HICKS v MERCY FAMILY CENTRE [2002] NSWSC 2

New South Wales Supreme Court

CITATION : HICKS v MERCY FAMILY CENTRE [2002] NSWSC 2 FILE NUMBER(S) : SC 20111 of 1997 HEARING DATE(S) : 17.09.01-24.09.01 JUDGMENT DATE : 9 January 2002

Plaintiff: Simon Eric HICKS PARTIES : First Defendant: MERCY FAMILY CENTRE LIMITED Second Defendant: Cindy IP JUDGMENT OF : Hulme J at 1

Plaintiff: P Webb QC, H Bauer COUNSEL : First Defendant: GM Gregg Second Defendant: M Holmes QC Plaintiff: McClellands SOLICITORS : First Defendant: Corrs Chambers Westgarth Second Defednant: Sparke Helmore DECISION : See paragraph 50

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No: 20111 of 1997 HULME J

Wednesday, 9 January 2002 Simon Eric HICKS by his tutor THE PROTECTIVE COMMISSIONER v THE MERCY FAMILY CENTRE LIMITED and Cindy IP JUDGMENT 1 His Honour: The Plaintiff was born on 25 January 1995. On 1 February 1996 he was kneeling on a sofa bed in the home of the Second Defendant. He fell off striking the rear or side of his head on the floor. Soon afterwards he began to vomit. 2 There followed some phone calls between the Second Defendant and the parents of the Plaintiff. An ambulance was called and the Plaintiff was taken to Hornsby Hospital and then to Westmead Children's Hospital. He was found to be suffering from an extensive right sided acute subdural haematoma. A right sided fronto-parietal craniotomy was performed but the Plaintiff had suffered significant brain damage. The instant proceedings are brought to recover damages in consequence. 3 On 5 February 2001 an order was made which seems to have been treated as an order for the separate determination of the issues of liability and damages. The proceedings before me relate to the first of these issues. 4 There are few questions as to the circumstances of the Plaintiff's fall. Mrs Ip had given him some milk and put him down to sleep on a mattress in the main bedroom of her home. Simon's brother Alan, born on 28 October 1993, was put on a sofa bed in another room. Mrs Ip then settled Inela, a third child, in the TV or lounge room, picked up a nappy and returned to Alan. He was still lying on the sofa. It had a raised back and ends and, subject to one matter, an open front. About one-quarter of the front, nearest the window of the room in which the sofa was situate was adjacent to the foot of a bed running at right angles and a pillow, sitting up higher than the horizontal part of the sofa bed, was jammed between the two items of the furniture. 5 The dimensions of the sofa are to be found in a report of Dr Henderson which was in evidence. The base is 25 mm high. On it is a mattress 120 mm thick. The unit is 1330 long and 690 mm from front to back. In the course of a view it was agreed that the length of the sofa which is open – some being closed by the bed at right angles to it – was 840 mm. 6 As she walked in Mrs Ip saw Simon climbing onto the bed. Mrs Ip then walked to a position between the two, Alan on her left and Simon on her right. She then put the nappy on Alan. There was some evidence that Simon came in and climbed up after the Second Defendant had commenced to put a nappy on Alan but I prefer to accept the version of events I have recited. 7 Mrs Hicks gave evidence that while the 2 were at the hospital shortly after the accident Mrs Ip demonstrated to her Simon's position on the bed prior to his fall. Mrs Ip could not remember doing so, but I think the probabilities are that she did. In the demonstration, Mrs Ip indicated that Simon was kneeling near the front of the sofa bed facing the back with the upper part of his legs and body vertical or thereabouts. Again, there is some evidence that Simon's position was different but I reject its accuracy. 8 In evidence Mrs Ip said that Simon was facing his brother who was depicted as lying along the bed. Later she indicated that Simon was at an angle and, considering the totality of the evidence, the available space, the configuration of the sofa and the likelihood that Alan was more an object of interest than the wall at the back of the sofa, the probability is that Simon was at somewhat of an angle. Having said that, I do not think it matters. 9 For some of the time the Second Defendant observed him out of the corner of her right eye but at some stage she lent over Alan. She may have placed her hand on the bed while doing so although denied placing any weight on it – a denial I am disposed to accept. It was while she was concentrating on Alan that Simon fell off, his head striking the carpet which was laid over a timber floor. 10 Mrs Hicks gave evidence that at the time of the demonstration by Mrs Ip, Mrs Ip also said that, though unsure, she thought she had removed Simon from the bed prior to his fall and that, if she had, he had climbed up again. Mrs Ip denied this conversation. There is other evidence tending to suggest that there was no such removal. None is referred to in a record made by Mrs Frost of speaking to Mrs Ip on 1 February 1996 or in a recorded interview which Mrs Ip had with the police on 28 February 1996 although there were a number of occasions to mention it if such removal had occurred. Although Mrs Hicks's evidence accords with paragraph 15 of her statement which became Exhibit D, paragraph 12 suggests there had been no putting down of Simon. Paragraph 12 purports to record statements made by Mrs Ip on 1 February. So far as is presently relevant, paragraph 12 reads:- "She said, "I was getting Alan ready for bed. I had him on the sofa. Simon was up on the seat and fell.' She kept saying, 'I wish I had put Simon on the floor.'" 