Sophia Gharib by her tutor Kym Ottomar v Liverpool City Council

[2006] NSWDC 69

CITATION:	Sophia Gharib by her tutor Kym Ottomar v Liverpool City Council [2006] NSWDC 69
HEARING DATE(S):	04/05/2006-05/05/2006, 26/06/2006-27/06/2006
EX TEMPORE JUDGMENT DATE:	06/27/2006
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Verdict and judgment for the plaintiff for damages to be assessed; Stood over to the inactive list, to be called-over not later than one year from today’s date, for further directions; I order the defendant to pay the plaintiff’s costs to date; Pursuant to s 341 of the Legal Profession Act 2004, I exclude from the operation of Div 9 of Pt 3.2 the costs which I ordered the defendant to pay on 5 May 2006. That was an order that the defendant pay the costs thrown away by the adjournment in any event. Those costs are to include the costs of 26 and 27 June 2006; I make an order for interim assessment, if necessary; The exhibits are to be retained
CATCHWORDS:	Tort - Occupier's liability - Liability of proprietors of child-minding centre for injury to child - Proprietor fails to maintain own standards
PARTIES:	Sophia Gharib (Plaintiff) Liverpool City Council (Defendant)
FILE NUMBER(S):	3386/05
COUNSEL:	Mr A. Lidden (Plaintiff) Mr S. Glascott (Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff Sophia Gharib is a child. She was born on 22 August 1998. She is currently seven years old. Her action is for damages for personal injury based on the tort of negligence.

2 When the matter came before me on 4 May 2006, on the plaintiff’s application, I severed the issue of liability from all issues relating to quantum. That is because the plaintiff may well need further surgery once she has finished puberty and the defendant’s own orthopaedic surgeon has expressed a guarded prognosis. However, there is no dispute that the plaintiff sustained some form of injury on 27 August 2001, the date pleaded to in the statement of claim. If the plaintiff establishes liability some damage has been sustained, so that the cause of action in negligence will be complete. If the plaintiff be successful, then the order will be for damages to be assessed in futuro.

3 The plaintiff relies on an injury which occurred to her on 27 August 2001. She had just turned three years old. The circumstances of her injury are hotly disputed. The plaintiff’s mother and tutor is Ms Kym Ottomar. She is the mother of three. She has two other daughters who are older than the plaintiff. For approximately six months before 27 August 2001 Ms Ottomar had been attending aqua aerobic classes at the Michael Wenden Aquatic Centre, a facility provided by the defendant the Liverpool City Council. Ms Ottomar was going to the aqua aerobics classes three times a week. Attached to the Michael Wenden Aquatic Centre is a childminding centre. That centre is operated by the defendant as part of the Michael Wenden Aquatic Centre. The defendant charges a fee for minding a child whilst the child’s parent attends activities at the aquatic centre. Aqua aerobics was one such activity. The fee charged by the defendant for minding a child was ridiculously cheap. It was either $2 or $2.50 a session, which could be a number of hours or perhaps two and a half hours. The inference to be drawn from Ms Ottomar’s attendance at the aquatic centre was that she had some familiarity with the childminding facility at the aquatic centre. She had been there three times a week for the best part of twenty-six weeks, approximately seventy-five times prior to 27 August 2001. That day was a Monday.

4 According to the records of the childminding centre, which are ex 1, Ms Ottomar dropped Sophia into the childminding centre at 9.25am. Eventually Ms Ottomar was to pick up Sophia from the childminding centre at 10.30am. It is suggested the plaintiff’s injury had occurred approximately 10am, although the inference to be drawn is that it was some time after that, say, ten to fifteen minutes prior to Ms Ottomar’s signing the record as “time out” at 10.30am.

5 There is really no dispute that something happened to Sophia whilst she was in the childminding centre, and that incident led to a supracondylar fracture of the left humerus. Sophia was observed to be greatly distressed and crying whilst in the childminding centre and eventually Ms Ottomar was called back to the centre from her aqua aerobics class and took Sophia from the centre to a medical practitioner, Dr Goyal.

6 The essential issues for my determination are how did Sophia fracture her left humerus, and was there any negligence on the part of the defendant?

7 Contributory negligence has not been pleaded, and rightly so, given the plaintiff’s tender years at the time of the accident.

8 The childminding centre in question was being conducted by Ms Erica Cantarella, an employee of the defendant. At the time Ms Cantarella gave evidence, on 4 May 2006, she had been employed at the Michael Wenden Aquatic Centre for eleven years. Her appointment there must go back to approximately 1995. Prior to that she had worked, I infer for the defendant, at the Chipping Norton Children’s Centre and also at the Woodward Park Children’s Centre. Any formal qualifications obtained by Ms Cantarella have not been described in the evidence, but she gave her occupation as a “childminding coordinator”. She referred in her evidence to being a “trained worker” and to having a certificate in first aid.

9 On the day in question Ms Cantarella was assisted by a volunteer, Mrs Bonnie Harris. Mrs Harris did not have any formal qualification in first aid.

10 The allegation made on behalf of the plaintiff is that she was playing on some foam shaped gymnastic equipment from which she fell either onto a concrete floor covered only with carpet or onto a toy truck which had been placed either on the carpeted concrete floor or on a gymnastic mat which was around one side of the foam gymnastic equipment.

11 There is dispute in the evidence as to whether the gymnastic equipment was present in the childminding centre on 27 August 2001, as to whether the gymnastic equipment comprised only that shown in two photographs, which are Ex A, or comprised of other items such as a cube or rectangular shape and a second triangular shape and, of course, a dispute as to whether the plaintiff was injured when she fell from such foam gymnastic equipment.

12 After Sophia’s injury, attempts made by Ms Cantarella and/or Mrs Harris to console her were unsuccessful and Ms Ottomar was called by one of the childminding workers to return to the childminding centre to comfort her daughter. There is a dispute as to who called Ms Ottomar back to the childminding centre; whether it was Ms Cantarella or Mrs Harris.

