Abraham bht Abraham v St Mark's Orthodox Coptic College and Ors

[2006] NSWSC 1107

CITATION:	Abraham bht Abraham v St Mark's Orthodox Coptic College and Ors [2006] NSWSC 1107
HEARING DATE(S):	6-9 September 2005; 12 & 13 September 2005
JUDGMENT DATE :	24 October 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J at 1
DECISION:	(i) Verdict for the cross-defendant on the cross-claim; (ii) The first and second defendants are jointly and severally liable in negligence to the plaintiff for the damage suffered by the plaintiff in his fall from a first floor balustrade on the premises of the College conducted by the defendants at or about 8.08 am on 23 August 2000; (iii) The amount of damage is to be reduced by 10 percent on account of contributory negligence of the plaintiff.
CATCHWORDS:	Common Law - Personal Injury - duty of care owed by school to students - duty of care in before school hours - ad hoc supervision breached duty of care - risk not only foreseeable but foreseen - no duty of care owed by parents in that capacity - parent did not breach any duty by leaving child in school's care - contributory negligence of child - perception of risk by a 9 year old child - conduct of child in taking responsibility for own safety no less than could be reasonably expected - nevertheless, contribution awarded
CASES CITED:	Arnison v Smith (1889) 41 Ch.D.348 at 369 Berrigan Shire Council v Ballerini [2005] VSCA 159 Doubleday v KElly [2005] NSWCA 151 Geyer v Downs (1977) 138 CLR 91 Hahn v Conley (1971) 126 CLR 276 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McHale v Watson (1966) 115 CLR 199 Podrebersek v AIS (1995) 59 ALJR 492 Posthuma v Campbell (1984) 37 SASR 321 R v Davies [2005] NSWSC 324 Robertson v Swincer (1989) 52 SASR 356 The Commonwealth v Introvigne (1982) 150 CLR 258
PARTIES:	P: Christopher ABRAHAM bht Nareem ABRAHAM D1: St Mark's Orthodox Coptic College D2: Coptic Orthodox Church (NSW) Property Trust CC: St Mark's Orthodox Coptic College CD: Boshra Abraham
FILE NUMBER(S):	SC 20186/2002
COUNSEL:	P: Jeremy Gormly SC and Brian Dooley D1 & D2: Stephen G Campbell SC and Paul Stockley CC: Stephen Campbell SC and Paul Stockley CD: Leo Grey
SOLICITORS:	P: Walker, Kissane & Plummer D1 & D2: Curwood & Partners CC: Curwood & Partners CD: Carroll & O'Dea Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J.

24 October 2006

NERMEEN ABRAHAM AS TUTOR FOR CHRISTOPHER ABRAHAM v ST MARK'S ORTHODOX COPTIC COLLEGE AND OTHERS
20186/2002
JUDGMENT

1 ROTHMAN J.: Between 8.00 am and 8.15 am on 23 August 2000, Christopher Abraham fell from a first-floor balustrade at school and suffered significant injuries. He was nine years of age at the time. Christopher’s mother, as his tutor, brings these proceedings on his behalf, against his school or the responsible body conducting it, for damages arising from the incident.

2 The plaintiff has chosen not to have damages assessed until such time as he reaches 18, by which time the extent of any damage, and its effect on his future, can be more accurately assessed. This is his right, and this judgment deals only with the liability for damage.

3 The factual dispute between the parties is within short compass. There are two aspects that require factual analysis. First, there are the circumstances immediately surrounding the accident, and second, the operation of the College relevant to the existence or extent of any liability. Further, the defendant denies liability in negligence, alleges contributory negligence and cross-claims against the defendant's father, alleging negligence against him and requiring him to contribute to any damages awarded. Therefore, it is necessary, after dealing with each aspect of the factual dispute, for the Court to deal with the duty of care of the College, the scope of the duty, foreseeability, breach of duty, causation and contributory negligence. It is also necessary to deal with the liability, if any, of the father in negligence, and the apportionment of damage, if liability exists, between any or all of the College, the father and the plaintiff.

4 None of the parties in the proceedings differentiated between the first and second defendant and each of the parties expressed the view that the Court should deal with the first and second defendants as if they were the one entity. The Court raised with the parties at the outset whether the first defendant, originally named as “St Mark’s Orthodox Coptic College” (hereafter referred to by me as the “College”), was an entity capable of being sued and, by consent, the members of the Board of Management of the College were substituted for the College. The second defendant, Coptic Orthodox Church (NSW) Property Trust (“the Church”), is incorporated by statute and pursuant to that statute has the express power to conduct a school. Either the Church conducts the College through a Board of Management, the members of which are now the first defendant, or the members of the Board of Management themselves, or as a representative of an unincorporated association, conduct the College. I accept the position of the parties that the Court should not differentiate between the liability, if any, of the first and second defendants and should, for all purposes in these proceedings, treat them identically. In this judgment I refer to both the school and the first and second defendants as the College.

The College

5 The College is a primary and secondary College and was, at the date of the injury, conducted for the education of children from Year K to Year 11, ranging approximately from the age of 5 to 17 years. The College had an enrolment of just under 400 (382) students at the time of the incident and catered, as the name suggests, particularly for members of the Coptic Church. It was originally established on a school campus at Lidcombe and in 1999 moved to Wattle Grove on a campus built by the Coptic community specifically for the College.

6 As one would expect of a College of this size which caters to a particular denomination, the residence of each family is located in diverse areas and the method of arrival at school is by parish bus dedicated to the school, ordinary public transport, by motor vehicle and by walking. Most of the parents live near the College.

7 The College has 32 permanent staff (not necessarily full-time) and a number of casuals (approximately 7), only some of whom were in attendance on the day of the incident.

8 Plans of the College campus are in evidence and the Court viewed the campus. The alterations that have been made to the campus since the date of the incident were identified and although there are some differences between the parties about the extent of the alterations, there is no substantive or relevant matter in that regard upon which the parties disagree. Further, the Court has before it formal plans of the College and a diagrammatic representation of the College used for the allocation of playground duty. The physical structure of the College at the time of the incident is not a matter of controversy.

9 The College campus is a regular shape and the size of the campus reflects a school of under 400 students. The visibility of the playground area was, at the time of the incident, relatively good. The buildings in use on the campus consisted of a number of two storey blocks of classrooms connected at both the first and ground floor levels by covered walkways.

10 The most relevant areas of the College, for the purpose of this case, are the pedestrian entry, the covered play area, the grassed playground and the open staircase. The pedestrian entry leads via a pathway to a covered play area situated outside the staff common room. Adjacent to that covered area was a grassed playground, which together with the covered play area, comprised part of Area B of the College. On the other side of the covered area from the grassed playground there was an open staircase, with balustrades, which led to the first floor in Block E. Block E was joined to Block F by a covered walkway, referred to during the proceedings as a breezeway. The breezeway at the first floor level between Blocks E and F continued in each of Block E and Block F as a verandah walkway. There were bag racks outside the classrooms at both the ground floor and first floor level, which, in the case of primary school students, were used as the repository of school bags to which the students gained access from their classroom during the course of the day.

11 One other matter needs to be stated. If one were facing the College from the street, to the left of the pedestrian gates and walkway, there is a car park utilised by staff which, necessarily, has its own gate access from the street and further gate access into the College grounds. Each of the locks on the gates of the car park, the gate from the car park to the grounds and the pedestrian access can be opened or unlocked by use of the same key.

12 The verandah walkway which runs along both Blocks E and F has classrooms on one side and a balustrade on the other. The breezeway between Blocks E and F is a continuation of the walkway, but on the side of the breezeway, where in either Block E or Block F there would be a classroom, there is another balustrade and both sides are open to the air. Below the breezeway on one side is a bitumen playground, which is the same playground that is adjacent to Blocks E and F. On the other side of the breezeway (i.e. between Blocks E and F) the ground is not bitumen but is a mixture of dirt and grass.

13 As already stated, on entering through the pedestrian gates (or from the carpark onto the pedestrian walkway), one would ordinarily walk into a covered area demarked on one side by Block E and, on the other side, by a further stairwell and disabled toilets. Adjacent to that covered area are staffrooms and administrative offices. There were primary classrooms on both the ground and first floor levels of Blocks E and F.

