Farrah Hadba by her next friend and father Nouhad Hadba v The Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (As St Anthony's Primary School)
[2003] ACTCA 25
•18 December 2003
FARRAH HADBA by her next friend and father NOUHAD HADBA v THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY’S PRIMARY SCHOOL)
[2003] ACTCA 25 (18 December 2003)
NEGLIGENCE – eight year old child injured when pulled from flying fox in school playground by a fellow student – whether breach of duty of care in failing adequately to supervise its use – relevance of competing demands for supervision – function of appellate court on appeal from a finding of primary judge that school authority was not negligent
Supreme Court Act 1933 ss 37N and 37O
Wyong Shire Council v Shirt (1980) 146 CLR 40 followed
Beaumont v Surrey County Council (1968) 66 LGR 580 cited
The Commonwealth of Australia v Introvigne (1982) 150 CLR 258 followed
Clark v Monmouthshire County Council (1954) 52 LGR 246 referred to
Rich v London County Council (1953) 1 WLR 895 mentioned
Romeo v Conservation Commission of the Northern Territory (1997-1998) 192 CLR 431 followed
Warren v Coombes (1979) 142 CLR 531 followed
Devries v Australian National Railways Commission (1993) 177 CLR 472 followed
Abalos v Australian Postal Commission (1990-91) 171 CLR 167 followed
Fox v Percy (2003) 197 ALR 201 followed
Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] 122 FCR 110 cited
ACT Schools Authority v El Sheik (2000) ATR 81-577 cited
Carmarthenshire County Council v Lewis [1955] AC 549 mentioned
Commonwealth of Australia v Stokes (unreported, Supreme Court of the ACT, Gallop J, 15 November 1996) mentioned
Biogen Inc v Medeva plc (1996) 36 IPR 438
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 164 ALR 293 cited
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 cited
Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1999] FCA 391 cited
Aktiebolaget Hassle v Alphapharm (2000) 51 IPR 375 cited
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 7 - 2003
No. SC 225 of 2002
Judges: Higgins CJ, Crispin P, Spender J
Court of Appeal of the Australian Capital Territory
Date: 18 December 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2003
) No. SC 225 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:FARRAH HADBA by her next friend and father NOUHAD HADBA
Appellant
AND:THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY’S PRIMARY SCHOOL)
Respondent
ORDER
Judges: Higgins CJ, Crispin P, Spender J
Date: 18 December 2003
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The order number 3 of Connolly J of 4 April 2003, namely, “There be judgment for the first defendant against the plaintiff with costs”, be set aside.
Judgment be entered for the appellant against the respondent in the sum of $105,000.
The respondent pay the appellant’s costs of the appeal, and of the proceedings before Connolly J.
The cross appeal be dismissed with costs.
IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2003
) No. SC 225 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:FARRAH HADBA by her next friend and father NOUHAD HADBA
Appellant
AND:THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY’S PRIMARY SCHOOL)
Respondent
Judges: Higgins CJ, Crispin J, Spender J
Date: 18 December 2003
Place: Canberra
REASONS FOR JUDGMENT
HIGGINS CJ:
I have read the reasons of Crispin P and Spender J. I need not repeat the facts and the history of the matter set out by Crispin P. I agree with Crispin P and regrettably disagree with Spender J. I add only the following comments.
There was a need, recognised in respect of the younger age group of pupils, to maintain constant supervision of the play equipment area.
This was achieved by one teacher being assigned to that duty and another patrolling other less used areas.
This did not amount to constant supervision in respect of each item of equipment separately.
Rather the presence of a teacher specifically tasked to patrol the play equipment area ensured that those who would act mischievously on that equipment when a teacher was absent would not have that opportunity.
There was no need for hindsight, thererfore, to put in place measures to achieve that result. Rather the school had already done so, but applied the system only to the more junior students’ area, though the risk was slightly greater given the flying fox, and the relevant areas to be supervised were otherwise indistinguishable as between the junior students and those more senior.
In my view, the learned primary judge concluded incorrectly that the plaintiff’s case would require separate supervisors for each item of play equipment. Nothing, in that respect, turns on the credibility of any witness. Rather it is a conclusion based on the undisputed evidence as to the layout of the two relevant areas and the system of supervision prescribed for one relevant play area as opposed to the other. It required no change in available resources. The uncontroverted evidence was that all the senior playground could be supervised by one teacher provided he or she was not called away to other areas.
It follows that I agree with the learned President that this appeal should be upheld. In that event, the parties are agreed that the quantum of damages should be assessed at $105,000 and judgment entered accordingly. I agree that the respondent should pay
the appellant’s costs to date both here and below. I agree that the cross-appeal also fails for the reason given by Crispin P.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 18 December 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2003
) No. SC 225 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:FARRAH HADBA by her next friend and father NOUHAD HADBA
Appellant
AND:THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY’S PRIMARY SCHOOL)
Respondent
Judges: Higgins CJ, Crispin P, Spender J
Date: 18 December 2003
Place: Canberra
REASONS FOR JUDGMENT
CRISPIN P:
The appellant appeals against a decision of Connolly J made on 4 April 2003 dismissing a claim against the respondent for damages for personal injuries sustained by the appellant when, as an eight year old child, she fell from a flying fox at St Anthony’s Primary School at Wanniassa in the Australian Capital Territory. During the morning recess on 25 February 1999, the appellant had been standing on the platform of the flying fox holding on to the triangle bar and had been about to swing forwards to ride it to the other side of the apparatus when two of her peers, a boy and a girl, grabbed each of her legs. She struggled to free herself and on several occasions told them to stop and let her go. The girl complied with her request but the boy maintained his grip even when the appellant continued to shout “stop, let go!”. Her hands then slipped off the bar and she fell back onto the platform and then onto the ground. As a result of the accident she sustained injuries to her nose and lips and damaged her teeth. She had successive dental operations to repair the damage to her teeth.
