The recently reported NSW Supreme Court case of Maragol v Berry Patch Preschool Kellyville Ridge Pty Ltd is a novel civil action. This case relates to the death of Arianna Maragol at The Berry Patch Preschool Kellyville Ridge service (see my previous post on this tragic event). The context to this case is that plaintiff parents commenced civil action for negligence against both the Approved Provider (Berry Patch, the first defendant) and the State of NSW (second defendant). On 24 August 2018, the plaintiffs' daughter died while sleeping at a childcare centre owned and operated by the first defendant. The plaintiffs allege that the death occurred as a result of a breach of the duty of care of Berry Patch, who owed the deceased and/or her parents a common law duty of care, which it breached. The plaintiffs claim that they suffer psychiatric injuries as a result. In relation to the second defendant, the plaintiffs allege that the State breached a duty imposed upon it, (either at common law, or a statutory duty), in the manner in which the State exercised its supervisory and/or regulatory functions over the childcare centre, or the manner in which it did not exercise such functions (para. 8). The plaintiff's Statement of Claim in paras. 8, 9, 11, 21, and 22 (this is a court document that sets out the plaintiff's civil claim) sets out in detail the claim against the State as the Regulatory Authority under the National Law (para.10). I will not reproduce this - because of its length - but quote the Court's summary of key parts of it instead (paras.12-14):
As can be seen from the terms of paragraph [11], the plaintiffs allege that the State, because of that which is contained in paragraphs [6] to [9], was aware of certain factors, namely, that Berry Patch would have control over the child; was aware of the risk that infant children left sleeping in cots could stop breathing and suffer serious harm including death; owed a duty to all infants left in the first defendant’s care to ensure all available precautions were taken against that risk; was aware of a “rest and sleep practice and procedure” from an assessment in 2014; and, should have ensured the implementation and enforcement of the “rest and sleep practice and procedure” requiring a physical check on breathing.
As can be seen from the foregoing extract, paragraph [21] of the Statement of Claim asserts a cause of death due to the failure of the State to take precautions against “that risk”, the failure to do so amounting to negligence and it being in breach of the duty of care. Particulars are provided, which have been extracted above.
Additional negligence of the State is pleaded as a result of the alleged breach of its obligations under the National Law by failure to investigate the death within an appropriate time.
The only matter before the Court in this instance was the application by the State of NSW to strike out paragraphs 8, 9, 11, 21 and 22 of the plaintiff's Statement of Claim (that is, invalidate it). The State argued that it was a novel action (against the State) and that the claim as it stands would cause prejudice, embarrassment or delay (as governed by the specific civil litigation legislation). The Court upheld the application of the State, stating that (paras.42,44):
For the foregoing reasons, and particularly given that the plaintiffs have the capacity to re-plead the issues raised, the failure to plead the relevant aspects to which reference has been made is such that the State is being required to engage in conjecture as to that which it was required to do, and how the plaintiffs put their case and establish liability and causation. In those circumstances, the Court considers that the provisions of paragraphs [8], [9], [11], [21] and [22] are embarrassing and, in the absence of an appropriate and detailed pleading, would cause delay...
As earlier stated, the novelty of a claim is not, in and of itself, a basis upon which a pleading will be struck out or proceedings dismissed. Nevertheless, the Court is mindful of the circumstance that the claim against the State is novel and that, therefore, it is necessary to establish more clearly and more precisely, how the cause of action arises, and the material facts that give rise to liability.
The case is novel or unusual because the plaintiff in this case is alleging that in addition to the childcare provider, the State of NSW (as the Regulator) also owed a duty of care to them. It will be interesting to see whether the plaintiff amends and resubmits the sections of the Statement of Claim invalidated by the Court in this case.
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