Federal Court of Australia

DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 2) [2022] FCA 898

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant, who sues by her father as litigation representative, is a six year old child. She was born on Nauru, to where her parents had been taken on or about 13 September 2013 pursuant to s 198AD of the Migration Act 1958 (Cth) in circumstances where Nauru was designated as a “regional processing country” for the purposes of s 198AB(1) of the Act.

2    In early June 2018, the applicant developed herpes encephalitis while on Nauru. By this proceeding, the applicant seeks an injunction and other relief, including damages, in respect of injury that she claims she suffered as a result of negligent medical treatment of her condition. The applicant claims that the respondents had assumed responsibility for her health and welfare while on Nauru, and had such a degree of control that they owed to her a non-delegable duty of care to ensure that reasonable care was taken in relation to her medical treatment, and that they were in breach of that duty. The respondents deny that they owed a duty of care to the applicant.

3    The applicant commenced this proceeding on 29 June 2018. At that time, the applicant had been transferred from Nauru to Port Moresby in Papua New Guinea for the purposes of medical treatment. The applicant claimed that the facilities available in Port Moresby for her treatment were inadequate. The relief that the applicant sought at that time included an interlocutory order that the respondents transfer the applicant to a location in Australia for the purposes of medical treatment and follow up in accordance with the recommendations of a specialist paediatric neurologist, Dr Michael Harbord.

4    On 3 July 2018, the court granted interlocutory relief of the nature sought by the applicant, together with other interlocutory relief: DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050 (Murphy J). The orders of the court also recorded an undertaking given by the respondents that they would not take steps to return the applicant to Nauru pending the outcome of the present proceeding unless otherwise agreed between the parties.

5    The proceeding is now progressing towards mediation and trial. In accordance with programming orders that have been made, the applicant has filed outlines of evidence and expert reports. The respondents have not yet filed their outlines of evidence or expert reports.

6    The applicant seeks leave to file a further amended statement of claim, the draft of which was described as a “third” amended statement of claim. I will refer to that document as the draft pleading. The reasons for seeking to amend the claim are so that the applicant’s claims better reflect the evidentiary case that the applicant proposes to advance, and to introduce claims for aggravated and exemplary damages. As a matter of principle, the respondents do not oppose the applicant having leave to amend the statement of claim in these circumstances. However, on several grounds the respondents oppose the court giving leave to amend the statement of claim in the terms proposed by the applicant’s draft.

Further background

7    The applicant claims that for the purpose of the maintenance of regional processing centres on Nauru, the Commonwealth entered into agreements with, among others, the Republic of Nauru, and service providers such as International Health and Medical Services (IHMS), and that by reason of these and other factors the Commonwealth assumed responsibility for the applicant’s health and welfare. The terms of the applicant’s proposed pleading of the non-delegable duty of care are in [30.3] of the draft pleading –

30.3    at all relevant times the Respondents owed the Applicant a non-delegable duty of care to ensure that the Applicant received medical services adequate to treat medical conditions such as dehydration and infection/sepsis and, if necessary, transfer to a tertiary hospital with adequate paediatric care

8    The applicant’s existing claims are that –

(a)    in the circumstances of the claim, the relevant standard of care arising under the claimed non-delegable duty required the respondents to take a number of steps, including to ensure that the applicant had access to appropriate medical treatment, to comply with medical advice, and to ensure that the applicant underwent an electroencephalogram (EEG) and magnetic resonance imaging (MRI) at the earliest opportunity;

(b)    on 11 June 2018, she presented to a medical clinic on Nauru operated by IHMS with a history of feeling unwell for six days, with symptoms of fever, dehydration, and mouth ulcers;

(c)    her condition continued to deteriorate over the following day;

(d)    on 12 June 2018, she was transferred by ambulance to the Republic of Nauru Hospital, where her condition continued to deteriorate;

(e)    on 12 June 2018, an emergency physician recommended that the applicant be urgently evacuated from Nauru to a first world tertiary hospital, and a paediatric emergency physician advised that the applicant was a critically unwell child who required urgent evacuation to a centre with specialist paediatric intensive care services, and that this advice was conveyed to the respondents;

(f)    on 13 June 2018, the respondents determined to transfer the applicant and her mother to Port Moresby, Papua New Guinea, to be treated at the Pacific International Hospital, which was not equivalent to a first world or Australian tertiary standard, and which was not equipped to perform necessary procedures including an EEG or MRI on a paediatric patient in the circumstances of the applicant;

