Sophia Gharib by her tutor Kym Ottomar v Liverpool City Council [2006] NSWDC 69

New South Wales District Court

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.