The appellant subsequently brought proceedings by her father, who acted as her next friend, claiming damages against the respondent for negligence in inadequately supervising the flying fox and damages against another defendant for negligence in the provision of dental treatment. The latter claim was subsequently settled for the sum of $15,000 plus costs. The claim against the respondent proceeded to trial on the issue of liability, though counsel had agreed that, if liability were to be established, damages should be assessed in the sum of $105,000.
His Honour ordered that there be judgment for the respondent with costs.
There are two appeals; one by the appellant challenging the decision to dismiss her claim and the other by the respondent challenging the decision to order her to pay costs on the usual party and party basis rather than on an indemnity basis.
As his Honour observed, there had been no evidence as to the general usage of flying foxes in primary schools throughout Canberra, but the evidence had revealed that immediately after the accident the Deputy Principal of St Anthony’s, Mr Smith, padlocked the flying fox from which the appellant had fallen. Mr Smith explained that he had intended to check whether the accident had occurred as a result of faulty equipment. The flying fox was eventually replaced by other play equipment including a set of “monkey bars” after Mr Smith received some advice to the effect that the flying fox included a sliding mechanism that was potentially unsafe because of the risk to children trapping their fingers in it. His Honour noted that the plaintiff’s accident had been of a different nature and said that he was not satisfied that the decision to replace the flying fox demonstrated that it had been inherently dangerous or that liability for the accident was thereby established. Hence, the appellant’s case was dependent upon the level of supervision provided by the school at the relevant time.
Four teachers had been rostered on playground duty during the recess period, with two being deployed to supervise the “junior” children in the bottom oval, asphalt and tuckshop areas and another two being deployed to supervise the top oval where the “senior” children played. The term “junior” applied only to children in kindergarten, years one and two whilst those in years three to six were regarded as “senior” children. The duties of the two teachers allocated to supervise the senior children, whose ranks included the appellant and her eight year old classmates, had been subdivided with one being deployed to supervise children in the areas described as “path, oval and between units” and the other to supervise those in the areas described as “toilets, bubblers and fixed equipment”. It was common ground that the latter term referred to the play area where the flying fox was located. His Honour seemed to accept that the description should have been expanded to include a handball area adjacent to the play equipment.
A somewhat different approach had been taken in relation to the supervision of the more junior pupils. One of the two teachers on playground duty had been required to “monitor tuckshop, toilets, asphalt and ovals” whilst the other had been required only to “supervise playground equipment”.
On the morning of the accident the teacher allotted the task of supervising the playground equipment in the senior area was Mrs McNamara. Mrs McNamara said she had understood that she had been responsible for “supervising the play equipment and eating area that’s adjacent, the walkway area that’s adjacent to the eating area, the senior and junior toilets which are at either end of that walkway and the bubblers and the large handball area that’s adjacent also to the play equipment”. She said she had been patrolling all these areas and explained that she spent most of her time in the playing area but also moved about in order to be able to see the bubblers on both sides of the toilet block, the handball courts and the doors to the toilet area. She acknowledged that in looking at the bubblers and the toilet block she had been obliged to look away from the play equipment. The behaviour of the children using the play equipment that morning had otherwise been appropriate and there had been nothing to put her on notice of the need to pay particular attention to the flying fox.
Immediately prior to the accident she turned away from the flying fox and walked towards the Year 6 classroom units and then into an area described as the gap between the toilet block and the adjacent unit. In the course of doing so, she saw some children in the Year 6 classroom units. She tried to attract their attention, asked them what they were doing there and told them to come out. She used quite a loud voice but they apparently did not hear her. She walked towards the door to intervene but, as she approached, two children caught up with her and told her that the plaintiff had had the accident.
His Honour was satisfied that the accident had occurred during a period of 20 to 30 seconds when Mrs McNamara was not looking at the playground equipment because her attention had been drawn to the presence of students in the classroom area which was “out of bounds”. His Honour found that she had acted appropriately in attending to apparently unsupervised children in a classroom and rejected the suggestions that the behaviour of those children was not inherently dangerous or that she could have adequately attended to them by sending another child to summons them or to inform the other teacher.
His Honour observed the act of pulling the appellant’s legs had been in breach of school rules. Mrs McNamara had devoted the bulk of her time to supervising the play equipment and had acted appropriately in attending to “other areas of her responsibility”. The duty of care imposed on a school authority did not extend to requiring a teacher to be stationed at each item of play equipment solely to monitor the use of that item of equipment.
His Honour also rejected the suggestion that one or more additional teachers should have been on playground duty, observing that the system in fact adopted of having four of the twenty teachers on duty each day meant that each teacher would have been required to undertake playground duty only one day per week and that such a system was not unreasonable.
