HICKS v MERCY FAMILY CENTRE [2002] NSWSC 2

HICKS v MERCY FAMILY CENTRE [2002] NSWSC 2

The absence of a cot or restraining system did not amount to lack of reasonable care, and there was no basis for liability against the First Defendant. However, the Second Defendant breached her duty of care by failing to eliminate the risk by moving Simon when he was kneeling near the front edge of the sofa bed, because a child of his age had poor balance, was still prone to falls, and a backward fall created a risk of serious head injury. The cross-claims failed.

Jurisdiction
Australia
Judgment Date
09 January 2002
Procedural Posture
Personal Injury Negligence Proceedings / Separate Determination of Liability
Outcome
Judgment for the Plaintiff against the Second Defendant; judgment for the First Defendant on the Plaintiff's claim; judgment for the Cross-Defendants on the cross-claims.
Legal Topics
['duty of Care' 'breach of Duty' 'supervision of Young Children' 'non Delegable Duty of Care' 'costs' 'cross Claims']
['torts' 'negligence' 'personal Injury' 'child Care'] ['duty of Care' 'breach of Duty' 'supervision of Young Children' 'non Delegable Duty of Care' 'costs' 'cross Claims']

Case Brief

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Procedural Posture

Personal Injury Negligence Proceedings / Separate Determination of Liability

Legal Issues

  1. 1 ['Whether the Second Defendant breached her duty of care by not having a cot or adequate system of supervision for the Plaintiff.' 'Whether the Second Defendant breached her duty of care by failing to move the Plaintiff when he was kneeling close to the edge of the sofa bed.' 'Whether the First Defendant breached a duty of care by not ensuring that the Second Defendant had a cot, restraining device or adequate system, or by breach of a non-delegable duty.' 'Whether the cross-claims should succeed.']

Ratio Decidendi

The absence of a cot or restraining system did not amount to lack of reasonable care, and there was no basis for liability against the First Defendant. However, the Second Defendant breached her duty of care by failing to eliminate the risk by moving Simon when he was kneeling near the front edge of the sofa bed, because a child of his age had poor balance, was still prone to falls, and a backward fall created a risk of serious head injury. The cross-claims failed.

Court Disposition

Judgment for the Plaintiff against the Second Defendant; judgment for the First Defendant on the Plaintiff's claim; judgment for the Cross-Defendants on the cross-claims.

Orders

  • ['Verdict and judgment for the Plaintiff against the Second Defendant.' "Verdict and judgment for the First Defendant on the Plaintiff's claim against it." 'Verdict and judgment for the Cross-Defendants on the Cross-Claims.' "Order the Second Defendant to pay the Plaintiff's costs of the claim against her." "Order...