Civil Action: Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird

This is a significant case which illustrates the application of civil law to childcare services and staff. The case was heard by the NSW Supreme Court and several actions were brought in tort and contract law.

Little Pigeon Pty Ltd owned the Footprints childcare centre which B and D attended. They were removed after Mr Bird, who worked at the centre and was a 1% shareholder of the company, was arrested and charged with two offences involving another child who had made disclosures about him. Ms Clancy, Mr Bird’s daughter, owned 99% of Little Pigeon’s shares. Little Pigeon Pty Ltd was also the licensee of the centre. B and D and other children later also made disclosures about Mr Bird. While police investigations resulted in further criminal charges being laid against him in relation to B and another child, none were laid in relation to D. The DPP finally did not pursue any of the charges to trial. In this case the plaintiffs sought damages for Mr Bird’s alleged assaults of B and D and that that Little Pigeon and Ms Clancy were vicariously liable for his acts. In addition, it was claimed that they were negligent. A and C, who are B and D’s mothers also made claims for breach of contract, given Little Pigeon’s alleged failures to provide quality childcare; retain adequately trained staff to work at the centre; follow relevant and necessary procedures required to be followed by such centres; and to ensure that the children were safe and appropriately cared for, while under its control and supervision. 

After comprehensively assessing the evidence, the Court concluded that the plaintiffs established, on the balance of probabilities, that Mr Bird did assault B and D. The Court considered the responsibility of the service under the regulatory regime in place and the requirement for a child protection policy which the Court found was not in effective operation. The Court concluded "If the policy had been in effect, as the licence and regulations required, it would simply not have been possible for Mr Bird to have repeatedly acted in the various inappropriate ways that he admitted, without at least some of them being notified to DOCS. Had that occurred Mr Bird’s assaults may well have been prevented." (paras. 234-5). The Court also found that there was no supervision of Mr Bird who was said to be a volunteer. The Court then considered whether the Little Pigeons was liable (vicariously liable) for the acts of Mr Bird. The Court concluded that it was because (para. 450):

The actual roles which Little Pigeon assigned Mr Bird, which placed him in a position of considerable power and trust, which he abused;

That those roles gave Mr Bird the opportunity to have the close contact with children which he, Ms Clancy and other witnesses described;

The authority Mr Bird was given by effectively being left unsupervised when he had such contact, which he also abused;

This lack of supervision permitting him to not only achieve intimacy with his young victims, but to control them while committing the wrongful acts he admitted and his victims disclosed; and

It was Mr Bird’s performance of the roles he was given, which created the occasion for his wrong.

In relation to the action in negligence, the Court found that B and D were owed a duty of care and that duty had been breached. As stated by the Court, "The duty is not to ensure against injury, but to take reasonable care to prevent it, that requiring the taking of reasonable steps which should reasonably have been foreseen." (para. 459). The court also found that the defendants also owed a duty of care, which had been breached, to A and C, for their psychiatric injuries. In relation to the breach of contract claim, the Court held: "Given the conclusions which I have reached on the negligence claims and the terms which the defendants accepted, it follows that A and C have also established their contractual claims, but no additional damages flow." (para. 526).

Having established their claims, the Court awarded damages to the plaintiffs as follows: A ($900,000 approximately ); B ($495,000 approximately); C ($500,000 approximately); and D ($455,000 approximately). In addition, court costs would be assessed by the Court on a future date.