The Accident

14 Boshra Abraham and his wife, Nermeen, have two children: Christopher and his younger sister. Christopher, the plaintiff, is enrolled as a student at the College. On the morning of 23 August 2000, Boshra Abraham, who is a teacher at the College, drove to the College with his two children, dropped Christopher at the College and proceeded to take Christopher’s younger sister to day care. As he was returning to the College, indeed about ten metres or so from the gate of the College, he received a telephone call to inform him of his son’s fall.

15 The usual practice of the plaintiff’s father was to drive both of his children on a round trip, dropping the younger child at day care and then driving to the College so as to arrive there prior to 8.20 am. I will deal later with the schedule of the College, but it is sufficient for present purposes to note that the teachers were required at school no later than 8.20 am on each school day. On this occasion, the normal practice was not followed. Because the plaintiff wished to speak with and/or spend time with his friends, he had requested his father to drop him at school first. The father acceded to this request and, as earlier stated, dropped the plaintiff at school, watched him proceed into school through the pedestrian gates and then proceeded to drop his daughter at day care and return to the College.

16 We know from the records of ambulance calls that the accident occurred sometime shortly before 8.08 am and we also know that the round trip from the school to the day care and return takes approximately 10 minutes. The evidence of that comes from Mr Abraham and was agreed between Counsel for each of the parties. On that basis, given the evidence, which I accept, that the father was very close to the school gates at the time that he received the call about the plaintiff, I find that the plaintiff was dropped at school at approximately 8.00 am and that the accident occurred at 8.05 am or shortly thereafter but prior to 8.08 am.

17 The plaintiff was not called to give evidence because, at this stage, it seems unnecessary. Statements obtained from each of the children in or around the area of the incident at the time were tendered and while there are, as one would expect, slight differences between the statements, the differences are not such to affect liability.

18 The plaintiff climbed the stairs adjacent to the covered area to Block E, initially to put his bag on the rack outside his classroom. It seems he went up with another student. While on the verandah he put his foot on the lower rung and was “egged on” but did not proceed any further. He then moved to the area of the breezeway, on the side of the breezeway facing the dirt/grass ground area. Again he was “egged on”. It seems that the plaintiff climbed so as to sit straddling the balustrade and, while seated there, slipped, caught his foot on the concrete floor of the breezeway, which caused him to tip forward, and landed on the dirt/grass area hitting his head and landing on his right side.

19 I make no findings in relation to damage, save that, to the extent that it is necessary to show damage for the purposes of establishing liability, I am satisfied that such damage has been caused. As stated, the question of damages is for another day. Such material as is before the Court seems to suggest, and I put it no higher, that there were head injuries, brain damage and a continuing limitation on the use of the right side of the body and there is agreement, only for the purpose of the hearing on liability, that the damage is sufficient to enable, if otherwise satisfied, a determination on liability and, to that extent, an order for costs.

20 The breezeway was at first floor level, as already stated, and therefore was at a height of approximately 3 metres and the balustrade was a further metre, approximately, in height. It is, therefore, a finding that the fall occurred from a height of approximately 4 metres onto the dirt/grass area adjacent to and below the breezeway.

21 The distance between the breezeway and the dirt/grass below was deceptive and seemed, on the view, less than the distance we know it to be.

Operation of School on the Date of the Accident and Prior Thereto

22 Students commenced arriving at school at approximately 7.30 am. Students who regularly arrived early (i.e. at or before to 7.45 am) were told, and their parents were told, that the College did not have facilities to supervise the children at such time. However, it is clear that such notification as was given to the parents was not given in relation to children that arrived after 7.45 am and, even in the case of earlier arrivals, no contact was made with parents of students arriving at that time if their arrival was not a regular occurrence.

23 As earlier stated, the key to the pedestrian gate was the same as the key to the car park and each staff member (teaching staff and non-teaching staff) had a key that would open the pedestrian gate. The Deputy Principal stated that the policy of the College was that the pedestrian gates would be opened by the Deputy Principal at about 8.20 am at which time a notice was placed for the pedestrian crossing which was located immediately outside the pedestrian gate. However, the evidence before the Court was that this policy, if it were such, was honoured more in the breach than in the observance. It seems that more often than not, one or more of the teachers would open the pedestrian gate at or about the same time that they entered the College, although it is not clear at what approximate time that would occur. It is sufficient, for my purposes, to find, as I do, that the plaintiff walked through the pedestrian gates to enter the College. This was the uncontroverted evidence of the plaintiff’s father, whose evidence I accept in entirety, and who watched him do so. It is also his evidence and the evidence of others that the gate was regularly open at that time.

24 Prior to the accident, the College expected staff to arrive on duty no later than 8.20 am though most staff arrived earlier. The College provided a discount on school fees to the children of staff and must have expected that at least some of those staff with children, who were students at the College, would arrive no later than 8.20 am with those students.

25 It is clear that a significant number of students at the College were in attendance by approximately 8.20 am, by which time the school buses had commenced arriving.

26 The school day commenced at 8.35 am, at which time the first bell was sounded, and students were expected to be in the College by that time. Expert evidence was called which confirms that it would be “administratively unfeasible and logically impossible to expect all school students to arrive at, or very close to, that one specific time, when the school day is scheduled to start. If all students arrived at much the same time, there would be traffic chaos outside the college with large numbers of parents unloading children from cars at the one time. Similarly, it would be very difficult to schedule near-simultaneous arrivals for school buses, public buses and trains. To expect or demand that there will be no students at school before a particular time representing the official start of the school day would be administratively unrealistic, in my opinion, and the reality is that large numbers of students will inevitably begin to congregate at the school during the half hour or so before the official start of any school’s day.”

27 The above analysis accords with common sense and ordinary understanding, and I accept it. Given that the first bell of the school is to sound at 8.35 am, it is likely, in order to have 400 students attend, that they would be attending at least for half an hour prior thereto.

28 As earlier stated, the injury occurred between 8.05 am and 8.08 am, the later time being the time of the call to the ambulance. The call to the plaintiff’s father, which occurred after the call to the ambulance, corroborates both the timing of the accident and the likely time at which the plaintiff was dropped at school, namely, 8.00 am.

29 Prior to the accident, the school regime, apart from what has already been stated, was that formal supervision was rostered from 8.30 am each school morning, which supervision was of a kind similar or identical to the supervision that occurred at recess and lunch time.

30 Prior to 8.30 am (at least according to policy up until 8.20 am) teachers were arriving and often going to the staff room which was adjacent to the covered area of which mention has already been made. Some went directly to classrooms; others went to the staff room and then to classrooms; some others stayed in the staff room until 8.35 am. Any student that was seen not in the covered area was supposed to be informed that they were required to be in the covered area either sitting or standing but not engaged in physical activity. On school mornings supervision was provided on an ad hoc basis prior to 8.30 am. The students were also informed, from time to time at assembly, that they were supposed to sit quietly in the covered area or immediately adjacent to it prior to 8.30 am. At no stage were the parents, in their capacity as such, notified that there was no supervision, or notified of the kind of supervision provided. Further, no parent (other than those whose child arrived regularly at or before 7.45 am) was told that she/he should not bring students to school prior to any particular time. This latter aspect is also true of teachers who were parents.

31 The Interim Staff Handbook which, despite its title as interim, was the substantive handbook applicable from the opening of the Wattle Grove campus until at least the date of the injury, stated:

“ Hours of Duty : Staff are expected to arrive for duty no later than 8.20 am [though most staff arrive earlier]. …

Supervision : All staff are asked to be aware of our responsibility for the safety of the children at all times. This means being prompt to class and to all duties and actively supervising at all times. It also means being aware of potential problems and avoiding situations where they might occur e.g. if a child is outside your room unsupervised, who is responsible for their safety? [You are!], if you decide to ‘pop down’ to the staff room for a minute and an accident happens in your absence, who is responsible? [You are!].
Supervision Responsibilities and Procedures : …
* No students are to be on the first level of the school before school, during recess or lunch.
* No students are to be on the covered walkway.
* Before school students are to wait for the school bell in either Area A (K-2) or Area B (3-10). At 8.35 am the secondary students move to roll call rooms. At 8.40 am all students are to line up in Area B in class group rows. …
* The first morning bell sounds at 8.35 am. This is a warning bell indicating to the students to begin moving to their designated assembly area. At 8.40 am primary students line up in the assembly area.
Before School (8.30-8.40) : This duty is the supervision of students in the school grounds of a morning before the start of the school day. Students are encouraged to remain in Areas A and B.”