11 In the light of all of this evidence I am not persuaded that Mrs Ip removed Simon from the sofa bed that day. 12 Mrs Hicks also said that in a later conversation, one which occurred when she called with the children on Mrs Ip on the occasion of Simon's second birthday, she asked Mrs Ip why she did not have a cot and Mrs Ip said both that she did not know she should have had one and that Maureen Scott from the First Defendant had said that she should have had one. While agreeing that the visit had happened, Mrs Ip denied this conversation and I am not satisfied that it occurred. 13 Simon came to be with the Second Defendant because his parents worked. She carried on the business of day care for such children, looking after, at the times at which I am concerned, Alan, Simon and Inela. In early 1994 the Second Defendant had commenced to care for Alan from about 8.00am to 5.00pm 5 days a week and from soon after Simon was born she cared for both children during those hours. 14 Apart from about 2 days when their mother did so, the children were dropped off and picked up by their father. Mr Hicks paid the Second Defendant for this care. 15 Prior to any decision to place Alan in the Second Defendant's care, the Plaintiff's parents had met with Mrs Ip at her home, talked with her and been provided with the opportunity to inspect the premises. There is a dispute between Mrs Hicks and Mrs Ip on the question of whether, and the extent to which, the parents availed themselves of that opportunity. I doubt whether the differences in this regard matter but, in case they do, I should record that I prefer the evidence of Mrs Ip on this topic to that of Mrs Sendt. Mrs Ip said that she told Simon's parents what the sleeping facilities were, offered to show Mr and Mrs Hicks the house and at least Mr Hicks followed her around the house generally. I accept also that there were times when Mr Ip had called to pick Simon up and had done so from the mattress where he slept. Mr Hicks had made no complaint about the mattress to anyone. 16 Other matters which do or may bear on the issues I have to decide and to which reference should be made include the following. Simon had first walked at about the age of nine months and by the time of the accident was walking reasonably without a lot of falling over. He could run to some extent. In the last few weeks prior to the accident he had shown a disposition to climb. He could climb up on chairs. Holding on to the sides, he could walk up the slide of a 1 metre high slippery dip. Asked whether kneeling on a sofa bed was normal behaviour for Simon, Mrs Hicks said that she had seen Simon doing it. In her ERISP Mrs Ip said that Simon loved climbing everywhere. In his statement – Mr Hicks died in August 1997 – Mr Hicks said that Simon had reached the stage where, at least at times, he could slip over backwards and, holding his head up, avoid hitting it. 17 There was evidence that Simon had suffered other falls – one in the August prior to the accident when he had fallen from a high chair, one where he climbed onto a chair and then was in the process of climbing onto a table, and one the night before the accident with which I am concerned, when he had fallen from his father's arms, hitting his head on a door. It was not suggested before me that the injuries suffered were due to this fall, rather than the one when he was under the care of the Second Defendant. On the morning of the accident he had fallen onto his bottom at some stage. 18 Attention was also given to the facilities in the Second Defendant's home. It was an ordinary house with ordinary home furniture. There were no cots. The sleeping facilities that there were for the 3 children that were being looked after on I February 1996 consisted of a mattress on the floor of the main bedroom (used by Simon), the sofa bed in her son's room (used by Alan) and a sofa in the lounge or TV room. 19 Introduction of Mr and Mrs Hicks to Mrs Ip had occurred by medium of the First Defendant. It was an organisation, accredited by the Department of Community Services, with which carers could register and to whom those in need of carers could resort for the purposes of finding a carer. Would-be carers were assessed and their houses and cars inspected by officers of the First Defendant prior to that person being registered. One of the matters considered in the course of such inspections was the safety of any children who might use those items. Thereafter, while caring for children, a carer would be the subject of unannounced visits by employees of the First Defendant every 2 weeks or so in order to