Bordonaro v State of Queensland [2022] QDC 2

DISTRICT COURT OF QUEENSLAND CITATION: Bordonaro v State of Queensland [2022] QDC 2 PARTIES: MICHELLE JOY BORDONARO (Plaintiff) v STATE OF QUEENSLAND (Defendant) FILE NO: 108/2021 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 18 January 2022 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 18 January 2022 JUDGE: Porter QC DCJ ORDER: 1. Paragraphs 13(a)-(f) and 14 of the Statement of Claim filed 19 July 2021 be struck out; 2. By 18 April 2022, the Plaintiff file and serve an Amended Statement of Claim, taking into account the expert evidence; 3. No order as to costs. LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld), r. 5 CASES: Body v Mount Isa Mines Limited [2013] QSC 188 Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 COUNSEL: M. Daley for the applicant J. Sorbello for the respondent SOLICITORS: Crown Law for the applicant Holding Redlich for the respondent -- 1 of 5 -- 2 [1] This is an application by the State of Queensland as defendant for further and better particulars of the statement of claim. The further and better particulars are extensive and, perhaps characterised as excessively detailed. I do not propose to deal with them individually. The gravamen of the complaints can be explained as follows. [2] The statement of claim pleads loss and damage arising from a post-traumatic stress disorder suffered by the plaintiff, linked to two events: on the pleaded case, a fairly traumatic, uncontrolled violent event which proceeded for some time without the relevant school going into lockdown (which is said to have caused the post-traumatic stress disorder), followed by a further event at a different school, where, unfortunately, another violent event occurred which aggravated the injury suffered in the first case. The plaintiff’s case, in broad terms, is that failures in the State of Queensland, as employer, to put in place processes to respond properly to that kind of violent incident in the first instance were causative of the suffering of the loss. [3] The further argument is that the response of the State, as employer, to the uncontrolled lockdown event was inadequate, which also contributed to the loss, seemingly (this is not expressly articulated) because of a lack of proper response to the initial trauma and failures in the State’s response to the plaintiff’s traumatic event, which resulted in the second event occurring at a different school, and presumably, not adequately responding to that second event. [4] The statement of claim, at paragraph 12, pleads certain things the defendant did not do following the lockdown event, which were: (a) discuss with the plaintiff her concerns about the failures in management of the event itself; (b) discuss with the plaintiff her a suitability to continue to work in an environment where she may be exposed to aggressive and violent students; and (c) arrange to have the plaintiff medically examined to assess her suitability to be in such an environment. [5] Those are things that are said to have occurred. [6] Paragraph 13 of the statement of claim articulates breaches of duty that fall into three categories: (a) take reasonable care for the plaintiff’s safety; (b) instruct the plaintiff in the correct and safe methods of carrying out her employment; (c) establish, maintain and enforce safe methods and systems for the plaintiff to carry out her employment; (d) supervise the plaintiff so as to ensure she carried out her employment safely; -- 2 of 5 -- 3 (e) warn the plaintiff of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury; (f) provide a safe work environment within which the plaintiff was required to perform her duties… [7] They are very broad propositions which are presently unparticularised. A flavour of them can be obtained from, for example, the first one, which (taking in the chapeau provision) says the defendant failed to provide a safe health work environment and that it failed to take reasonable care for the plaintiff’s safety. The others are not quite as plenary as that, but they are similar in style and content. [8] In the second category are subparagraphs (g) to (k). They articulate specific steps which the defendant allegedly failed negligibly to take. [9] The third category relates to subparagraph (l), which deals with the post-lockdown failures, it might be said, identified in paragraph 12. [10] Paragraph 14 then seeks to address the necessity to identify causation by pleading that but for all of those 12 breaches, the plaintiff would not have sustained the initial injury or the aggravation resulting from the Cairns event at the second school. [11] The defendant, as I said, provided a detailed and extensive request for particulars which, in some respects, I think on any view, went beyond proper requests for particularisation, and real care has to be taken when drafting requests for particulars to ensure it focuses on the real issues in dispute, in accordance with Rule 5 Uniform Civil Procedure Rules 1999 (Qld). The old style “all the facts, matters and circumstances that relate to” some allegation, in my respectful view, is usually an improperly broad and unfocussed request for particulars but, in any event, the gravamen of the complaint of the defendant is reasonably clear. [12] The defendant complains the first category of alleged breaches (paragraph 13(a) to (f) above) is so vague as to require particularisation to know what it is the plaintiff is really complaining about. [13] That complaint is also made about subparagraphs (g) to (k), but they are more specific, and in respect of subparagraph (l), but again, it seems to me that they are sufficiently specific. [14] The next complaint is that the causal link between each of those breaches and the loss alleged is not adequately pleaded. The pleading of the factual chain of causation between breach and loss is essential to a proper pleading. Where the causal chain is not obvious on the face of the facts alleged, a party will be compelled to plead, as material facts, the matters linking the breach to the loss alleged. There are numerous cases for that proposition. Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 at [15] will do. There are others, including recently Body v Mount Isa Mines Limited [2013] QSC 188 at [17] to [27]. -- 3 of 5 -- 4 [15] Ms Sorbello, in a spirited defence of the form of the pleading, sought to persuade me that the realpolitik of pleading these kinds of cases meant that the pleading both of the breach and causation was adequate. [16] I disagree, but only to a limited extent. It seems to me that paragraph 13(a) to (f) is far too broad and unparticularised to stand as allegations of material fact, which can be understood in a way that defines an issue for trial. The same applies to paragraph 14(a) to (f). I say that though, bearing in mind the explanation which Ms Sorbello gave as to the role of those allegations in the more specific case articulated in paragraph 13(g) to (k) and paragraph 13(l). [17] She explained to me, drawing on, I should respectfully say, considerably greater experience in the area than I have, the importance of those broad propositions to anchoring in a breach of duty, the specific omitted instructions and systems identified in subparagraphs (g) to (k) and the specific responses called for in subparagraph (l). [18] That explains, she submitted, the necessary role of the apparently broad and unparticularised allegations in paragraph 13(a) to (f) in the pleading and, of course, she can amend, following the strikeout, to the extent it is necessary to articulate those matters, but confined by reference to the specific matters articulated in paragraph 12(g) to (l) if, on reflection, she still thinks she needs to. [19] Paragraphs 12(g) to (k) and (l) seem to me to be sufficiently specific as to what is called for, and at this stage, I do not intend either to strike them out or order further particulars. [20] It is clear from Ms Sorbello’s frank submissions, however, that a more precise case will be developed once expert evidence is in hand and one would expect that if it is possible properly to confine the case by reference to the expert report, that further particulars would be provided that did so. The expert report is not a pleading. The case articulated in the expert report needs to be reflected in the pleading. [21] However, at this stage, I do not intend to order further particulars of subparagraphs (g) to (k) or (l), but it may be, once her expert report is obtained, they can be provided. And, of course, if, after that, the defendant still thinks that they are not able to conduct the trial without further particulars, a further application could be brought as, of course, the circumstances will be different from the ones I am dealing with today. [22] We turn to paragraph 14. In my respectful view, paragraph 14 fails to comply with the requirements in the cases to which I referred in respect of pleading causation. There are a number of ways this loss could have been avoided or reduced and, in broad terms, the breaches alleged relate to one or other of them. The first is that proper procedures should have resulted in the violent event that happened, not proceeding in the uncontrolled way it did, but in a much more controlled way with a sufficient emergency response to the circumstances. That seems to be the gravamen of subparagraphs (g) to (k). The next way this loss could have been avoided is if, notwithstanding that the matter proceeded in an uncontrolled way, the response of the State of Queensland to the event was such as to ameliorate or avoid the post- -- 4 of 5 -- 5 traumatic stress event that occurred. That seems to involve paragraph 13(l) primarily: that is, providing follow-up as articulated in paragraph 12, because it seems to me the plaintiff’s case must be that if those things were done, there would have been some amelioration of the event of the uncontrolled lockdown event and/or she would not have been put in the position she was put in. [23] The causal chain might not be quite as crisp as that, but it seems to me that there are clearly quite distinct parts of the causal chain which would have been addressed if the breaches alleged had not occurred. I do not think it is adequate (I say respectfully to counsels’ submissions) to just say, “We just do not have to tell you how avoiding the alleged breaches would have prevented the loss.” [24] The plaintiff needs to turn its mind to articulating how the various breaches, if they had not occurred, would have resulted in the loss not happening or being less. That is not to say that such an articulation cannot involve alternatives and so on, but I do not think it is adequate just to say, “For all these reasons, none of these things would have happened”, at least on the allegations as to how the events unfolded in this case. It is clear that, at trial, some much more sophisticated causal analysis will be put. The defendant is entitled before trial to know what it is. [25] I strike out paragraphs 13(a) to (f) and 14 and give the plaintiff leave to re-plead by 18 April 2022. I make no order as to costs. -- 5 of 5 --