32 The Interim Staff Handbook, containing the above statements, was circulated to staff but not parents (unless, as is the case in relation to Mr Abraham, the parent was a member of staff).

33 The teachers were also provided a roster for duty outside of classroom duties which provided for before school supervision. The evidence makes clear that the reference to before school supervision for rostering purposes was for the period between 8.30 and 8.40 am. Prior to that time, the only supervision, which I will hereafter refer to as informal supervision, was the ad hoc supervision provided by the fact that teachers, and/or other staff, may, on entering the College grounds or otherwise moving around the College, have been in the vicinity of students and, to the extent that the teacher would notice any behaviour that was thought to be inappropriate, would discipline the students in question.

34 The effectuality of the informal supervision was the subject of some controversy. It depended almost entirely on the incidence of teachers moving through the covered area and the obedience of students to a general direction given to them, either at assembly or from time to time in the playground, that they should not engage in activities outside of the covered area and the activities should not be overly energetic. Of necessity, the incidence of teachers moving into or through the covered area was wholly unregulated and ad hoc. Notwithstanding that the covered area was outside at least one of the staffrooms and outside other administrative offices, because of the placement of noticeboards and blinds it was difficult, if not impossible, for any teacher or staff member, not deliberately in the covered area, to supervise or observe any behaviour of the students in that area.

35 Further, the evidence was that a significant number of students arrived between 8.00 am and 8.20 am and that prior to 8.30 am and the commencement of “formal supervision” the students would play in and around the playground area. Evidence was adduced, confirmed by witnesses for both the plaintiff and defendants, that ball games and football would be played on the grassed area before school, although in the case of the evidence called by the defendants there was some evidence to the effect that it did not occur. To the extent that there is a conflict I accept the evidence that these activities by students occurred regularly up to 8.30 am and were, and ought to have been, known to the College. The conflict in the evidence predominantly reflects a difference between the hypothetical position and that which was actually observed. The Deputy Principal (at the time of the injury the position of Principal was not filled but the duties were performed by the Director of the College, Father Antonios Kaldos who was not an educationalist) gave evidence of the policy and his understanding of the practice. Because of his physical location he would have been unable, except on a most irregular basis, to see the activities of the students and his evidence of early morning activity necessarily related to the policy of the College and assumed its fulfilment. I will deal more fully with the evidence of the Deputy, Mr Turner, shortly. The other evidence relevant to this issue called by the defendant was that of Ms Ferguson who was the K-2 Coordinator and therefore a member of the school’s Educational Executive.

36 Relevant to supervision and other matters, her evidence in cross-examination was to the following effect:

“Q. Is there any particular reason for the children sitting in the near vicinity to the common room?
A. They were told to sit there so that they could be close to the teacher’s supervision.
Q. And the reason for that was that they have to be kept under fairly strict supervision, if I can put it like that; is that correct?
A. Yes.
Q. And the reason for that is most of the students who came early were really quite young, is that correct?
A. No, not necessarily.
Q. If you take, for instance, the group there at the day of the accident, is that fairly representative of the ages of the children or not?
A. The boys that were there on the day of the accident, they were in primary, but we do have high school students who come early. …
Q. So there would seem to be on the day of this accident and it seems to have taken place around 8.10 am, most of the children there are really quite young?
A. They are. …

Q. One of the things about the children being so young is, first of all, they have a small attention span, is that right?
A. Yes.
Q. And in terms of giving them instructions, they tend to forget the instructions fairly readily?
A. Yes.
Q. And even as they get a bit older; 9, 10 and 11, they become easily distracted, is that correct?
A. Yes.
Q. And so that with the younger ones, and I’m including all of the children from Year 6 below, even though they are otherwise nicely well behaved children, if left to their own devices, they really don’t know the limits of their play, they can either be too rough or run too fast, that sort of thing, is that right?
A. Yes.
Q. And it is necessary, therefore, to keep a fairly close eye on them and give them that general reminder on a, if I recall, regular basis?
A. Yes. …

Q. In the period up to say 8.15 am and any time before it, the children who came at that time would either play or sit or whatever in Area B, isn’t that the situation?
A. Yes.
Q. So we have had someone describe seeing them on the grassy hill as they came in, the child might be up there playing or doing whatever children do, isn’t that right?
A. Yes.
Q. And they might be in the asphalt area under the undercover area playing or talking to their friend, isn’t that right?
A. Yes.
Q. And the way the supervision with that took place was allowing for the teachers coming and going from having signed on in the common room to going to their rooms, is that correct?
A. Yes. …

Q. And one of the things that the children are banned from doing, this is just above the section where it says ‘Before school no children are to be on the first level of the school before school, during recess and after lunch or on the covered walkway’?
A. Yes.
Q. That’s the upstairs level of the school?
A. Yes.
Q. That’s a privacy issue for the teachers or perhaps am I wrong in that answer.
A. No it’s just dangerous for the children to go there.
Q. The reason for that is it’s up high, if children are misbehaving you can have very nasty accidents?
A. Yes.
Q. Like the one that happened, for instance?
A. Yes. …

Q. One of the problems with the smaller children is their failure to appreciate the risk that’s involved, isn’t that the situation?
A. That’s correct.
Q. And the classic thing of that is the little kid in the superman outfit sitting on top of the roof and Dad coming out and having a coronary that he is about to jump, he has no idea he is about to break his neck or leg, isn’t that the situation?
A. Yes.
Q. So that when you as a teacher are planning your supervision, what you’re doing is that you take into account that accidents may never have happened before in the past of a certain nature, you take into account the sort of things that kids of that age group, 3-10 or perhaps older than that, perhaps 6 through to 10 and 11, get up to and you have to guard against.
A. Yes.
Q. In the upper levels like the accident that happened to Christopher. Is that correct?
A. Yes, that’s right. …

Q. Do the teachers, when they work upstairs, tend to have their doors open or closed? What’s the situation?
A. Before school they would mostly have them closed.
Q. This is August, so a bit cooler, they might be closed.
A. No. Wouldn’t have anything to do with the weather, it would just be for their privacy. …

Q. If the children were playing tip, would that be something that would be allowed to be carried out in the pre-8.15 period at school?
A. I think so – yes.
Q. You told us they played tip. Would they get a ball to play with on occasions?
A. No. I’ve seen them play tip just in that area where they have to sit but not to go further out to the playground. …

Q. Have you seen them play with the ball on occasion?
A. Their own ball, yes.”

37 Some evidence, even of Ms Ferguson, was to the effect that the students should not be on the grassed area in the morning before school, which timing I took to be prior to 8.30 am. However, that answer is an answer that relates, it seems, to the policy rather than the practice. Her evidence relating to the playing of tip and the students playing with a ball and the fact that Area B, which was the area to which the students were purportedly confined, included the grassed area, was consistent with the evidence given by other witnesses to the effect that the students were seen from time to time playing, as students do, both on the grass area and in the bitumen area with the ball and playing tip. I accept the evidence that, in the mornings before 8.30 am, the students regularly played ball games on the grassed area and in the playground and I find that the College knew of that practice.

38 Mr Turner was the Senior Educationalist at the College and formerly held the position of Deputy Principal at the time of the injury and prior thereto. The position of Deputy Principal was renamed, without a change in duties, to Head of Administration at some point in time which is irrelevant to current proceedings. When Mr Turner was first employed there was a College Principal who resigned and Father Antonios took up the position or duties of the Principal. As previously noted, Mr Turner denied that the students played games of that kind at that time of the morning. However, Mr Turner’s evidence was that he generally came to school at or about 7.30 am and worked in his office, which was away from the playground area, until about 8.20 am when he went outside to put up the crossing signs outside of the school. In those circumstances, and without suggesting that Mr Turner was seeking to mislead or give inaccurate evidence, it seems to me that Mr Turner’s view was coloured by what he anticipated was happening and that which should have happened in light of the instructions that had been given to students or teachers, or to both. In the circumstances, I accept that the children regularly played in Area B and played ball games and generally engaged in activities of a physical nature. They did not confine themselves to sitting on seats outside the staff room and talking amongst themselves.

