District Court New South Wales Medium Neutral Citation: Bowman v Bliss Early Learning Maroubra Pty Ltd [2024] NSWDC 600 Hearing dates: 06 December 2024 Date of orders: 06 December 2024 Decision date: 06 December 2024 Jurisdiction: Civil Before: Dicker SC DCJ Decision: In relation to the Notice of Motion filed on 1 November 2024: (1) The application is dismissed. (2) The costs of the Notice of Motion are to be costs in the cause. In relation to the proceedings generally: (3) The defendant is to serve any expert report as to liability by 28 February 2025. (4) The matter is listed before the List Judge for directions on 5 March 2025 at 9:30am. (5) Liberty to apply on 2 business days' notice. Catchwords: PRACTICE AND PROCEDURE – child suffers strangulation asphyxia at childcare centre – whether order should be made to determine a separate question as to liability Legislation Cited: Children (Education and Care Services) National Law (NSW) Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Allen v Gulf Oil Refining Ltd [1981] AC 1001 Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd [2018] NSWSC 1284 Crawley v Vero Insurance Ltd [2012] NSWSC 593 New South Wales v Lepore (2003) 212 CLR 511 Southwell v Bennett [2010] NSWSC 1372 Tepko Pty Ltd v The Water Board [2001] HCA 19; (2001) 206 CLR 1 Thomas v Oakley [2003] NSWSC 1033 Category: Procedural rulings Parties: Hannah Bowman (Plaintiff) Bliss Early Learning Maroubra Pty Ltd (Defendant) Representation: Counsel: S Holmes (Plaintiff) G Devery (Solicitor)(Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Gilchrist Connell (Defendant) File Number(s): 2021/00107955 Publication restriction: No JUDGMENT – EX TEMPORE 1. Before the Court for determination is a Notice of Motion filed on 1 November 2024 by the plaintiff, seeking that there be an order under Part 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) to the effect that the question of the defendant's liability for the plaintiff's injuries be determined separately and before any further trial in the proceedings. 2. In support of the application, the plaintiff read the affidavit of Vrege Kolokossian of 4 November 2024. The defendant read the affidavit of Grace Anne Devery dated 22 November 2024. The defendant opposed the application. 3. It is important that I set out the background facts in the matter. A Statement of Claim was filed on behalf of the plaintiff, who commences the proceedings by her tutor, being her father Gavin Bowman, on 19 April 2021. In substance, the Statement of Claim pleads as follows: 1. That the plaintiff was born on xx July 2018; 2. That as a toddler, the plaintiff was enrolled in a daycare centre known as "Bliss Early Learning Maroubra" located in Maroubra in Sydney, in the State of New South Wales; 3. That the plaintiff attended that centre on 27 November 2019; 4. That outside the centre building, there was a play area known as a "simulated outdoor area" that had within it, a sensory area which comprised of a wooden structure, with numerous pieces of fabric hanging down from wooden beams with toys attached to each of the pieces of fabric; 5. That at the crucial time in question, only one carer was present with ten children being outside the centre building; 6. That the plaintiff who was some 16 months old at the time, became entangled with one of the pieces of fabric with a toy at the end, which became wrapped around her neck, resulting in strangulation asphyxia to the child; 7. That the carer in question noted the child, and immediately took steps to untangle the child, who appeared to be substantially affected by the strangulation; 8. The child was transported urgently to Sydney Children's Hospital in Randwick, with a suspected hypoxic brain injury, and having suffered a seizure; 9. That the child was placed in an induced coma in the intensive care unit of the hospital for two days; 10. That as a result of the accident, the plaintiff has suffered personal injuries, including strangulation, soft tissue injury to the neck, and a seizure. 1. It seems clear from all the evidence, that some long-term injuries to the plaintiff are alleged. The defendant has filed a Defence on 21 January 2022. While it appears a number of the facts are not in issue, the Defence denies liability. 2. Before the Court are hospital records when the child was taken to the Children's Hospital. It seems clear that scans were undertaken while the plaintiff was at the hospital. Before the Court is a discharge summary dated 4 December 2019. The plaintiff child was also reviewed by the neurology department. It was not suggested there was a need for further neurology follow-up at that time. The plaintiff was referred to the brain injury/rehabilitation team at the hospital. It was generally indicated that the plaintiff was doing well, and she was discharged without requiring ongoing medication. 3. Consistent with the recommendation, the plaintiff was forwarded to the brain injury rehabilitation unit at the hospital for review. There is before the Court a document dated 14 July 2020, from Dr Carylyn Lim, a paediatric rehabilitation doctor. It was indicated in the report that there was a normal CT scan. The document also indicates that the plaintiff had not returned to daycare, and the doctor was, in general terms, happy with the plaintiff's progress: see p 12 of the annexures to Ms Devery's affidavit. 