In challenging his Honour’s finding that a breach of the respondent’s duty of care had not been established, Mr Purnell SC argued that the use of the flying fox by young children with little experience in its use gave rise to a foreseeable risk of injury and that the respondent had a duty to take reasonable steps to alleviate that risk. The most obvious means of doing so was by the provision of adequate supervision whilst the apparatus was being used and that clearly required the presence of a teacher in the immediate vicinity. The presence of a teacher was likely to deter potentially dangerous misbehaviour and, in any case, a teacher would be able to intervene if necessary. On the morning in question both the restraining influence which Mrs McNamara might have exercised and her opportunity for close supervision were effectively removed once she left the area containing the play equipment and went to an area where the children could not see her and she could no longer see how the flying fox was being used. Hence, during that period at least, there had been a failure to take reasonable steps to alleviate the foreseeable risk of injury.
The nature of the duty of care such as that owed by a schools authority to pupils is sometimes stated in terms which suggest that there is an obligation to do whatever is necessary to prevent any foreseeable risk of any injury. That is incorrect. As Gallop J said in Commonwealth of Australia and Australian Capital Territory Schools Authority v Justin Kenneth Stokes (unreported) 1996 ACTSC 117 at par 25-26 -
A school authority is not an insurer. Its duty in relation to students under its control and supervision is to take reasonable care for their safety, that is, it is one of affirmative action to take reasonable steps to protect them against risks of injury which reasonably ought to be foreseen (Richards v State of Victoria [1969] VR 136 at 138). That test predicates a risk of some injury, not necessarily the very injury actually sustained by the plaintiff in the way he sustained it, but a risk of injury of some kind to someone as a result of disobedient horseplay or foolhardiness in the absence of adequate supervision (Bills v State of South Australia (1982) 32 SASR 312 at 319).
The general concept is that the degree of supervision needed must be such as to avoid external dangers which might threaten immature children and also prevent them from inflicting injury on each other (Geyer v Downs [1975] 2 NSWLR 835 at 845).
Despite what is sometimes suggested, an allegation of a breach of a relevant duty must not be judged by reference to some standard of perceived perfection and it is not sufficient for a plaintiff to demonstrate that some avoidable of injury may be discerned with the benefit of hindsight and, perhaps, time for reflection that was not available to those whose conduct is called into question. In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Kirby J said at 480 -
Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be “balanced out” before a breach of the duty of care may be found . . . It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness.
The general principles governing liability for negligence were succinctly stated by the High Court of Australia in Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47-48 -
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved the risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception that the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard response to be ascribed to the reasonable man placed in the defendant’s position.
Whilst, this formulation referred to the “conduct” of a reasonable person in the defendant’s position, the same principles obviously apply to cases in which the breach of the relevant duty of care is said to have been a failure to take reasonable steps to alleviate a foreseeable risk of injury. In determining what the hypothetical, reasonable person would have done in response to a foreseeable risk of injury, one must obviously consider all of the prevailing circumstances including, when relevant, the ages of children in need of protection and the fact that only the schools authority to whom their care had been entrusted would have been in a position to provide it. Hence, in Stokes, Gallop J cited with approval the observations of Geoffrey Lane J in Beaumont v Surrey County Council (1968) 66 LGR 580 at 585 that -
. . . it is a headmaster’s duty, bearing in mind the known propensities of boys and indeed girls between the [relevant] ages, to take all reasonable and proper steps to prevent any of the pupils under his care from suffering injury from inanimate objects, from the actions of their fellow pupils, or from a combination of the two. That is a high standard.
The High Court of Australia also considered the duty of schools authorities, observing in TheCommonwealth of Australia v Introvigne (1982) 150 CLR 258 at 269 and 270, per Mason J that -
A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance.
. . .
. . . the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty of the performance of which cannot be delegated.
Mason J added, at 271 that -
The immaturity and inexperience of pupils and their propensity for mischief suggest 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.
The scope of the duty may not always be easily determined. A schools authority will have responsibility for students of differing ages, temperaments, propensities and needs. As Gallop J pointed in Stokes at [30], some balance must be struck between meticulous supervision and the object of encouraging sturdy independence. Furthermore, any plan for supervision must be practical having regard to the staff available, the nature of the school grounds and the manner in which its use may be governed (see also Carmathenshire County Council v Lewis [1955] AC 549 at 566). However, in considering what level of supervision may be appropriate, a school authority may not rely wholly upon a blithe assumption that its pupils will adhere to the school rules. As Mason J said in Introvigne at 266, it is - “notorious that school pupils in large numbers, if left to their own devices in a recreation area, will on occasions engage in activities involving some risk of personal injury”.
In the present case, the accident apparently occurred before the appellant had actually left the platform to travel to the opposite side of the apparatus but there was, nonetheless, a foreseeable risk of injury. The triangle bar would obviously have been less stable than a fixed bar and the appellant had taken hold of the bar with the intention of swinging forward to go across to the other side of the apparatus. Furthermore, it is not the precise injury or mechanism of injury that must be foreseen. As previously mentioned, it is sufficient for a plaintiff to demonstrate that there was a foreseeable risk of injury of some kind and that a reasonable person would have sought to alleviate it by the provision of adequate supervision.
