Perry v Kinnear & Ors (No. 1) [2020] NSWDC 897

Perry v Kinnear & Ors (No. 1) [2020] NSWDC 897

Leave was granted because the proposed Amended Statement of Claim pleaded an arguable common law duty of care arising from the particular relationship between the plaintiff child and the defendants as foster carers and/or persons in loco parentis, together with the plaintiff's vulnerability and dependence and the defendants' control over her environment. The pleading sufficiently identified the alleged duty, breach and particulars, the defendants did not claim prejudice in preparing their defence, and causation was a matter for final determination rather than a basis to refuse the amendment. The claim did not require an impermissible expansion of the common law but could proceed by...

Jurisdiction
Australia
Judgment Date
25 August 2020
Procedural Posture
Civil Proceeding Concerning Alleged Sexual, Physical and Emotional Assault and Abuse of a Foster Child, With an Application to Amend the Statement of Claim / Application at the Commencement of Hearing, on a Voir Dire, for Leave to Proceed on an Amended Statement of Claim Pursuant to S 64 of the Civil Procedure Act 2005 (nsw)
Outcome
Leave granted for the plaintiff to proceed on the Amended Statement of Claim.
Legal Topics
['application to Amend Statement of Claim' 'duty of Care Owed by Foster Carers or Persons in Loco Parentis' 'alleged Sexual, Physical and Emotional Abuse of a Child' 'failure to Report or Prevent Abuse' 'causation' 'civil Liability Act Exclusion for Intentional Conduct']
['civil Procedure' 'torts' 'negligence' 'intentional Torts' 'child Protection'] ['application to Amend Statement of Claim' 'duty of Care Owed by Foster Carers or Persons in Loco Parentis' 'alleged Sexual, Physical and Emotional Abuse of a Child' 'failure to Report or Prevent Abuse' 'causation' 'civil Liability Act Exclusion for Intentional Conduct']

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Procedural Posture

Civil Proceeding Concerning Alleged Sexual, Physical and Emotional Assault and Abuse of a Foster Child, With an Application to Amend the Statement of Claim / Application at the Commencement of Hearing, on a Voir Dire, for Leave to Proceed on an Amended Statement of Claim Pursuant to S 64 of the Civil Procedure Act 2005 (nsw)

Legal Issues

  1. 1 ['Whether leave should be granted for the plaintiff to proceed on the proposed Amended Statement of Claim.' 'Whether the proposed amended pleading disclosed an arguable cause of action against the second defendant based on a duty of care owed as a foster parent and/or person in loco parentis.' 'Whether permitting the amendment would impermissibly require a court of first instance to expand the common law.' 'Whether questions of causation arising from the alleged failure to report or prevent abuse should be determined at the amendment stage.']

Ratio Decidendi

Leave was granted because the proposed Amended Statement of Claim pleaded an arguable common law duty of care arising from the particular relationship between the plaintiff child and the defendants as foster carers and/or persons in loco parentis, together with the plaintiff's vulnerability and dependence and the defendants' control over her environment. The pleading sufficiently identified the alleged duty, breach and particulars, the defendants did not claim prejudice in preparing their defence, and causation was a matter for final determination rather than a basis to refuse the amendment. The claim did not require an impermissible expansion of the common law but could proceed by...

Court Disposition

Leave granted for the plaintiff to proceed on the Amended Statement of Claim.

Orders

  • ['Leave be granted for the plaintiff to proceed on the Amended Statement of Claim.']