Operation of the School After the Date of the Accident

39 As earlier stated, the accident occurred on 23 August 2000. On 24 August 2000 Father Antonios wrote to the parent body. It is important for me to set out the terms of that correspondence:

“Dear Parents,
It is with sadness that I am updating you on an accident that happened to one of our Year 4 students yesterday morning before school. The incident occurred at 8.05 am (Teacher supervision normally begins at 8.25 am) when Christopher went up on the second floor, climbed on a railing and fell off.
We are all relieved to know that Chris is recovering well, and that the doctors have said that considering his fall, his injuries were surprisingly light. Whilst Mr and Mrs Abraham would like to thank everyone who has shown their concern, it may be best not to visit him at this stage until he is feeling a little better.
We have all been deeply shocked by this incident. As an immediate measure – parents are asked not to bring their students early to school . Morning supervision has previously commenced at 8.25 am, but as of tomorrow, morning supervision will commence at 8.10 am each morning. If any students must be brought before that time, parents are responsible to bring them all the way to the verandah in front of the College office and impress on them that they are not allowed to leave that area or play in the playground or the buildings until the supervising teacher comes out at 8.10 am. Please note that before 8.10 am, students are NOT supervised by College staff .
Students are aware of the areas that are out of bounds (e.g. verandahs, empty classrooms, underneath the portable buildings, car park etc). In the afternoons, students who are picked up by parents or for buses must wait in their designated areas, where there is a teacher supervising them. They are not to move around the school, go to the toilets without permission or play in the playground or on the verandahs. Please help the College by reinforcing these points to your children at home .
The College is also undertaking an urgent and thorough review of all of its safety procedures and we will inform you of any further changes you need to be aware of. We continue to pray for Christopher and his family. May our Lord grant him a speedy and full recovery.

Yours in Christ,
Fr Antonios” (The emphasis is in the original document.)

40 Shortly after the writing of that letter, a new staff handbook was promulgated the relevant changes to which were that staff were expected to arrive on duty no later than 8.05 am and before school duty was rostered from 8.05 am until 8.40 am. The inconsistency between the before school duty commencement after the accident is of little relevance for present purposes, but to the extent that it is relevant, I find that the 8.05 am requirement was in fact the one implemented. That was the time corroborated by the oral evidence of the staff that were called and it seems that to the extent that 8.10 am was mentioned in the notice to parents, it was either a means of giving the College a 5 minute period of grace or it was an initial time which was varied almost immediately to the time of 8.05 am.

41 I reiterate that, prior to the injury to the plaintiff, no notice to parents had been given, either reflecting a time that supervision would commence before school or a time before which students should not arrive.

Other Facts

42 I deal with some other aspects of the evidence relating to both the duty of care and the method of supervision.

43 On 14 February 2000, an Educational Executive meeting was held attended by Father Antonios, Mr Turner and others. In part it was to the following effect:

“ The Duty Roster was distributed. Concern was expressed about morning duty and the need for two teachers being on duty because of the lack of visibility because of the demountable buildings. Discussion took place about the general duty of care for teachers.
ACTION TAKEN : Cheryl and Coleen are to work on a Breakdown of Duty to accompany the roster. Glenn was to look at re-doing the duty roster with everyone carrying three duties.”

44 The plaintiff also adduced evidence from an expert to some aspects of whose evidence I have already made reference. Essentially that evidence was in or to the effect that, in a school of this size, a significant period of, approximately one half hour would be needed before students were expected to be at school in order to allow an orderly entry of students into the school grounds. With respect to the expert, that estimate seems to be common sense and I accept it. Some of his evidence related to practices in the government sector which are useful by way of comparison but not directly applicable. The practices in the government sector to which reference was made, derived largely from an agreement between the trade union for government teachers and the Department of Education. As is clear, the College is a non-government school and is not subject to that agreement. Nevertheless, the agreement and its existence at least show the kind of supervision that applies to the vast majority of educational institutions catering for students of this age. The Department of Education requires formal or active supervision by teachers of the playground for the half hour prior to the time at which students are required to be present. Translating that into the current situation, if it were directly applicable, it would require supervision from 8.05 am.

45 Whether the Department of Education arrangements, if applied to the College, would require active supervision at 8.05 am or 8.10 am does not seem, in the circumstances of this case, to be significant. It is sufficient, for the purposes of this case, to find, as I do, that the school gates were opened at a time prior to 8.05 am. In the case of the plaintiff, or his parents, there was no direction or warning prohibiting or discouraging arrival at the College earlier than formal supervision commenced and, indeed, in the case of the plaintiff and his father, there was direction that at least the plaintiff’s father was required to be at school well before formal supervision commenced.

46 The last matter, in relation to evidence, which is so obvious as possibly not needing to be stated, is that the practice in relation to formal supervision and the requirement on teachers to attend from 8.05 am was effected immediately after the accident. There is no evidence to suggest that those measures for formal supervision were difficult to achieve or costly. Indeed, the evidence is to the contrary. The formal supervision effected from 8.05 am shortly after the date of the injury was cost neutral and caused no inconvenience or difficulty to the College.

Credibility

47 While dealing with the facts in this case I should mention the witnesses. The most significant witness in the proceedings, and the cross-defendant, is the father, Mr Boshra Abraham. His manner and demeanour displayed a remarkable integrity. He gave the impression that great effort was taken to ensure as accurate an answer as possible. It also became clear that he was a person with an extraordinary regard for authority and the importance of complying strictly with the law and directions. He also expected others to behave in like manner. I accept his evidence without qualification. I also accept for similar reasons associated with demeanour and accuracy, the mother, Nermeen Abraham, and the witness Sameh Tarmagi and Randa Sarofeem. There is little, as earlier stated, factual contest. To the extent of inconsistency I accept those witnesses, in particular Mr Abraham, over either Ms Lydia Ferguson or Mr Turner. I do not suggest that either of the last two witnesses were deliberately being unhelpful, only that probably from an attention to the administrative arrangements rather than practicality, they were not fully accurate in recalling details of practice of the College as distinct from the policy. This was reflected in some inconsistency in answers and/or the manner in which they were given, including a seeming unease and lack of recollection in answering questions posited to them.

48 As a matter of abundant caution, I should make clear that in relation to the questions of fact which were agitated on behalf of the defendants, I make the following findings on the basis of the evidence before the Court:

a The pedestrian gates were locked by staff, most probably the cleaners, after the last bus in the afternoon, remained locked through the night, and were opened in the mornings by various staff members. Generally, the students were able to gain access to the grounds of the College through the pedestrian gates (or through the College carpark) prior to 8.00 am on a school day. Further, the College was aware that the children gained that access and did not discourage it (save to the extent that children who arrived at 7.30 am through to 7.45 am may have been, from time to time, discouraged);

b Further, children arrived in numbers between 8.00 am and 8.20 am on each school morning, and by 8.20 am the majority of students or numbers approaching the majority, were at the school;

c The conduct of the plaintiff, while it was in part a deliberate act, was of the kind that was foreseen by the Educational Executive of the College and against which kind of act some steps were taken by the College;

d I do not find that the plaintiff took steps to avoid detection.

Duty of Care of College

49 It is clear from the above that the level of supervision prior to 8.30 am (but after the opening of the College gates) was significantly different from that which occurred after 8.30 am. No rational basis is put to the Court for the arbitrary delineation between different times before 8.35 am (being the time of the sounding of the first bell). The formal supervision that occurred after 8.30 am was similar or identical to the supervision that occurred at recess and lunch, being the ordinary playground duties.

50 I find that the formal supervision which occurred after 8.30 am, during recess and during lunch on all school days prior to the injury, and the kind of formal supervision that occurred after 8.05 am or 8.10 am in the procedures implemented after the date of injury, were procedures which, had they been in place at the time of the injury, would have almost certainly, prevented the injury. This follows from the fact that there would have been one or two teachers performing playground duties. Those teachers would have been in a position to prevent access to the upper level and, even if they had by some inadvertence missed one or more students gaining access to the upper level, they would have heard the calls by students at ground floor level for the plaintiff to climb onto the balustrade and/or jump from the first floor, and been able to stop it.