(g)    the respondents knew that the decision to transfer the applicant to the Pacific International Hospital at Port Moresby was not in accordance with the specialist medical advice that had been given;

(h)    the respondents assumed responsibility for the transfer of the applicant and her mother to Port Moresby and for the costs associated with the transfer and the applicant’s treatment there;

(i)    the applicant was an inpatient at the Pacific International Hospital at Port Moresby between 14 June 2014 and 4 July 2018, and received medical treatment for herpes simplex virus encephalitis, but did not undergo an EEG, an MRI, or receive treatment from a specialist paediatric neurologist;

(j)    on 4 July 2018, the applicant and her mother were taken from Port Moresby to Australia as a consequence of the orders made by Murphy J in this proceeding to which I referred earlier;

(k)    the respondents were negligent in relation to their failure to take all reasonable steps to procure treatment at a first world tertiary hospital with specialist intensive care services for paediatric patients, and instead taking the applicant and her mother to Papua New Guinea;

(l)    as a result of the respondents’ negligence, the applicant has suffered loss and damage; and

(m)    there should be an injunction requiring the respondents to take and continue to take all steps within their power to ensure that the applicant receives treatment, including long-term care and follow-up, in a location with access to quality, multi-disciplinary specialist paediatric care.

9    The expert reports that the applicant has filed for the purposes of trial were tendered on the application for leave to amend the statement of claim for the limited purpose of showing what evidence the applicant proposes to adduce at trial. The focus of the applicant’s proposed evidentiary case differs in some respects from her pleaded case. The expert medical opinion on which the applicant proposes to rely supports a claim that the medical treatment that the applicant received on Nauru prior to her transfer to Port Moresby was not reasonable, and did not meet an appropriate professional standard. The expert opinion also supports the applicant’s existing claim that the failure to transfer the applicant to a first world tertiary hospital for diagnosis and treatment was not reasonable, and that it was not appropriate to transfer the applicant to Port Moresby where there were no suitable facilities to perform an EEG or MRI on the applicant, the results of which would have been relevant for prognosis, that is, to predict the long term outlook for the applicant. There is also expert opinion that, while the applicant had been commenced on intravenous Acyclovir in Nauru at 23.30 on 12 June 2018 to treat her condition, this treatment would have commenced sooner had the applicant received reasonable medical treatment on Nauru, and that the delay in administering Acyclovir is likely to have exacerbated the extent of the applicant’s neurological impairment.

10    By the applicant’s draft pleading, the applicant proposes to allege that –

(a)    her father took her to an IHMS clinic on Nauru on 6 or 7 June 2018, which is a number of days earlier than pleaded in the existing claim;

(b)    reasonable medical practice required that the applicant be examined by a medical practitioner when she first presented on 6 or 7 June 2018, but she was not examined by a medical practitioner and was provided with antibiotics and paracetamol;

(c)    the applicant’s parents took her to the IHMS clinic again on 9 or 10 June 2018, advising the staff that the applicant was still suffering from a fever and that the paracetamol that had been supplied was past its use by date, and questioning the suitability of the antibiotics;

(d)    upon the return visit to the clinic on 9 or 10 June, the staff provided another supply of paracetamol, and advised that the applicant should be taken home and be given the medication, water, and soup;

(e)    the applicant was not adequately assessed by the IHMS clinic upon her return visit on 9 or 10 June 2008;

(f)    the applicant’s father took her to the IHMS clinic on 11 June 2008, and he requested that the applicant be transferred to another IHMS clinic referred to as the “RPC1 IHMS” clinic, but this request was initially refused, and the applicant’s father was advised to take her home;

(g)    after a period of hours, the applicant’s father was advised that he could take her to the RPC1 clinic where, on 11 June 2018, she was attended to by a medical practitioner;

(h)    the medical staff at the RPC1 clinic did not administer Acyclovir or a broad spectrum antibiotic to the applicant on 11 June 2008, and her condition deteriorated;

(i)    on 12 June 2018 the applicant was transferred by ambulance to the Republic of Nauru Hospital, where a right subclavicular central line was inserted, but the applicant was not admitted to the hospital due to a bed shortage, and she was transferred back to the RPC1 clinic;

(j)    at around 23.30 on 12 June 2018, intravenous Acyclovir was commenced, and on the following day the applicant was commenced on intravenous Flucloxacillin, and was also given Ceftriaxone;