Whilst, as his Honour properly pointed out, it would have been unrealistic to expect that a teacher be stationed at every item of play equipment, the plaintiff’s case was not dependent upon such a proposition. Mr Purnell SC, who appeared on her behalf, argued only that there should have been a teacher assigned to the senior play area where the flying fox and other equipment made available to children in Years 3 to 6 was located. The other teacher assigned to supervise the senior students during recess should have been left to ensure the safety of children in other areas such as the toilets or, if that proved to be beyond the capacity of a single teacher, then a further teacher should have been assigned.
It may be noted that the system actually adopted for supervising the junior pupils involved an arrangement of the kind suggested. The sole responsibility of one of the two teachers was to supervise the children in the junior play equipment area, whilst the other was responsible for supervising those in the other areas available to them. There was no apparent impediment to the adoption of a similar system for the more senior pupils. Yet the system in fact adopted required the teacher responsible for supervising children in the senior play equipment area to go to other areas including the toilets. It was this requirement that caused Mrs McNamara to leave the immediate vicinity of the play equipment and go to an area where she could not see what the children were doing and they could no longer see her.
The school had approximately 540 pupils and, since those in four of the seven grades were regarded as “senior” pupils, it seems likely that Mrs McNamara and one other teacher had been required to supervise about 300 children. Mrs McNamara volunteered the statement that most of them were in the play area and did not seem to demur from the suggestion that 95% of them were congregated in that area. It was not suggested that this involved an abnormal or unexpected distribution. It was, of course, in this area that the play equipment was located and in which children could have been expected to have been climbing and, perhaps, competing with each other for access to popular items of equipment.
It was also the area that contained the flying fox. Whilst Mr Smith resisted the suggestion that the machine was inherently dangerous, the fact that a child using it dangled over ground from a triangle moving from one side of the apparatus to the other obviously involved some additional measure of risk than that involved in equipment such as monkey bars which have no moving parts. Mr Smith was obviously conscious that there was some measure of additional risk because he conceded that there had been accidents where children had fallen off and the school had instituted a rule that only children in Years 3 to 6 could use the equipment. When asked what was the reason for that rule he explained – “Because of the height and the nature of the equipment I suppose in that you know we wanted to make sure that the children had been skilled up to a certain level before they were using that equipment”. Furthermore, both Mr Thiele, who was the plaintiff’s teacher, and Mrs McNamara had taken their classes out to the flying fox and given specific instructions as to its safe use.
In my opinion, there was an obvious need to maintain constant supervision and I can see no reason why the practice adopted in relation to the play area for the junior pupils could not have been followed. Whilst it is true that the junior pupils were even younger, the appellant and, no doubt, her class mates were only eight years old and the accident occurred during the first month of the first year during which they had been permitted to use the flying fox.
During the hearing of the appeal Mr Gregg, who appeared for the respondent, seemed to suggest that Mrs McNamara had been obliged to leave the playground area because she had seen the children in the classroom and had been obliged to attend what she perceived to be a potentially dangerous situation. The evidence does not support such a proposition. Mrs McNamara was asked in evidence whether something had happened to cause her to walk towards the Year 6 unit and replied, “No, I just knew I had to do it, that was part of my job and that’s why I went there”. Similarly, when asked why she walked through the gap occasioned by the toilet block in the adjacent unit she explained, “because it was part of my job and I thought I must go around there and just see that – that was expected of me . . .”. It was only when she walked into that area with the intention of checking the behaviour in the toilets that she observed children in the Year 6 classroom. Consequently, it seems clear that she left the play area not in response to some unexpected emergency but in fulfilment of the requirements imposed upon her by the system adopted by the respondent.
Mr Gregg also stressed the fact that there had been only 20 to 30 seconds during which she had not been in a position in which she was able to observe the play area. Whilst that may be true, she had clearly walked some distance from the equipment before reaching the point where she could no longer see the area and, even if she had occasionally looked behind her, would have had her back turned for much of the time involved. Indeed, it appears that it was during that 20 to 30 second interval that other children were able to catch up with her and tell her that the appellant had already had an accident. Hence, it is by no means clear that the accident occurred when she was actually around the corner and proceeding towards the Year 6 classroom rather than during the time she was walking away from the play area with the intention of inspecting the toilets. In any event, the accident obviously occurred whilst she was away from the play area and the duration of her absence would appear to be of little importance.
Whilst I accept that the deployment of an additional teacher would have prevented the school from maintaining the convenient policy of requiring each teacher to do playground duty only one day per week, considerations of that nature cannot excuse a failure to provide the level of supervision reasonably required by the prevailing circumstances. It would plainly be inappropriate to leave children at a small country school unsupervised for most of the week because there were only one or two teachers and each wished to restrict his or her playground duty to one day per week. In any event, it was not shown that the other teacher assigned to supervise the more senior pupils during recess could not have been redeployed to cover areas such as the toilets which were some distance from the play area.
Whilst the system adopted by the school might otherwise have been adequate, I have ultimately concluded that the use of the flying fox by eight year old pupils who were relatively unfamiliar with the apparatus required constant supervision and that teachers such as Mrs McNamara should have been stationed in the play area at all times when the apparatus was in use. If that proved impracticable for reasons that do not appear from the evidence, then the apparatus should have been padlocked to prevent its use when such supervision was not available. As it was, she was required to leave the area and, as a consequence, her restraining influence was effectively removed and she was unable to either see or quickly respond to the situation of potential danger to the appellant that emerged during her absence.
