Evdokiou v The Minister for Education No. DCCIV-96-593 Judgment No. D3527

[1996] SADC 3527

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Pirone

Hearing

11/11/96 to 12/11/96.

Catchwords

Student aged 11 years struck by bat swung by teacher in the course of playing game of T ball-steps required for playing the game demonstrated by student to teacher - teacher acted in breach of those instructions-student moved position and placed herself in risk zone unknown to teacher-teacher failed to keep proper lookout-liability apportioned 9/10 against teacher and 1/10 against student-general principles.

Materials Considered

• Wrongs Act 1936 27A ss3, referred to.
• PENNINGTON v NORRIS (1956) 96 C.L.R.10 at p16;
• McHALE v WATSON (1966) 115 C.L.R.119 at pp.215,227 and 229;
• THE CHILD'S CONSTRUCTION OF REALITY (1954) BY PIAGET at pp 377 and 378, applied.
• MYE v PETERS (1967) 68 S.R.(N.S.W.) 298 at p304;
• THE MACGREGOR [1943] A.C. 197 (HL) at p.201, considered.

Representation

Plaintiff HAROULA EVDOKIOU (an infant by her next friend Dimitrios Evdokiou):
Counsel: Mr. C.J. Allen - Solicitors: Armour &; Co.

Defendant THE MINISTER FOR EDUCATION:
Counsel: Mr. J.A. Telfer - Solicitors: The Crown Solicitor for the State of South Australia

DCCIV-96-593

Judgment No. D3527

10 December 1996

(Civil)

EVDOKIOU v THE MINISTER OF EDUCATION

Civil

Judge Pirone

This is an action by an infant plaintiff for the determination of the question of liability for injuries suffered by the plaintiff as the result of an incident that occurred on the 4th day of March 1992.

Although the defendant had denied liability on the pleadings, before the plaintiff called any evidence, its counsel conceded that liability for the plaintiff's injuries attached to his client, but contended that the plaintiff had been guilty of contributory negligence.My task, therefore, is to apportion liability between the parties.

Subsection 3 of Section 27A of the Wrongs Act 1936, as amended, provides that:-

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage........."

"Fault" is defined in subsection (1).It means "negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to a defence of contributory negligence".

The members of the High Court considered similar provisions (although in another context) in Pennington v. Norris (1956) 96 C.L.R. 10.The Court said at page 16:-

"What has to be done is to arrive at a "just and equitable" apportionment as between the plaintiff and the defendant of the "responsibility" for the damage. It seems clear that this must of necessity involve a comparison of culpability. By "culpability" we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man.To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant's negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff's "contributory" negligence is not a breach of any duty at all and it is difficult to impute "moral" blame to one who is careless merely of his own safety."

It is clear that apportionment of liability depends on culpability or responsibility in each case.It follows therefore that before the degree of culpability or responsibility can be ascertained, it is necessary to consider and to weigh the whole of the circumstances of the incident itself as well as the events leading up to it and the conduct of the parties at each stage.It is to that question that I now turn my attention.

Carol was a young child.She is now a young teenager.In determining the question of whether or not Carol was guilty of contributory negligence I must apply an objective test.When dealing with the matter in McHale v Watson
(1966) 115 C.L.R. 199, Kitto J. said at page 215-

"It seems never to have been doubted in any reported case from Lynch v. Nurdin
(1841) 1 Q.B. 29 (113 E.R. 1041) onwards, that contributory negligence on the part of a child consists in a failure to exercise the care reasonably to be expected of an ordinary child of the same age. .... In these words, as it seems to me, the whole matter is summed up: the standard of care is objective; it is the standard to be expected of a child, meaning any ordinary child, of comparable age not that which is to be expected of an adult; and the child's blamelessness, by the standard so determined, is treated as saving his conduct from being regarded as such a cause of his injury as to affect the question of the defendant's liability."

And in the same case, Owen J. said, at page 227:-

"It was conceded by counsel for the appellant - and rightly so - that where it is alleged against a child that he was guilty of contributory negligence, his age is a material factor and that his actions are to be judged by what would reasonably be expected of a child of like ageand development".

And His Honour went on to say (at page 229):-

"It is plain that in dealing with the question of contributory negligence on the part of a child, its age is a relevant fact since the care expected of it is that reasonably to be expected of a child of similar age, intelligence and experience".