(k)    by 12 June 2018, and certainly by 14 June 2018, it was medically recommended that the applicant be urgently evacuated to a first world tertiary hospital, and staff at the RPC1 clinic advised the applicant’s parents that they were trying to have the applicant transferred to Australia;

(l)    instead of transferring the applicant to Australia, the respondents arranged for the applicant and her mother to be transferred to the Pacific International Hospital in Port Moresby, the facilities of which were inadequate for the treatment and management of the applicant’s condition;

(m)    by transferring the applicant and her mother to Port Moresby they were separated from the applicant’s father in circumstances where the father informed an immigration official that the mother had a mental health history, did not speak English, and required the father’s support, and requested that he be transferred with the applicant and the mother; and

(n)    while at the Pacific International Hospital in Port Moresby, the respondents did not provide the applicant’s mother with sufficient assistance from an interpreter, as a result of which she was unable to understand the medical information that was provided so as to understand the applicant’s condition and provide consent to medical treatment.

11    The applicant’s proposed causation case is alleged in [31A] to [31D] of the draft pleading, which I will set out –

31A.    Had the Applicant been assessed by a doctor on around 6 or 7 June 2018 in accordance with reasonable medical practice:

31A.1    she would have been diagnosed with herpetic [stomatitis];

31A.2    she would have received oral Acyclovir.

31B.    Had the practitioners at the IHMS Settlement Clinic on 9 or 10 June 2018 undertaken an adequate assessment of the Applicant’s ability to take oral intake and a detailed review of her symptoms, in accordance with reasonable medical practice;

31B.1    the Applicant would have been recognised as being significantly dehydrated;

31B.2    the Applicant would have been admitted to the RON Hospital;

31B.3    a peripheral intravenous line would have been successfully inserted;

31B.4    the Applicant would have been commenced on [Acyclovir].

31C.    Further and alternatively to what is pleaded in paragraphs 31A and 31B hereof and in the event that the Respondents did not have the resources or personnel to provide the competent medical assessment and treatment particularised in the last two preceding paragraphs, reasonable medical practice required the Respondents to transfer management to a paediatric intensive care unit.

31D.    Further, in the event that the Applicant had been provided with medical care of a reasonable standard as particularised in the last three preceding paragraphs on:

31D.1    6 or 7 June 2018;

31D.2    9 or 10 June 2018;

the timely commencement of [Acyclovir], including commencement up until the early evening of 10 June 2018, would have resulted in the Applicant avoiding neurological injury or impairment from the herpes encephalitis.

12    The breaches of duty that the applicant proposes to allege are set out at [32] of the draft pleading. The existing negligence case is retained, which relies on claims that the respondents acted negligently by failing to act on urgent medical advice by taking reasonable steps to procure treatment for the applicant at a first world tertiary hospital, but instead on 14 June 2018 taking the applicant and her mother to Papua New Guinea for treatment at the Pacific International Hospital which did not have the capacity to undertake a paediatric MRI, or a paediatric EEG. In addition, the applicant seeks to introduce the following particulars of negligence –

(a)    Failing to ensure that the Applicant received medical services adequate to treat medical conditions such as dehydration and infection/sepsis and, if necessary, transfer to a tertiary hospital with adequate paediatric care for the provision of such services;

(b)    Failing to provide competent medical officer review on 6 or 7 and 9 or 10 June 2018;

(c)    Failing to administer the Applicant [Acyclovir] on 6 or 7 and 9 or 10 June 2018;

(d)    Further and alternatively failing to escalate and transfer management to a paediatric intensive care unit on 6 or 7 and 9 or 10 June and further on 11 June 2018.

…

13    In relation to the applicant’s claim of damage, the applicant proposes to allege –

Particulars of injury, loss and damage

(i)    Permanent and irredeemable loss of opportunity to undergo brain MRI imaging and or EEG during the acute phase of infection and/or at the earliest possible opportunity following suspected diagnosis so as to best understand the nature and extent of the acute neurological insult, guide treatment, and determine long term outcome;

(ii)    Cognitive deficits involving select memory, executive and language skills and behavioural features;

(iii)    Long term neurological deficits;

(iv)    The Applicant is still a young child and the extent of injury, loss and damage is not yet known. Further particulars to be provided.

(Formatting and paragraph numbering corrected.)