51 The injury in question was not caused by an inadvertent or momentary lapse in concentration or a particular failure of a particular member of staff. It is alleged, and as will be seen, is accepted by me that the injury in question is caused by a systemic failure of appropriate supervision, in circumstances where it was accepted that a number of students would be on the premises at the time of the injury.

52 It was submitted, on behalf of the College, that there was a “system of informal or indirect supervision” to accommodate the numbers of students entering before 8.20 am. It should be pointed out that 8.20 am is a purely theoretical time. The bus services, on the evidence before the Court, arrived from 8.15 am but most at about 8.20 am. The formal supervision did not commence until 8.30 am.

53 However, it is necessary to deal with the informal supervision which, it is submitted, satisfies the duty of care imposed upon the College and was in place at the time of the injury and the events leading up to it. The “informal or indirect supervision” is the antithesis of a systematic process of supervision. It relies upon the irregular and ad hoc movement of teachers between various parts of the school or their arrival at school.

54 There may, from time to time, be periods before 8.30 am in which a number of teachers (1 or 2 would be sufficient) would be in or about the covered area in which the students were congregating or ought to have been congregating. However, the very ad hoc nature of the movement of these teachers means that it would be pure coincidence if a teacher or other staff members were in or around the area in which the students were supposed to congregate. If such a process can be described as a system of supervision, it is a system of supervision which provides significant periods during which no staff member is actually supervising the students. That, in fact, was the situation when the injury in question occurred; that was the situation when the events leading up to the injury occurred.

55 The College, through its staff, opened the pedestrian gates to allow students to attend. This it did at a time earlier than the plaintiff arrived. The College knew that students arrived regularly from before 8.00 am and while, as previously stated, an ad hoc irregular process of contact with parents of students arriving earlier than 7.45 am was in place, no such process occurred for students arriving after that time. The opening of the gates and the history of students attending was such that the College undertook the care of the students on and from the time it permitted them to be at school. The College had a duty of care for pupils arriving in the morning before the commencement of formal lessons: Geyer v Downs (1977) 138 CLR 91. In Geyer v Downs, Stephen J said:

“It is for schoolmasters and for those who employ them, whether government or private institutions, to provide facilities whereby the schoolmasterly duty can adequately be discharged during the period for which it is assumed. A schoolmaster’s ability or inability to discharge it will determine neither the existence of the duty nor its temporal ambit but only whether or not the duty has been adequately performed. The temporal ambit of the duty will, therefore, depend not at all upon the schoolmaster’s ability, however derived, effectively to perform the duty, but rather, upon whether the particular circumstances of the occasion in question reveal that the relationship of schoolmaster and pupil was or was not then in existence. If it was, then the duty will apply. It will be for the schoolmaster and for those standing behind him to cut their coats according to the cloth, not assuming the relationship when unable to perform the duty which goes with it.
In the present case, it may be that the defendant schoolmaster was unable adequately to perform his duty before 9.00 am on school days. If so, he should not have assumed the relationship of schoolmaster towards pupils of the school at an earlier hour, as the jury found he did. Having done so, his inability, if such it was, satisfactorily to discharge that duty provides, in my view, no grounds for doubting the existence of the duty. …
I conclude that on the evidence, it was open to the jury to find that a relationship of schoolmaster and pupil, and with it a resultant duty of care, came into existence well before 9.00 am on the morning in question. The defendant headmaster had, from the best of motives, permitted, although not encouraged, pupils to come to the school as early as 8.15 am. The school gates were opened from that hour onwards and the classrooms were apparently opened well before 9.00 am. The headmaster knew that in fact large numbers of children made use of the school between 8.15 am and 9.00 am on schooldays; perhaps up to 200 children, almost half the total attendance at the school, would be found there before 9.00 am. Knowing of their presence, the headmaster naturally enough asserted his authority over them. He required them, he said, until 9.00 am ‘to sit down in the playground and talk and read, study, something like this.’ He had expressly forbade them to play games in the school grounds before 9.00 am and he said that as often as once a week he observed the children obeying these directions of his. He had instructed teachers who might be passing through the school playground before 9.00 am to ensure that these directions were obeyed. … Because of this, and because he believed that his instructions were being obeyed, the children being of ‘good behaviour’ he thought there was no need for regular supervision of the children. …
… Upon this evidence it was, in my view, open to the jury to conclude that when the plaintiff was injured there was already owed to her that morning a duty of care on the part of the headmaster, the relationship of schoolmaster and pupil having already come into existence. The headmaster had permitted her to come onto the school premises and had there subjected her to his control by requiring her as an early-arriving pupil, to comply with the instructions he had laid down for such pupils.” (at pp. 94-95)

56 Save for the time at which school began, Stephen J could have been describing the factual situation in the present case. In the majority judgment (Murphy and Aickin JJ, with whom Stephen, Mason and Jacobs JJ agreed) the Court said:

“The argument for the respondents was that there was no duty to supervise the playground before 9.00 am because the children who were there were at best licensees to whom only a very limited duty was owed. However it does not appear to be useful in a case such as this to seek to apply the distinction between invitees and licensees used in relation to an occupier’s liability in respect of dangerous premises. … The nature of the duty owed to [the students] is governed by the relationship between schoolmaster and school authority on the one hand and pupils attending the school on the other.
The classic formulation of the duty owed by a schoolmaster to a pupil is that of Lord Esher in Williams v Eady (1893) 10 TLR 41 at 42. …
This formulation is, however, somewhat unreal in the case of a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of 30 or more children. What may be a useful guide applicable to a village or a small country school cannot be of direct assistance in the case of a large city or suburban school with some hundreds of children attending it. The nature of the duty is more appropriately stated in Victoria v Bryar (1970) 44 ALJR 174 where this Court agreed in the description of the duty owed by a teacher to each of his pupils formulated by Winneke CJ in Richards v Victoria [1969] VR 136 at 138, 140-141:
‘The duty of care owed by [the teacher] required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to [the pupil]. This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi [the teacher] should reasonably have foreseen.’ …
This is a case where it cannot be said that if there had been supervision of the playground activities the accident could not have been prevented. …
The decision to open the school at 8.00 am to 8.15 am was no doubt made as a combination of necessity and a commendable desire to provide a facility for the children who were enrolled at the school. An attempt may have been made to ‘discourage’ the children from arriving at the school before 9.00 am but the jury were entitled on the evidence to find that this attempt was known to the headmaster to have failed, and to find that by 8.45 am there were 100 to 150 girls in the playground and that this was known to the headmaster. …
In all these circumstances it appears correct to say that the headmaster had created a factual situation in which he was under a duty to ensure that there was adequate supervision of the girls in the playground before 9.00 am. …The fact that this situation was created for commendable reasons, rightly believed to be in the interests of the children and parents, does not mean that the duty to use reasonable care did not arise.” ( Geyer v Downs , supra , per Murphy and Aickin JJ at 101-104)

57 Again with the exception of the starting time of the school, there is no relevant distinction between the factual situation in this matter and that which was before the High Court in Geyer v Downs, supra and no distinction in the principles that apply.

58 Geyer v Downs, supra and The Commonwealth v Introvigne (1982) 150 CLR 258, which applies it, establish the principle that the liability of a school authority in negligence for injury suffered by a pupil attending the school is not purely vicarious liability. It is a non-delegable duty owed by the school authority to pupils being a duty to ensure that reasonable care is taken of those pupils while they are on the school premises during hours when the school is open for attendance: The Commonwealth v Introvigne, supra, at 269. It is a duty imposed akin to that owed by a hospital to its patient: Introvigne, supra at 270, and the “immaturity and inexperience of the pupils and their propensity for mischief suggests that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.” (Introvigne, supra at 271 and 275).