In Mye v. Peters (1967) 68 S.R. (NSW) 298, the Court of Appeal held that "the test to be applied is an objective one and not one which is dependent upon the degree of intelligence of a particular child or the standard of indoctrination which it may have received" (cf. per Sugerman J.A. at page 304).

Some facts were either admitted or not seriously contested.I find those facts to be as follows:-

The plaintiff (who for the sake of convenience I shall hereafter refer to as ("Carol") is a young female person who was born on the 22ndday of February 1981.In 1992 she was a student at the Kidman Park Primary School ("the school").The school was operated by and was under the control of the defendant.As at the 4th day of March 1992 Anne Flaherty ("the teacher") occupied the position of acting principal of the school, was one of Carol's teachers, and was the supervising teacher of the combined physical education "P.E.") class.Carol was a member of that class.She had just turned eleven years of age and was in Year 6.

The incident which is the subject of Carol's claim occurred on the school grounds.It occurred during class time just before lunch on the 4thday of March 1992.At that time the students were engaged in a P.E. class but instead of having a structured lesson, whereby the whole class would participate in one activity, they had a free choice in the sense that they were free to participate in a number of activities.Different activities had been nominated for that purpose.

Carol had few friends.She did not mix well with others and for that reason she tended to keep very much to herself.On the occasion in question she decided to play by herself and for that purpose she elected to play a game known as "T-Ball".She had received appropriate instructions as to how to play that game from some professional softballers or baseballers who had visited the school in the past.Prior to the day in question Carol had played the game on at least ten occasions and probably more.The instruments required to play the game consisted of a bat, a ball and a tee stand.

Carol gave evidence as to how the game is played.Her evidence in chief was as follows:-

"A. You place the ball on top of the tee, you measure it before you hit just to see if

you can actually hit it in the widest space of the bat. (WITNESS DEMONSTRATES).

Q. Can you just stop there; you extended your arms out towards the window, what were you demonstrating when you did that.

A. I'm demonstrating measuring the ball; say the ball's here (INDICATES) I would have to get it so I could actually hit it.

Q. At the time you do that, are you holding anything.

Q. What do you do with the bat.

A. You measure it to see if you're going to hit in the wider part of the bat - the ball.

Q. After you measured what did you do.

A. The second step is you have a half swing - you don't follow through - just to measure if you're actually going to hit it, like a practise, like you swing but you don't hit the ball.It's like another measuring step.

WITNESS DEMONSTRATES)

Q. You're demonstrating swinging your arms - I know it's difficult sitting down - but you're swinging them from your right, across your body towards the left, is that right.

A. Yes, I am.

Q. Can I ask you whether you're left or right handed.

A. I'm right handed.

Q. And when you used a baseball bat did you swing it as a right hander or as a left hander.

A. I swung it as a right hander.

Q. Sorry, I stopped you again.Is there another step that you then took.

A. Yes, the third step is you follow through, try and hit the ball off the tee, and you end up on your lefthand side.

Q. And either you do or you don't hit the ball.

A. You do or you don't."

In the course of being cross examined Carol did not depart from the account as given in examination in chief.The defendant did not take issue with what had been said.I accept that evidence and make findings of fact in terms thereof. I specifically find that the playing of the game of T-Ball involves the taking of three separate and distinct steps as deposed to by Carol.For the sake of brevity I name those three steps as firstly to measure, secondly to take a half swing and thirdly to follow through.

Having decided to play T-ball Carol collected the three items that she required for her purpose and began to play the game after positioning herself on the edge of the oval and away from the other groups.In the meantime the teacher was moving about the oval supervising the activities of the other students.In the course of doing that the teacher spotted Carol playing by herself.She approached Carol, spoke to her and promised to return at a later stage with a view of playing with her, and she did so.Carol. in the meantime continued to play the game by herself.

What occurred after the teacher's return was subject to some dispute.Carol impressed me as a good, honest and straightforward witness.She spoke clearly, spontaneously and with certainty on those facts about which she was sure.If she was not certain about any of the facts about which she was being examined, or cross examined, she candidly admitted that being the case.

