Bowman v Bliss Early Learning Maroubra Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Bowman v Bliss Early Learning Maroubra Pty Ltd [2024] NSWDC 600

Hearing dates:

06 December 2024

Date of orders:

06 December 2024

Decision date:

06 December 2024

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

In relation to the Notice of Motion filed on 1 November 2024:

(1) The application is dismissed.

(2) The costs of the Notice of Motion are to be costs in the cause.

In relation to the proceedings generally:

(3) The defendant is to serve any expert report as to liability by 28 February 2025.

(4) The matter is listed before the List Judge for directions on 5 March 2025 at 9:30am.

(5) Liberty to apply on 2 business days’ notice.

Catchwords:

PRACTICE AND PROCEDURE – child suffers strangulation asphyxia at childcare centre – whether order should be made to determine a separate question as to liability

Legislation Cited:

Children (Education and Care Services) National Law (NSW)

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103

Allen v Gulf Oil Refining Ltd [1981] AC 1001

Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd [2018] NSWSC 1284

Crawley v Vero Insurance Ltd [2012] NSWSC 593

New South Wales v Lepore (2003) 212 CLR 511

Southwell v Bennett [2010] NSWSC 1372

Tepko Pty Ltd v The Water Board [2001] HCA 19; (2001) 206 CLR 1

Thomas v Oakley [2003] NSWSC 1033

Category:

Procedural rulings

Parties:

Hannah Bowman (Plaintiff)
Bliss Early Learning Maroubra Pty Ltd (Defendant)

Representation:

Counsel:
S Holmes (Plaintiff)
G Devery (Solicitor)(Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Gilchrist Connell (Defendant)

File Number(s):

2021/00107955

Publication restriction:

No

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 1 November 2024 by the plaintiff, seeking that there be an order under Part 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) to the effect that the question of the defendant’s liability for the plaintiff’s injuries be determined separately and before any further trial in the proceedings.

2. In support of the application, the plaintiff read the affidavit of Vrege Kolokossian of 4 November 2024. The defendant read the affidavit of Grace Anne Devery dated 22 November 2024. The defendant opposed the application.

3. It is important that I set out the background facts in the matter. A Statement of Claim was filed on behalf of the plaintiff, who commences the proceedings by her tutor, being her father Gavin Bowman, on 19 April 2021. In substance, the Statement of Claim pleads as follows:

1. That the plaintiff was born on xx July 2018;

2. That as a toddler, the plaintiff was enrolled in a daycare centre known as “Bliss Early Learning Maroubra” located in Maroubra in Sydney, in the State of New South Wales;

3. That the plaintiff attended that centre on 27 November 2019;

4. That outside the centre building, there was a play…