ensure that proper standards were being kept and to provide, inter alia guidance, suggestions, toys or other equipment. Courses were run and at times the First Defendant would mediate between carers and parents of children in care. 20 The First Defendant registered Mrs Ip as a carer in or about 1989. An assessment form of that time shows that attention was given to the issue of cots, the note being "none". There seems to have been another formal assessment made in 1995. A document of that time shows that attention was given to the topic of waterproof mattress protectors on cots. The notation made was "n/a". It should be noted also that in 1990 and in 1995, Mrs Ip signed documents to the effect that she had read and understood the Code of Conduct required of her as a caregiver registered with the First Defendant. The Code of Conduct has statutory recognition in the 1989 Regulations made under the Children (Care and Protection) Act 1987. One of the provisions of the Code was in the following terms:- "3 (1) A registered caregiver must provide an adequate number of beds and cots for the children in his or her care, having regard to their number, ages and the hours of the day during which they are in the caregiver's home." (2) A registered caregiver must ensure that: (a) each bed or cot for children in his or her care is equipped with a clean and comfortable mattress and bed clothing that is appropriate to the climate; and … 21 Since 1989 Mrs Ip, who had 2 older children of her own had, as a day carer, looked after about 12 or 15 children including Simon and Alan. None of these children had fallen or had to be taken to a doctor. 22 When Simon's parents first approached the First Defendant with a view to finding a carer for Alan, paying $20 for this service, they were introduced to Mrs Ip but it was made clear by the First Defendant to both parents and to Mrs Ip that the decision as to whether the latter's services would be used was one to be made by them. After Mrs Ip had looked after Alan for some time and Mrs Hicks discovered she was pregnant, she and her husband sought that Mrs Ip also look after Simon. It is clear that, putting the subject accident aside, they were very happy with Mrs Ip. 23 Apart from in the course of the formal inspections to which I have referred, the sleeping facilities used by Simon and Alan had been seen, in use, by employees of the First Defendant. The use of the mattress had been seen for years. On one occasion a Ms Orange had queried why Simon was on merely a mattress and not on the double bed or a cot but when told by Mrs Ip that she thought a mattress was safer and that Simon's parents were content, took the matter no further. It would seem that other employees have not regarded the use of a mattress rather than a cot as calling for any attention. Certainly the evidence does not suggest they ever raised the matter. 24 I accept that even though she used a cot for some of her own children's sleeping, Mrs Ip did take the view that in some circumstances sleeping on a mattress on the floor was safer than a cot. She was aware that she could borrow a cot from the First Defendant but chose not to. 25 Mrs Ip's view of cots derived some support from a number of other witnesses, all of whom, with the possible exception of Mrs Frost, would seem to have had considerable or very considerable training or experience or both in the needs of young children. Mrs Ballinger said that the fact that a mattress was being used to sleep on would not have concerned her so long as a room was otherwise safe. Mrs Frost, gave evidence to similar effect although she did say that when she carried out safety inspections of carers' premises, she looked for cots and found them in all other houses she inspected. Despite her queries to which I have referred, Mrs Orange said that she regarded the mattress as appropriate. Mrs White said that the use of a mattress was acceptable practice and was preferred by many carers as a safer alternative to the risk of a child climbing out of a cot and falling. In the day care facility of which Mrs Sommerlad was a director, mattresses were used occasionally by children over 12 months. 26 One matter which should be mentioned for completeness is that the Mrs Ballinger, then a Child Development Officer with the First Defendant carried out one of the spot inspections of the Second Defendant's premises at about midday on 1 February 1996. She noticed that Simon appeared tired but that there was nothing else untoward. 27 Before I turn to other matters, I should give my impressions of a number of the witnesses. I felt that to some extent Mrs Hicks sought to avoid and pass on to others responsibility for events. One example is that when asked whether she was called on to make a value judgment about Mrs Ip, a question which could have been answered in a monosyllable, Mrs Hicks, who is obviously an intelligent woman, replied "In the space of half an hour, yes". The qualification was both unnecessary and, in light of other evidence on the topic, wrong. There was no such time restraint. Mrs Ip, I felt was completely frank, although her memory of some events less than perfect. Furthermore, her command of English was significantly impaired and I suspect this accounts for some of the inconsistencies in accounts attributed to her of details of the events of 1 February. Her evidence also suffered on this account. 