“The primary duty of care owed by a school authority extends to the provision of staff and resources necessary to discharge the duty to the pupil which it undertakes by accepting him ( Geyer v Downs ). That duty is no less than the duty of the schoolmaster who is bound to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen.
In the present case, there was a failure to exercise proper supervision of the playground… The foreseeable folly of youthful exuberance made supervision … necessary if the boys were to be safeguarded from the risk of injury.” ( Introvigne , per Brennan J, at 280)

59 The College was capable of exercising reasonable control over the commencement time and reasonable control over the access by students to its grounds before school. Once it accepts the responsibility of having the students on its premises, it owes a duty of care in accordance with the principles adumbrated by the High Court.

60 There is another basis for the breach of duty by the College, namely, the failure to direct, prohibit or discourage the attendance of the plaintiff at the College prior to 8.30 am.

61 I accept, as was submitted, that one should be extremely cautious in accepting evidence from a witness as to what would have been her/his reaction to different circumstances: Berrigan Shire Council v Ballerini [2005] VSCA 159 per Nettle JA citing with approval Arnison v Smith (1889) 41 Ch.D.348 at 369. Relevant to the current proceedings, it was submitted, by the defendant, that if there had been prior to 23 August 2000 a warning or prohibition not to bring students to the College before 8.30 am, Mr Abraham would, nevertheless, have continued to bring Christopher to school with him at or before 8.20 am. Such a finding would, of course, be inconsistent with the express evidence of Mr Abraham.

62 Notwithstanding the caution with which one should treat such evidence, I have no hesitation, in the case of Mr Abraham, of coming to the view that if the College had told Mr Abraham that Christopher could not be at the College prior to 8.30 am, such would have been his practice. Mr Abraham’s respect for authority, which has already been noted, is, I find, so profound that he would have ensured that he was at school by 8.20 am and that other arrangements would have been made to have Christopher at school at or after 8.30 am. Of course, no such advice, warning or prohibition was given.

Foreseeability

63 I have, above, extracted some part of the evidence in these proceedings. That extract shows that injury of the very kind arising from an incident of the very kind was one known to the Educational Executive of the College and against which it sought to take steps. As is clear from this judgment, the steps taken were inadequate. Adequate steps were available and such steps were reasonable steps which were necessary in order to provide reasonable care of the students on the College grounds.

64 The evidence makes clear that children of the young age of the plaintiff, because of youth and inexperience, would, if left alone and unsupervised, engage in conduct which could cause them harm.

65 While the plaintiff was described by his father as a good child who was sensible for his age, even the most sensible children at the age of 9 would be susceptible to the kind of conduct foreseen by the teachers and staff at the College. The evidence is replete with material which shows, not only that the incident in question was foreseeable, but that it was foreseen. Indeed, the very principles, which gave rise to the duties breached in both Geyer v Downs and Introvigne, presuppose the foreseeability of “folly” amongst school children. The exchange between Counsel for the plaintiff and Ms Ferguson, a member of the Educational Executive of the College, relating to the propensity of young boys to imitate Superman, is accepted by all of the witnesses in these proceedings.

Breach of Duty

66 The duty of care owed by the College is, as has been stated, a non-delegable duty to ensure that reasonable care is taken of students whilst they are on the school premises during the hours the school is open for attendance.

67 In this case, the practice of the pupils, accepted by the College, was that some would attend without discouragement from just before 8.00 am. At the time that the College opened the gates and accepted students, it was under a duty to take reasonable care of them. Reasonable care, in the case of young students, in the numbers attending, required that which the school adopted after 23 August 2000, namely, formal supervision by one or more staff of the playground area in which the students were accommodated.

68 As previously stated, it is not the function of the College to insure its students. While duties may exist under the relevant occupational health and safety legislation, it is not those duties with which this Court is now concerned. Under the common law, a school authority is not required to guarantee that no injury will occur. However, this injury occurred because there was no effective supervision at the time that the plaintiff ascended to the first floor, at the time that his fellow students agitated for him to jump, and at the time he undertook the course of straddling the balustrade.

69 This is not, as has been previously noted, a case in which a momentary lapse in concentration, or the requirement to control more than one student, has allowed an accident to occur. This is a case which discloses systemic shortcomings in the method of supervision by the College during times when students were accepted into its care. It is a situation in which reasonable steps for the supervision of the students to provide reasonable care for their safety were not taken. The College has breached its duty of care to the plaintiff and liability arises.

70 Other factors also go to the breach of duty. Apart from the fact that no specified teacher was given duty relating to the supervision of the students, the students themselves were given nothing which would prevent boredom and the propensity to engage in conduct that may be dangerous. While there was a physical potential for teachers to monitor, albeit less than totally satisfactorily, from the staff room, that potential was not realised because of the positioning of blinds and notice boards which prevented teachers in the staff room from observing the students in the covered area.

71 As stated, for these reasons, there has been a breach of duty by the College.

72 I have not, in the foregoing, dealt with the issue of the particular and peculiar position of Mr Abraham as a teacher. The College relies on that fact to avoid or mitigate its responsibility on the basis that, due to his status, Mr Abraham was fully aware of the supervision regime and brought the child to school knowing of that fact. The significance, if any, of that fact on the liability of the defendant, or any contribution to the damages payable will be dealt with when the issues of contributory negligence and the cross-claim are discussed.

Causation

73 I have already made clear that the breach of duty by the College was the cause, or primary cause, of the injury. Adequate supervision could have and most probably would have prevented this injury. Moreover, as the witnesses called by the defendant, and the expert witness, confirmed, the mere presence of a teacher can obviate misbehaviour of children and render less probable the occurrence of an incident of this kind. This is so even in circumstances where the staff member has not seen the misbehaviour, which will lead to the incident or injury.

74 Further, there were, it seems, teachers on the first floor level at the time of the behaviour by the students which led to this injury. None of those teachers were called. I do not draw the inference, and cannot draw the inference, that there was additional negligence associated with their conduct. I do draw the inference that any evidence they could give would be of no assistance to the College, which inference allows me more readily to come to the conclusion that adequate supervision, as provided by the College after the date of the injury, and otherwise, was available and would have prevented this injury from occurring. Such a finding is more than that which is necessary to determine causation: March v E & M.H. Stramare Pty Ltd (1991) 171 CLR 506 at 509.

Contributory Negligence and Contribution by the Cross Defendant

75 The more complex issues in these proceedings relate to the question of contributory negligence and the duty, if any, of the cross-defendant and any contribution thereby. The College, the first and second defendants in the proceedings, have cross-claimed against the father of the plaintiff, Mr Boshra Abraham whom I have referred to as Mr Abraham, while referring to the plaintiff as either the plaintiff or Christopher.

76 The complexity associated with this cross-claim arises, firstly, because of the issues associated with the existence, if such be the case, of a duty of care by a parent giving rise to liability in negligence and, if such a duty exists, whether it has been breached. Secondly, the issue is complicated by the fact that, in this instance, the parent is also a teacher and a teacher at the Defendant College.

77 The complication in relation to the duty of care of Mr Abraham is that it depends for liability upon the duty of a parent but imposes on Mr Abraham the knowledge of a teacher at the school (which he is) and, it seems, the expertise associated with his status as a teacher. It is that interlinked knowledge and alleged expertise which creates the complication in determining the liability (if any) the content of the duty (if liability exists) and whether there has been a breach of the duty.

78 It is unnecessary to discuss the general duty of care of a teacher or the duty of care imposed upon Mr Abraham, as a teacher. Likewise, it is unnecessary to discuss the problems that would then arise with the College cross-claiming against an employee. The reason that these aspects are irrelevant is that the College does not claim against Mr Abraham in his capacity as an employee or in his role as a teacher at the College.

79 Rather, the cross-claim against Mr Abraham depends solely upon the duty imposed upon him as a parent. But the College submits that the fact that he is a teacher changes significantly the liability of the College and, if liability exists, the liability of the parent. This allegedly significant alteration to liability arises because of the state of knowledge of Mr Abraham as to the regime of supervision established at the College.

80 I find as a fact that the Interim Staff Handbook was given to Mr Abraham and that he had it in his possession well prior to 23 August 2000. As is obvious from the above, the College, even at the date of trial, and certainly up to and including the date of the injury, propounded the view that the informal supervision, provided by the College through staff who happened into the area where students were congregating, was a sufficient level of supervision to satisfy the standard of care incumbent upon it. The College exercised discipline over the children, through the staff, from the arrival of the first child in the morning.