13 The first issue which I shall address is who called Ms Ottomar back to the childminding centre. Was it Ms Cantarella or was it Mrs Harris? It is the best way of commencing a discussion of the resolution of the issues before me. Even when I turn to this area, which might appear to be of little significance, it becomes clear to me that the evidence of Ms Cantarella must be approached with great caution. Unfortunately, I have formed the view that her evidence is largely unreliable. In saying that, I do not mean to suggest that she has been deliberately untruthful, but it became clear to me from listening to her evidence and reading the transcript of her evidence that much of her evidence was a reconstruction.

14 In her evidence-in-chief Ms Ottomar was asked how did she find out that something was wrong with her child. She said this:

“Erica come to the pool and said that Sophia was crying and that she’d hurt herself and she couldn’t console her.”

Ms Ottomar went on to say that she returned to the childminding centre and found Sophia crying uncontrollably and sulking, holding her arm. She was cross-examined about that and this was her evidence in cross-examination:

“Q. Is it the case that, this is the day of the accident about, I put to you is it the case that a child worker or a person called Bonnie came to tell you about the accident to [Sophia]?
A. No.

Q. Are you sure about that or could it be the case that Bonnie actually told you about the accident and, you returned to see Erica with your daughter at the centre?
A. No. Erica come and approached me while I was actually doing water aerobics.

Q. And did you see Bonnie when you [went] back to the centre with Erica?
A. She was sitting beside Sophia, yes.”

Ms Ottomar was quite clear that she was fetched back to the childminding centre by Ms Cantarella.

15 Evidence was also given by Katrina Carnevale in the plaintiff’s case. Ms Carnevale was also engaging in aqua aerobic classes with Ms Ottomar. She also had a child of preschool years whom she used to place in the childminding centre. Although Ms Carnevale was not aware of it when she was first giving evidence, she had in fact placed her daughter Nicola in the childminding centre at 9.15am on 27 August 2001. In her evidence-in-chief Ms Carnevale told me:

“I remember Erica coming through and telling Kym that, like I didn’t hear it, but just speaking to Kym and then Kym getting out of the pool so, later on.”

It was put to Ms Carnevale in cross-examination that another childcare worker notified Ms Ottomar of the incident when Ms Ottomar was at the pool, but Ms Carnevale was adamant that it was Ms Cantarella that came to the pool, describing her merely by her Christian name as Erica. Both Ms Ottomar and Ms Carnevale are certain that it was Erica Cantarella who fetched Ms Ottomar from the pool. However, Ms Cantarella now says otherwise. However, there are distinct indications in her evidence that that part of her evidence is a reconstruction.

16 Ms Cantarella at p 36 of the transcript of 4 May 2006 gave her description of what occurred. She continued thus:

“So I said to my assistant, ‘I think I’ll go and call her mother,’ and she goes, ‘You think so?’ and I just said, ‘Yeah. Her mother is on the premises, so we may as well call her.’ So Bonnie went out and called the mother because the person who is trained stays in the room with the child.”

17 Firstly, one will note that Ms Cantarella says that she thinks she would go to call the mother but then says Bonnie did so because Ms Cantarella was the trained childcare minder, whereas Bonnie was merely the volunteer. There is internal conflict in that evidence. In cross-examination Ms Cantarella was asked whether she was sure that it was not her that popped out to get Ms Ottomar. She replied thus:

“No, I don’t go out because I believe the trained person should stay in the room at all times.”

18 That, in my view, indicates that the proper procedure should be that the trained childcare worker stay in the childminding centre and send the volunteer to fetch a parent. However, that is a description of the proper procedure or a normal practice rather than what actually occurred on 27 August 2001.

19 Ms Cantarella went on to say the following in cross-examination:

“Q. Does that mean that the first time you were asked to recollect who went out to fetch Kym was today?
A. It was.”

“Q. You see, a question was asked of you about that by Mr Glascott?
A. Yeah, I guess other people would have asked me but I know that I would send Bonnie out, not myself.

Q. This is what I am getting at. Your normal practice might be to send a co-worker out but are you sure, are you positively sure that you did it on this day?
A. Yes.”

One will note that the first question and answer suggests a reconstruction. Those questions were asked by me.

20 Mr Lidden then continued his cross-examination and eventually these answers were given:

“Q. But I want to suggest to you it wasn’t her that went out to get the plaintiff’s mother, it was you, you went out where the aqua aerobics class was occurring?
A. No, no.

Q. And you told her there was a problem with her child?
A. No, because there were too many children in the room and I wouldn’t have went myself.

Q. But do you not agree that that’s a reconstruction, you’re thinking back now there was a lot of children there?
A. All right, that’s a reconstruction, but if I look at every day when I work if there’s an accident I do not go out.”

That was a frank admission of reconstruction based on normal practice.

21 I have no hesitation, therefore, in accepting the evidence of Ms Ottomar and Ms Carnevale that it was Ms Erica Cantarella who fetched Ms Ottomar from the pool in which the aqua aerobics class was being conducted and took her back to the childminding centre to console Sophia. The evidence of Ms Cantarella on this issue is based on reconstruction.

22 When Ms Ottomar reached her daughter there was a conversation between her and Ms Cantarella. According to Ms Ottomar, Ms Cantarella said that Sophia was walking and that she had fallen over. Ms Ottomar said that she returned to the childminding centre on a second occasion and again spoke with Ms Cantarella. According to Ms Ottomar, she asked Ms Cantarella if she could tell her exactly what had happened to Sophia. Ms Ottomar said this:

“She said she thinks that she was pushing a small truck along. She heard her cry but she didn’t see her.”