14    As I have mentioned, the applicant further proposes to make claims for aggravated and exemplary damages. Both claims are founded upon the respondents’ claimed conduct in not following medical advice, and transferring the applicant and her mother to Port Moresby on 14 June 2018, separating the applicant from her father. A proposed claim for exemplary damages on the ground that the respondents’ conduct was in contumelious disregard of the applicant’s rights under the United Nations Convention on the Rights of the Child was not pursued by counsel for the applicant after I drew attention to Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [20] (Kiefel CJ, Keane, Gordon and Steward JJ), and the cases cited therein.

Respondents’ submissions

15    It is convenient to identify the submissions advanced on behalf of the respondents in opposition to the applicant’s application to amend the statement of claim, and then to address those submissions.

16    Dr Rush, who appeared as senior counsel for the respondents, helpfully framed the issues arising as being first, whether the applicant is entitled to maintain a case in relation to the respondents’ conduct occurring after 12 June 2018, which was the day on which the applicant was administered with Acyclovir on Nauru, and second, objections to the form of the draft pleading. Counsel for the respondents submitted that the first issue gave rise to two sub-issues. The first was whether there is a cause of action in connection with the facts alleged to have occurred after 12 June 2018, and the second is whether the proposed amendments in relation to the claims for exemplary and aggravated damages should be permitted.

17    Counsel for the respondents submitted that the MRI and the EEG that the applicant claimed should have been undertaken were diagnostic tools, and that it was not alleged that undertaking those tests would have resulted in a different outcome. Counsel submitted that the conduct that is alleged to have occurred after 12 June 2018 was not part of the continuum of the applicant’s claim, and that the applicant’s cause of action was completed by 6 or 10 June 2018 when it is alleged that the applicant should have been administered Acyclovir. As to the proposed claims for aggravated and exemplary damages, which was the second sub-issue, counsel submitted that any conduct relied on to support such claims should be clearly and directly connected to the negligence which occurred. Counsel submitted that exemplary damages are exceptional, especially in negligence cases, and that the facts that the applicant proposes to allege do not give rise to an arguable claim for exemplary damages because there is not a sufficient connection between those facts and the wrongs alleged to have caused the applicant’s claimed injuries.

18    In relation to the second issue, counsel for the respondents raised a number of miscellaneous objections to the form of the pleading, fairly acknowledging that these matters were capable of clarification by the applicant –

(a)    the applicant’s pleading of the non-delegable duty of care (see [7] above) was expressed so as to allege a duty to ensure particular outcomes, whereas a duty can be no more than a duty to exercise reasonable care;

(b)    [30] of the draft pleading which was preliminary to the allegation in [30.3] of the non-delegable duty was prefaced by the words “in the premises”, which left unclear what facts are relied on by the applicant to support the existence of the non-delegable duty of care;

(c)    the allegations of breach of duty were dispersed throughout the pleading, and the particulars of breach under [32] do not directly correspond to the allegations in [31] concerning the standard of care;

(d)    there were other infelicities in the draft pleading, namely an allegation in [32] that the respondents “acted negligently” and an allegation in [33] that the applicant’s loss was as a result “of the respondents’ negligence” which were said to give rise to confusion in the context of a non-delegable duty of care;

(e)    the allegations of causation in [31A] and [31B] of the draft pleading (see [11] above) were conclusory, as they did not address why or how the steps that are alleged should have been taken would have had the results which are there alleged;

(f)    complaint was made about the use of the term “adequate” throughout the draft pleading, and it was claimed that this led to confusion because it was unclear whether this erected a different criterion to “reasonable”; and

(g)    the applicant’s particulars of loss and damage, which include a claim for loss “which is not yet known” were unclear, and could not be maintained.

19    There were some other issues raised by the respondents’ written submissions that were not pressed in argument. Among these was a claim that it was necessary for the applicant to plead that those for whose negligence the respondents were responsible under the claimed non-delegable duty of care, such as IHMS, themselves owed the applicant a duty of care. It is convenient to note, without expressing any concluded view, that the authorities do not appear to support this proposition. At common law, a non-delegable duty is a special duty to see that reasonable care is taken. It attracts a direct liability if reasonable care is not achieved as a result of which damage occurs, and not a vicarious liability for the torts of others. In these circumstances, where established, a third party’s failure to take care would result in a breach of the non-delegable duty to ensure that reasonable care is taken: see, Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258 at 271 (Mason J); Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 (Kondis) at 687 (Mason J); Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 at [9] (Gleeson CJ); X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 740 (Lord Browne-Wilkinson), cited with approval in Woodland v Swimming Teachers Association [2014] 1 AC 537 at [16] (Lord Sumption). The personal and direct nature of the claimed non-delegable duty of care is relevant when considering the applicant’s proposed claim for exemplary damages.