81 I find that the majority or a substantial number of children had arrived by 8.20 am. I also find that the College, through directions of the Deputy Principal or Principal and from the Interim Staff Handbook, had made clear to all staff that the requirement to supervise and take responsibility for the safety of the children was a responsibility on staff that applied at all times during the presence of students: see, for example, paragraph [30] infra, Supervision. Children arriving before 8.30 am, on or before the date of the injury, were required to sit and/or talk in areas outside the staff common room and, therefore, were within the class of students described in the Interim Handbook, as outside the room in which there were teachers and were unsupervised.

82 The defendant submits that the College had implemented a “system of informal or indirect supervision introduced to deal with early arrivals” and that such supervision was sufficient to meet the duty of care imposed. No parent or teacher was informed by the College that the “supervision” was inadequate, or that the College considered the “supervision” inadequate. I reiterate that at no stage was any parent or teacher directed or told that students could not be brought to school before 8.30 am (I do not here include the presently irrelevant consideration of those students who regularly arrived between 7.30 am to 7.45 am).

Duty of Parent in Negligence

83 The College, who is both defendant and cross-claimant, submits that there is no all-pervasive immunity for parents from actions in tort at the suit of their children. The generality of that statement, while accurate, is unhelpful in determining when a duty does arise. Counsel for the cross-defendant refers to a duty of care arising as a result of a parent’s “commissions” or “positive acts”, but not in relation to “omissions” purportedly relying on Robertson v Swincer (1989) 52 SASR 356 and R v Davies [2005] NSWSC 324.

84 In Robertson, supra, the Full Court of the South Australian Supreme Court examined the actionable duty of care, if any, owed by parents to their child. The Full Court of the South Australian Supreme Court, while not binding, is extremely persuasive and, in any event, applies the High Court in Hahn v Conley (1971) 126 CLR 276.

85 However, to categorise the distinction between circumstances when parents are or are not liable as based solely on whether there is a commission or omission is to analyse incorrectly the rationale in Hahn v Conley, supra, and Robertson, supra: see also Posthuma v Campbell (1984) 37 SASR 321.

86 An analysis of Hahn v Conley, supra, reveals a rationale which goes beyond that dichotomy. Hahn v Conley establishes the principle that the parent of a child owes no actionable duty of care in negligence because of the relationship of parent and child. Barwick CJ, with whom McTiernan and Windeyer JJ, agreed said:

“I think that the view for which there is most judicial support and the view which commends itself to me, is that the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. Further, I think, that the predominant judicial view to be extracted from those cases, and again a view which commends itself to me as correct, is that, whilst in particular situations and because of their nature or elements, there will be a duty on the person into whose care the child has been placed and accepted, to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. … In the case of the parent, as in the case of a stranger, it seems to me that the duty of care springs out of the particular situation: the extent and nature of the steps which it may be necessary to take to discharge the duty may well be influenced by the fact of parenthood, though parenthood is not itself the source of the duty. …
In my opinion, the grandfather owed no legal duty to the child to prevent her leaving the house at the time she apparently did so, even though the grandparents had assumed the place of her parents for the time being. … Did a situation arise in which an obligation to take care to protect the child against danger was imposed on the appellant? It is important to examine the developing events from the time the child cried out whilst near the rear of her Uncle’s house. The grandfather, in my opinion, then had no relevant legal duty towards her. However, had he called her to come to him, he would have come under a duty to take reasonable care for her safety in relation to any danger to her which the crossing of the road would involve. That duty would spring, in my opinion, out of the fact that he beckoned her to him, or did something which he ought to have known would bring her to him. A stranger who did so could, in my opinion, in the same circumstances, come under the same duty, if the child was likely to respond positively to his call. … As the Judge found, he had the opportunity to cross the road and to stop the child making any attempt to cross it. But did these facts impose a legal obligation upon him to go to her aid, so that upon his failure to do so, with consequential damage to her, the child could have successfully sued him in tort? I think not. Whatever moral duty he may have had, and however imperative in good conscience, there was, in my opinion, no legal duty towards the child on which to base an action of negligence.” (at 283, 284, 285)

87 The rationale in Hahn v Conley, as is derived from the above passage, is that no actionable duty arises merely because of the relationship of parent and child. In order for a duty to arise, circumstances or a situation must arise or exist from which an obligation is imposed to take reasonable steps for the care of the child beyond the obligation imposed by the relationship of parent and child. Thus, if a parent has a child as a passenger in a motor vehicle and drives negligently (either by omission or commission), the child is in no worse position than any other passenger.

88 In my view this is the approach taken by the Full Court of the South Australian Supreme Court in Robertson v Swincer, supra. Chief Justice King said:

“The right to contribution is conditioned upon the existence in the respondents of legal liability to the plaintiff in respect of his injury. It was claimed that such liability exists by reason of the respondents’ negligence, that is to say a breach of a duty which they owed to the plaintiff. It was submitted that they were under a duty to the plaintiff to exercise reasonable supervision of the plaintiff in order to protect him from injury. [His Honour then referred to Hahn v Conley , supra , and as decided by the Full Court of the South Australian Supreme Court at (1971) 1 SASR 73 and to Posthuma v Campbell , supra ]. …
It is clear on the authorities that, irrespective of blood relationship, a duty of care to protect the child from harm may arise on a particular occasion from the particular factual situation then existing. Such a duty arises where a person, be he parent or stranger, has acted in relation to the child in such a way as to create a foreseeable risk of injury to the child which apart from that action would not have existed. …
In order to found liability in the present case there must be a duty on the parents which extends beyond the duty which arises when a person’s actions in relation to the child create the risk. The respondents did not take the plaintiff onto the road or do anything which might entice him into a situation of danger. They were engaged in the ordinary social activity of visiting friends with their family and of farewelling those friends at the conclusion of the visit. Their fault, if they were at fault, was an omission occurring in the ordinary course of discharging their responsibility for the care and supervision of the child, and consisted in failing to take the steps necessary to prevent the plaintiff from going out of the premises onto the roadway. The question of breach of duty can only arise on the present facts if a person in charge of a child who does no positive act in relation to the child of a kind which creates a risk of injury, nevertheless owes a duty to the child to supervise the child in a way which will protect the child from harm.” (at 359, 360)

89 There is no logical or rational basis to delineate between commission and omission for the existence of an actionable right. Kirby J starkly discusses the illogicality of such a distinction in R v Davies, supra. In discussing the existence of the duty, in the context of criminal liability, his Honour refers to Hahn v Conley, supra, and the distinction between acts and omissions and says:

“Of course such a distinction means the Court must characterise the parents’ conduct as either an act or omission. If parents were to leave a loaded gun accessible to a child and sometime later the child were to find the gun and injure himself or someone else, does the injury to that person come about through the act of the parents in leaving the gun lying around or by an omission to supervise the child?” (at [122])

90 Professor Yeo (Am I My Child’s Keeper? Parental Liability in Negligence (1998) 12 Australian Journal of Family Law 150) discusses these issues. Neither Hahn v Conley nor Robertson v Swincer stand for the proposition that acts or commissions give rise to a duty of care within the parent/child relationship. A parent, who opens a window through which a child falls, does not, without more, by that act only, create a legal liability. The act to which the High Court and the Full Court of the South Australian Supreme Court refer is an act which takes the relationship beyond that of the domestic parent/child relationship. While it is difficult to think of an example, it may theoretically be possible to take the relationship between parent and child beyond that of the domestic relationship by an omission. If the courts were prepared to impose a duty by acquiescence, for example, (see by analogy only, the occupier’s liability imposed in Doubleday v Kelly [2005] NSWCA 151 per Bryson JA) then an omission may impose an obligation beyond that of the domestic parent/child relationship. It is unnecessary for me to determine these issues.

91 Ultimately, whether an act of a parent, as distinct from an omission of a parent, gives rise to liability and damages to the child is not a matter which, for the reasons which now follow, needs to be finally determined in these proceedings.