4. There is before the Court an amount of treating doctor medical evidence. There is a report of Dr G Brawn, neuropsychologist, dated 27 July 2023. This notes that there had been regular follow-up of the plaintiff in the brain injury rehabilitation clinic, that the plaintiff had been assessed, that she was of average intelligence, and within the average range, and that the results of the neuropsychological testing, to the extent suitable for a child of her age, were encouraging. Some difficulties were noted with the plaintiff's attention and concentration, and some restless/hyperactive type behaviours were noted within the preschool setting. It was recommended that the plaintiff continue to consult the hospital team. 5. There is also a report by Dr Adrienne Epps, paediatric rehabilitation senior staff specialist, on the same day, 27 July 2023, of the plaintiff. It was noted that the main ongoing concerns relating to the plaintiff were connected to her attention and speech sound errors. In the course of her report, Dr Epps noted the present case, and indicated that it would be premature to settle the case in terms of determining lifelong personal injury consequences, as it is possible that higher level cognitive difficulties may emerge as the plaintiff gets older. The impression of Dr Epps was that after the injury, the plaintiff was noted as having some difficulties with her attention and speech, the latter of which was improving with therapy, and a squint, which was being followed up. There was a plan for speech therapy review prior to the plaintiff starting school, and there was a request to review the plaintiff in one year to check how she was settling into school. 6. The latest report in evidence is from Dr Lim and is dated 25 July 2024. The fact that the plaintiff was obtaining speech pathology assistance at the hospital was noted. The plaintiff having a lisp was also noted. Dr Lim indicated that she was pleased that things were going well with the plaintiff, but recommended seeing her again in two years' time, to check in on her learning, and decide if a repeated neuropsychological assessment would be required. 7. Accordingly, the plaintiff's medical position on the evidence is unclear at present, although the medical evidence before the Court is encouraging in relation to the plaintiff's recovery. 8. Before the Court also are a number of expert liability reports. A report of Mr Denis Cauduro was obtained, which has been objected to by the defendant on the basis of expertise. A replacement report by Ms Linda Campbell, an early childhood expert, was obtained. In summary, Ms Campbell has indicated that there was a failure by the defendant to take appropriate steps to protect the plaintiff in the daycare setting. 9. I should note that after the accident, charges were brought against the defendant under ss 165 and 167 of the Children (Education and Care Services) National Law (NSW) relating to the inadequate supervision of children and the failure to protect children from harm and hazards. The defendant pleaded guilty to those offences. The plaintiff places particular reliance on that plea as being relevant to the liability issue. I note that the evidence indicates that statements were taken from the carers that were present on the day of the accident. 10. Written submissions have been relied on by the parties and were spoken to orally. 11. Mr Holmes, who appeared for the plaintiff, submitted in relation to the suggestion that there was insufficient evidence of compensable damage to satisfy s 16 of the Civil Liability Act 2002 (NSW), that it was highly unlikely, in light of the circumstances, the plaintiff would not have compensable loss under the section. He emphasised the fact that although witness' statements were taken from the lay witnesses, they were not cross‑examined, as the defendant had pleaded guilty in the Local Court. He submitted there was a serious concern in relation to the erosion of memories, having regard to the passage of time, if there was further delay. 12. Mr Holmes submitted that there was also an issue in relation to delay of a trial as to the potential availability of the expert. It was submitted that a hearing as to liability would facilitate settlement. In substance, Mr Holmes said that it was difficult to see how liability could be in issue in the matter. It was submitted, on all the facts before the Court, that there was a strong case for breach of duty of care. It was submitted that there was no crossover of factual witnesses. Emphasis was placed on the Notice to Admit Facts, and the failure of the defendant to respond, even though a reminder was sent in relation to the defendant's non-response. 13. It was submitted that the parents were anxious in relation to the matter, and that in substance, liability should not be in issue. It was accepted that if the witnesses contemplated were called, that it could be up to a four-day hearing. 14. Ms Devery, for the defendant, pointed to the onus which rests on the plaintiff to establish the need for a separate hearing. She described it as an "exceptionally high onus". It was submitted that there was no real benefit, that costs would be significant, and the Court needs to take into account ss 56 to 60 of the Civil Procedure Act 2005 (NSW) including s 60 as to proportionality of costs. 15. It was submitted by Ms Devery in addition, in relation to the plaintiff's position, that the plaintiff was doing very well, and that the s 16 threshold under the Civil Liability Act may well not be met. It was noted that there was no medicolegal evidence served by the plaintiff, and that the concerns relating to the plaintiff's lisp and squint did not indicate serious concerns. It was submitted that there was no evidence that they were caused by the injury. In substance, it was submitted that there was no compelling evidence of significant loss. 16. Ms Devery indicated that a hearing on liability would be extremely costly. 17. In relation to the authority of Thomas v Oakley [2003] NSWSC 1033 relied on by the plaintiff, Ms Devery stated that the plaintiff in that case suffered cerebral palsy as a response to the medical procedure in issue, and that there thus was involved on any view, serious damages. In addition, she submitted that the comment was made by Wood CJ at CL, that the issue of medical negligence had to be determined in relation to medical thinking at the time, and it was important therefore, to have the matter determined early. Ms Devery referred to comments in High Court cases such as Tepko Pty Ltd v The Water Board [2001] HCA 19; (2001) 206 CLR 1 warning of the risks of an early hearing as to liability. 