My Child Was Injured While in Child Care, Can I Sue?

TGB’s Mal Byrne writes about the potential for compensation when a child is injured at child care.

In contemporary Australia, the need for child care continues to grow.  Most families rely on the wage of both parents to pay the mortgage and make ends meet.  Child care has become a necessity and it is not a cheap necessity.  So, what if your child is injured whilst in child care?  Can you sue the child care provider for damages?

The first thing that you need to consider is whether the injury was serious enough to warrant taking legal action.  There is a threshold.  Under the Civil Liability Act 1936 (SA), a person must have been significantly impaired for a period of at least seven days by the injury to be able to obtain compensation.  If your child recovers quickly with no long-term consequences, there is no point in taking action.  The other reason that you need to seriously consider whether you want to take legal action is that it is going to make your relationship with your child care provider uncomfortable.  If you are not happy with the service, you may want to change child care providers in any event, but finding a child care place is difficult.  The amount of compensation that you might be able to obtain may not be worth the hassle of having to hire a new child care provider or continue with the same child care provider but in an awkward unpleasant relationship.

There are two potential causes of action:

1. Negligence

You can sue the child care provider if you can establish that your child was injured due to the negligence of the child care provider.  Child care providers have a legal duty of care to the children in their care.  The question is whether the child care provider has breached its duty of care based on the circumstances in which your child was injured.  Not all injuries that children sustain in child care centres are due to the negligence of the provider.  Children, particularly pre-school age children, are prone to having accidents.  Children also interact with each other and it is not uncommon for one child to be injured by another child.

There are number of ways in which you can test whether there has been a failure of care on behalf of the child care provider.  The Federal Government accredits child care centres and has set up standards that child care centre must meet to be accredited.  If a child is injured in circumstances where the injury occurred because those accredited standards were not met, a Court is likely to hold the child care centre liable.

Supervision is important.  A child care centre must have a minimum number of staff supervising children based on the number of children in care.  The younger the children, the more supervision required.  Toddlers who have not been walking for long are more likely to fall and less likely to be aware of the risks of certain behaviour.  Not all accidents can be prevented by supervision.  Supervisors cannot have eyes in the back of their head to have their eyes on every child in their care at all times.  It is a matter of common sense and that is how the Courts will assess claims.

Equipment is another issue.  A child care centre could be held liable where a child is injured because of faulty equipment.  Equipment needs to be safe.  It needs to be maintained and up to date. The equipment in play areas also needs to be arranged sensibly.  Occupational health and safety standards must be met.

2. Breach of Contract

When you enrol your child in child care, you will sign an agreement with the provider. If your child is injured at child care, you may be able to argue that the provider has breached its contract with you by not adequately caring for your child.  You should read your child care agreement carefully.  In particular, as a parent, you need to work out what expectations the child care centre has of you as a parent.  Not everything is the child care centre’s responsibility.  You need to send your child properly dressed. You need to advise the child care centre if your child suffers from any chronic illnesses, allergies or special dietary needs. There will be requirements of you and the centre regarding any medication the child needs to take during the care period. There will be terms relating to the procedure during a medical emergency or accident and regarding delivery and collection of the child.   You should provide a hat during warm weather.  You may need to provide sunscreen but it depends on the centre’s policy as to who takes responsibility for slip slop and slap.

However even if the contract states that it is the parents’ responsibility to provide sunscreen, a Court would still expect the centre to use common sense when children are outside. If a child is not wearing sunscreen but spending time in the sun, the court would expect the provider to take the child inside and apply sunscreen to the child or leave the child inside so as to avoid burns.

In summary, child care centres will be expected by the Courts to meet the reasonable standards of the day, but the Courts also realise that not all accidents are preventable and will assess each accident on its merits to see whether negligence or a breach of contract has occurred.

TGB is South Australia’s largest injury law firm. For a free interview about your potential claim, contact your nearest TGB location.