Maragol v Berry Patch Preschool Kellyville Ridge Pty Ltd [2024] NSWSC 1077 | Case summary

The Impugned Paragraphs

The Statement of Claim asserts that on 1 September 2009, the State approved the application of Berry Patch to provide education and care services to children of the age of the deceased. Further, the State approved the application pursuant to the National Law. [1] Pursuant to the National Law, the State promulgated the National Regulations. [2]
The plaintiffs set out that which an approved provider was required to provide and/or to do under the National Law in paragraph [7] of the Statement of Claim. As earlier stated, the State seeks the dismissal of paragraphs [8], [9], [11], [21] and [22] of the Statement of Claim. Those paragraphs are in the following terms: "8. As the regulatory authority under the National Law the second defendant was required to: (a) Comply with its obligations under and meet the objectives of the National Law and the National Regulations; (b) Ensure the safety, health and wellbeing of children attending approved providers of approved services such as Berry Patch Preschool (ss.2(a), 51(1)(a)); (c) Treat as paramount the best interests of children attending approved providers of approved services such as Berry Patch Preschool (s.3(3)(a)); (d) Follow best practice in the provision of care services (s.3(3)(f)); (e) Ensure the first defendant followed best practice in the provision of care services at Berry Patch Preschool (ss.260(c), 3(3)(f)); (f) Ensure the first defendant complied with its obligations under and met the objectives of the National Law and the National Regulations (s.260(c)) including that the first defendant had done all things necessary to - (i) Ensure all children were adequately supervised at all times whilst in its care (s.165(1), (2)) (ii) Ensure that every reasonable precaution was taken to protect children under its care from harm or any hazard likely to cause injury (s.167(1), (2)) (iii) Have in place policies and procedures for the health and safety of children under its care including specifically for sleep (reg.168(2)(a)) and ensure those policies and procedures were followed (reg.170(a)); (g) Receive and investigate complaints (s.260(d)); 9. As the regulatory authority under the National Law the second defendant was empowered to: (a) Do all things that are necessary or convenient to be done for, or in connection with, or that were incidental to, the carrying out of its functions under the National Law (s.261(1)); (b) Suspend the first defendant's approval as a provider if it failed to comply with its obligations under the National Law (s.25(b), (c)); (c) Suspend the first defendant's service approval it was not in the best interests of children being cared for at Berry Patch Preschool for it to continue or if it was not being managed in accordance with the National Law (s.70(a)-(c)); (d) Cancel the first defendant's service approval if the continued operation of Berry Patch Preschool constituted an unacceptable risk to the safety, health or wellbeing of any child being cared for, or if a condition of the service approval (including compliance with the first defendant's obligations under the National Law) had not been complied with. 11. The second defendant: (a) By reason of the matters pleaded in paragraphs 6 to 9 above, knew the first defendant would have control over and be responsible for the care and welfare of infants left in its care at Berry Patch Preschool; (b) Was aware of the risk that infant children left sleeping in cots could stop breathing and suffer serious harm including death if appropriate precautions were not taken against that risk; (c) In the circumstances owed a duty to all infants left in the first defendant's care at Berry Patch Preschool to ensure all available precautions were taken against that risk including compliance with the obligations set out in paragraphs 8 and 9; (d) Was aware from an assessment in 2014 that the first defendant had in place a rest and sleep practice and procedure that permitted visual checking only of an infant sleeping including by CCTV from which it was not possible to detect the colour of the infant's skin or whether they were breathing; (e) In discharge of its duty should have ensured the first defendant had implemented and enforced a rest and sleep practice and procedure requiring a physical check of the breathing and colour of each infant sleeping in a cot at least every 15 minutes. 21. Arianna's death was due to the failure of the second defendant by itself, and by its servants and agents, to take precautions against that risk and the second defendant wase thereby negligent and in breach of the duty of care it owed her. Particulars of second defendant's negligence / breach of duty (a) Allowing the first defendant, following the assessment in March 2014, to have in place a rest and sleep practice and procedure that permitted visual checking only of an infant sleeping including by CCTV from which it was not possible to detect the colour of the infant's skin or whether they were breathing. (b) Failing to ensure the first defendant implemented and enforced a rest and sleep practice and procedure requiring a physical check of the breathing and colour of each infant sleeping in a cot at least every 15 minutes. (c) Allowing the first defendant to have having in place a policy that did not explain the procedure to be followed for cot checks of sleeping infants (d) Failing to ensure the safety, health and wellbeing of children attending Berry Patch Preschool. (e) Failing to treat as paramount the best interests of children attending the Preschool. (f) Failing to follow best practice in the provision of care services by failing to ensure the first defendant had implemented and was enforcing a rest and