The Corporation of the Franciscan Sisters of the Heart of Jesus (Qld) v FERM Engineering Pty Ltd [2022] QSC 102

Sarah Ferrett   |  Megan Sharkey  |  Zariyah Ahmed

Key takeout

In Queensland, parties must ensure their pleadings meet the requirements of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), particularly rules 149 and 157 regarding statements and particulars in pleadings. A party’s hypothesis on causation must be clear on the face of the pleading and must be precise, unambiguous and make narrative sense.  All issues must be identified within the pleading itself and not scattered throughout expert reports, or other documents, for the other party to piece together.

Facts

The Corporation of the Franciscan Sisters of the Heart of Jesus (Qld) (Sisters’ Corporation) is the operator of a nursing home. The Sisters’ Corporation contracted with FERM Engineering Pty Ltd (FERM) to provide mechanical engineering services, including the instalment of air conditioning to the nursing home. The Sisters’ Corporation alleged that after the instalment of the air conditioning, excessive condensation was observed in and around the new air conditioning system and that the condensation caused mould to grow throughout the nursing home.

The Sisters’ Corporation’s case on causation had the following steps in a chain of reasoning:

1.       FERM designed an air conditioning system that was oversized.

2.       The oversized air conditioning system compromised the air conditioner’s dehumidifying capacity.

3.       The compromised dehumidifying capacity of the air conditioning system caused the condensation.

4.       The condensation caused the mould.

5.       The mould could not be eradicated by ad hoc treatment methodologies.

6.       The only means of remedying the damage was to replace air conditioning system.

7.       The replacement of the system caused the Sisters’ Corporation to suffer damage.  

Decision

Crow J concluded that the pleadings, except for step 2, complied with rules 149 and 157 of the UCPR. The problem with step 2 was the lack of narrative sense in accepting that a larger more oversized air-conditioning system that was more powerful, has a reduced dehumidifying capacity, in turn causing the condensation and mould.

An expert report prepared by GHD Engineers in September 2019 (GHD Report) advised that “the consequence of an oversized system is that the ability to dehumidify is compromised“. The court considered the GHD Report provided the logical sequencing that although the air-conditioner was oversized and more powerful, it did in fact have a reduced dehumidifying capacity causing more condensation and therefore mould. The pleadings themselves did not define this sequencing, which was an essential part of the Sisters’ Corporation’s causal allegations. 

Crow J stated that while FERM may ascertain the Sisters’ Corporation’s case from reading the GHD Report, the existence of the technical explanation in the GHD Report was not an answer to FERM’s application for further and better particulars of the statement of claim.

Rules 149 and 157 of the UCPR require the issues to be identified in the pleading and not in an expert report.

A plaintiff’s causation hypothesis must be apparent on the face of the pleading and must be precise, unambiguous and make narrative sense.

Crow J therefore determined that the relevant paragraphs of the statement of claim did not adequately plead the Sisters’ Corporation’s case in causation.  The Sisters’ Corporation was granted leave to amend its pleadings. The Sisters’ Corporation’s application for further and better particulars of the defence was adjourned, to be dealt with following the delivery of an amended statement of claim.