In February 2013, Mr Byron Neil Williams, the driver of a motor vehicle, insured by the first defendant AAI Limited, collided with a tree resulting in his death. The plaintiff, a member of the Queensland Police Force, attended upon the scene of the accident, and, by reason of having done so, alleged to have suffered a psychiatric or a psychological injury. The plaintiff alleged that the injury was caused by the negligent driving of Mr Williams.
The plaintiff sought to strike out parts of the defence which pleaded that the duty of care to take action to avoid risk of psychiatric harm is bad in law. The plaintiff alternatively sought, contrary to the first defendant’s submissions, the preliminary determination of whether Mr Williams owed the plaintiff a duty of care.
Striking out pleadings on account of bad law
In relation to the application to strike out pleadings, Applegarth J stated:
The relevant principles were conveniently summarised by Justice Bond in Lee v Abedian  QSC 92. These principles derive from seminal cases such as General Steel Industries v Commissioner for Railways  HCA 69;(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.
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. …
His Honour referred to Williams and Humbert Ltd v W & H Trade Marks  1 AC 368, where Lord Templeman stated at 435 to 436:
… 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.
Applegarth J was not satisfied that striking out the defence would obviate the need for trial nor would it lead to the resolution of the trial as there were other matters in issue between the parties, including issues concerning whether a police officer owed a duty of care. His Honour continued:
… 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  HCA 41; (2000) 201 CLR 552 … 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.
His Honour continued:
… The determination of the existence or absence of a duty of care should depend upon the evidence given at trial. … 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.
As to whether to exercise the discretion to decide the separate question, Applegarth J stated:
… 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. …
His Honour also noted the High Court’s cautioning against the determination of issues in the absence of proven or agreed facts, as was the circumstances in the present case. His Honour:
… the expeditious determination … 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 …
… 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 application was dismissed, the plaintiff to pay the defendant’s costs assessed on the standard basis.
David Cormack – Brisbane Barrister and Mediator