Geyer v Downs

[1977] HCA 64

HIGH COURT OF AUSTRALIA

Stephen, Mason, Jacobs, Murphy and Aickin JJ.

GEYER v. DOWNS

(1977) 138 CLR 91

9 December 1977

Negligence

Negligence—Duty of care—School teacher and pupil—Playground accident—Before commencement of classes—Playground not supervised—Whether headmaster under duty to ensure adequate supervision—Breach of duty.

Decisions

1977, December 9.
The following written judgments were delivered: -
STEPHEN J. I have had the advantage of reading the joint judgment of my brothers Murphy and Aickin and agree with their conclusion that this appeal should be allowed. (at p92)

2. The facts appear in that joint judgment. The appeal turns upon whether, when the plaintiff was injured in the school playground at about 8.50 a.m. one morning, the respondent then owed to her that duty of care owed by master to pupil which was certainly owed to her during the ordinary school hours and the nature of which has been described in Richards v. Victoria (1969) VR 136 , a description subsequently adopted by this Court in Victoria v. Bryar (1970) 44 ALJR 174 . (at p92)

3. If that duty of care was owed at that time on the morning in question it was clearly enough open to the jury to conclude that the defendant was in breach of it and that that breach was a cause of the plaintiff's injuries. The plaintiff, a little girl of eight, was accidentally struck on the head by a softball bat held by another little girl behind whom she was passing on her way to her classroom. The other little girl was one of a number playing softball in the very small and relatively crowded playground of the school where no supervision was being exercised by any teacher and the confined nature of which was said by the defendant headmaster to require, in the interests of safety, that ball games should only be played under the supervision of a teacher. It was open to the jury both to regard as dangerous this situation in which young children on the way to classrooms passed in close proximity to other young children wielding bats and also to attribute the existence of this situation to the want of any supervision of the children's activities in the playground. The departmental instruction headed "Playground Supervision", as well as the testimony of the defendant, provided evidence that the need to supervise children in the playground was well recognized, as was the danger involved in children playing ball games in the playground without supervision. There was also evidence from which the jury might conclude that the respondent was aware that large numbers of children habitually played in the playground at this time of the morning. (at p93)

4. In those circumstances the failure to exercise any supervision amounted to conduct which the jury might find to have been a cause of the plaintiff's injuries and to have been in breach of the defendant's duty of care owed to the plaintiff if, in fact, any such duty was owed at that hour of the morning, before the formal start of the school day. The question is, therefore, whether that duty was then owed. (at p93)

5. The duty which a schoolmaster owes to his pupil arises from the relationship between them and its temporal ambit will be determined by the circumstances of the relationship on the particular occasion in question. Children stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school; instead it is those then in charge of them, their teachers, who must provide it. So it was that Winneke C.J., in Richards' Case (1969) VR, at pp 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."

His Honour was not, of course, in that case at all concerned with the precise temporal limits of the duty and the reference to "school hours" is not to be understood as more than a quite general reference to periods when, for the purpose of his education, a child is placed beyond "the control and protection of his parent". (at p94)

6. 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, the duty will apply. It will be for the schoolmaster and 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. (at p94)

7. In the present case it may be that the defendant schoolmaster was unable adequately to perform his duty before 9.00 a.m. 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 ground for doubting the existence of the duty. It is upon this point that I would, with respect, part company with the majority judgments in the Court of Appeal, attaching, as I do, no particular significance to this aspect of the regulation made under the Public Service Act and of the departmental instructions which were relied upon in those judgments. (at p94)

8. 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 a.m. 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 a.m. The school gates were open from that hour onwards and the classrooms were apparently open well before 9.00 a.m. The headmaster knew that in fact large numbers of children made use of the school between 8.15 a.m. and 9.00 a.m. on school days; perhaps up to two hundred children, almost half the total attendance at the school, would be found there before 9.00 a.m. Knowing of their presence the headmaster naturally enough asserted his authority over them. He required them, he said, until 9.00 a.m. "to sit down in the playground and talk or read, study, something like this"; he had expressly forbade them to play games in the school grounds before 9.00 a.m. 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 a.m. to ensure that these directions were obeyed. In addition he would keep an eye on the children as they passed outside his office, as would other teachers as children passed the teachers' staff room. 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 who arrived at school before 9.00 a.m. (at p95)

9. 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. She would be one of those pupils subject both to his occasional superintendence when, weekly or thereabouts, he would satisfy himself that, as he thought, his instructions were being observed and also to the occasional observation of other teachers. (at p95)

10. As it turned out, the extent of care taken for the well-being of the plaintiff, restricted as it substantially was to occasional admonitions in assembly, proved ineffectual. Hence the conclusion that there was a breach of duty which, when consequential damage was caused by it, entitled the plaintiff to her damages. (at p95)