28 Mrs White, I felt was partisan. This is demonstrated by her response to, and lack of acknowledgment of, the change in her understanding of the events of 1 February. I also have difficulty in accepting some of her evidence because it is contrary to what I regard as common experience of which I am able to take judicial notice. An example is the statement that "It is definitely not acceptable practice to restrain the child in a cot or playpen as a supervision device." I should have thought that primarily that was what a playpen was for. Other reservations concerning aspects of her evidence appear in questions I directed to her. That is not to say that I am unwilling to rely on anything Mrs White has said. She is very well qualified but I do treat her evidence with scepticism. No other witness merits comment such as that contained in this and the immediately preceding paragraph. 29 I turn to the issues which arise. There can be no doubt that each of the Defendants owed the Plaintiff a duty of care. The question is whether that duty was breached. Although the pleadings are much wider, the final submissions made on behalf of the Plaintiff were initially, I think appropriately, limited to three. In effect, it was contended that:- (i) That the Second Defendant did not have in place any adequate system of supervision, having regard to her practice of having Simon sleep on a mattress on the floor, (ii) That the Second Defendant failed to exercise appropriate supervision over Simon, and failed to remove him, when she found him kneeling close to the edge of the sofa bed, and (iii) That the First Defendant did not ensure that the Second Defendant had a cot or similar restraining device or alternatively a system such that the absence of a cot or restraining device did not matter. 30 Later, Mr Webb indicated that the Plaintiff was also relying on another claim pleaded to the effect that the First Defendant had breached a non-delegable duty of care to the Plaintiff. As pleaded one claim is that "the First Defendant was under a duty to the Plaintiff to exercise due care, skill and expertise in performing the said activity". The "said activity" seems to be that encompassed by the words "would oversee the activities of the Second Defendant so as to ensure that adequate supervision was provided for the safety of the Plaintiff" or "providing a carer that would ensure the safety of the Plaintiff whilst she (sic) was under her care and supervision". 31 Another claim was expressed as the "First Defendant was under a non-delegable duty of care to ensure that reasonable care and skill was provided for the safety of the Plaintiff." 32 Mr Webb chose not to develop these claims. I can well understand why. There is no basis whatsoever for the contention that the First Defendant's obligations included steps that would ensure the safety of the Plaintiff or that reasonable care and skill was provided for his safety. 33 In light of the way the matter was pleaded and developed, the substance of the first complaint is Mrs Ip did not have a cot and used a mattress instead, thus permitting free, or relatively free, movement by Simon. There can be little doubt that if the Second Defendant had had a cot, the accident would not have happened. The order in which she put the children down, Simon first, meant that his presence in Alan's room would have been prevented. There was nothing to suggest that he had yet reached the stage where he would, or could, have climbed out of a cot. Furthermore, there is nothing to suggest that even if he had cried the Second Defendant would probably not have left him for the reasonably short period it took to settle Inela and Alan. k 34 But I do not regard the Second Defendant's failure to have a cot as constituting or demonstrating a lack of reasonable care. While the advantages of a cot as an item capable of restraining movement are obvious, the evidence shows cots have sufficient disadvantages as to make it a matter of judgment whether in circumstances of the Second Defendant's care activities, a cot was desirable. As the evidence of Mrs White shows, children can fall out of cots. This is hardly surprising as their tendency and ability to climb increases and I think I can take judicial notice of the fact, often at a rate faster than their judgment. And though I do not suggest this is the test, one can well imagine the criticism of the Second Defendant if Simon had, on 1 February 1996, or a week, or a month later, hurt himself falling out of a cot - "You left a child known to be a climber and increasing in climbing skills in a room on his own, unwatched, in an item from which he could fall on his head a distance of a metre or so." 35 The stance of Simon's father (assuming his mother took no interest in the sleeping arrangements) and of the employees of the