The importance of pleadings in Work Injury Damages claims

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By Danny Khoshaba, Partner and Sherilyn Dunkley, Associate

Work injury damages claims are defined by the pleadings and so being able to understand what is being pleaded is essential for employers and therefore, insurers, in order to prepare a comprehensive defence.

In order to commence a work injury damages claim, an injured worker is required to serve a 282 notice and then a Pre-Filing statement in the form of the Statement of Claim to be subsequently filed in court[1] containing the pleadings which essentially define the issues for determination in the proceedings.

In the Pre-Filing statement the plaintiff is required to:

  1. Plead the scope and content of the non-delegable duty of care on a prospective basis.
  2. Plead facts which constitute breach of the non-delegable duty of care said to have caused injury with the a degree of precision including disclosing such as names, dates, details and circumstances of any such conduct.
  3. Plead prospectively and with precision what system of work ought to have been in place not on a retrospective basis from a prospective basis or the appropriate system of instruction.
  4. Plead facts which demonstrate causation.
  5. Identify particulars of negligence which are informed by the facts or the pleaded breaches of duty.

The scope and content of the non-delegable duty of care

In State of New South Wales v Briggs (Briggs), Leeming JA held that in considering the issue of breach of duty generally, it was ‘necessary to identify the scope or content of the duty in any particular case, and obviously that will turn on the relationship between the parties’.[2]

His Honours Judgment emphasises the need to identify the scope and content of the duty which is said to have been owed by the defendant to the plaintiff, as a precursor to consideration as to whether said duty may be regarded as having been breached.

Identifying the scope or content of the duty in any particular case will obviously that will turn on the relationship between the parties and the content of duty of care owed by an employer to an employee can be modified/effected by statute.

As pointed out in the joint reasons in Koehler v Cerebos (Australia) Ltd the content of the duty owed by an employer to an employee must take account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and any applicable statutory provisions. Considering those obligations reveals questions that bear upon whether the employer must modify the work an employee is to do.[3]

Identifying the scope and content of the non-delegable duty of care is particularly important for injured emergency workers such as police officers and fire fighters, whose service is governed by legislation and regulations.

For example, in Briggs, the worker was a former police officer who suffered a psychological injury caused by exposure to traumatic events in the course of his police duties. Although Briggs was a claim for a psychological injury, the discussion on the duty of care applies to all types of injury.

In considering the scope and content of the duty of care in Briggs, Leeming JA noted that there is no contract of employment to which a police officer is a party. Instead, the relation of service is constituted by a police officer taking the oath. Police officers’ obligations are principally determined by the police duties which had been classified by the Commissioner (and the Commissioner’s delegates), and the lawful orders and directions given to him to perform such duties, rather than by contract.[4]

Therefore, the obligations owed by and to a police officer are principally sourced in primary and delegated legislation which apply peculiarly to the NSW Police Force, as opposed to contract.

As noted by Gummow and Hayne JJ in State of New South Wales v Fahy:

Because [the plaintiff] claimed damages from the State on account of events occurring during her service as a police officer, any inquiry about the liability of the State must begin by considering the statutes that governed [the plaintiff’s] service as a police officer, the statutes that regulated claims against the State, and the statutes that regulated claims brought by an employee against his or her employer.” [5]

Accordingly, proper pleadings on the scope and content of the non-delegable duty of care have a significant bearing on determining whether the duty of care has been breached.

Pleadings of material act and allegations of negligence

Under the Uniform Civil Procedure Rules 2005 (UCPR), Rule 14.7 prescribes that a party’s pleading must contain only a summary of the material facts to be relied upon, and not the evidence by which those facts to be proved. This means that a pleading should not specify the way the asserted facts are to be proved (such as that certain persons saw or heard certain things, unless the seeing or hearing are themselves material facts).

The function of pleadings is to state with clarity the case which the opposing party is required to meet, defining the issue for decision.[6]

Rule 14.4 of the UCPR states that a plaintiff must plead specifically any matter, which if not pleaded, would take a Defendant by surprise.

Further, Rule 15.1 states that a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

The NSW Court of Appeal in Geoffrey William Vines V Australian Securities and Investment Commission relevantly observed:

‘… pleading should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness.’[7]

In Garzo v Liverpool/Campbelltown Christian School Limited (“Garzo”), Garling J discussed the requirements to supply particulars.[8]

As a starting point, a proper pleading of a claim requires the plaintiff to identify, and articulate clearly the “risk of harm” in respect of which, it is alleged, the defendant was obliged to take precautions. This puts a Court in a position to determine the defendant’s knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the defendant’s response, or lack of response, to that risk.[9]

A proper pleading will also need to plead whether it is part of the plaintiff’s case that the defendant had actual knowledge of the risk of harm, and that the risk was thereby foreseeable, or whether the plaintiff only contends that the defendant ought to have known of the risk of harm. Particulars of such a pleading would then ordinarily be provided and a defendant would then be in a position to fully plead to such allegation.

In Garzo, Garling J states:

It is a matter of common experience in common law claims, that in any given set of factual circumstances, there are a number of risks of harm which can be identified. Unless the risk of harm being relied upon is clearly identified then it will not be possible to identify what steps ought reasonably to have been taken by a defendant to address the risk. Nor will it be possible for a Court to determine what the application of reasonable care required.”[10]

In the decision by the NSW Court of Appeal in New South Wales v Heins, one of the reasons for refusing a grant of leave by a former police officer to commence a Common Law action under the Limitation Act 1969 was due to Statement of Claim not properly pleading the plaintiff’s case.[11] The statement of claim was considered prejudicial and embarrassing, including vague allegations such as: failed to observe that the plaintiff was in a position of peril, exposed the plaintiff to a risk of injury, failed to implement measures to protect the plaintiff from injury, and failed to provide adequate debriefing and support.

It also alleged that the risk could have been avoided by reasonable care and a failure to implement measures to protect the plaintiff but it did not indicate what reasonable care was required or the measures that should have been taken. Further, the plaintiff had failed to identify the adequate support that, it is said, should have been provided.[12]


Improper pleadings such as the above are all too common in work injury damages claims.  Pleadings which do not clearly identify the scope and content of the duty of care and the precise material facts and allegations which underpin the case being prosecuted can make it incredibly difficult for an employer/insurer to prepare a defence.

Employers and insurers can however take steps in an effort to address the deficiencies with the plaintiff.  As a model litigant, the defence should notify the plaintiff of the deficiencies in the pleadings to allow them the opportunity to remedy them.  If the plaintiff elects not to remedy the deficiencies, an Application can be made to have the Statement of Claim struck out. Alternatively, should the plaintiff proceed with the pleadings without amendment these matters can be raised at trial to limit as much as possible the way in which the plaintiff articulates the case.


[1] Rule 17.3 of the Workers Compensation Commission Rules 2011 [NSW].

[2] [2016] NSWCA 344 At [45].

[3] [2005] HCA 15 at [21].

[4] State of New South Wales v Briggs [2016] NSWCA 344.

[5] [2007] HCA 20 at [18].

[6] Banque CommercialeSA E n Liquidation V Akhil Holdings [1990] HCA 11.

[7] [2007] NSWCA 75.

[8] [2011] NSWSC 292.

[9] RTA v Dederer (2007) 234 CLR 330 at [59]-[61] (Gummow J).

[10] [2011] NSWSC 292.

[11] [2005] NSWCA 258.

[12] Ibid [15 – 17].

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