20    In relation to the submissions of the applicant, it is only necessary that I record that senior counsel for the applicant, Ms Ryan, accepted during argument that no injury to the applicant was alleged as a consequence of the transfer of the applicant to Papua New Guinea as opposed to Australia, and that no injury was alleged as a consequence of the applicant’s treatment in Papua New Guinea.

Consideration

21    I commence by accepting a submission of counsel for the respondents that it is appropriate at this point in the proceeding to consider the respondents’ objections to the form of the draft pleading in its totality, without regard to whether the objections strictly concern only the proposed amendments. It would be artificial and impractical to consider the amendments divorced from other parts of the draft pleading that retain existing allegations.

22    I have determined that the applicant should have leave to amend further the statement of claim, but that the applicant should have an opportunity to address a number of issues that I will identify. Accordingly, as a matter of form the application to file a statement of claim in the form of the draft pleading is not granted for the time being, but I will adjourn it and make directions for the applicant to prepare a further draft for the respondents’ consideration, and if there are further disputes, then I will hear the parties.

23    I will consider the two issues of substance raised by the respondents before turning to the criticisms as to the form of the draft pleading. In addressing whether the draft pleading discloses a cause of action, or properly raises a claim of aggravated or exemplary damages based upon conduct that post-dates the administration of Acyclovir on 12 June 2018, the principles are well established. I should not allow an amended pleading to the extent that it would be futile; I should not give leave to amend a pleading if in its amended form it would liable to be struck out as failing to disclose a cause of action or as being embarrassing; and I should not allow an amended pleading if, for the purposes of s 31A of the Federal Court of Australia Act 1976 (Cth), there would be no reasonable prospect of successfully prosecuting the claims or components thereof in their amended form. In addressing the draft pleading appropriate caution should be exercised, where some of the questions of law raised by the respondents and their application to the facts do not admit of clear-cut analysis, and where the court has obviously not heard any evidence. The development and application of common law principles should ordinarily proceed by reference to concrete facts that are the subject of evidence and findings.

24    For the following reasons I do not accept the submissions of the respondents that the pleading of events after 12 June 2018 cannot form a permissible part of the applicant’s claim. The primary reason is that I accept the principal argument advanced by counsel for the applicant, that the allegations are relevant to the applicant’s claim for aggravated and exemplary damages. I will first address the claim for exemplary damages.

25    It is true, as senior counsel for the respondents submitted, that successful claims for exemplary damages in negligence cases, as opposed to intentional torts, are relatively rare. However, the availability of exemplary damages in negligence cases has been recognised by the High Court, and claims have been upheld by intermediate courts of appeal: Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [22] (Gleeson CJ. McHugh, Gummow and Hayne JJ); Backwell v AAA [1997] 1 VR 182; Trend Management Ltd v Borg (1996) 40 NSWLR 500. Although the cause of action in these cases was negligence, a common trait is that the particular conduct attracting the awards was deliberate. This is unsurprising given the criteria by reference to which exemplary damages might be awarded, which include proving that a tortfeasor showed a conscious and contumelious disregard for the claimant’s interests, such as the claimant’s health: see Trend Management v Borg at 503, 505 (Mahoney P). In this case, the allegations that the applicant proposes to advance in relation to the respondents’ decision to transfer the applicant to Papua New Guinea rather than Australia go beyond mere negligence and into the realm of a deliberate decision that the applicant would contend was made in contumelious disregard for her health.

26    That brings me to the question whether the pleading discloses a sufficient connection between the tort and the conduct alleged to give rise to the claim for exemplary damages. It is not necessary that a claimant suffer compensable loss as a result of contumelious conduct that is alleged for the purposes of a claim for exemplary damages: Trend Management v Borg at 505 (Mahoney P). There must, however, be some close factual link to the conduct constituting the cause of action. Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 provides an illustration. In that case, which involved the intentional tort of trespass to the person, the plaintiff threw himself onto the bonnet of the defendant’s car, and held on as the car travelled about 400 metres. The defendant braked sharply and the plaintiff fell on to the roadway. The defendant then drove off. The court at first instance made an award of exemplary damages, holding that the defendant had callously abandoned the plaintiff on the road and sped off in the night, leaving him lying on a darkened road. On appeal, the defendant submitted that leaving the plaintiff by the roadside constituted no tort, and for that reason could not support the award. The High Court rejected this argument, holding at 12 –