Hence, whilst I agree with the learned trial judge’s conclusion that Mrs McNamara acted reasonably and appropriately, I am unable to agree that the appellant had failed to establish any breach of the relevant duty of care. In my opinion, the failure to modify the system of playground duty so that a teacher would be available to provide constant supervision during the use of the flying fox did involve a breach of the respondent’s duty of care to the appellant.
That leaves only the issue of causation. A plaintiff must also demonstrate that, having regard to the nature and duration of the conduct leading to the injury, a reasonable system of supervision would have been likely to prevent it (see, for example, the reasoning applied in Clark v Monmouthshire County Council (1954) 52 LGR 246; Beaumont v Surrey County Council (supra). However, in the present case, that issue may be readily resolved. There was clearly no misconduct in relation to the use of the flying fox whilst Mrs McNamara was present and it seems unlikely that either of the children who grabbed the appellant’s legs would have done so had she remained. Furthermore, even if both had been undeterred by her presence, she would have been in a position to have seen what was happening and to have responded to the appellant’s loud and repeated cries for them to let her go. I have no doubt that the accident would not have occurred.
I would allow the appellant’s appeal, set aside the verdict in favour of the defendant and, in lieu thereof, order that judgment be entered for the appellant in the sum of $105,000 plus costs.
It follows, of course, that I would dismiss the respondent’s appeal against the decision not to require the appellant to pay costs on an indemnity basis. However, even if I had taken a different view of the primary appeal, I would have had no doubt that the respondent’s appeal should have been dismissed. In my view, it was completely without merit. A claim cannot be said to have been unreasonably pursued merely because a confident defendant asserted that it was untenable and invited the plaintiff to discontinue it.
I would also order the respondent to pay the costs of both appeals.
I certify that the preceding paragraphs numbered nine (9) to forty-three (43) are a true copy of the Reasons for Judgment herein of his Honour , Justice Crispin.
Associate:
Date: 18 December 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2003
) No. SC 225 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: FARRAH HADBA by her next friend and father NOUHAD HADBA
Appellant
AND:THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY’S PRIMARY SCHOOL)
Respondent
Judges: Higgins CJ, Crispin P, Spender J
Date: 18 December 2003
Place: Canberra
REASONS FOR JUDGMENT
SPENDER J:
I have had the opportunity of reading the reasons for judgment of Crispin P in draft form. Regrettably, I am in profound disagreement with his Honour’s conclusion that Connolly J made appealable error in finding that the plaintiff had not established that the school authority was in breach of its duty to a child committed to its care.
It is only human to feel sympathy for a child injured as a result of an incident in a playground of a school. It is also very easy to be wise after the event, and conclude that if the child had been under constant supervision the accident would not have occurred.
Yet, in my respectful opinion, it is wrong to conclude that the undoubted duty on a school to take reasonable care to prevent injury to children in its care requires that, because there is some risk of injury in the absence of constant supervision, the duty on the school extends to the necessity to provide constant supervision. In my respectful opinion, there is simply no basis for an appellate judge to, as Crispin P does in par 30 of his Honour’s reasons, conclude that “the use of the flying fox by eight-year old pupils … required constant supervision”, with the consequence that the trial judge who rejected such a requirement had committed appellable error.
Even if a teacher had been assigned to supervise only the playground area and no other area, (as Crispin P concludes was a requirement of the duty that was on the school authority), the plain fact is that even under such a system, the flying fox equipment and the children playing on it would not be under constant supervision: even if the area of the “senior” playground was the subject of supervision by a teacher exclusively concerned with such area, such supervision would not mean that children in the vicinity of this particular piece of equipment would be constantly monitored.
Further, when a trial judge properly directing himself to the law to be applied concludes, as a matter of assessment and judgment, that the level of supervision that the school provided was reasonable in all the circumstances, with the consequence that negligence by the school authority has not been proved, it is wrong for an appellate court to overrule that finding by, in effect, substituting its own conclusion as to the content of the school’s duty to a child at the school.
The fact of the matter is that the flying fox equipment had really nothing to do with this case. It was the occasion of the plaintiff’s injury, not the cause of it. The plaintiff child was injured because a fellow student hanging onto her legs caused her to fall onto the platform and then onto the ground.
Students can be injured as a consequence of the actions of other students anywhere in the school grounds. Farrah Hadba could have been injured as a result of skylarking by a fellow student in the area of the “bubblers” or in any area that was not at the time of the incident within the view and control of a supervising teacher. Simply put, we do not live in a perfect world. It is not possible that, during a recess, every student at every part of the school grounds can be under constant supervision.
Hodgson LJ observed in Rich v London County Council (1953) 1 WLR 895 at 903:
You can supervise as much as you like, but you will not stop a boy being mischievous when your back is turned. That, of course, is the moment that they choose for being mischievous.
The supervision of the more senior children, which included Farrah, involved two teachers supervising the top oval where the “senior children” played. Farah was injured at about 11.20 am on 25 February 1999. The General Procedures then in force provided, in respect of playground duties as follows:
PLAYGROUND
Note: When 2 teachers are rostered together for a period of duty they should negotiate responsibilities so that each area is covered as specified. Duty Teachers have a legal and moral obligation to be punctual and vigilant. …
RECESS DUTY
11.00-11.25
First bell-11.20 am
Four teachers rostered. Two for top oval with senior children
Two for bottom oval, asphalt and tuckshop area with junior children
JUNIORS Areas in bounds are oval and fixed equipment with the exception of the high bar, the hurdles and roman rings.