92 The only relevant acts (or omissions) of Mr Abraham were his original choice of school for Christopher and/or the act of leaving him at school on the morning of 23 August 2000 (or conversely not himself supervising Christopher). Whether these are acts or omissions, they do not take the decision-making, or conduct, beyond the ordinary incidence of a domestic parent/child relationship. It is impermissible to regard knowledge of the parent, which, if there were a duty, may give rise to a breach of it, as the basis of the duty itself, i.e. as taking the conduct outside the parameters of normal parental responsibility so as to occasion legal liability.

93 I find that there is no duty of care owed by Mr Abraham to Christopher arising from the parent/child relationship. However, even if there were such a duty, I would hold that there was no breach of it.

94 Properly analysed, the breach of duty on which the College relies, is the act (or omission) of delegating to the College (or not, himself, taking steps for the care of Christopher) from 8.00 am to at least the time of the injury. This alleged breach of duty essentially claims Mr Abraham was negligent in allowing the College to care for Christopher. A range of issues arise from such a submission. It is sufficient, for present purposes, to reiterate that at no stage was Mr Abraham informed that he should not bring Christopher to school before 8.30 am (or before any particular time). The breach of duty, therefore, requires a knowledge of the “system of supervision” operated by the College prior to 8.30 am, which knowledge Mr Abraham had, but it also requires, and I find he did not have, the capacity and expertise to determine that the system of supervision was inadequate. The submission of the defendant depends, necessarily, on the proposition that Mr Abraham, because he is a teacher, is sufficiently expert to determine that the system of supervision, of which he knows, is inadequate and that, therefore, he was negligent in leaving Christopher in the care of the College.

95 There are a number of reasons that this submission does not withstand scrutiny. A most obvious answer is that the evidence before the Court does not establish the necessary level of expertise in the administration of a school that would warrant the Court holding that Mr Abraham had the capacity to determine that the level of supervision of the College was inadequate. Further, Mr Abraham’s expertise as a teacher, as adduced before the Court, was an expertise originally gained in Egypt and which involved him predominantly teaching at high school level. There is no suggestion in the evidence of an expertise, beyond his capacity as a parent, in the level of care and/or educational administration of a primary school or of primary school pupils. While Mr Abraham taught at primary level in the College, all of his previous teaching positions in Australia were at high schools. His teaching was confined, at least in relation to primary school students, to a basis, which required him only to teach a particular language from time to time and not be responsible for organising the general care of primary students.

96 A second reason that the submission cannot be sustained is that it is contrary to principle. A person contracting with a body, which holds itself out as carrying out the services for which it has contracted, is entitled to rely upon the expertise of the body and the capacity of the body to carry out its assumed tasks with reasonable care. In this case, a parent (be that parent a teacher or not) is entitled to rely upon the expertise of an educational institution, which has accepted into its care the person’s child, to take reasonable steps for the care of the child. It is not negligent, without more, to rely upon the capacity of a school to care for a child in circumstances where the school has accepted the child into its care.

97 While argument by analogy may be dangerous and recourse to the fear of “opening flood gates” less than optimum, the submission of the College, if it were accepted, would lead logically to the proposition that a child could sue her/his parent for choosing the wrong school or require every parent (or at least every parent with educational qualifications) to examine in detail all of the care arrangements throughout the day that an educational institution would be implementing.

98 Lastly, although it was not expressly submitted by the College on this basis, it seems that the College, in its submissions, is in effect submitting that Mr Abraham, because of his knowledge of the regime of supervision prior to 8.30 am, was consenting, perhaps on behalf of Christopher, to any injury caused by the negligence of the College, at least in this regard. Again, if the College were properly understood to be putting such a submission, it would fail because it would require not only knowledge of the regime but sufficient expertise to determine that the regime is not one which takes reasonable steps for the care of the child.

99 Given that, even in these proceedings, the College submits to the contrary, it is difficult to accept, and there is no evidence to this effect, that Mr Abraham (or any teacher) would have the expertise to determine that such regime would be insufficient in the circumstances of the College. I do not have to deal with the difficult question of whether a parent can assume, on behalf of a child, the damage from a negligent act as distinct from assuming the risk of injury from an activity which has necessarily inherent risks, e.g. some sport.

Contributory Negligence

100 Lastly, I deal with the submission of the defendant that Christopher Abraham should bear some responsibility for the damage caused by virtue of his failure to take care of himself. It is necessary to remind oneself of the context in which this is put. Justice Stephen in Geyer v Downs, supra, said:

“Children stand in need of care and supervision and this their parents cannot effectively provide when their students are attending school; instead it is those then in charge of them, their children, who must provide it. So it was that Winneke CJ in Richards’ Case [1969] VR at 138-139 said of a schoolmaster that:
‘The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours, the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury.’ ” (at 93)

101 The classic analysis and recitation of the principles of contributory negligence applicable to a child was that stated by McTiernan ACJ in McHale v Watson (1966) 115 CLR 199 from which it is clear that the age of the plaintiff is a most relevant factor in determining whether there has been contributory negligence and if so what proportion of the damages should be the responsibility of the plaintiff. McHale v Watson, supra, makes clear that children who are very young may be wholly incapable of exercising any of the qualities necessary to the perception of risk. It is always one of degree and one that takes account of the particular circumstances of the child.

102 The issue in this case is to what extent would a child of 9 perceive the risk associated with the conduct here in question. It is opportune for me to make clear that, on my finding, the plaintiff did not jump from the balustrade but slipped after sitting on it. He sat on it at the urging of one or more of his fellow students some of whom also urged him to jump.

103 The apportionment as between plaintiff and defendant for the damages arising from an injury involves the comparison of culpability and of the relative importance of the acts of the parties in causing the damage: see Podrebersek v AIS (1995) 59 ALJR 492. However, the “reasonable man” of which the High Court there speaks must take account of the relevant respective duties and capacities.

104 In this instance the skylarking and/or misbehaviour of the students was a foreseeable risk, the avoidance of which was a duty imposed upon the College. The behaviour of the plaintiff was the very risk against which some of the requirements of the College were directed. Insufficient steps were taken to obviate this expected, or at least anticipated, or foreseen, conduct.

105 On the other hand, the plaintiff was very young, below the age which, for example, the law would impose criminal liability. The apportioning of the responsibility for damage requires the weighing of the capacity of a 9 year old to care for himself and withstand peer pressure against the inadequate supervision of the College who were mindful of the very acts which the plaintiff performed and were required to take reasonable steps to protect the plaintiff from that type of risk.

106 Nevertheless, I do not hold that the plaintiff was wholly unaware of the risk involved in climbing the balustrade and sitting on it, although he may have been unaware of all of the consequences, as one would expect of a 9 year old. But the defendant, the College, must bear substantially all of the responsibility. I determine that the plaintiff deliberately undertook a course of action which he knew to be risky. I am unable to determine that he understood that the “riskiness” was a risk of serious injury. I take the view that the plaintiff did that, which could be reasonably expected of a boy of 9 in the company of his friends in an unsupervised environment. However, in this age of the recognition of personal responsibility, not even 9-year-old children are exempt.

107 I determine that there is contributory negligence and assess that contributory negligence in a manner which reflects the substantial responsibility of the College, and reduce the liability for damages of the College by 10 percent. While I am unable to find that the conduct of the plaintiff in taking responsibility for his own safety was less than that which could reasonably be expected of a boy of 9 in the surrounding circumstances with which he was faced, I accept that the plaintiff bears some responsibility and I balance that relative responsibility in those proportions. That assessment is, in my view, a reduction of the liability of the defendant that, in the circumstances of this case, is just and equitable.

Conclusion

108 I make the following orders and determinations:

a Verdict for the cross-defendant on the cross-claim;

b The first and second defendants are jointly and severally liable in negligence to the plaintiff for the damage suffered by the plaintiff in his fall from a first floor balustrade on the premises of the College conducted by the defendants at or before 8.08 am on 23 August 2000;

c The amount of damage is to be reduced by 10 percent on account of contributory negligence of the plaintiff.

109 My preliminary view is to make an order that the defendants pay the plaintiff’s costs of and incidental to the proceedings, as agreed or assessed, which costs will be payable forthwith. I am also inclined to order the cross-defendant’s costs of and incidental to the proceedings, as agreed or assessed. I will, however, hear the parties on costs or any other aspect of the terms of the order to be made.

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