23 There was some time spent in discussing when this visit to Ms Cantarella after 27 August 2001 occurred. Ms Ottomar originally said that it was roughly about seven days after Sophia had come out of hospital. Sophia was admitted to hospital on 29 August 2001 and underwent surgery on 30 August 2001. There is no hospital report before me, but the evidence of Ms Ottomar is that Sophia was in hospital for four days. That would indicate that she was discharged on 1 or 2 September 2001, so that the visit to Ms Cantarella was on approximately 8 or 9 September. Later in her evidence, Ms Ottomar said that the visit was a week after the accident had actually occurred, but then recanted from that and said that it was within the week after Sophia came out of hospital. Little turns on the exact timing, but it was clearly some time after 1 or 2 September 2001 and probably prior to 8 or 9 September 2001. Ms Ottomar’s visit to Ms Cantarella was because of her desire to find out what exactly had happened to her daughter. The visit to Ms Cantarella after 27 August 2001 is denied by Ms Cantarella, but I prefer the evidence of Ms Ottomar in that regard.

24 Therefore, accordingly to the evidence of Ms Ottomar, Ms Cantarella gave two versions of how the plaintiff’s accident occurred; firstly, that she was walking and that she fell over and, secondly, that she was pushing a small truck when the incident occurred.

25 Ms Cantarella gave this evidence:

“What I remember occurred, Sophia was playing on the floor with a car. I was about 2 metres away from her, I wasn’t next to her, because the children that were with me were drawing at the table. Then I remember I think I saw her falling awkwardly and she started to cry a bit and I asked her what’s wrong and she didn’t really answer me. So I said, ‘Come over here and come and sit on the chair,’ so she sat on the chair, she was holding her arm and I tried to encourage her to do things and she didn’t want to do anything.”

Ms Cantarella went on to then refer to her conversation with Bonnie and as to Bonnie's going out to fetch Ms Ottomar. Again, one will note from what Ms Cantarella said that she remembers that she thought she saw what happened. Further on in her evidence-in-chief Ms Cantarella said that when Ms Ottomar came into the childminding centre that she, Ms Cantarella, told Ms Ottomar “what I thought happened”. Again, not what she actually saw but what she thought had happened.

26 In cross-examination Ms Cantarella gave this evidence:

“Q. So you didn’t even see the accident, did you?
A. I think I saw it.

Q. What does that mean? You think you saw it?
A. Where I was sitting at the time was opposite Sophia, so I was looking at her, that’s I say I think I saw it, that’s what it means.

Q. Well, the use of the words ‘I think’ mean you’re uncertain, don’t they?
A. That’s right.

Q. You are certain that you saw her on the ground in close vicinity to a model vehicle, aren’t you, a small vehicle?
A. Yes.

Q. She was crying?
A. Yes.

Q. What I want to suggest to you is that right next to where she was was the triangular slide?
A. No.

Q. You don’t know whether that’s true or not, do you?
A. I do, yes, I do.

Q. Because you remember back years after the event, is that it?
A. I do, yes, I believe I remember.”

Again, the flavour of that evidence is that the witness was reconstructing.

27 Further in cross-examination, Ms Cantarella was asked whether Sophia was walking along and just fell over. According to Ms Cantarella, Sophia was not walking. Of course, the first version of events given by Ms Cantarella to Ms Ottomar is that she was walking and fell over.

28 The version of events ultimately proffered to me by Ms Cantarella is that Sophia was on the floor playing with a toy truck when she somehow fell forward, fracturing her left humerus. Just before telling me that she was not walking, Mr Lidden had been cross-examining Ms Cantarella about the version of events that she had given to Ms Ottomar. It was suggested to Ms Cantarella that she did not see the accident occur. This answer was given:

“No - I mean, yes, I did - I think I saw it.”

29 In other words, again the inference to be drawn from the way that Ms Cantarella was expressing herself is that she was reconstructing what may have occurred from what she had actually seen, which is probably merely the child in distress after the accident had occurred.

30 The evidence of Ms Cantarella on this issue is unsatisfactory and I accept, therefore, that Ms Cantarella gave two conflicting versions of events to Ms Ottomar; firstly, that Sophia was walking and fell over and, secondly, that she is on the floor playing with a truck when she somehow fell forward and fractured her left humerus, a mechanism of injury which to me, as a layman, seems quite remarkable. The giving of conflicting accounts of what happened, in my view, clearly indicates that Ms Cantarella did not see what had happened.

31 After the plaintiff’s injury Ms Cantarella compiled an incident report. The incident report is signed by Ms Cantarella and co-signed by a coordinator at the Michael Wenden Aquatic Centre. That gives as a description of the injuries suffered by the plaintiff a fracture of her left lower arm. It is said that the plaintiff was injured when she fell. Under the description “Type of Activity” a box has been ticked to indicate “free playing” and then under the heading “Other” are the words “on the floor with a toy car”. The first aid rendered was “cuddle/reassurance”.

32 The fact is that the extent of the plaintiff’s injury was not initially recognised. The plaintiff was taken on the day of the accident to Dr Goyal, a general practitioner at Liverpool. He organised for an x-ray to be performed, but that was reported as showing no fracture. Ms Ottomar took Sophia back to Dr Goyal on the following day, when Dr Goyal referred Sophia on to a specialist orthopaedic surgeon Dr Panjratan, whose rooms are at Windsor.

33 Further investigations were ordered by Dr Panjratan. An x-ray of the left elbow revealed an avulsion fracture of the lateral epicondyle of the left elbow. A 15 millimetre bony fragment had separated from the lateral epicondyle and that fragment included physis and capitulum. The fragment had displaced anteriorly and laterally, and was no longer in alignment with the radius. Dr Panjratan summed up the radiological investigation as:

“a nasty fracture of the lateral epicondyle and the capitulum with avulsion and separation”.

34 The “nasty fracture”, to use the words of Dr Panjratan, was not diagnosed until 29 August, two days after the incident in question. At the time the report form was completed that diagnosis must have been made. The report form must have been completed on or after 29 August 2001. The report form is not dated in itself; that is, there is no time specified when it was completed. There is no provision in the document for it to be dated in that fashion. However, the form does require its compiler to fill in the date of the incident in question. The date filled in is 27 August 2001.