First Defendant, at least some of whom were experienced, who saw the sleeping arrangements also speaks loudly in favour of the lack of unreasonableness in the absence of a cot. Even if Mrs Orange had maintained some disagreement with the Second Defendant's approach, I would have remained unpersuaded that the absence of a cot was indicative of a lack of reasonable care. 36 Mrs Ip had been using a mattress on the floor for years without, so far as the evidence, or indeed any suggestion, goes, any problem. The ages of all the children she had cared for prior to Simon were not in evidence although Alan Hicks was there from prior to the age of 6 months. Furthermore, even Mrs Sommerlad, who gave evidence on behalf of the Plaintiff indicated that in the child care centre of which she was a director, children over 12 months would, from time to time, sleep on 30 cm high stretchers. Though the room this occurred in was under observation, this was from outside the room and would hardly be sufficient to prevent some child some time, sitting or kneeling up with the risk of an appreciable fall. 37 Nor does the presence of the requirement in the Code of Conduct as to the presence of an adequate number of cots and beds make any difference to my conclusion. Even if a mattress on the floor is not a "bed" within that provision, the provision does not detail when a cot rather than a bed, one of the sources of danger to Simon in this case, is to be used. Furthermore, the terms of the provision seem to me to indicate that it is not directed at safety but rather to the needs of young children for sleep and cleanliness. 38 Nor does the absence of some other restraining system for keeping Simon in the room he was occupying bespeak negligence. A closed door would make any sound from the child harder to hear and as one witness said, so long as Mrs Ip arranged her affairs so as to be aware of Simon coming out of the room, she did not regard his ability to do so as something to be criticised. In that regard, it must be remembered that Simon was in a position of "home" care. Undoubtedly some homes have risks but in judging what was reasonable, it is relevant to bear the nature of the care in mind. 39 This conclusion makes it unnecessary to consider the question of whether, though a "sine qua non", the absence of a cot can properly be regarded as a cause of the accident. After Simon left his mattress, he came under the supervision of the Second Defendant and there is much to be said that therefore any chain of causation involving the cot was broken. It may well have been happenstance that Simon was put down first. A similar situation might well have arisen if Simon had slept but woken first. Mr Webb suggested that if Mrs Ip then had to change Alan's nappy, placing Simon in a cot or other restraining device was necessary but the submission displays, if I may say so, an entirely unrealistic view of what is reasonable, or of what mothers of more than one young child do. 40 So far as the Second Defendant is concerned, there remains the question whether in leaving Simon on the sofa while she completed the task of putting a nappy on Alan, the Second Defendant exhibited a lack of reasonable care. I have not found a decision on this question easy. In any assessment of this issue one must recognise of course, that at Simon's age, there was a possibility of him falling. There was also the possibility that he would hit his head in any fall at least hard enough to cause pain. Furthermore, as events have shown, there was the possibility that any head injury might be serious. The report of Dr Henderson in Exhibit A suggests that the forces involved in Simon's fall were likely to cause significant injury. And almost no trouble or effort was involved in moving Simon to a safer spot, be it the back of the sofa or the floor and closing the door. Furthermore, Simon was and was known by Mrs Ip to be tired, a factor which probably increased the risk of falling even though he was not tired enough to stay on his mattress. 41 On the other hand in a kneeling position, Simon's feet were the part of him closest to the ground, and these would be likely to soften any fall. His bottom was likely to serve a similar function as children of his age are wont to use it for and as evidence indicates Simon had used it that morning when falling over. The sofa was a low one and the floor was not, for example, concrete but carpet which, though thin, the Second Defendant might reasonably have expected to further soften any fall. And even if Dr Henderson's assessment of the likelihood of serious injury be right – and it is not obvious that he took account of the possibility of Simon's feet or bottom or both hitting the floor before his head did - I doubt that the possibility of injury more serious than one causing temporary pain would have occurred to Mrs Ip or most other people, including mothers and carers, in the country. Furthermore, given the placing of the sofa and Mrs Ip, there was only a limited area through which Simon could fall, and Mrs Ip was right next to him. For much of the time he was there Mrs Ip