First teacher: Monitor tuckshop, toilets, asphalt and oval.
Second teacher: supervise playground equipment.
At 11.20 children wait in line. The teachers on duty are responsible for all children until their classroom teachers arrive.
SENIORS Areas in bounds are oval, path and senior playground equipment. Pavilion, gully and classroom units are out of bounds.
First teacher: Path, oval and between units.
Second teacher: Toilets, bubblers and fixed equipment.
At 11.20 children wait in lines on top oval. Duty teachers remain until class teacher arrives.
It is simply not the case that this division of responsibilities recognised, in respect of the younger pupils, that there was a need to maintain constant supervision of the play equipment area, and that the failure to apply that system which was in force for junior pupils to the senior pupils was a failure to discharge a recognised need for constant supervision of play equipment. In my respectful opinion, the view of Crispin P in par 26 of his reasons that ‘I can see no reason why the practice adopted in relation to the play area for the junior pupils could not have been followed’ (in respect of the senior pupils) is a view born of hindsight, and presupposes that the senior children in the playground area required constant supervision, whereas the senior children in all the other areas other than the playground area did not.
The trial judge noted that Mrs Pauline McNamara, the teacher whose area of responsibility for supervision included, but was not limited to, the senior play area, had devoted the bulk of her time to supervising the play equipment. Further, she had acted appropriately in attending to ‘other areas of her responsibility’. There was not in this case the slightest suggestion that the school authority ‘relied wholly upon a blithe assumption that its pupils will adhere to the school rules.’
His Honour found that the duty of care imposed on a school authority did not extend to requiring a teacher to be stationed at each item of play equipment, solely to monitor the use of that equipment.
It is this contention, rejected by the trial judge, which was repeated for the plaintiff on the appeal, it being argued that because the use of the flying fox by young children gave rise to a foreseeable risk of injury, the respondent had a duty to take reasonable steps to alleviate that risk. So much may be accepted.
The appellant’s submissions went further. It was contended that the obligation on the school authority to provide adequate supervision required the presence of a teacher in the “senior” playground area at all times. In my opinion, it is not the law of negligence that a plaintiff should succeed if, in hindsight, a variation of the system of supervision that was actually employed would have been more likely to have avoided the accident that did in fact occur.
The obligation on a school authority does not extend to doing whatever is necessary to prevent a foreseeable risk of injury. The observations by Kirby J in Romeo v Conservation Commission of the Northern Territory (1997-1998) 192 CLR 431 at 480 are apposite.
Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be “balanced out” before a breach of the duty of care may be found … It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness.
In my respectful opinion, the conclusion of Crispin P in par 26 of his Honour’s reasons that “there was an obvious need to maintain constant supervision” of the flying fox is a requirement of unrealistic and impractical perfection. It is born of hindsight. It offends the standard of reasonableness. It amounts to the imposition of the responsibility of an insurer in relation to all activities that have any connection with this piece of playing equipment.
Further, (and in my opinion most importantly), it fails to recognise that this is an appeal from a finding by the primary judge who had the advantage of assessing the evidence of the nature and degree of supervision, particularly the evidence of the supervising teacher, Mrs McNamara. This appeal is not a case, in my respectful opinion, where an appellate judge can substitute his or her own view of whether the degree of supervision and the thoroughness and care of those supervising teachers were reasonable in the circumstances.
The nature of an appeal to the Court of Appeal from a judgment of a single judge of the Supreme Court of the Australian Capital Territory is governed by ss 37N and 37O of the Supreme Court Act 1933:
37N Evidence on appeal
(1)The Court of Appeal must have regard to the evidence given in the proceeding out of which the appeal arose.
(2)The Court of Appeal may draw inferences of fact from that evidence.
(3)The Court of Appeal may receive further evidence in any of the following ways:
(a) by oral examination before the court or a judge;
(b)on affidavit;
(c)by audiovisual link or audio link within the meaning of the Evidence (Miscellaneous Provisions) Act 1991, section 14;
(d)any other way the court may receive evidence.
37O Judgment on appeal
(1)The Court of Appeal has the following powers in relation to the judgment appealed from:
(a) to confirm, reverse or vary the judgment;
(b) to give any judgment it considers appropriate, or refuse to give an order applied for;
(c) to set aside the judgment (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate;
(d)to set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered;
(e)to order a new trial, with or without jury, on any appropriate ground;
(f)to award execution of any judgment, or remit the proceeding to the court constituted by a single judge for execution of the judgment.
…
In the present case the Court of Appeal was not asked to receive any further evidence.
An appeal where such provisions apply is an appeal by way of rehearing, which is neither an appeal de novo nor an appeal strictu sensu.
The nature of such an appeal has been the subject of a number of judgments of the High Court, and most recently in the context of findings of negligence, in Fox v Percy (2003) 197 ALR 201 and Hoyts Pty Ltd v Burns (2003) 201 ALR 470.
Warren v Coombes (1979) 142 CLR 531 sets out the established principles that apply where what the appellate court is asked to do is to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. The Court said at 551:
In deciding what is the proper inference to be drawn the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion will not shrink from giving effect to it. …
The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In doing so it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after having given full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. (Emphasis added)
In my opinion, this is not such a case.