35 The evidence of Ms Cantarella about the form is unsatisfactory. In her evidence she said that she filled it in “on the day”. It was then suggested to her that that was not possibly correct, and she agreed that maybe it was not. She was then asked whether the truthful answer to the question was that she did not know when it was filled in, and she answered that in the negative. She then gave this evidence:

“Q. Is the truthful answer, ‘I’m certain I filled it in on the day of the accident’?
A. Yes.”

She was then challenged about the diagnosis of a fracture being contained in the form and having pointed out to her that the diagnosis was not available until at least two days after the fall, and this evidence was then given:

“Q. The truth of the matter I want to suggest to you is that it was a week or so after the accident before you found out that the plaintiff had a fractured arm?
A. Yes.

Q. You were told, weren’t you, that the fracture had been missed for some days?
A. Yes.

Q. So you filled out the form, didn’t you, days afterwards?
A. I don’t remember.”

That evidence was given at p 49 of the transcript of 4 May 2006. The cross-examination returned to the same subject on p 54.

36 Suffice it to say, without quoting what was said in extenso, it became very clear to me that the evidence of Ms Cantarella was based on reconstruction, that the document had a date on it 27 August 2001 and, therefore, it must have been completed on that day. But again, the witness’ answers to the questions on the issue, minor in itself, are unsatisfactory and give me even further concern about the witness’ reliability.

37 The evidence of Mrs Bonnie Harris was given yesterday. She did not see what happened to Sophia. However, she knew of the plaintiff’s being injured shortly after it occurred and she gave evidence that Ms Cantarella was seated at the table where the children were drawing at the time that some incident occurred to the plaintiff.

38 I should have mentioned earlier, when discussing who fetched Ms Ottomar from the pool, that the matter was also adverted to by Mrs Bonnie Harris. Mrs Harris said that she fetched Ms Ottomar from the pool but again, in my view, that was based on reconstruction.

39 I must also bear in mind the fact that when the defendant sought an adjournment to call Ms Harris on 5 May 2006 learned counsel for the defendant said this:

“Your Honour, I can indicate this: She doesn’t, as I understand, recall the incident. She does not recall who retrieved the plaintiff’s mother from the pool area. And the evidence that potentially may become significant in the matter is what her recollection is about the foam equipment and the mats.”

According to the instructions of Mr Glascott, no doubt communicated to him by his solicitor, who, one would hope, had discussed the matter with Mrs Harris at least on the telephone, is that Ms Harris did not have any recollection at that time of who had fetched Ms Ottomar from the aqua aerobics pool.

40 Accordingly, I cannot give any weight to the evidence of Mrs Harris in that regard, although I formed a favourable impression of Mrs Harris. However, clearly she was only asked to recollect who had actually fetched Ms Ottomar from the pool some time after 5 May 2006, almost five years after the events in question.

41 The only other evidence of what may have occurred to the plaintiff is from the plaintiff herself. That came before me in two ways: firstly, from what the plaintiff told her mother, no objection being taken by counsel for the defendant to the plaintiff’s mother telling me what the plaintiff had told her; the other way in which what the plaintiff said came before me is when the plaintiff gave unsworn evidence from the witness box, a major undertaking for a seven year old child.

42 Ms Ottomar frankly concedes that it took some time for her to ascertain from her daughter what had happened to her. She told me that she obtained an explanation from her daughter about four weeks after the event in question, that is, weeks after the plaintiff’s discharge from hospital. Clearly, it appeared to me that Ms Ottomar, an anxious mother, wanted to know how her daughter had sustained the “nasty fracture” diagnosed by Dr Panjratan. Ms Ottomar gave this evidence-in-chief:

“Q. A little while after did Sophia tell you what had happened to her?
A. Yes. She said something about, ‘She didn’t catch me.’ I asked, ‘What do you mean?’ She said, ‘I fell backwards and fell onto a truck.’

Q. Did she say what she’d fallen off?
A. Yes. She said, ‘It was triangle foam slide and I’d fallen backwards.’”

43 In cross-examination Ms Ottomar said this:

“Q. Your daughter told you about four weeks later, that is four weeks after the accident, that the minder didn’t catch her?
A. Yes.

Q. Is that the version she told you?
A. She said, ‘She didn’t catch me.’

Q. And that’s the first explanation she gave for the accident, is that right?
A. Yes.

Q. Were there other explanations your daughter gave you?
A. Yes.

Q. And what were they?
A. Well, that she’d fallen off a triangle block.

Q. What other versions?
A. Well, she fell off the triangle block onto a toy car.

Q. Other versions?
A. That was it.

Q. And had she told you those versions before she said that someone didn’t catch her?
A. No.

Q. Well, were they versions that were told to you later or afterwards?
A. After asking her what had happened, she then tried to explain - was trying to hold it in and then just said - I said, ‘We need to know what happened. You’re not going to get into trouble, nobody is going to hurt you,’ and that’s when she told us what had happened.”

44 Although learned counsel for the defendant glossed the plaintiff’s explanations to her mother as “versions”, they are merely consecutive parts of the one event. As I apprehend the evidence, the plaintiff essentially told her mother that she fell off the triangle block, part of gymnastic equipment, and fell onto a toy car at a time when she was expecting to be caught by a minder. This was not a number of versions of an event, that is, a number of conflicting statements as to what had occurred, but rather separate parts of the one event.

45 The significant part of the description given by the plaintiff to her mother, in my view, is the first part of the story. It is, “She didn’t catch me.” A child walking along the floor in a normal fashion would not expect anyone to be there to catch hold of her if she fell over. A child sitting on a floor playing with a toy would not expect someone to be there to catch her if she somehow fell forward whilst seated. However, a child who was used to playing on the type of gymnastic equipment that was from time to time in the childminding centre, where activities on the gymnastic equipment were supposed to be supervised, would anticipate that there would be someone there to catch her as she was on the gymnastic equipment in case she fell from it. So the initial explanation that she was not caught, to me, is entirely and solely consistent with the child having a recollection of falling from something where she expected to be caught if she fell. The only thing that matches that description in the factual matrix before me is the gymnastic equipment at the childminding centre.