… Even if the act of leaving the plaintiff lying on a darkened road, when viewed separately, constituted no compensable wrong, there is no reason why it should be so viewed. Indeed, it is at least arguable that, having caused the plaintiff’s injuries through what was held to be a tortious act, the defendant was under a duty to take reasonable steps to alleviate the effect of his wrongdoing. It was open to the master to regard the conduct of the defendant in abandoning the plaintiff in the manner in which he did as displaying a cruel or reckless disregard for the welfare of the plaintiff and an indifference to his plight and as colouring the whole of the conduct of the defendant, including the assault which was found to have been made upon the plaintiff. So regarded, the tort of which the defendant was guilty was committed in circumstances amounting to an insult to the plaintiff.

27    In the context of a claim based upon a non-delegable duty of care to ensure that reasonable care was taken in relation to the welfare and medical treatment of the applicant, I do not accept that the treatment of the applicant on Nauru and her later management must be dissected in the way suggested by the respondents. In my view, the question raised by the claim is a triable issue. On the applicant’s case, upon causing or at least exacerbating her illness by reason of the late diagnosis of her condition, and the delay in the administration of appropriate treatment, reasonable care required that the respondents follow the specialist medical advice and arrange for the applicant to be transferred to a first world tertiary hospital where adequate facilities were available, including diagnostic equipment that was capable of being deployed on a paediatric patient. That claim is supported by the expert reports that were tendered on the application. The tenor of the expert medical opinion on which the applicant proposes to rely is that the monitoring of the applicant’s condition was an integral and necessary part of her treatment. On the applicant’s case, the exercise of reasonable care required that the applicant should undergo brain MRI imaging and an EEG during the acute stage of infection so as best to understand the nature and extent of the acute neurological insult, to guide treatment, and to determine long term outcome. That is the subject of the plea in the particulars under [33] of the draft (see [13] above). The applicant’s case is that, by ignoring the medical advice, the respondents denied her that opportunity. In my view, it is arguable that the respondents’ decision to transfer the applicant to Papua New Guinea is a sequelae to the claimed negligent treatment of the applicant with a sufficiently close factual connection as to support a claim for exemplary damages. It is also arguable that, on the assumptions underpinning the applicant’s claim, having failed to ensure that reasonable care was taken for the applicant’s health and welfare by way of provision of reasonable medical treatment, the respondents came under a duty to take reasonable steps to ameliorate the effects of the negligence in the way the applicant claims, including by following the medical advice to evacuate the applicant to Australia. The contrary view is that the respondents’ conduct was not directly related to the wrong which the applicant claims caused her injury, and that to award exemplary damages in respect of a separate wrong is to make an award for a claim that does not give rise to a cause of action: see Davis v Russell McVeagh McKenzie Bartleet & Co [1994] 2 NZLR 175 at 180 (Henry J). On the assumption that liability is established, the questions whether the applicant’s claim for exemplary damages can succeed, or whether the respondents’ arguments should be accepted, are matters for trial upon an examination of all the facts. In this case, the claim does not fail at the pleading stage.

28    I can deal with the proposed claim for aggravated damages more succinctly. The distinction between aggravated and exemplary damages may be stated, but in the application of the principles it is not always easy to preserve a rigid distinction between the two heads of damages because the factors that inform their assessment often overlap: see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 (Windeyer J); David Syme v Mather [1977] VR 516 at 523-524 (Lush J). Aggravated damages may be founded upon conduct of the tortfeasor that increases the harm caused to the claimant, including by conduct that occurs after the completion of the tort. Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: Lewis v Australian Capital Territory [2020] HCA 26; 271 CLR 192 at [112] (Gordon J), and the cases cited therein. The conduct supporting an award of aggravated damages does not have to be actionable in itself: Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 at [441]. By the draft pleading, the applicant alleges in support of her claim for aggravated damages that the respondents’ conduct prolonged, worsened, and aggravated her suffering. Like all facts in issue, the evidence supporting a claim of aggravation of a claimant’s injury need not be direct, but may be circumstantial. For substantially the same reasons I have given in relation to the proposed claim for exemplary damages, I consider that the applicant’s claim for aggravated damages has a sufficiently close factual connection to the tortious injury that is alleged with the result that it is maintainable. Again, the objections that the respondents have raised are triable issues.