The teacher for her part, in my opinion, did her best to assist the Court as best she could, but she did not impress me as if she was sure of her facts.At times she made assumptions.At other times she was guessing.She was often thinking aloud.She appeared to be confused on some topics.On other topics she gave me the impression that at times she was exaggerating.She left me with a firm impression in that respect, especially with respect to the topic of the number of warnings which she says she gave to Carol and on the further topic of the manner in which those warnings had allegedly been communicated by her to Carol.

At the end of the day I have come to the conclusion that I prefer the evidence of Carol to that of the teacher whenever there is conflict between them.

In addition to hearing evidence from the plaintiff herself and from the teacher, I also heard evidence from a number of other witnesses who were called by and on behalf of the defendant.I also received various exhibits.

Having seen and heard the witnesses, and after reading and noting the transcript of evidence, I make the following further findings of fact being satisfied as to each of them to the appropriate degree.

The teacher completed her supervisory duties and returned to Carol as promised. Carol then showed her how to hit the ball off the tee stand.Both Carol and the teacher are right handed.In the course of the demonstration the teacher stood to the right of Carol.Carol discussed with the teacher each of the three specific steps which are required to play the game and demonstrated each of them to her.As Carol was demonstrating each step to the teacher, Carol explained what she was doing and why.The teacher was paying attention to what was being said to her.Whilst giving her evidence in chief what the teacher said on that topic was this.,-

"A.So when I came back she said to me, 'Come on, I'll show you how to hit with this bat because I'm good at softball'.I said 'Oh that's good' and I can't remember but I think she might have told me she played elsewhere, I'm not sure of that.So I took on the role of being innocent and saying 'Oh yes well, you can show me' and so she proceeded to show me and I pretended to be the student learning to use the softball bat, although I had used the bat a number of times before.So she said - we organised which way we were hitting and I have used the bat before, but not using that - the pole, there was a pole, you know it's a stationary thing, you put the ball on the top.

WITNESS SHOWN EXHIBIT Pl

Q. Do you recognise anything on that.

A. Yes that's the pole, or as like a pole.

Q. Now you were telling His Honour that you hadn't used a pole like that before.

A. No I hadn't, I'd seen the children use it but I hadn't actually used it myself.I'm used to swinging, someone throwing and swinging, so I found it odd having a stationary ball there as well.So Carol said she'd show me how to do it and where to stand and all that, so I said to her 'Okay I'm ready to hit now, you get out of the way'.I remember distinctly going like that, my actions were like that and I think I might even have put her in the spot, and -"

Following the demonstration, as given to her by Carol, the teacher took the bat and attempted to hit the ball.She assumed the position which had previously been occupied by Carol.Carol, for her part, moved to the right and slightly to the rear of the teacher.The teacher commenced and completed the first step, which I have previously referred to as "to measure", and did so satisfactorily.Before the teacher took the second step, namely the half swing, and unknown to the teacher, Carol moved to the left of the teacher and positioned herself some one to one and a half metres away.As the teacher was about to commence the second step involving the half swing, Carol bent her body forward so that she could best observe what the teacher was doing.I reject evidence that Carol moved forward and/or that she stepped forward or approached the teacher, either as the teacher commenced the second step or in the course of taking that step.The second step which was being taken by the teacher required the teacher to stand to the side and to swing the bat in an arc to a point until the bat would be either very close to, or would nearly touch, the ball as it sat on the tee but without actually coming into contact with the ball.The teacher was not expected to swing the bat past that point.Carol had no reason to suspect that she would.In fact when demonstrating that particular step to the teacher, Carol had specifically instructed the teacher not to go past that point except when in the course of taking the third and final step.

Contrary to the instructions that she had received, and without Carol expecting her to do so, the teacher did not stop the bat at the tee.She continued the full swing and in doing so caused the bat to strike Carol in the region of the left side of her head.I reject the evidence of the teacher that she warned Carol as and when she says she did.I am satisfied that she warned her on one occasion only and that the warning was given when Carol was standing to the right of the teacher.I find that the teacher gave no further warnings.I further find that the teacher did not keep a lookout for Carol and did not know or take steps to ascertain Carol's position at any time after completing the first step and before commencing or in the course of taking the second step.

As a result of the impact Carol suffered various injuries.I am not presently concerned with the nature and extent of those injuries.