sleep practice and procedure as set out in (b) above. (g) Failing to ensure all children were adequately supervised at all times whilst in the care of the first defendant. (h) Failing to ensure that every reasonable precaution was taken to protect children under the care of the first defendant from harm or any hazard likely to cause injury. (i) Failing to ensure the first defendant had in place policies and procedures for the health and safety of children under its care including specifically for sleep. (j) Failing to ensure the first defendant enforced appropriate policies and procedures for the health and safety of children under its care including specifically for sleep. (k) Failing to comply with its obligations under and to meet the objectives of the National Law and the National Regulations. (l) Failing to do all things that are necessary or convenient to be done for, or in connection with, or that were incidental to, the carrying out of its functions under the National Law. (m) Failing to suspend the first defendant's approval as a provider when it failed to comply with its obligations under the National Law and in particular as it failed to implement and enforce a rest and sleep practice and procedure requiring a physical check of the breathing and colour of each infant sleeping in a cot. (n) Failing to suspend the first defendant's service approval when it was not in the best interests of children being cared for at Berry Patch Preschool for it to continue and when it was not being managed in accordance with the National Law. (o) Failing to cancel the first defendant's service approval when the continued operation of Berry Patch Preschool constituted an unacceptable risk to the safety, health or wellbeing of children being cared for and a condition of the first defendant's service approval, being compliance with its obligations under the National Law, had not been complied with. 22. The second defendant was additionally negligent, and in breach of its obligations under the National Law, by failing to investigate Arianna's death within an appropriate time and not until after the first and second plaintiffs had persistently requested that it do so."
Even though paragraph [10] of the Statement of Claim is not impugned by the State's application, it is necessary to summarise that the terms of paragraph [10] set out that which the first defendant, Berry Patch, is required to do pursuant to the National Law, and its common law duty in terms which do not require repetition or rehearsal.
As can be seen from the terms of paragraph [11], the plaintiffs allege that the State, because of that which is contained in paragraphs [6] to [9], was aware of certain factors, namely, that Berry Patch would have control over the child; was aware of the risk that infant children left sleeping in cots could stop breathing and suffer serious harm including death; owed a duty to all infants left in the first defendant's care to ensure all available precautions were taken against that risk; was aware of a "rest and sleep practice and procedure" from an assessment in 2014; and, should have ensured the implementation and enforcement of the "rest and sleep practice and procedure" requiring a physical check on breathing.
As can be seen from the foregoing extract, paragraph [21] of the Statement of Claim asserts a cause of death due to the failure of the State to take precautions against "that risk", the failure to do so amounting to negligence and it being in breach of the duty of care. Particulars are provided, which have been extracted above.
Additional negligence of the State is pleaded as a result of the alleged breach of its obligations under the National Law by failure to investigate the death within an appropriate time.
It is necessary to summarise some provisions of the National Law. First, the objective of the legislature in promulgating the National Law is the establishment of a national education and care services quality framework. The objectives of the framework include ensuring the safety, health and well-being of children attending education and care services. [3]
Further, the guiding principles of the framework are that the rights and best interests of the child are paramount, and that best practice is expected in the provision of education and care services. [4]
The plaintiffs also rely upon the capacity of the Regulatory Authority established by the National Law to suspend a provider (or, more accurately, its approval as a service provider). [5] The approval of a service is granted subject to the condition that it ensures the safety, health and wellbeing of the children being cared for by the service. [6]
As earlier stated, the Regulatory Authority may suspend the approval of a service, and may do so if it reasonably believes that it would not be in the best interests of children for the service to continue; if a condition of the service approval has not been complied with; or, the service is not being managed in accordance with the National Law. [7] There are procedures involving limited procedural fairness for the suspension of the service's approval. [8]
Under the National Law, it is an offence to supervise children inadequately, and the offence carries maximum sentences of a fine varying from $10,000 to $50,000, depending upon whether the offence is committed by an individual or a corporation. [9]
It is also an offence, punishable by the same maximum sentence, for an approved service not to ensure that every reasonable precaution is taken to protect children. [10]
Lastly, it is necessary to recite the circumstances that the Regulatory Authority's functions under the National Law include the monitoring and enforcement of compliance with the National Law, and to receive and to investigate complaints made to it.

