Abuse: Child care centre.

Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379 (on Caselaw) saw the court address claims for compensation by two children and their mothers, arising from allegations of abuse by a minority shareholder of a company which operated a child care centre.

Admissions made by the first defendant, Mr Bird, were held to be admissible against the company and against Ms Clancy (the company’s 99% shareholder and its controlling mind).

An issue arose as to whether Mr Bird’s role was as a volunteer or as an employee. Sections 6G and 6H of the Civil Liability Act now make provision for vicarious liability for child abuse perpetrated by employees and individuals akin to employees, in specified circumstances. But it was common ground that these provisions did not apply in this case, given that the events in question occurred before the provisions took effect (at [411] – [417]). The court held that the evidence established that in reality Mr Bird was an employee, even though he was not paid wages for his work and was represented to be a volunteer. Mr Bird was not paid wages for his extensive work, which he agreed would have reduced the amount of his pension, but he was remunerated by the various benefits he received (at [432]).

Obiter comment was also made regarding vicarious liability for volunteers at [419]:

If I had not reached this conclusion I can see no reason, in principle, why there should not have been vicarious liability for his acts, given the tests discussed in Prince Alfred College and “the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise” there discussed: at [46].

As for the claims by the mothers, the duty of care in negligence required determination in accordance with s32(1) of the Civil Liability Act, which provides that a duty of care is not owed to another person to take care not to cause mental harm “unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken”. The evidence in that regard was accepted by the Court for both Plaintiff A and Plaintiff C.

The mothers also claimed for breach of contract. Those claims succeeed in that the Court was prepared to accept certain implied terms (see [521]) however no additional damages flowed.

Damages were assessed including exemplary damages for the child B but not for the mother A, so as to avoid double punishment (see [589]). In relation to the award to the child B, the defendant had submitted for Mr Bird that exemplary damages would not be awarded in a case such as this, given that it was very young children who he had assaulted, who had no further recollection of the trauma. No authority had been found to support that submission and it was rejected (see [661]). The same approach was taken for the mother C and the child D.