29    There are two further issues that I should raise. The first issue is that, as I mentioned, senior counsel for the applicant accepted that it was not claimed that the respondents’ conduct in transferring the applicant to Papua New Guinea rather than Australia, or the applicant’s treatment while in Papua New Guinea resulted in an injury. That acceptance was made in response to a question from the court. However, depending upon context, the term “injury” might be understood as meaning personal injury to the applicant in the sense of a physiological change. However, again depending upon context, damage may be a broader concept, extending to include economic loss: see, FJ v Commonwealth [2017] VSCA 84; 55 VR 108 at [75]-[123] (Tate, Santamaria and Beach JJA). The applicant’s claims of loss and damage should be read together with the applicant’s particulars of special damages, which claim damages for the costs of necessary ongoing neurological review, referring to and relying on the expert reports that have been filed. Those expert reports include a report of Dr Michael Harbord, the paediatric neurologist to whom I referred earlier, dated 10 March 2022. Dr Harbord states that if an MRI head scan had been performed on the applicant on 12 June 2018, a lumbar puncture performed, and an EEG performed on that or the following day, then it is likely that the full extent of the applicant’s herpes encephalitis would have been evident. Dr Harbord expresses the opinion that because those investigations were not performed, it is left to clinical follow up to determine how severe the initial herpes encephalitis actually was. It is not clear whether the claimed costs of follow up treatment include increased costs as a result of the claimed failure, when the applicant’s condition was acute, to undertake the tests to which Dr Harbord refers. This is a matter which the applicant can clarify.

30    The second matter that I should raise is the injunctive relief that the applicant seeks in addition to her claim for damages. Indeed, injunctive relief is the first item in the applicant’s prayer for relief in both the existing and proposed pleading. The relevance of the injunctive relief to the claims made by the applicant was not addressed by the parties on the application for leave to amend further the statement of claim.

31    The orders made by Murphy J on 3 July 2018 in the nature of mandatory injunctive orders were interlocutory, and were made upon the basis of an acceptance by the respondents that there was a prima facie case that the respondents owed the applicant a duty of care to provide her with healthcare at an appropriate level to treat her diagnosed condition of herpes encephalitis and that the content of that duty included a duty to ensure within a reasonable time that the applicant was in a place where she could receive appropriate medical tests and continuation of treatment for that condition, and that appropriate testing in this case included an MRI and an EEG: see DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050 at [12]. The undertaking given by the respondents on 3 July 2018 not to take steps to return the applicant to Nauru pending the outcome of the proceeding was complementary to the interlocutory relief that was given. However, there has been no final determination of the applicant’s claims for injunctive relief, which she maintains by her originating application and her amended statement of claim. Interlocutory injunctions are ordinarily granted in aid of final relief. Ordinarily, an applicant for an interlocutory injunction is required to give an undertaking as to damages in the usual form by which the applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation to any person affected by the operation of the order or an undertaking given. In this case, no undertaking as to damages was recorded. In view of the Commonwealth’s capacity as an informed model litigant, and the fact that the applicant was then a child of two years of age, it may well be that the respondents made a considered decision not to seek an undertaking as to damages. Whatever may be the position, it may be the case that the respondents have no remedy should it be found hereafter that the interlocutory orders should not have been made: National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 574 (Kaye J), 601-603 (Brooking J).

32    By her amended statement of claim, and also by the draft pleading, the applicant seeks an injunction requiring the respondents to take and to continue to take all steps within their power to ensure that the Applicant receives treatment, including long-term care and follow-up, in a location with access to quality, multi-disciplinary specialist paediatric care. There was no submission by the respondents that this claim was not maintainable. The basis for seeking such orders might conceivably be in the exercise the court’s powers under s 23 of the Federal Court of Australia Act by reference to equity’s auxiliary jurisdiction, in the first instance to prevent the commission of a tort, and thereafter to prevent the occurrence of further damage as a result of a tort already committed: see, Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [33] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), and see also the obiter dicta in Minister for Environment v Sharma [2022] FCAFC 35; 400 ALR 203 at [759]-[760]. However, none of this was argued on this application, and it is unclear the extent to which the applicant maintains the claim that led to the making of the interlocutory orders by Murphy J. This is a further matter which the applicant can clarify.