Consideration

The State 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 Court has already set out the paragraphs sought to be impugned and dismissed pursuant to UCPR r 14.28. The Court has previously stated the basis upon which the State moves to strike out the paragraphs in question. The provisions of UCPR r 14.28 are: "14.28 Circumstances in which court may strike out pleadings: (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
In order to satisfy the Court that no reasonable cause of action arises, an applicant is required to satisfy the Court of the classic test that the proceeding is obviously so untenable that it cannot possibly succeed. [11] However, the State does not seek to strike out the proceeding. Rather, the State seeks to strike out certain paragraphs of the pleading.
In doing so, the State relies upon the overriding purpose of the Civil Procedure Act and that the pleadings, in their current form, have a tendency to cause prejudice, embarrassment or delay. Thus, even if the State were successful on its motion, the plaintiffs would be able to re-plead the case against the State.
Embarrassment, for the purposes of UCPR r 14.28, includes a pleading which is ambiguous in the manner in which it states the case to be answered. For example, if the pleading leaves open a number of possibilities, which need to be surmised or must be the subject of conjecture as to the manner in which liability is to be established, the proceeding is embarrassing.
Further, while a pleading is permitted to be drafted in a way that states a conclusion, such a conclusion may, where there are varying means of reaching the conclusion, leave the defendant (or opposing party) in a position where the party does not know, precisely, how the case against it is advanced. In such circumstances, the appropriate remedy is to strike out the pleading and to order that the matter be re-pleaded.
Further, again, the current motion before the Court does not seek to strike out the whole of the Statement of Claim, but only certain paragraphs in order to require the plaintiffs to re-plead.
Because the claim involves personal injury arising from a lack of due care (at least in part), it is governed by the terms of the Civil Liability Act 2002 (NSW). As a consequence, the plaintiffs are required to plead that which is relied upon to establish liability under the Civil Liability Act.
The plaintiffs, therefore, must set out clearly and unambiguously: all of the facts, matters and circumstances relied upon to give rise to a duty of care; [12] the risk of harm in respect of which the duty of care is said to be owed; [13] that the risk was foreseeable, namely that it was known or should have been known to the proposed defendant; [14] that the risk was not insignificant; [15] the precautions which a reasonable person in the position of the defendant would have taken against the risk of harm; [16] and, causation in the terms of s 5B of the Civil Liability Act. [17]
At paragraph [8] of the Statement of Claim, the plaintiffs set out a number of requirements said to apply to the Regulatory Authority (and thereby the State), but at no stage do the plaintiffs plead how it is said the Regulatory Authority would comply with the obligations or requirements there set out, i.e., those steps that were taken and, acting reasonably, should not have been and those steps that were not taken and reasonably should have been.
Similarly, at paragraph [9] of the Statement of Claim, the plaintiffs plead that the Regulatory Authority is empowered to do certain actions under the National Law but does not, within that paragraph, plead how it is a breach of the National Law, in the circumstances before the Court as otherwise pleaded, not to suspend nor to cancel the approval of Berry Patch and not to "do all things necessary".
Moreover, it is not pleaded what things are necessary, that could have been done, and should have been done, other than the suspension and cancellation to which reference has already been made. The closest that the plaintiffs come to such a pleading is that found in paragraph 11, which alleges that the State should have "ensured" that Berry Patch implemented and enforced the rest and sleep practice to which reference is otherwise made.
However, paragraph 11 of the Statement of Claim, does not hint at how the State would ensure such conduct. Nor does it set out how the State would "ensure all available precautions were taken". [18]
Similarly, paragraph [21] of the Statement of Claim pleads that the death of the infant was due to the failure of the second defendant and then particularises a number of failures, which are said to be precautions that were necessary, and the failure to take them was negligent. However, it is not clear from the pleading that which the State should have done or insisted upon being done by the service provider, Berry Patch.
Further, in paragraph [22], there seems to be no allegation that ties the failure to investigate in a timely manner to the cause of harm or injury. There is no pleading that specifies that which would be an appropriate timeframe and there is no pleading that specifies that which the State was required to do as a duty of care.
Nor is the reader of the pleading told that which was the risk of harm arising from a failure to investigate in a timely manner. Again, one is not informed of the precautions that should have been taken by the State to address the risk.
There are further fundamental issues associated with the pleadings. First, the plaintiffs allege requirements in paragraph [8], but do not plead the conduct that is required in order to satisfy the obligations and requirements specified, which has already been the subject of comment.
In relation to the allegations in [9] of the Statement of Claim, the pleading alleges that the State was empowered to do certain things and, in so alleging, it is not clear from the pleading whether the plaintiffs allege that the State (being the Regulatory Authority for which the State is liable) was required, on a mandatory basis, to perform those acts, or conduct themselves in the manner there pleaded, or whether, if it were a matter of discretion, in what way the Regulatory Authority has been negligent in the manner in which its discretion has been exercised.
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.
The Court's power under UCPR r 14.28 is to be exercised bearing in mind its duties to facilitate the overriding purpose of a just, quick and cheap resolution of the real issues between the parties, and given that the real issues are defined by the pleadings, the Court grants Prayer 1 of the motion filed 12 September 2023.
As earlier stated, the novelty of a claim is not, in and of itself, a basis upon which a pleading will be struck out or proceedings dismissed. Nevertheless, the Court is mindful of the circumstance that the claim against the State is novel and that, therefore, it is necessary to establish more clearly and more precisely, how the cause of action arises, and the material facts that give rise to liability.
For the foregoing reasons, the Court makes the following orders: 1. 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; 2. The Plaintiffs shall pay the Second Defendant's costs of and incidental to the motion.

Maragol v Berry Patch Preschool Kellyville Ridge Pty Ltd

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