The “particular question” is whether the regime of supervision that was in fact employed in respect of the senior children by the school authority, including a consideration of by whom and in what manner that system was put into effect, was reasonable. The real question for this appellate court is whether the trial judge’s conclusion should be overturned.
I acknowledge that this is not a case which crucially turns on findings of credit by a trial judge; rather, the case is one of the trial judge’s evaluation of the facts, and of the application by the trial judge of the legal standard for negligence.
Where the decision of the trial judge depends to any substantial degree on the credibility of a witness, the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 cautioned against appellate intervention:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact (see Brunskill (1985), 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989), 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990), 171 CLR 167. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” S.S. Hontestroom v S.S. Sagaporack, [1927] AC 37, at p.47) or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” Brunskill (1985), 59 ALJR, at p.844; 62 ALR, at p.57.
So, too, in Abalos v Australian Postal Commission (1990-91) 171 CLR 167. In that case the trial judge had concluded that a coding machine operator who had contracted tennis elbow as a result of operating her machine was successful in her claim that the defendant was in breach of its duty in not supervising the work of the plaintiff properly as to the posture she should adopt while at work. The Court of Appeal in New South Wales concluded from the evidence of a witness before the primary judge, a Professor Ferguson, that no amount of supervision would have eliminated all or reduced the risk of injury. The Court of Appeal reversed the trial judge’s conclusions, which were based on the evidence which she had heard and the demonstrations which she had seen.
All other judges of the High Court (Mason CJ, Deane, Dawson and Gaudron JJ) agreed with the judgment of McHugh J who concluded:
The majority of the Court of Appeal erred in reversing the trial judge’s finding that the proper supervision of the coders would have made the risk of injury to the appellant minimal.
McHugh J at 178 referred to the power of the Court of Appeal, saying:
In S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 , at p.47 Lord Sumner pointed out that:
“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v Thomas [1947] AC 484, at p.488. (Emphasis added)
McHugh J noted at 179:
As I pointed out in Jones v Hyde (1989) 63 ALJR 349, at p.351; 85 ALR 23, at p.27, when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked.
Recently, the High Court has considered where a trial judge’s finding is inconsistent with incontrovertible facts that were before the trial judge. In Fox v Percy (supra) at pars 41 and 42 the Court said:
… the appellant had to rely before this court on the advantages that the primary judge enjoyed in seeing the parties, and Mr Murdoch, give their evidence and in preferring the evidence of the appellant and Mr Murdoch to that of the respondent. The Court of Appeal was bound to make due allowance (as it did) for such advantages. The trial judge sat through 4 days of trial before giving his decision. He did so at a time when the impression made by the witnesses was still clearly in his mind. The Court of Appeal was bound to afford respect to the endeavour of the judge to give the correct and lawful conclusion to the puzzle presented to him. Clearly, the Court of Appeal was right to reject the respondent’s belated suggestion of bias, which should not, in our view, have been made. No doubt, the Court of Appeal also took into account the unexpressed considerations that went into the judge’s conclusion. No judicial reasons can ever state all of the pertinent factors; (Biogen Inc v Medeva Plc [1997] RPC 1 at 45 per Lord Hoffman) nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.
Nevertheless, in our view, within the stated principles, the majority in the Court of Appeal did not err in giving effect to the conclusion that they reached. The skid marks on the respondent’s correct side of the road were incontrovertibly established. Their position, length, direction and terminus are inconsistent with the appellant’s version of events. Having come to that decision, the majority in the Court of Appeal were correct to give effect to their conclusion and to set aside the judgment in the appellant’s favour. In our view, the appeal should be dismissed. (Emphasis added)
In Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] 122 FCR 110 Heerey J (with whom Black CJ agreed generally) said, at par 93:
The primary facts in this case were largely uncontested. On the issue presently under consideration, his Honour had to be satisfied, the onus being on MTA, that as a corporate body the Institute had one or more of the proscribed purposes. While no doubt the appeal falls under the rubric of Warren v Coombes (1979) 142 CLR 531 rather than that of Abalos v Australian Postal Commission (1990) 171 CLR 167, the fundamental premise of appellate litigation remains. MTA has to establish error. The approach of the appellate court is that described by Beaumont and Lee JJ in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369:
“… the hearing of an appeal in this Court is neither a trial de novo nor a trial of the case afresh on the record and the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552-552) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.” (Emphasis added)
In my opinion, these authorities establish that in order to interfere, an appeal court must come to the view that the trial judge was wrong.
In this case, Crispin P is of the view that the trial judge was wrong in his finding that the supervision in fact employed was reasonable in the circumstances, holding that “constant supervision” of the flying fox, or at least of the playground equipment, was essential. However, while such a system would almost certainly have obviated the accident that occurred in the present case, it would not obviate the possibility of an accident occurring by pupils misbehaving in other parts of the senior playground, which areas could not all be under constant supervision.
