DSC Attorneys Secures Landmark Wrongful Death Ruling in Ava Day Care Case

Five-month-old Ava died in 2010 after the owner of an unregistered day care centre left her unattended on a bed. Ava fell off the bed, was caught between furniture and suffocated.

Represented by DSC Attorneys’ senior associate Chris Smit, Ava’s parents, Craig and Riette Barley, sued the owner of the day care centre and the Western Cape Department of Social Development, which failed to register the centre despite its application two years prior to Ava’s tragic death.

In a landmark ruling, both defendants were held jointly and severally liable for the wrongful death of Ava.

At DSC Attorneys, we’re delighted with the outcome, which will set a new precedent for cases of this nature in the future. It’s to be hoped that this will contribute to safer conditions for babies and young children in day care centres across South Africa.

For more information, see our press release below and recent coverage of the ruling by the Cape Times, Cape Talk radio, Bizcommunity and parent24.

Press Release: Landmark Wrongful Death Ruling in Ava Day Care Case Sets New Precedent

Cape Town, 5th July, 2017 – The Landmark ruling on Friday in the Ava Barley day care case, which held both defendants jointly and severally liable for the wrongful death of five and a half month old baby Ava in 2010 will set a new precedent for cases of this nature in the future.

This is according to DSC Attorneys’ senior associate Chris Smit, who represented Ava’s parents Craig and Riette Barley in the case against Catherine Moore, the owner of Aunty Dawn’s Daycare Centre (an unregistered ECD centre) in Pinelands and the Department of Social Development.

The damages amount that the Western Cape Government and Moore (who left the country after being issued with a summons) must pay will be determined at a separate hearing.

“As legal representatives we are very satisfied with the ruling – This is a very favourable outcome and a landmark case because it will set a precedent for holding the (local) government accountable for failing to comply with its duties,” says Smit. “It is particularly apt where harm that has ensued is closely connected to an omission of a defendant that carries the duty to prevent the harm.

“If the Department had complied with its obligations after having received Ms Moore’s application for the registration of her daycare centre, the risk of Ms Moore leaving little Ava unattended on the bed alone, would have been eliminated.”

He continues: “Legislative measures are not enough. The State is obliged to act to achieve the intended result. It failed to act in accordance with its obligations and must be held accountable for Ava’s death.”

Smit says that it is apparent that Ms Moore’s daycare centre remained unregistered for over 2½ years before Ava’s death and that the application was only considered after the death.

“The Department was aware that the facility was being run as an unregistered facility and that Ms Moore had no qualifications or formal training to look after infants,” he explains. “The Department did not take any steps to assist Ms Moore’s facility to become compliant and allowed it to operate in contravention of the Acts and Regulations and the Norms and Standards and Guidelines.”

He says that during or around the time of little Ava’s death, at least 2 other infants died at unregistered facilities and that there are numerous other reported incidents of abuse and injuries to children at unregistered facilities. According to an audit of ECD facilities conducted in 2014 it is stated that the provinces appear “to be performing poorly in areas closely related to the care of infants”.

Smit points out that despite numerous promises by the Department, made after Ava’s death, that it would enforce and start complying with its obligations to register all ECD facilities in the Western Cape, there are still a large number of these centres which are being operated on an unregistered basis. In fact, there are an estimated 1,500 unregistered day care centres in the province*.

“Applications take years to be processed and in some instances, applicants have been waiting for up to 5 years to be processed,” he adds.

In his opening, Judge Daniel Dlodlo said that a dark cloud enveloped the Barley family when their precious child named Ava rolled from the bed at Aunty Dawns Daycare Centre and met her death.

He stated: “Ms Moore took Ava to her own bedroom and placed her on her bed. She left the room and closed the door behind her. When she returned later that morning she found Ava on the floor next to the bed, on which she had been put. Ava was not breathing and she was already dead.”

He continued: “She had rolled off the bed and fell onto the floor and became wedged between the bed and a bedside table. She was then unable to breath due to the position of her body and asphyxiated and died.”

Smit says that the plaintiffs claimed that Ms Moore was under a legal duty to ensure the safety and security of Ava whilst she was in her care. “They further claimed that the death of Ava was as a direct result of Ms Moore’s wrongful and negligent breach of her legal duty, inter alia, in that she left Ava alone and unattended on a bed and failed to place her in a cot or some other safe resting area,” he adds.

Dlodlo found in his ruling that the Department is and remains the primary agency of the State responsible for the discharge of its constitutional duty to protect the rights of infants in ECD facilities and that it failed to act in accordance with its obligations.

“It cannot in my view, evade being held accountable for Ava’s death. It is and cannot be disputed that the Department is under a public-law duty to protect children in ECD facilities,” he said.

The judge also stated that the Department will be liable for its failure to comply with its constitutional and legislative duty to protect Ava.

The Department now has 20 days to lodge an appeal.

ISSUED BY Tin Can PR on behalf of DSC Attorneys

Contact: Debby Reader 021 413 7500 or 083 377 6124 or email debby@tincan.co.za.

*https://www.westerncape.gov.za/general-publication/unregistered-daycare-centres