11. I agree in the form of order proposed in the joint judgment of Murphy and Aickin JJ. (at p95)

MASON J. I would allow this appeal for the reasons given by Murphy and Aickin JJ. in their joint judgment and for the reasons given by Stephen J. (at p95)

JACOBS J. I agree that the appeal should be allowed for the reasons expressed by Stephen J. and by Murphy and Aickin JJ. (at p95)

MURPHY AND AICKIN JJ. In this matter the appellant (plaintiff) appeals from a decision of the Court of Appeal of New South Wales (Hutley and Glass JJ.A., Mahoney J.A. dissenting) which set aside a verdict of a jury in favour of the plaintiff in an action for negligence (1975) 2 NSWLR 835 . The jury had found for the plaintiff and awarded the sum of $84,971.40 in an action against the nominal defendant representing the Government of New South Wales and the headmaster of Blacktown Primary School. (at p96)

2. The plaintiff had suffered very severe injuries when a school girl aged eight years at the Blacktown Primary School in 1966. It was claimed that these injuries were caused by the negligence of the Government of New South Wales by its servant Fowler, then the headmaster of the school. There was no appeal against the amount of damages but the defendants claimed in the Court of Appeal that the case should not have been left to the jury and that there should be a verdict and judgment for the defendants, or alternatively, a new trial. (at p96)

3. The circumstances in which the injuries occurred are not in dispute but it is necessary to state the facts in order to follow the way in which the appellant puts her case. (at p96)

4. The Blacktown Primary School is situated in an industrial suburb of Sydney. It had a total of approximately 750 children attending it at the time of the accident and was divided into three sections, all on the one premises. There was an infants' school with some 290 children. The remainder of the children were in the primary school where the boys' and the girls' sections were separate, each having approximately 220 children. There were separate playgrounds for each group. It was not disputed that the girls' playground was small for the number of children using it. The school grounds fronted on to three roads and there were evidently gates opening on to at least two roads. (at p96)

5. On the day in question the plaintiff arrived at school at approximately 8.45 a.m. and the accident occurred while she was proceeding towards her classroom. At 8.50 a.m. or thereabouts the plaintiff was struck on the head by a softball bat (said to be of the general dimensions of a baseball bat) being used by another pupil who, with others, was playing in a softball game. It was from that blow on the head that the plaintiff's injuries followed. (at p96)

6. The evidence showed that the staff were obliged to report not later than 9.00 a.m. and that they tended to arrive between 8.45 a.m. and 9.00 a.m. At the time of the accident there was no member of the staff in the playground. In the plaintiff's classroom which opened on to the playground the teacher was already present, but he did not see the accident. The headmaster's evidence was that there was then a total staff of ten in the primary school section. (at p96)

7. There is one regulation made under the Public Service Act 1902 (N.S.W.), reg. 383, which needs to be referred to and which regulates the hours of duty of teachers. It reads as follows:

"HOURS OF DUTY. Teachers are required to be on duty at their schools half an hour before school work begins in the morning and may be required to be present, if thought necessary by the teacher in charge of the school, for half an hour after the business of the school in the afternoon. Where special circumstances arise which, in the interests of the school, necessitate attendance beyond these hours, the attendance of the staff may be required." (at p97)

8. The Education Department had also laid down a daily routine to be followed in all schools throughout New South Wales, which was in the following terms:

"5.2.4.1. DAILY ROUTINE.
(i) In all schools maintained or aided by the Minister for Education, the daily routine shall be that specified hereunder, unless otherwise approved. Morning. At 9.00 - All teachers to be present. School materials

to be prepared for lessons and playground supervised.

At 9.25 - Pupils to be assembled in classes and inspected as to cleanliness.

At 9.30 - Lessons to commence according to the timetable

At 11.00 - Recess. At 11.15 - Lessons to be resumed according to the timetable

At 12.30 - The school to be dismissed for midday recess. Afternoon. At 1.25 - Pupils to be assembled in classes. At 1.30 - Lessons to recommence according to the timetable

At 3.30 - The school to be dismissed. In secondary schools the hours of instruction shall be from 9.00 a.m. to 3.30 p.m. with a short mid-morning recess and a luncheon break of one hour. Principals of secondary schools shall arrange for the supervision of school pupils, before school commences under the terms of Regulation No. 383 and in accordance with the requirements of 5.2.3.8. (ii) Normal hours may be varied only with the authority of the Director concerned and the variation shall be operative in accordance with the Director's approval or until such approval is withdrawn."
There is nothing to show that the terms of the daily routine were specifically drawn to the attention of pupils or parents, but it may be assumed at least that the facts that the children were required to assemble by 9.20 a.m. to 9.25 a.m. and that except on sports afternoons would be dismissed from school at 3.30 p.m. were known to both parents and children. (at p98)