33    I will now address the miscellaneous matters raised by the respondents that go to the form of the draft pleading. As to each of those, the applicant will have an opportunity to prepare a further draft in light of the following –

(a)    I accept the submission of counsel for the respondents that at [30.3] of the draft pleading the applicant has alleged a duty in absolute terms to achieve a specified outcome, rather than a duty to ensure that reasonable care was taken. I also accept that by pleading in this way the applicant has conflated duty and breach, against which Justices of the High Court have warned: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [192] (Gummow and Hayne JJ); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [68] (Hayne J); Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [48] (French CJ, Gummow, Hayne, Crennan and Bell JJ). Generally speaking, the “duty” in negligence is always the same – a duty to take reasonable care: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at [49] (Gummow J). In the case of a non-delegable duty, that translates to a duty to ensure that reasonable care is taken: see the formulation by Mason J in Kondis at 687. I understood senior counsel for the applicant to accept that [30.3] could be readily re-drafted to separate the allegation of the existence of the non-delegable duty, which is a conclusion of law, from the allegations of what reasonable care required, which is a question of fact.

(b)    I accept the submission of counsel for the respondents that [30] of the draft pleading, which is preliminary to the allegation in [30.3] of the non-delegable duty of care, is unclear in its use of the preface “in the premises”, which does not specify exactly what facts are relied on by the applicant to support the existence of the non-delegable duty. Again, I understood senior counsel for the applicant to accept that this could be remedied, perhaps by specifying those paragraphs of the pleading containing the allegations that are to be relied upon to support the claim.

(c)    I also accept the criticism that allegations of breach of duty are dispersed throughout the pleading, and the particulars of breach under [32] do not directly correspond to the allegations in [31] concerning the standard of care. I would not disallow the amendments on this basis, because although not ideally expressed, I consider that the pleaded case is just adequate. However, the applicants might consider addressing the criticism as to the way in which breach has been alleged when preparing a further draft.

(d)    As to other infelicities in the draft pleading raised by the respondents, namely an allegation in [32] that the respondents “acted negligently” and an allegation in [33] that that the applicant’s loss was as a result “of the respondents’ negligence” which were said to give rise to confusion in the context of a non-delegable duty of care, these are no more than drafting points. The applicant’s case should be clear enough to the respondents. If there is any difficulty, then the respondents’ solicitors can seek clarification by way of correspondence. In any event, the applicant will have the opportunity to review the forms of words that have been employed to allege that the respondents were in breach of their non-delegable duty of care because reasonable care was not taken.

(e)    I do not accept the respondents’ submission that the allegations of causation in [31A] and [31B] of the draft pleading are conclusory because they do not address why or how the steps that are alleged should have been taken would have had the results which are therein alleged. Pleadings may be terse. Their role is to plead material facts and not evidence, still less to argue the case. I doubt that there could be any confusion as to what the applicant’s causation case is, especially having regard to the expert opinion evidence that has been filed. If there is any specific cause for confusion, then it was not developed by counsel for the respondents in argument.

(f)    The respondents complained about the use of the term “adequate” throughout the draft pleading, claiming that it was used on 21 occasions, and claiming that this led to confusion because it was unclear whether this erected a different standard to that of reasonable care. The submission that the respondents advanced was a broad-brush submission that did not differentiate between the different contexts in which the word “adequate” is employed in the draft pleading. I have already dealt with the applicant’s plea of the non-delegable duty of care at [30.3] of the draft pleading which does employ the term “adequate” rather than “reasonable”. I expect this will be re-drafted so as to conform with what I have said. However, there are other instances where the term “adequate” is employed, but not in substitution for a plea of a standard of reasonable care. For instance, it is open to the applicant to allege that the duty to ensure reasonable care was taken required that there be medical services on Nauru that were adequate to assess and treat the applicant’s condition. It is open to the applicant to allege that reasonable care required that there was an adequate assessment of the applicant’s condition when she first presented to the IHMS medical clinic on Nauru. It is open to the applicant to allege that reasonable care required that adequate enquiries be made of the Pacific International Hospital as to its facilities prior to the decision to transfer the applicant to Port Moresby. And it is open to the applicant to allege that the facilities at the Pacific International Hospital in Port Moresby were not adequate to treat the applicant’s condition. Whether the claimed inadequacies departed from the standard of reasonable care is a separate question.

(g)    Finally, I understood senior counsel for the applicant to accept that the applicant’s particulars of loss and damage, to the extent that it made a claim for loss “which is not yet known”, will be reviewed.

Conclusion

34    I will hear counsel on orders.

Associate:

Dated:    9 August 2022