Victorian Supreme Court judge flags issues with COVID outbreak lawsuit against Heritage Care

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A potential snag in the class action against the private operator.

Justice John Dixon has raised issues with aspects of the statement of claim filed by litigation firm Carbone Lawyers on behalf of 30 families of residents at Heritage Care’s Epping Gardens aged care home in a hearing this week.

The home has recorded 220 COVID-19 cases with 103 residents and 87 staff infected.

The class action alleges Epping Gardens breached its duty of care by allowing staff to not wear PPE and move freely throughout the home and that staff from other aged care homes were allowed into Epping Gardens without self-isolating.

The statement of claim also said a baby shower and birthday party were allowed in mid-July, even though access was restricted to essential workers and residents.

Justice Dixon said the document would need careful review before being refiled.

“There hasn’t simply been a bite taken out of the apple, the whole apple has been swallowed,” he said, adding that not all the requiring documents had been filed.

Lawyers for Heritage Care also questioned the inclusion of Epping Gardens staff in the class action, on the basis of physical injury, and mental or nervous shock.

The case is now due back in court on 17 December after the amended statement of claim is filed.

St Basil’s Home for the Aged – which has recorded 223 virus cases and 44 deaths – is also facing a similar lawsuit also being led by Carbone.