46 Before turning to the two issues concerning that, I should refer to the plaintiff’s unsworn evidence. She told me that she remembered the accident happening. She said she was going down the triangle block and she fell, that she landed on the hard floor, that there was a toy truck on the floor where she landed, and that there were no blue mats on the floor at the time she fell. It was effectively and in child’s terms put to the plaintiff that there was no triangle block or gymnastic equipment in the centre from which she fell, and the plaintiff maintained her earlier evidence. It was suggested to the plaintiff that she was sitting on the floor playing with a toy truck when she hurt herself, to which the plaintiff said no; and that she was walking and fell over, to which she said no.

47 Exhibit A shows a configuration of gymnastic equipment comprising of essentially two pieces. One is in the form of a triangle that is effectively a ramp down which a child could slide. The other piece is a set of three steps which would enable a child to climb towards the top of the slide and then either slide down it feet first or even head first or roll down the slide sideways. Exhibit A also shows three blue gymnastic type mats, one at the base of the slide and the other two at the side of the slide and the set of three steps which had been put back to back so that a child could walk up the steps then slide down the slide. According to Ms Cantarella and Ms Harris, there was also a fourth mat which was generally placed at the base of the steps so that all four sides of the two blocks were surrounded by gymnastic mats. The evidence of the plaintiff is that there were two triangular slides with a square block in between the two slides, which has been referred to in her evidence as “the flat bit”. The plaintiff’s evidence was that she was sitting on top of the flat bit as if she was sitting on a chair when she fell backwards down the slide. That leads directly to the questions concerning the mats and the slide.

48 Suffice it to say at this stage that I am not persuaded by the plaintiff’s evidence that there were two triangular slides with a flat bit in between. The evidence of Ms Cantarella and Ms Harris is that there was only one slide and one set of stairs, although Ms Harris thought there might be a block or cube as well, although Ms Cantarella denies that. Ms Cantarella at the time of giving evidence was still working in the Michael Wenden Aquatic Centre childminding centre. She had been there for eleven years and she would clearly know what equipment was there to be used. Although I have grave doubts as to her reliability, I do not have doubts about her integrity. She is likely to be accurate in now being able to tell me what equipment was available.

49 However, in my view little turns on the plaintiff’s misdescription of the gymnastic equipment at the centre. She could equally have been sitting on the flat bit of the top stair and fallen backwards down the slide, or fallen somehow from the step onto the side of the slide, or the like. An important thing from my point of view is that the essential version of events given by Sophia to me from the witness box was consistent with what she had told her mother.

50 One must be extremely guarded in giving weight to unsworn testimony from a child of tender years. There is in evidence a chapter from a book called “Children’s Testimony” edited by Westcott, Davies and Bull, published in 2002. The chapter is chapter 4 which is headed “The Development of Autobiographical Memory”. I have read the article, despite the objection of learned counsel for the defendant. The article can do no more than tell me that it is physiologically possible for a child to remember what happened to the child at the age of three. Therefore, I can accept that in so far as Sophia has a recollection, that the recollection is an honest one, not a subsequent construction or confabulation. It is true that Sophia’s memory of events is limited, but this traumatic event is something that would stand out not only in a child’s mind but in the mind of any person who sustained a nasty injury.

51 Another important point, from my point of view about the evidence of Sophia are the repeated denials by Ms Ottomar of any prompting by her of her daughter, of her putting into her daughter’s mouth the fact that she had fallen from the triangle block. That was her evidence both on 4 May 2006 and yesterday 26 June 2006. I accept Ms Ottomar in that regard.

52 I therefore give weight to the essential version of events deposed to by Sophia that she fell from the triangle block from the top of it onto a surface. I say “a surface” because I am not persuaded by Sophia’s evidence that the mats were not in use around the gymnastic equipment. The evidence is that was normally the case and it appears to me that I should not postulate the extraordinary on the basis of Sophia’s recollection. She believed that she struck something hard and it may well be that she struck the toy truck.

53 There was one further area of evidence which will lead me to my ultimate conclusion. That evidence is expert evidence. Dr Peter Conrad in his report of 13 September 2004 said this:

“With regards to the question that you have posed to me in your letter of instructions, it is not likely that she would sustain such a severe elbow injury by a single fall to the ground. The nature of the injury is more consistent with a fall onto a hard surface, from a height of 3 feet to 4 feet.”

54 The defendant sought to counter that with evidence from Dr J B Stephenson. In a supplementary opinion bearing date 21 April 2006, omitting formal parts, Dr Stephenson said this:

“Her mother had said that Sophia had fallen from some large foam blocks onto a toy car.

You have stated in your referral letter, addressed originally to Dr Vote, 22 February 2006:

‘...a witness to the incident disputes the version of events current pleaded and says the accident happened whilst the plaintiff was playing on the floor with a toy car (as opposed to on large rubber blocks) and lost her balance, landing awkwardly on her arm...’

In your request for a further Supplementary Report of 11 August 2006:

‘...as stated in our letter of instructions a witness to the incident disputes the version of events currently pleaded and says the plaintiff was either kneeling or sitting on the floor pushing a toy car sideways when she lost her balance landing awkwardly on her arm. The floor was a concrete surface covered with an industrial grade carpet.

Please provide your opinion as to whether the injury is consistent with that history...’

I accept that the injury is consistent with that history. The type of fracture injury sustained is more likely to have occurred from, for example, a fall, after losing balance, landing awkwardly on her arm on a floor which was a concrete surface, covered by an industrial grade carpet.”