The fact is that the finding of the trial judge was:
I am not satisfied that the school can be held responsible for the breach of the school rules by the two children who unfortunately grabbed the plaintiff and pulled her from the flying fox. The accident occurred in clear breach of the school rules, at a playground that had otherwise been trouble free, and when the teacher whose area of responsibility for supervision included, but was not limited to, the playground was in another area which came under her supervision. I am satisfied that Mrs McNamara devoted the bulk of her time supervising the play equipment, but that she acted appropriately in attending to other areas of her responsibility. I am not satisfied that the duty of care the law imposes on a school authority extends to requiring a teacher to be stationed at each item of play equipment solely to monitor the use of that item of equipment. … The duty of care claimed by the plaintiff in this case would have to extend to a duty to station one teacher with sole responsibility for observing any child on any form of climbing equipment.
His Honour concluded that such a duty was ‘quite unreasonable and would impose too high a burden on schools and school authorities …’.
His Honour noted the observation of the Full Court of the Federal Court in ACT Schools Authority v El Sheik (2000) ATR 81-577 (“El Sheik”) at par 25, that it “would require an army of supervisors to prevent any incident that might give rise to a physical injury”. Special leave to appeal from the judgment of the Full Court of the Federal Court in El Sheik was refused by the High Court.
This appeal court was invited by the appellant to overturn the finding that the school authority, in providing the supervisory regime it did, was not negligent.
Whether the level of supervision is reasonable in the circumstances involves questions of practicality and degree: see Carmarthenshire County Council v Lewis [1955] AC 549, (a case which in my opinion is very helpful in the present context), particularly at 559.9 per Oaksey LJ (in dissent, but only on the way the case was fought), at 561.9 to 562.4 per Goddard LJ, at 566.5 to 566.9 per Reid LJ, and at 569.7 per Tucker LJ; cited in Commonwealth of Australia v Stokes (unreported, Supreme Court of the ACT, Gallop J, 15 November 1996). The trial judge considered the evidence of Mr T.R. Smith, then the deputy principal of the school, and Mrs Pauline McNamara who was an experienced teacher with seven years experience in Victoria before returning to the Australian Capital Territory where she had been teaching for a number of years at St Anthony’s Primary School Waniassa, and who gave evidence that she was unaware of any other serious accident involving the flying fox, and that there was no evidence that there had been another incident involving children being pulled from the flying fox. Mrs McNamara testified that on the day in question the behaviour of the children using the play equipment that morning had been entirely appropriate, and there was nothing to put her on notice to pay particular attention to the flying fox. The school had a “hands off” policy to prevent horseplay.
The trial judge found:
I am satisfied that the accident occurred during a very short period of between 20 and 30 seconds when she was not looking at the playground equipment because her attention was drawn to the presence of students in the out of bounds classroom area.
The trial judge found:
I am satisfied on all the evidence that [Mrs McNamara] carried out her duties appropriately.
The trial judge’s crucial findings involved his Honour’s assessment, in a realistic way, of the system of supervision that the school authority had in place to avoid injury. Those findings inevitably involved an assessment of Mrs McNamara’s capacity to assess risk, and her ability to prioritise her capacity to discharge that obligation.
The trial judge’s conclusion as to negligence, in my opinion, was reached after a careful and detailed analysis on the issue of supervision that was before him. Again in my opinion, that assessment is very much the kind of issue of which Lord Hoffman spoke in Biogen Inc v Medeva plc (1996) 36 IPR 438 (“Biogen”) at 452:
The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation. It would in my view be wrong to treat Benmax [v Austin Motor Co [1955] AC 370] as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation. (Emphasis added)
Lord Hoffman’s observations (with whom all the other Law Lords agreed) have frequently been applied. By way of example only, in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 164 ALR 293 at 305, where the issue was whether the expenditure in question was necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income; in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 in the judgment of Branson and Katz JJ at 703, in connection with a finding by a trial judge that between 1788 and the date of the appellants’ claim to native title, the relevant indigenous community lost its character as a traditional community. See also Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1999] FCA 391 at pars 14 and 15, and Aktiebolaget Hassle v Alphapharm (2000) 51 IPR 375, at par 61, where the trial judge had concluded that an invention, a pharmaceutical preparation for treating ulcers, was obvious.
The assessment by the trial judge that the system of supervision was reasonable in the circumstances was one where the expressed reasons for judgment probably do not give a complete communication of the basis for that conclusion. The primary judge was clearly impressed by, amongst other things, the honesty and the professionalism of Mrs McNamara. His Honour’s appreciation of the principles in relation to the assessment of whether the nature and extent of the supervision involved a breach of the duty of care expected of a school authority was not erroneous.
In my opinion, consistent with the caution expressed by Lord Hoffman in Biogen, it has not been shown that the trial judge’s evaluation was wrong, and this Court should therefore dismiss the appeal, with costs.
On this appeal, what an appellate judge would have concluded had he been the trial judge is not a proper basis on which to determine the outcome of the appeal; nonetheless, his Honour’s finding as to the absence of negligence by the school authority is one with which I agree.
I agree with the reasons of Crispin P that the cross appeal should be dismissed.
I would dismiss the appeal with costs, and would dismiss the cross appeal.
I certify that the preceding paragraphs numbered forty-four (44) to eighty-eight (88) are a true copy of the Reasons for Judgment herein of his Honour, Justice Spender.
Associate:
Date: 18 December 2003
Counsel for the Appellant: Mr J Purnell SC
Solicitor for the Appellant: Sneddon Hall and Gallop
Counsel for the Respondent: Mr V Gregg
Solicitor for the Respondent: Corrs Chambers Westgarth
Date of hearing: 12 August 2003
Date of judgment: 18 December 2003
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