Hicks v Mercy Family Centre - [2002] NSWSC 2

CITATION: HICKS v MERCY FAMILY CENTRE [2002] NSWSC 2

FILE NUMBER(S): SC 20111 of 1997

HEARING DATE(S): 17.09.01-24.09.01

JUDGMENT DATE: 9 January 2002

PARTIES :

Plaintiff: Simon Eric HICKS
First Defendant: MERCY FAMILY CENTRE LIMITED
Second Defendant: Cindy IP

JUDGMENT OF: Hulme J at 1

COUNSEL : Plaintiff: P Webb QC, H Bauer
First Defendant: GM Gregg
Second Defendant: M Holmes QC

SOLICITORS: Plaintiff: McClellands
First Defendant: Corrs Chambers Westgarth
Second Defednant: Sparke Helmore

DECISION: See paragraph 50

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
No: 20111 of 1997

HULME J

Wednesday, 9 January 2002

Simon Eric HICKS by his tutor THE PROTECTIVE COMMISSIONER v THE MERCY FAMILY CENTRE LIMITED and Cindy IP

JUDGMENT

: The Plaintiff was born on 25 January 1995. On 1 February 1996 he was kneeling on a sofa bed in the home of the Second Defendant. He fell off striking the rear or side of his head on the floor. Soon afterwards he began to vomit.

2 There followed some phone calls between the Second Defendant and the parents of the Plaintiff. An ambulance was called and the Plaintiff was taken to Hornsby Hospital and then to Westmead Children’s Hospital. He was found to be suffering from an extensive right sided acute subdural haematoma. A right sided fronto-parietal craniotomy was performed but the Plaintiff had suffered significant brain damage. The instant proceedings are brought to recover damages in consequence.

3 On 5 February 2001 an order was made which seems to have been treated as an order for the separate determination of the issues of liability and damages. The proceedings before me relate to the first of these issues.

4 There are few questions as to the circumstances of the Plaintiff’s fall. Mrs Ip had given him some milk and put him down to sleep on a mattress in the main bedroom of her home. Simon’s brother Alan, born on 28 October 1993, was put on a sofa bed in another room. Mrs Ip then settled Inela, a third child, in the TV or lounge room, picked up a nappy and returned to Alan. He was still lying on the sofa. It had a raised back and ends and, subject to one matter, an open front. About one-quarter of the front, nearest the window of the room in which the sofa was situate was adjacent to the foot of a bed running at right angles and a pillow, sitting up higher than the horizontal part of the sofa bed, was jammed between the two items of the furniture.

5 The dimensions of the sofa are to be found in a report of Dr Henderson which was in evidence. The base is 25 mm high. On it is a mattress 120 mm thick. The unit is 1330 long and 690 mm from front to back. In the course of a view it was agreed that the length of the sofa which is open – some being closed by the bed at right…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 2
Decision Date: 9 January 2002

CaseChat Overview and Summary

In Hicks v Mercy Family Centre, Simon Hicks, born on 25 January 1995, suffered an extensive right-sided acute subdural haematoma after falling off a sofa bed while under the care of Cindy Ip, a registered child carer. The incident occurred on 1 February 1996 when Simon was kneeling on the sofa bed in Ip's home and fell, striking the rear or side of his head on the floor. Simon was subsequently taken to Westmead Children's Hospital where significant brain damage was diagnosed. Simon's parents brought an action against Ip and the First Defendant, Mercy Family Centre Limited, a child care agency that registered and assessed Ip as a carer.

The central legal issue in the case was whether the Second Defendant, Cindy Ip, breached her duty of care towards Simon by failing to supervise him adequately and by not having a cot or similar restraining device. Additionally, the case examined whether the First Defendant, Mercy Family Centre Limited, was liable for any failure to ensure Ip had appropriate sleeping arrangements for Simon.

Hulme J concluded that Ip's failure to have a cot did not constitute a breach of her duty of care. The court found that while a cot would have prevented the accident, the absence of a cot did not demonstrate a lack of reasonable care, considering the disadvantages of cots and the evidence that Ip had used a mattress without incident for years. The court also noted that Ip's decision to use a mattress was supported by expert opinion and the practice of other carers. However, the court held that Ip's decision to leave Simon on the sofa bed while attending to another child constituted a lack of reasonable care, as there was a significant risk of serious injury from a fall in that position.

Regarding the First Defendant, the court found that there was no basis for holding it liable for Ip's negligence, as it had fulfilled its duty by registering and inspecting Ip and her facilities. The court also dismissed the Plaintiff's claim for a non-delegable duty of care, finding no obligation on the First Defendant to ensure the safety of Simon.

The final orders of the court were a verdict and judgment in favor of the Plaintiff against the Second Defendant, a verdict and judgment in favor of the First Defendant on the Plaintiff's claim against it, and orders regarding the costs of the proceedings.

Orders