55 The expression of the opinion of Dr Conrad is clear. What exactly Dr Stephenson means is unclear. It was put to the doctor that the plaintiff was either kneeling or sitting on the floor when she somehow fell sideways after losing her balance and somehow sustained the fracture. That is not, in my view, a description of a “fall after losing balance” then landing awkwardly with an arm on the floor. As a layman, the medical opinion of Dr Conrad appears to have much greater weight than the diffident opinion of Dr Stephenson. In my view, the opinion of Dr Conrad reinforces the proposition that for the plaintiff to have sustained such a nasty injury she had to fall some distance, such as 3 or 4 feet, not the distance between a three year old’s kneeling on the floor and the floor itself, which might be only a height of 18 inches to 2 feet.

56 I accept, therefore, that the plaintiff fell from gymnastic equipment, namely the slide and/or the stairs to reach the top of the slide, within the childminding centre at the Michael Wenden Aquatic Centre on 27 August 2001. That leads me on to discuss the evidence concerning the equipment at the centre.

57 Ms Ottomar said that when she took Sophia into the aquatic centre on the morning of 27 August 2001 that she saw the foam equipment or foam blocks when she dropped her off. Ms Ottomar went on to say in cross-examination that the blocks were one of Sophia’s favourite things to play on. Ms Carnevale said that she passed the entrance to the childminding centre on the morning of the plaintiff’s injury and saw through the doorway that the foam blocks or gymnastic equipment were present. Indeed, she went so far as to say that there was never an occasion when the foam blocks were not present in the childminding centre. In cross-examination it became clear that in fact Ms Carnevale not only walked past the entrance to the childminding centre on 27 August 2001 but she in fact entered it in order to drop off her daughter Nicola at 9.15am. Ms Carnevale retrieved her daughter at 10.45am. On two occasions on that day she visited the centre. She was in a good position to know whether the foam blocks were present. She was adamant that they were. When Mrs Harris gave her evidence yesterday she said that she could not remember the plaintiff’s accident happening and did not say anything about the presence or otherwise on that day of the presence of the foam blocks in the childminding centre. The essence of the evidence of Ms Cantarella is that the foam blocks were not present.

58 For reasons that I have already stated in part and will reiterate when discussing this evidence, it is clear to me that the evidence of Ms Cantarella that the foam blocks were not present on this day is a reconstruction. I am able to accept that reconstruction in light of the firm evidence that Ms Ottomar and Ms Carnevale. Therefore, Ms Cantarella’s evidence does not stand in the way of the finding I have already announced.

59 However, Ms Cantarella’s evidence on this issue goes very much to the question of liability in negligence. Essentially the plaintiff’s case is that there had been a failure by the defendant to properly supervise the plaintiff, a three year old child in a childminding centre. This is further particularised in the statement of claim as permitting the plaintiff to climb onto the foam rubber blocks without supervision and permitting the plaintiff to do so when she was at risk of falling. Essentially the plaintiff says she fell from the foam gymnastic equipment and through her counsel says that were she on the foam gymnastic equipment she ought to have been supervised and clearly was not. Therefore, there was a failing in the defendant’s system of supervision of children within the childminding centre.

60 The evidence of Ms Cantarella, the person running the childminding centre, was that children on the gymnastic equipment were supervised on all occasions and did not go on the equipment without there being such supervision. There is really no dispute between the case of the plaintiff and the case of the defendant that each child on the gymnastic equipment ought be supervised. The real dispute is whether the child was on the gymnastic equipment, and I have already found that Sophia was.

61 An argument has been put to me by learned counsel for the defendant based on the decision of the Court of Appeal in City Elevator Services Pty Limited v Burrows [2004] NSW CA 26. That case concerned an allegation of a judge’s associate being caught in doors in the Supreme Court building. After that plaintiff’s injury, the timing of the closing of the doors of the lifts in the Supreme Court building was adjusted. The learned trial judge held that the defendant had been negligent. However, the appeal was successful. The essence of the finding of the Court of Appeal commences at para 57 in the reasons of Santow JA with whom Tobias JA and Palmer J concurred. His Honour said:

“However, the real problem which lies at the heart of this appeal is that the trial judge relied ultimately upon the proposition, correct but insufficient, that the accident would not have occurred had the adjustments been made which were subsequently made in January 1998. Why insufficient?

First, there was simply no evidence before the trial judge to conclude that the relevant Standards were not complied with.

Second, there was no suggestion that the lift did not have regular inspection, testing and maintenance, as again Mr Oldham confirms from his reading of the maintenance documentation. Then there is no evidence of the kind required to satisfy the Shirt calculus in terms of the magnitude of the risk and the degree of probability of its occurrence - we simply know that an accident occurred but have no knowledge of whether other accidents occurred or indeed not in the year or so preceding.

Finally, in terms of that calculus, there is no evidence of ‘the expense, difficulty and inconvenience of taking alleviating action’, one way or the other. Nor is there any evidence as to the conflicting responsibility which the respective defendants at trial had for providing a functioning lift system operating without reasonable delays, consistent with reasonable safety. One therefore cannot, on the limited evidence, conclude that the injury which occurred was reasonably foreseeable.”

62 That statement has little to do with the current case. Here the plaintiff says children playing on the gymnastic equipment should have been supervised. The defendant says exactly the same thing. The plaintiff says that her accident happened because she was not supervised, that there was no one there to catch her if she fell. The defendant does not admit that but says that the fall did not occur because the equipment was not there.

63 A submission, a rather bold submission if I may say so, was put to me by learned counsel for the defendant that even assuming the Court found that the plaintiff was injured as she alleges in the statement of claim, that that was insufficient to find negligence. With the utmost respect, if the defendant’s own system of supervision of preschool children in a childminding centre is not adhered to, then the defendant itself has failed to comply with the standards it imposed upon itself. Here there was no suggestion made by or on behalf of the defendant that its standards of minding children were overly excessive or works of supererogation. However, there is on one issue evidence to suggest that even the defendant did not maintain the standards which had been laid down, whether by the defendant itself or by some external authority or authoritative body, I do not know. However, if the defendant fails to maintain its own standards it seems to me that the finding of negligence is inevitable, absent any evidence from the defendant itself that it took unnecessary or highly unusual precautions which would not be required.

