Maragol v Berry Patch Preschool: Personal Injury Ruling
In the recent matter of Maragol v Berry Patch Preschool Kellyville Ridge Pty Ltd [2024] NSWSC 1077, the two plaintiffs (Jozef Isho Maragol and Anet Eyvaziansbabroudi) are seeking personal injury damages against the two defendants (Berry Patch Pre-School Kellyville Ridge Pty Limited and the State of New South Wales) following the death of a young child, who was the daughter of the plaintiffs.
On 24 August 2018, the daughter died while sleeping at a childcare centre owned and operated by the first defendant, Berry Patch Preschool Kellyville Ridge Pty Ltd.
Essentially, the plaintiffs allege that the death occurred as a result of a breach of the duty of care of Berry Patch Pre-School Kellyville Ridge Pty Limited, 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 Berry Patch Pre-School Kellyville Ridge Pty Limited operated the childcare centre at which the death occurred, the claim is not unusual, without the foregoing in any way suggesting that liability exists or does not exist. Nevertheless, Berry Patch Pre-School Kellyville Ridge Pty Limited owed a duty of care, which was non-delegable.
The subject in which the Supreme Court was dealing with on 26 August 2024 relates to the involvement of the State of New South Wales.
The State of New South Wales submitted to the Supreme Court that it should strike out the relevant parts of the pleadings relating to its liability on the basis that it is inconsistent with the overriding purpose described by s 56 of the Civil Procedure Act 2005 (NSW) and because it has a tendency to cause prejudice, embarrassment or delay in the proceedings, contrary to the Uniform Civil Procedure Rules 2005 r 14.28. The claim against the State of New South Wales is novel. Novelty is not a bar to proceedings. Nor is novelty a basis upon which proceedings should be dismissed summarily. However, the State of New South Wales does not seek the summary dismissal of the proceedings. Rather, it seeks the dismissal of certain paragraphs of the Statement of Claim.
The plaintiffs allege that the State of New South Wales breached a duty imposed upon it, (either at common law, or a statutory duty), in the manner in which the State of New South Wales exercised its supervisory and/or regulatory functions over the childcare centre, or the manner in which it did not exercise such functions. (Children (Education and Care Services National Law Application) Act 2010 (NSW)).
At [22] the Supreme Court noted that the State of New South Wales describes the claim against it as “novel” in that it alleges a “novel duty”. Novelty, as earlier stated, is not a bar to proceedings. Nevertheless, it is unusual, in circumstances such as the present, for the Regulatory Authority to be the subject of claim in circumstances where the service provider is alleged to have breached the duty imposed upon it. To say the least, the regulatory body is one step, at least, removed from the direct cause of injury or death.
The Supreme Court held at [40] – [42], striking out part of the statement of claim against the second defendant:
It is necessary to point out that the power reposed in the Regulatory Authority, is, it seems in the plaintiffs’ case, a public duty, or a statutory duty, being, on the pleadings in part a failure to exercise a regulatory function. The duty is, therefore, governed by the provisions of ss 43, 43A and 44 of the Civil Liability Act.
Notwithstanding the promulgation of those last-mentioned sections of the Civil Liability Act, there is no pleading as to how such provisions apply and how the State is, as a consequence of its regulatory function, liable. In other words, the plaintiffs are required to plead how the authority could have been required to exercise such a function in proceedings instituted by the plaintiffs, and/or how the act or omission of the Regulatory Authority was “so unreasonable” that no authority having such a power could properly consider that which was done a reasonable exercise of the power.
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.
Ultimately, on 26 August 2024, the New South Wales Supreme Court ordered as follows:
- The Court strikes out paragraphs [8], [9], [11], [21] and [22] of the Statement of Claim filed 30 June 2022, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28.
- The Plaintiffs shall pay the Second Defendant’s costs of and incidental to the motion.
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