18. It was submitted by Ms Devery that having regard to the uncertain medical position, a liability determination would not assist a settlement, because it would be premature to settle for the defendant until the plaintiff's medical position had been clarified and appropriate medicolegal advice obtained. It was emphasised that on the medical evidence currently before the Court, at least two years would pass before the plaintiff's medical situation was clearer. 19. In relation to the lay evidence issue, while there was not cross‑examination of the witnesses due to the guilty plea, Ms Devery submitted that there were statements, and the evidence before the Court showed that relevant documentation was available. 20. It was submitted that this was a late application that could have been made earlier. In substance, it was submitted that the order sought by the plaintiff was an exceptional order, and that the standard required had not been met. 21. Mr Holmes for the plaintiff in reply noted that the expert report was served on 19 September 2024. It was submitted that if the Court was against the plaintiff on the application, the Notice of Motion should be stood over, pending the defendant's expert report being served. 22. In relation to the legal principles to be applied, I refer to the principles set out by Wood CJ at CL in Thomas v Oakley, above, at paragraphs 18 to 26. I also refer to the warnings in relation to having a separate trial on liability in negligence cases, stated by judges of the High Court in Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55, per Kirby and Callinan JJ. In particular, their Honours said: "The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap." (at 55). 1. See also the comments in New South Wales v Lepore (2003) 212 CLR 511 at 575 and 578, per Gummow and Hayne JJ. 2. In Southwell v Bennett [2010] NSWSC 1372, Hallen AsJ set out the principles applicable in paragraph 15, in some detail. 3. In Crawley v Vero Insurance Ltd [2012] NSWSC 593, Beech-Jones J, who now sits on the High Court, expressly adopted the statement of principles made in Southwell, by Hallen AsJ. 4. In Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, Ward JA stated the following at paragraphs 89-92: "89. Pausing there, it was not suggested in the above cases that it is necessary (for the power to state a separate question to be exercised) that the determination of the separate question be finally dispositive of the litigation or of one or more issues in the litigation; rather, it was contemplated that it might be sufficient if it would substantially narrow the field of litigious controversy (requiring a quantitative assessment to be made). Disposition of a step necessary for the determination of one or more issues in the proceedings might well have the effect in a particular case of substantially narrowing the field of litigious controversy. Thus, while it is submitted for Allandale that, at most, the separate question would resolve a potential step in the determination of the relevant issue in the compensation proceedings, that of itself does not preclude the exercise of the power under Rule 28.2.) 90. Einstein J also set out various circumstances in which he considered that the separate determination of an issue would rarely be seen to be an appropriate procedure (to some of which reference was made by Mr Lancaster SC, Senior Counsel for Allandale), those including where there are intertwined issues of fact or law (such that the determination of the separate question would not have any substantial effect on the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation) and where there is a possibility that the resolution of the separate issue will not finally determine the issue but merely result in an appeal from that decision in relation to that separate issue creating what his Honour referred to as a multiplicity of proceedings, interruptions to the court and undesirable fragmentation of the proceedings. 91 In various authorities, caution has been advocated in the exercise of such a power (such as Perre v Appand Pty Ltd (1999) 198 CLR 180 at [436] per Callinan J; Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at [24] per Santow J, as his Honour then was; Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [112] - [113] per Young CJ in Eq, as his Honour then was). In Idoport, Einstein J noted the reason for such caution in the following passage: The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings [his Honour there citing Tallglen v Pay TV Holdings Pty Limited; Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J) and Century Medical v THLD [2000] NSWSC 5 (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J)]. (my emphasis) 92 However, it has also been recognised that if the separate determination of particular discrete issues may achieve economies in time and expense in the resolution of the proceedings or obviate the necessity for a trial on all issues then it may be both appropriate and desirable for there to be such an order (Flore v NSW Department of Education and Training [2006] NSWSC 1227 at [32]; Street & 7 ors v Luna Park Sydney Pty Limited & 3 ors [2007] NSWSC 697 at [6]; Stewart v Ronalds [2009] NSWSC 455; Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1994) 51 FCR 213, (1994) 85 LGERA 37 - though in the last case the order for separate determination was by consent)." 1. In Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd [2018] NSWSC 1284, Davies J, in a very thorough judgment, referred to Southwell v Bennett, Crawley, and Allandale, and followed the principles set out in those cases. 