The NSW Court of Appeal recently heard an appeal in Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D against the decision of the Supreme Court to award damages against a childcare operator. See my previous post for the facts and details of the previous case. The Court of Appeal overturned certain aspects of the previous decision predominantly based on the admissibility of certain evidence, ordering that:
in relation to the breach of contract action made by the mothers (A & B) of the children, the decision of the judge be overturned.
In relation to be negligence action by the children (C & D). The original judge's decision was set aside and instead the Court ordered that proceedings against the Second Defendant (Ms Clancy - owner of the service) be dismissed with costs; proceedings against the Third Defendant (Little Pigeon - the licencee) be dismissed other than in respect of the claims against Little Pigeon based upon vicarious liability, with those claims to be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause.
In relation to the assaults of the children by Mr Bird (part owner of the service and an employee of the service), the Court overturned the original decision and instead ordered that proceedings against Mr Bird be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause.
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