64 Again, here such evidence would be hard to adduce in any event because common sense would indicate that children of tender years climbing onto things might easily fall off or be pushed off or overbalance and fall and ought be supervised. Even judges have had at some stage in their life young children. Not only do judges have young children but so do jurors, and a judge sitting without a jury is entitled to use jury knowledge. Such things do happen to young children and the need for supervision, to be ever vigilant, falls upon a childminder in a childminding centre being operated for fee or reward, just as it falls upon a parent or babysitter or grandparent exercising parental responsibility.

65 I turn now to the evidence of Ms Cantarella relating to the foam gymnastic equipment and liability. Ms Cantarella told me that she usually commenced work at 8.50am in order to set up the childminding centre for its opening at 9am. She told me that an assistant helped her each morning between nine and eleven, and that after eleven she ran the childminding centre by herself. The inference to be drawn is that the childminding centre was not busy after 11am. The childminding centre closed early in the afternoon.

66 The evidence discloses what are referred to as childminding ratios. For children under one there can be only five children to each childminder. For children between one and three the childminding ratio is eight children per childminder. For children over three the childminding ratio is ten children per childminder. The evidence does not disclose what occurs if there is a mixed collection of children; that is, children of various ages.

67 On the day in question, that is the day of the plaintiff’s injury, there were seventeen children in the childminding centre. The last to arrive was at 9.25, the same time as Sophia arrived, and the first to leave would appear to be one who left at 10.15, followed by another who left at 10.20, followed by two who left at 10.25, followed by Sophia who left at 10.30.

68 It would therefore appear that at or about the time of the plaintiff’s injury there were still sixteen or seventeen children in the childminding centre. Their ages cannot now be ascertained. If they were all roughly of the same age as the plaintiff herself, then the childminding ratio had been exceeded by one. Two minders are entitled to look after sixteen children, but there were seventeen children in attendance. Exceeding the ratio is, of course, not evidence of negligence and has not been pleaded as a particular of negligence. However, it is indicative of there being a large number of children to be supervised. The larger number of children to be supervised, the lesser amount of supervision can be given to each particular child.

69 The evidence of Ms Cantarella relating to the mats is completely unsatisfactory. Commencing on p 35 of the transcript of 4 May 2006 Ms Cantarella tried to start out to tell me that the foam equipment “might have been [there] maybe once a month”. She then went on to say that if the equipment were put there it would stay there for a whole week. When I asked her questions she said it may be there for up to two weeks, but if she had “babies in the room” she would take the foam equipment out but she might bring it back the next day if there were no babies there. She went on to agree that the gist of her evidence was that the foam equipment might be there once a month for a week at a time. At the commencement of cross-examination she said that the equipment could be present “for up to two weeks”. Eventually at p 50 of the transcript the witness agreed that the equipment might be present for “around half the time”. I have already referred to the evidence of Ms Carnevale that the equipment was present all the time. The extent to which the equipment was present needed to be drawn painstakingly from Ms Cantarella.

70 Yesterday there was a refreshing evidence given by Mrs Harris. My note is that she said that the equipment could be present in the centre for three or four months before Erica changed it to other equipment which she described as an animal pen made of plastic, presumably in which the children could play with plastic animals. Counsel have another note of the witness saying two to three months at a time, but my recollection is that that was given in cross-examination rather than in chief. Suffice it to say that the evidence of Mrs Harris is that the equipment could be present there for months at a time without being moved.

71 The significance of that, of course, is that it is highly unlikely that the equipment would be moved out merely because babies were present or merely because there were too many children. The equipment could not be stored in the childminding centre itself. It had to be stored elsewhere in another part of the Michael Wenden Aquatic Centre. The inference to be drawn is that it was inconvenient to unpack it and erect it and then to dismantle it and pack it back again in another place. It would appear to be a cumbersome procedure if one needed to put away the equipment.

72 In cross-examination Ms Cantarella said that the equipment was designed for educational gymnastic programmes with small children. She also said that it was used to build their gross motor skills. She agreed that when gymnastic programmes were being performed the children should be supervised. She agreed that when the gymnastic programmes were going on that she would be present with the children. It was then put to her that when the gymnastic programmes were not being performed the children would climb on the equipment, and the witness said that they did not.

73 There was then some discussion, or perhaps one might better say argument, between the witness and Mr Lidden as to the use of the equipment in question. Eventually the witness conceded that if the children are interested in climbing on the equipment the children would be supervised and the supervisor would assist the children with the skills that the child or children needed to develop. She confirmed that when that was happening someone had to be right next to the child supervising the child.

74 Evidence was then given about the childminding ratios and the cross-examination then turned to the presence or otherwise of the foam equipment on the day of the plaintiff’s injury. This evidence was given:

“Q. Now, how is it you remember that this accident happened to be on a day when the foam equipment wasn’t there?
A. Because I’d set it up mainly for the four to five year old children and, on that day I had a lot of two to three year old children.

Q. But you told us a little bit earlier you’d remove it for the babies?
A. Yes.

Q. That was your general practice, was it?
A. Yes.

Q. But not always?
A. Yes.

Q. Well, how could it be set up for two weeks at a time in those circumstances, you’d just have no babies for two weeks at a go, would you?
A. Okay. If there were no babies I’d also look at how many children were in the room at the time as well.

Q. Because, is this right, it’s difficult to supervise the children on that equipment if there are too many of them?
A. Yes.

Q. Because you had to keep a very careful eye on them, is that so?
A. Yes.

The cross-examination continued on this issue and eventually this evidence was given:

“Q. Well, when it was raised with you years after the accident about whether the foam rubber blocks were there, how did you go about deciding whether they were there or not?
A. Because I remember Sophia playing where she was playing and where they would have been set up I would have remembered seeing them and, I don’t remember seeing them visually in my mind.