2. It seems, in summary, that the principles to be applied are as follows: 1. The relevant Part of the rules talks about the "questions" for separate determination, not the issues; 2. Whether such an order should be made, is a matter for the Court's discretion, which discretion must be exercised judicially and which is not fettered; 3. As a general rule, the discretionary power to order separate determination of a question should be approached with caution; 4. In exercising the discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect; 5. Generally, all questions of fact and law should be determined at the one time in the one hearing; 6. The onus rests on the applicant to justify the need for a separate determination; 7. While it may appear attractive superficially to order the trial of a separate question, experience often shows that it will not be so, for example because of the complications that can arise in relation to appeals and disputed facts; 8. Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings; 9. Factors which are relevant include that the separate question would contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings, and may contribute to the settlement of the proceedings. 1. The caution referred to was mentioned by Lord Roskill in Allen v Gulf Oil Refining Ltd [1981] AC 1001, at p 1022A where his Lordship said there were "few cases" where a separate issue is of assistance, although sometimes, a single issue of law can be separated from other issues. 2. I adopt the statements of principle which I have indicated. 3. In my view, the relevant factors in the present case would appear to be as follows: 1. The defendant pleaded guilty to statutory breaches in the Local Court, although I accept that they were offences of strict liability. However, the nature of the sections in my view is relevant to the issue. 2. There are different witnesses on each issue as to liability and damages, except perhaps that the parents may be common in both matters. 3. That statements are in existence from the relevant witnesses, but they have not been tested in cross-examination. 4. That there may be a loss of memory from those witnesses. In my view, that is a potentially significant matter, but the event in question was traumatic, which may on one level assist in the retention of memory, but on another, may cloud people's recollection. I note that documents are held in relation to the defendant's records. 5. That a determination of liability may be relevant to a possible settlement. 6. That significant costs would be involved, but there would be little doubling up of issues or witnesses. 7. The plaintiff's current medical condition is unclear. It is unclear whether she would have lasting injury. I do not accept Mr Holmes' submission that it is likely that there would be a compensable injury loss. I think that remains unclear, however horrific the initial factual circumstances of the case. 8. That the medical evidence currently before me is that there needs to be a review of the plaintiff in two years, to determine her then current condition. 9. While a separate point needs to be relevant to likely settlement, and it may be, it is difficult to see how the parties could settle if the plaintiff's current medical status was not clear. 10. I take into account the uncertainty concerning the likelihood or real possibility of a s 16 threshold being met under the Civil Liability Act. 11. I take into account the risks of appeals with wasted costs. 12. I take into account the costs of a liability hearing, which could be up to four days in duration. 13. I take into account that a separate trial would provide some certainty for the parents and the defendant, but could be wasted, depending on the plaintiff's ongoing condition. 1. I particularly note that the onus is on the plaintiff to satisfy the Court that it is an appropriate course to order, that it is not the usual course to adopt, and although there are some attractive factors for a separate question, the plaintiff's medical condition and whether she will have a full recovery is unclear. It could be that the plaintiff substantially recovers from the incident. I take into account, as I have indicated, ss 56 to 60 of the Civil Liability Act, and while a separate determination may on one view be quick, it would certainly not be cheap. It is unclear whether such a determination would lead to settlement. 2. I believe that the application is a finely balanced one. In the end, I am not persuaded that the balance of factors indicates that there should be a separate hearing. Mr Holmes indicated that the motion should be adjourned, pending the receipt of the defendant's expert evidence. In my view, that should not occur. The motion is present, and another motion can be brought, if appropriate. 3. In relation to the question of costs, Ms Devery for the defendant indicated that if the defendant was successful, she would seek an order for costs, and that it should be payable forthwith. Mr Holmes submitted that if he was unsuccessful, costs should be costs in the cause. 4. The Court has a wide discretion as to costs under s 98 of the Civil Procedure Act 2005. That discretion must be exercised judicially. I take into account the fact that both parties legitimately raised concerns as to a separate question. I take into account that the matter was finely balanced. Although the usual rule is that costs follow the event, I am not persuaded that that is appropriate in the present case. In my view, having regard to the various factors I have mentioned, and it being finely balanced, the appropriate order to make is that the costs of the Notice of Motion be costs in the cause. [His Honour heard submissions as to the final orders to be made.] ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2024