Cranbrook School v Stanley

[2002] NSWCA 290

CITATION:	Cranbrook School v Stanley [2002] NSWCA 290
FILE NUMBER(S):	CA 40065/02
HEARING DATE(S):	21 June 2002
JUDGMENT DATE:	2 September 2002
PARTIES :	Cranbrook School (Appellant) Garth Stanley (Respondent)
JUDGMENT OF:	Meagher JA at 1; Heydon JA at 2; Hodgson JA at 86

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8411/99
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL:	Mr M Walton SC (Appellant) Mr C R R Hoeben SC/Mr P G Mahony (Respondent)
SOLICITORS:	Riley, Gray-Spencer (Appellant) Maurice Blackman Cashman (Respondent)
CATCHWORDS:	Tort - negligence - duty of care - personal injury - whether school "responsible for the care and welfare" of boarding students - in what sense school so responsible - absence of evidence directed to standards which should have been adopted by school - Limitation of actions - Limitation Act 1969 (NSW) - extension of limitation period - whether appropriate in particular circumstances - relevant considerations - ND
LEGISLATION CITED:	Limitation Act 1969 (NSW)
CASES CITED:	Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Commonwealth of Australia v Nelson [2001] NSWCA 443 CRA Ltd v Martignagno (1996) 39 NSWLR 13 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 O'Brien v O'Brien (1995) 35 NSWLR 664 Scarcella v Lettice (2000) 51 NSWLR 302
DECISION:	See paragraph 85

CA 40065/02
DC 8411/99

MEAGHER JA
HEYDON JA
HODGSON JA

2 September 2002

CRANBROOK SCHOOL v STANLEY

Judgment

1 MEAGHER JA: I agree with Heydon JA.

2 HEYDON JA: This is an application by an unsuccessful defendant for leave to appeal against an order made by Gibson DCJ on 14 December 2001 extending the time within which to commence proceedings to 14 December 2001.

3 The application for leave was heard concurrently with the appeal, and full argument was advanced, to the intent that if leave were granted the appeal could be decided without additional argument.

The background

4 The opponent was born on 16 December 1974. He was a pupil of the claimant’s in the years 1987-1992. On 11 August 1999 he filed a Notice of Application to Commence Proceedings in which he sought an extension of the limitation period. That order was made on 27 October 1999 by Christie DCJ. Despite the fact that the claimant was given prior notice of that hearing, as was its liability insurer, FAI Insurance Ltd, the claimant did not attend. Indeed, the unsatisfactory conduct of the liability insurer, which had the carriage of the claimant’s defence of the case, did not stop there. In a passage of which the claimant voiced no criticism, the primary judge said:

“After the order extending time was made, the defendant filed a defence (which did not plead any defence under the Limitations Act ) and arranged a medical appointment for the plaintiff with a psychiatrist. That report has never been served.
During 2000 the matter came up for call over and the defendant was invariably unready. On 18 July 2000 Registrar Howe noted the defendant was not…