duty of care to inform SKQ arose as I have discussed. I therefore strike out paragraph out 8. 26 [1992] HCA 58; (1992) 175 CLR 479 at page 483. 27 [2000] HCA 61; (2000) 205 CLR 254 at [43] 28 [2009] NSWCA 258; (2009) 75 NSWLR 649 at [103]. 29 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at pages 515, 523. 30 Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151 at 72; Wodonga Regional Health Service v Hopgood [2012] VSCA 326; (2012) 37 VR 284 at [31]. -- 14 of 17 -- 15 [103] As to paragraph 8A, for the reasons I have given above I consider paragraphs 8A(a)- (f) relate to the period during Mr Casey’s engagement. I therefore strike out those paragraphs. That leaves 8A(g) and (h). These paragraphs relate to an alleged failure to provide SKQ information. [104] The defendant submits that these paragraphs inappropriately combine duty and breach. It submits that: (a) The duty of care should not be formulated by reference to an obligation to prevent the particular act causing loss.31 (b) Breach and duty should not be merged.32 (c) Duty should not be formulated by reasoning backwards.33 [105] The plaintiff says that these paragraphs are not embarrassing as they set out what measures the defendant could have taken to obviate the risk of injury relying on Burnie Port Authority v General Jones Pty Ltd34 and Tame v New South Wales.35 [106] In terms of the standard of the duty of care, the central concept is reasonableness. As Gleeson CJ said in Swain v Waverley MC:36 “… the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm and as to taking precautions against such harm.” [107] I consider paragraphs 8A (g) and (h) reasonably plead the standard of care necessary in this case. Having considered the arguments, I have decided not to strike them out on the basis of the plaintiff’s arguments. I think they should be recast to comply with the authorities mentioned but that is a matter of amendment only. [108] I do not consider I should strike out paragraphs 9, 9A, 9B or 9C. I considered that paragraph 9 and 9A provide important primary facts as to Ms Herbert’s role. 9B is central to the plaintiff’s case that this information should have been communicated to SKQ. I did not accept the defence arguments on this. I think the duty of care to inform is arguable and these paragraphs are relevant to this issue. [109] As to 9C, I agree that the source of the responsibility is not clearly identified. This will relate back to a properly formulated duty of care to inform. I thought that 9C(a) sufficiently identified that SKQ told him that Mr Casey was continuing to act as a parent aide. Any further detail is a matter of particulars. [110] Turning to 12D to 12F, the defendant submitted that these allegations should be struck out because: (a) The events happened well after Mr Casey’s termination. 31 Graham Barclay Oysters Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [192]. 32 CAL (No 14) Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [68]. Also see Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 at [52]-[55]. 33 Sydney Water Corp v Turano [2009] HCA 42; (2009) 239 CLR 51 at [48]. 34 [1994] HCA 13; (1994) 179 CLR 520 at page 554. 35 [2002] HCA 35; (2002) 211 CLR 317 at 12. 36 [2005] HCA 4; (2005) 220 CLR 517 at 5. -- 15 of 17 -- 16 (b) The plaintiff does not suggest the allegations are true. (c) They are irrelevant as the abuse had already started. (d) It is not pleaded the State knew that Mr Casey was still acting as a parent aide at that time. [111] The plaintiff submits that the paragraphs should not be struck out as there is evidence that SKQ was still seeing Dr McKenna and it may be inferred that Ms Herbert knew or ought to have known Mr Casey was still acting as a parent aide to SKQ and her family. He relies on A v News South Wales37 to the effect that the plaintiff must make its case by, for example, cross examination. [112] I will not strike out the paragraphs. On the pleadings, SKQ was continuing to see Dr McKenna from March to November 1999 and Dr McKenna was aware that Mr Casey was continuing to act as a parent aide to the family. The pleading indicates that Ms Herbert was aware of the investigation into Mr Casey, and it may be inferred Dr McKenna would have discovered this and discovered the dismissal of Mr Casey as a nurse. Alternatively, it may be that Ms Herbert knew that Mr Casey was still going to the plaintiff’s house and should have told SKQ of the August 1999 allegations. The truth of the allegations are not to the point. It is the fact they were made and Mr Casey was dismissed. Also, it may be argued that if SKQ had been told in August or September 1999 of this, she may have stopped some of the abuse. Although some further work may need to be done on this pleading, I consider it is a matter of further particulars only. Finally, it may be argued that the knowledge of Ms Herbert and/or Ms Benfer may be imputed to the defendant. [113] Turning to paragraphs 13(a)-(d) and (g), I consider these paragraphs fall foul of my determination that a duty of care cannot be established concerning continued supervision of Mr Casey after he ceased to be a parent aide. I strike these paragraphs out. I do not strike out paragraph 13 (I), (f) and (h) as I consider them justifiable in light of the duty of care which I consider is reasonably arguable. [114] As to paragraph 20A, it contains the problem that it alleges that had various things happened, the abuse would not have occurred. I consider this does not sufficiently plead a counterfactual. It is a jump in logic from SKQ was not advised that Mr Casey had been terminated as a parent aide in May 1999 to the allegation that the abuse would not have occurred. In determining this issue, a court will determine how a reasonable person would have responded had the warning or advice been given.38 [115] The defendant also submits that the paragraph is otherwise defective. For example, if SKQ was told that Mr Casey should not stay overnight at her home, how does this prove the abuse would not have occurred? Further, there is nothing in the pleading suggesting that if an adequate investigation had taken place that would have revealed something about Mr Casey’s past and this would have stopped sexual abuse of the plaintiff after he was terminated. Also, the abuse had nothing to do with his duties as a parent aide and the abuse occurred after the termination. [116] The plaintiff accepted that 20A needed recasting. 37 [2007] HCA 10; (2005) 230 CLR 500 at 61. 38 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [9], [34], [62]. -- 16 of 17 -- 17 [117] I accept the defendant’s submissions and strike out paragraph 20A. Leave to replead? [118] I have had regard to the pleadings and the correspondence exhibited to the affidavits of Tegan Harris, Lionel Hogg and Maria Skordou. [119] The defendant relies on Faruqi v Latham39 and Queensland Taxi Licence Holders v Queensland40 to justify the submission that the plaintiff should not be allowed to replead its case. Its primary argument is this is the seventh reiteration of the statement of claim. [120] However, contrary to the defendant’s submissions, I do not think (in light of my rulings) this is a case where the pleading cannot be remedied as it is too confusing. I consider sufficient allegations remain in the pleading to justify a cause of action. It is really a matter of refining the pleadings to deal with the matters I raised in my reasons. [121] There will need to be further attention given to the pleading on the issue of duty of care and how the relationship of proximity arises and the causation issues arising therefrom. [122] The High Court in Aon Risk Services Australia ltd v ANU41 noted that pleadings cannot simply be amended on the payment of costs. However, at the end of the day justice is the paramount consideration. Much depends on the point the litigation has reached related to the trial. In exercising the discretion, I take into account the number of versions of the pleading but also much of it remains. This is also the first time the matter has been agitated before a court. I am also conscious that I should not shut the plaintiff out from having his claim heard by the courts. [123] In all of the circumstances, I exercise my discretion to allow the plaintiff to replead its case. Conclusion [124] For the reasons given my orders are: 1. Paragraphs 8, 8A(a)-(f), 13(a)-(d), 13(g) and 20A are struck out. 2. The Plaintiff is given leave to replead. 3. I will hear the parties on the question of costs. 39 [2018] FCA 1328 at [198]-[200]. 40 [2020] QSC 94 at [11]. 41 [2009] HCA 27; (2009) 239 CLR 175 at [29], [102]. -- 17 of 17 --