was aware of his actions and I infer could have prevented any incipient fall. 42 In assessing the risk and the reasonableness of Mrs Ip's conduct it is also relevant to bear in mind some evidence in the case to the effect that even in day-care establishments specially set to care for children, adult furniture is to be found in areas where the children are, to provide a more home like environment – Mrs Sommerlad, and because children learn by experiencing things – Mrs White. I think I can take judicial notice of the fact that the vast majority of children learn to climb and commonly do so on items of household furniture such as chairs and sofas. As with the elementary skill of walking, in this day and age the process of learning to climb necessarily involves falling and the risk of falling onto ordinary household floors. In words of Mrs White which I accept, "Children learn by experiencing things and if they are constantly in a very safe, very child sized environment they don't learn sufficient of the outside world". 43 That is not to suggest that children of Simon's age should be left to such risks as their inclinations and physical ability exposes them. But it does mean that if children are to enjoy and particularly to maximise the opportunity of learning, the decision whether or not to eliminate a particular risk of falling must often be a matter of conscious or unconscious judgment involving an assessment of, inter alia, the likelihood of the risk, the magnitude of any injury, and the child's ability. Mrs Sommerlad at least, acknowledged the significance of the last of these and though I do not need to rely on it, Mrs White's indecision on the issue of whether she would have left Simon on the sofa is perhaps an indication that often, there is no clear answer. See also Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 at [53-67]. 44 Ultimately the conclusion at which I have arrived is that the Second Defendant's failure, when faced with Simon in a position on the sofa where there was a risk of falling backwards, to eliminate the risk and move Simon does indicate or amount to a lack of reasonable care. Children of Simon's age do not have good balance and despite the evidence of his achievements, it is clear that Simon was still falling over at times in walking or running, skills more elementary than balancing on ones knees on the front of a sofa. If he fell backwards, Simon was likely to hit his head, an event which carried risk of serious injury. Although the sofa was low, and Simon's feet and bottom were likely to hit the floor first if he did fall, and Mr Hick's statement indicates that he had seen Simon protect his head, there is nothing to suggest that Simon could invariably do so. And the momentum from a backwards fall from a sofa, even a low one, could be expected to be considerably greater than a fall from a standing position. 45 However this was an isolated act of negligence from a carer against whom no valid other criticism could be made. It follows from this, and what I have said earlier that I see no basis upon which the Plaintiff's claim against the First Defendant can succeed. 46 There are some other matters to which I should advert. Firstly, a deal of weight was sought to be placed on various provisions contained within regulations made under the Children (Care and Protection) Act. I do not find it necessary to refer to these in any detail, some of which were not in force at the time of the Plaintiff's accident. It suffices to say that I do not regard any of these provisions as of assistance to the Plaintiff. Indeed the general scheme of care envisaged by some of the regulations to which reference was made argues against any liability in the First Defendant. 47 Secondly, in arriving at the conclusions I have, I have not felt bound to follow any of the expert opinion evidence which was before me, even when it was uncontradicted, albeit in a number of respects I have done so – see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. Furthermore, as I indicated during the course of the trial that I felt entitled to do, I have also felt free to draw upon my own general experience of how very young children act and develop and what steps are commonly taken in that regard by parents. I have seen sons, grandchildren and relatives' and friends' children develop and I regard it as utterly unrealistic to adopt the blinkered approach which counsel at times during the case favoured. Just as juries are expected to bring to their task their general experience of the world so too are judges. See, for example, Burns v Lipman (1975) 132 CLR 157. 48 Thirdly, it follows from the conclusions at which I have arrived that neither the First or Second Defendants succeeds on its Cross-Claim. 49 Although the matter has not been argued, the Plaintiff's claims against the 2 defendants were separate and in no sense arising from any doubt as to the events which led to Simon's injury. In these circumstances, I see no basis for concluding that the Second Defendant should be the ultimate bearer of the First Defendant's costs. 50 My final orders are:-