It was the defendant's case that the plaintiff was guilty of contributory negligence in that:

(a) she failed to obey an instruction of [the teacher] to stand out of the way while [the teacher] attempted to hit the ball;

(b) failed to keep any or any proper lookout for the bat as it was swung by [the teacher];

(c)attempted to approach [the teacher] when it was not safe to do so.

Applying the test, to which I have referred it must follow that if the child is unable to understand the nature and the likely consequences of his or her actions, he or she is not held negligent, but that given perception of the risk, he or she must display the judgement and behaviour proper for a child with like attributes.

Generally speaking the degree of awareness would bear a close relationship to the age of the child.It would seem to be reasonable therefore that the older the child the greater the degree of its awareness and, the greater must be the apportionment against him or her.

Allowing for the fact that Carol was still only 11 years of age I find that she had the same capacity for taking care of herself as any normal girl of her age. She was in year 6. She had no difficulty at school.She was quite intelligent and alert.I am unable to find that her age, intelligence, alertness and experience placed her in a category outside, in the sense of either above or below, that of a normal child.I make a positive finding that she had the capacity to conform to the standard to which children of her age may reasonably be expected to conform.

The question which poses itself is this: what degree of care in the circumstances of this case should Carol have reasonably have been expected to take for her own safety.I think that Carol was or should have been aware of the risk of injury being suffered by an observer standing to the left and within striking distance of a right handed batter.She was familiar with the game.She had played it before.She had received instructions from professional people.She had herself placed the teacher to her right rather than to her left when she was demonstrating how to play the game to the teacher.

Adopting the most indulgent view of Carol's conduct I think that the evidence makes it plain that if she had remained at all times to the right of the teacher, what happened would not have happened.I think that the evidence also makes it plain that even after she had positioned herself to the left of the teacher what happened and/or the effects thereof, might have been avoided and/or minimised if either she had positioned herself further to the left than she did, or if she had stood still without bending her body forward as she did.

On the facts I am satisfied and find that there was some contributory negligence on the part of Carol and that she cannot be absolved from some responsibility for what happened notwithstanding that she did not expect the teacher to take the full swing as and when she did.

Having said that, however, I must also say that in apportioning the degree of culpability for what happened, in my opinion the teacher's negligence far outweighed Carol's lack of care for her own safety.Children are not, and are not expected to be, as responsible as adults.Children as a group have less foresight, experience and prudence than adults.In any event I must remember that the teacher was the acting principal of the school.She was the supervising teacher of the activities of the students, including those of Carol.She was in charge of Carol.She was duty bound to supervise her and to protect her from foreseeable risk of harm.Although she had not previously played tee ball she had nevertheless batted on many occasions and was, or should have been, well aware of the risks involved in the activity in which she engaged.I think that she must be held to have been predominantly responsible for what happened.

The answer to the question posed ante, remains one of proportion of balance and relative emphasis.It involves weighing different considerations.As Lord Wright said in The MacGregor (1943) AC 197 (HL) at page 201:-

"It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations.It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds."

At this point I think that a quotation from the book entitled "The Child's Construction of Reality (1954) by Piaget at pages 377 - 378 is appropriate. What the author said was this:-

"Undoubtedly the child no longer behaves, as did the baby, as though he commanded everything and everybody.He knows that adults have their own will, that the rain, wind, clouds, stars, and all things are characterized by movements and effects he undergoes but cannot control.In short, on the practical plane, the objectification and spatialization of causality remain acquired.But this does not at all prevent the child from representing the universe to himself as a large machine, organized exactly by whom he does not know, but organized with the help of adults and for the sake of the well-being of men and particularly of children.Just as in a house everything is arranged according to a plan, despite imperfections and partial failures, so also the raison d' etre for everything in the physical universe is the function of a sort of order in the world, an order both material and moral, of which the child is the centre.Adults are there 'to take care of us', animals to do us service, the stars to warm us and give us light, plants to nourish us, rain to make the gardens grow, clouds to 'make night', mountains to climb on, and lakes for boats, etc.Furthermore, to this more or less explicit and coherent artificialism there corresponds a latent animism which endows everything with the will to play its role and with Just the force and awareness needed to act with regularity."

Doing the best I can with the material before me, I apportion responsibility for the damages sustained by the plaintiff as to nine tenths against the defendant and as to one tenth against the plaintiff.Declaratory Judgment will be entered accordingly.

I will hear counsel on any other order that may be sought.