The Judicial Registrar struck out a self-represented plaintiff's statement of claim in a COVID-19 pandemic negligence action against the Department of Health for failure to state material facts and adequately plead the elements of negligence, but declined to grant summary judgment, finding the question of whether a duty of care exists in relation to operational failures in pandemic testing and notification processes is fact-sensitive and not amenable to summary determination on a deficient pleading. The court left open whether a duty of care could arise from the Department's alleged operational failure to notify an inconclusive COVID-19 test result (as distinct from a challenge to government policy), and noted that the distinction between policy and operational conduct in the pandemic context raises complex factual questions. The court also clarified that s 84 of the Wrongs Act 1958 (Vic) does not create a standalone cause of action and that Wednesbury unreasonableness concepts from administrative law do not directly apply to negligence claims.
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