Federal court of australia

THE NEGLIGENCE CLAIM

1.The Essence of the Negligence Claim

18 In order to understand the applicant’s claim it is necessary to start with her pleadings. In her amended statement of claim, the applicant pleaded (from [2]–[4]) the involvement of the Minister in her removal to Nauru, in her detention there, and in her day-to-day existence before and after having been accepted as a refugee. She pleaded, from [5]–[7], the fact of her rape and pregnancy, the existence of present harm, and the likelihood of future harm associated therewith. At [9] it is alleged that the applicant cannot have a safe and lawful abortion in Nauru and at [11] the facts leading to the applicant being in Papua New Guinea, including the Commonwealth’s involvement therein, are pleaded.

19 All of those facts lead to an allegation that the Commonwealth is under a duty of care (at [12]). The duty was put in a number of ways:

(1) at [12(a)], “to procure a safe and lawful abortion for [the applicant]”;

(2) at [18(b)], “to take all reasonable steps to ensure that [the applicant] has a safe and lawful abortion”;

(3) at [39] of the written submissions, “to ensure that reasonable care is taken of the Applicant to avoid serious harm of a kind which the Commonwealth or its agents are reasonably able to control and avoid”;

(4) at heading D(iii) of the written submissions, “to exercise its power to procure a safe and lawful abortion for her,” and in the same way at [104] except specifying that the abortion is to be in Australia.

I will return to the various ways in which the duty has been put.

20 At [13], the applicant’s medical circumstances are pleaded. At [14] it is alleged that particular expertise is necessary in order that an abortion that is performed be a safe abortion. At [15] facts relating to the lawfulness of abortion in Papua New Guinea are pleaded. Those facts lead to the allegation that an abortion meeting the conditions set out in [14] cannot be obtained in Papua New Guinea, but can in Australia.

21 On the basis of the duties pleaded and other facts, particularly those in [14] and [15], relief relevantly sought by the applicant in her amended statement of claim, as orally modified in the course of hearing, is as follows:

B. A declaration that the proposed abortion of the applicant in Papua New Guinea will:

(i) not be a safe or a lawful abortion and will not satisfy the conditions in paragraph 14 above; and

(ii) be in breach of the said duty of care.

C. A mandatory injunction requiring the Commonwealth to procure for the applicant a surgical abortion at a teaching hospital in Australia.

D. Alternatively to C, a mandatory injunction requiring the Commonwealth to procure for the applicant a surgical abortion [otherwise than in Nauru or PNG, and meeting certain conditions].

E. An injunction restraining the Commonwealth from procuring or causing the applicant’s return to Nauru prior to taking all reasonable steps to ensure that the applicant has a safe and lawful abortion that meets the conditions set out in paragraph 14 above.

F. Alternatively, a mandatory injunction requiring the Commonwealth to procure for the Applicant a surgical abortion [otherwise than in Papua New Guinea, and meeting certain conditions].

G. Alternatively to F, an injunction restraining the Commonwealth from failing to procure for the Applicant a surgical abortion both at a place other than in Papua New Guinea and in a hospital [meeting certain conditions].

22 While in written submissions the duty on occasion was put in non-delegable terms, none of the relief related to ensuring that care was taken, or to a failure to ensure that care was taken. And, none of the evidence went to showing, for example, that the Papua New Guinean doctors would fail to take reasonable care. Rather, all of the relief relates to requiring the “procurement” of an abortion of a particular kind or the “taking of reasonable steps” to procure an abortion of a particular kind. The applicant’s complaint, as it seems to me, is not that an abortion on Papua New Guinea will be performed negligently, but instead that even a non-negligently-performed abortion on Papua New Guinea would breach the Minister’s duty. For the purposes of this proceeding it seems to me to be unnecessary to consider whether the Minister’s duty is non-delegable.

23 That entails, as I also discuss below at [171]–[182], that the applicant’s complaint is really that the Minister’s procurement of an abortion to be performed in Papua New Guinea failed to discharge his duty of care to provide a “safe and lawful abortion”. And, it entails the continuing complaint that, if the Minister fails to procure an abortion that is “safe and lawful” in the sense alleged in the applicant’s pleading, he will continue to fail to discharge his duty of care.

24 In other words, the focus of the applicant’s allegations is on the Minister’s duty, thus far undischarged, to “take all reasonable steps” to ensure that the applicant has access to a safe and lawful abortion, or to “procure” for her a safe and lawful abortion. “Procure for,” in this sense, means “make available to.” It does not mean “procure” in the sense of “effect an outcome.” The applicant, of course, retains human agency. She might choose not to undergo an abortion that has been procured. On the applicant’s case, the discharge of the Minister’s duty does not require that the applicant actually undergo an abortion; it requires only that he make available to the applicant a safe and lawful abortion, should she choose to undergo it.

25 Thus, and again I refer to reasons that I have given below at [171]–[182], the essence of the applicant’s case is this:

(1) the Minister’s duty is to exercise reasonable care in the discharge of the responsibility that he assumed to procure for the applicant a safe and lawful abortion (within the meaning of her pleading);

(2) the abortion that has been made available to her on Papua New Guinea is not safe and lawful. Nor did its procurement constitute the exercise of reasonable care in the discharge of the Minister’s assumed responsibility. In consequence, there was, by that procurement, no discharge of the Minister’s duty of care;

(3) there is a reasonable apprehension that the Minister will fail to discharge the putative duty of care; and

(4) relief, including injunctive relief, should be provided to address that apprehended failure.

26 There is no breach of the putative duty of care pleaded. That, it seems to me, is because it is recognised that the time by which the putative duty of care must be discharged has not yet arrived. Accordingly, a complete cause of action in negligence has not yet accrued. In that event, as the applicant’s submissions recognise, a quia timet injunction would need to be issued if any injunctive relief is held to be appropriate.

27 Even if the applicant’s pleading was somewhat inexact, the applicant and respondents joined issue on all matters of fact and law in respect of which there was real contest. The way I have summarised the case is, I think, consistent with how it would have been understood by the Minister on the basis of the way in which the trial was run.

28 In the absence of prejudice—and I cannot see that any party has been prejudiced—I am prepared to address the parties' cases as they were advanced at trial rather than as they were pleaded (to the extent there is a difference).