I am disinclined to accept Sydney Trains’ pleading point. True it is that Argo should have positively pleaded the conduct on the part of Sydney Trains which, so it alleged, produced the result that that conduct was the sole effective cause of Ms Michael’s injury notwithstanding Infrastruction’s own breach. Argo did not do this, and merely putting causation in issue falls short of what is required: cf Icon Co (NSW) Pty Ltd v The Owners – Strata Plan No 97315 [2022] NSWCA 114 at [12]-[13]. Nonetheless, in a trial where causation was in issue, and where counsel for Sydney Trains made no objection to the submissions advanced in writing and orally as being unpleaded but instead engaged with them on their merits, not lightly would I conclude that the submission was outside the scope of the issues the parties are to be regarded as having chosen to litigate: cf Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 287; [1990] HCA 11.

Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101