Q. But you would remember something being there that was there up to half the month?
A. Yeah, I’d remember if they were in the room, because I would have had someone watching over there for the kids to play on and there was no [activity] at that time. So that’s why I really remembered that it wasn’t in the room.”

Again, that evidence speaks highly of reconstruction by Ms Cantarella of what must have happened on the day of the plaintiff’s injury.

75 The evidence of the witness then became, in my view, somewhat amusing. According to Ms Cantarella, she ran a utopian childminding centre where every child did exactly what every child was told. I know of few parents, few schoolteachers, few leaders of youth groups who can run a show where every child does exactly what every child is supposed to do and every child does not do what every child is forbidden to do. Ms Cantarella said this:

“Q. And unsupervised the children are not supposed to climb on them, are they?
A. They don’t climb on it if they’re not supervised, no.

Q. Well, they’re not supposed to do that, are they?
A. They don’t do it.

Q. They’re all perfectly behaved, are they?
A. They are when I’m in the room.

Q. All perfectly able to resist the temptation of climbing on things, is that right?
A. Yes.

Q. These are young aged children?
A. Yes.

Q. Who never climb on anything while under your care?
A. Yes.

Q. Because you know they are not supposed to?
A. Because they know me and I’ve been there a long time and they know the sort of person I am.”

76 Mr Lidden introduced an exhibit and this evidence was given:

“Q. There’s no doubt, is there, Ms Cantarella, that if this foam equipment was there on the day of the accident and Sophia was on it, somebody should have been next to her supervising her?
A. Would have been, yes.

Q. Would have been had the system worked properly but should have been in any event, do you agree?
A. Rephrase that, I don’t understand.

Q. Well, at all times while a child was climbing on that foam equipment, a person should have been next to her supervising her?
A. Yes, yes.

Q. And, is this right, when some years after the accident you were asked about the foam equipment you had to look back in your mind and remember whether it was there or not?
A. No.

Q. Well, what did you do?
A. I remember it wasn’t there.”

77 Mr Lidden then turned to the circumstances of the plaintiff’s accident and the evidence then continued:

“Q. Generally speaking, it would be a good idea, don’t you agree, that objects, such as small vehicles, be kept away from foam objects when they’re in use?
A. Yes.

Q. Because if a child falls onto a hard object such as a plastic vehicle rather than a soft mat, injuries can occur?
A. That’s why the mats are around, so that the - if you can look here you’d see that there’s no toys going onto the mats where they would actually fall.

Q. Unless a child puts one on the mat, Ms Cantarella?
A. No, because there’s people supervising them, as we said, and they’d make sure that wouldn’t happen.

Q. That is a perfect system where a child can never pick up a toy and put it on one of those mats, is it?
A. Well, they can pick it up but we will move it.

Q. If you’re looking?
A. We will always teach the children, which we do, to keep toys in the area that they set up in.

Q. And they don’t always do [everything] that they’re taught, do they?
A. They do as they’re supposed to do and they listen more to strangers than their parents and, if you come into my centre you will see that they are all well behaved and do the right thing.”

78 Again, what was put to Ms Cantarella was the child could have put a toy vehicle on the mat onto which the plaintiff could have fallen. Ms Cantarella, in her best of all possible childminding centres, denied that that might occur but clearly it is something that could occur. A childminder could be distracted. For example, Ms Cantarella could be assisting a child with a painting or drawing at the table and not be looking towards the mats and the gymnastic equipment. Sophia could have climbed up and fallen onto it whilst another child had placed a toy on the mat. That, to me, is possible and, in my view, in this case likely to be what had occurred.

79 I am unable to accept the evidence of Ms Cantarella that the gymnastic equipment was not present on the day of the plaintiff’s accident. I accept that the plaintiff climbed up onto it without being seen to do so either by Ms Cantarella or Mrs Harris. It was reasonably foreseeable that a child of three years would do that. Despite the protestations of Ms Cantarella to the contrary, children do not always do what they are told to do and do not always forbear from doing what they are told to not do. The plaintiff climbed up, she was unsupervised, the foreseeable occurred, she fell, she fell either onto the floor, on which the child says there was no mat, or onto a mat on which had been placed a truck onto which she fell.

80 The latter is the more likely and I have already dismissed the suggestion that the mats were not there. It appears to be likely that they were there as part of the normal setup of this childminding centre. The fact that Sophia is likely to have fallen onto the toy truck explains why the first sight of Sophia in distress by Ms Cantarella was of Sophia with the truck. In my view, the plaintiff’s injury could have been avoided if the defendant had adhered to its own system of only permitting a child to get up onto the gymnastic equipment, these foam blocks, if the child was supervised. Sophia was not, despite the protestations of Ms Cantarella. Essentially she failed to exercise due care for the safety of the plaintiff by failing to observe that the plaintiff had mounted onto the foam blocks and was liable to fall.

81 In my view, therefore, the plaintiff has succeeded in establishing that the defendant is liable for the injuries sustained by the plaintiff when she fell on 27 August 2001.

82 I have enquired of the representatives of the parties whether any further reasons for judgment are required. I am told that none is so required.

83 For those reasons, there will be verdict and judgment for the plaintiff for damages to be assessed.

84 Stood over to the inactive list, to be called-over not later than one year from today’s date, for further directions.

85 I order the defendant to pay the plaintiff’s costs to date.

86 Pursuant to s 341 of the Legal Profession Act 2004, I exclude from the operation of Div 9 of Pt 3.2 of the Legal Profession Act 2004 the costs which I ordered the defendant to pay on 5 May 2006. That was an order that the defendant pay the costs thrown away by the adjournment in any event. Those costs are to include the costs of 26 and 27 June 2006.

87 I make an order for interim assessment, if necessary. Normally one could not have an assessment until after the case is concluded, so that is why I make that order.

88 The exhibits are to be retained.

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