9. A Departmental Instruction headed "Playground Supervision" was put in evidence and was as follows:

"5.2.3.8 PLAYGROUND SUPERVISION.
(i) Adequate supervision of the conduct of pupils in the playground is essential. Heads of departments shall make necessary arrangements for the proper and adequate oversight of playgrounds, buildings and closets during daily recess as well as during the period of half an hour before school work begins in the morning. (ii) A roster of duties of teachers in the department concerned shall be drawn up and shall be available for reference by the staff and for examination by inspectors and other appropriate authorities. (iii) With regard to the period of half an hour which precedes the commencement of school in the morning it is essential that efficient supervision be provided without the demands on the staff exceeding the requirements consistent with the object and in this connection the following points are emphasised:- (a) Supervision is intended primarily to safeguard the welfare of all pupils including any, who enrolled in another school, attend for special lessons.

(b) Supervision, unless there is a danger of harm otherwise occurring, does not necessarily entail direct observation and may therefore be exercised if practicable by one teacher who need not be the teacher in charge.

(c) The organization of supervision should avoid the unnecessary duplication of duties and ensure basically that a supervising teacher is available to give help to pupils as required; the pupils are so instructed that they will seek the help of the supervising teacher in situations which demand it; and activities of pupils are confined to those which are unlikely to lead to harm."

It is not in dispute that the headmaster arranged for the school gates to be opened at some time between 8.00 a.m. and 8.15 a.m. He said: "Q. They were opened of a morning to let the children in?
A. They were not opened to let the children in necessarily. There was entrance by teachers who arrived early. There was traffic of milk carts; delivery of food; there was a canteen; toilet pans delivery - those kind of things which necessitated the opening of the gates. Q. The school gates were opened from quite early in the
morning? A. Not quite early. I had given instructions. Q. What time were they opened? A. They would be opened
I would say between eight and a quarter past. Q. Would you agree with me that as from the time they
opened, the children started to arrive? A. Children could arrive. Q. And did in fact arrive? A. Yes.
Q. You said you had the gates opened for the purpose of teachers arriving early? A. Yes. ... Q. I think you said that you regarded it as a community
service to let children into the school early because this was a working district with many working mothers? A. Yes. Q. It was a new industrial district with a lot of working
mothers in the area? A. Yes. Q. You regarded it as a community service to let the children
into the school? A. Yes. I had to make a decision whether to lock the children out of the school playground on a very busy road where traffic was going past continually, to put them in an area where there was a certain amount of moral danger and in an area where the possibility of going to the main street, which was 100 yards away, and causing nuisance, thieving and the like will go on. This was the decision I had to make one way or the other. Q. To cut it short, you thought it would be very wrong to
shut children of this tender age out in the street with all the perils of the street? A. Not that part of it so much as the danger. Q. The danger to them? A. Yes.
Q. So therefore you accepted the position in this district at least children would be coming to the school well before nine? A. They could come into the school before nine o'clock. They were discouraged. Q. When did you say they were discouraged, what did you
do to discourage them? A. Only frequent admonitions." He acknowledged that children arrived in numbers by 8.30 a.m. He said that there were no precautions taken to protect the children before 9.00 a.m. "except through the School Rules" by which he meant that from time to time he told the children that when they arrived at the school before 9.00 a.m. they should sit down and talk or read books and not run around. He acknowledged that no circular had been sent to the parents stating that if their children arrived at school before 9.00 a.m. no one would be there to supervise them and also no circular had been sent saying that if children arrived at school before 9.00 a.m. they were to sit in the playground and read books or talk and under no circumstances to run around. (at p99)

10. The evidence differed as to how many children would ordinarily be in the girls' playground at 8.45 a.m. The headmaster said about seventy but there was evidence from which the jury could have found that the figure was about one hundred and fifty girls. (at p100)

11. There is a conflict of evidence concerning whether the staff were informed of the rule against playing games in the playground before 9.00 a.m. The headmaster said that the staff were informed of this rule but the two members of the staff who gave evidence said that they had never heard of it. The headmaster said that "the rule" was mentioned at parents' meetings but acknowledged that no written circular was sent to parents and no attempt was made to communicate with those who did not attend parents' meetings. (at p100)

12. Whether or not such a rule was made known to the children or the whole of the staff does not appear to be of critical importance. However the jury were entitled to find that it was a rule more honoured in the breach than in the observance, notwithstanding the headmaster's evidence that about once a week he saw all the children in the girls' playground sitting quietly reading and talking. It was open to the jury to reject that evidence. (at p100)

13. The headmaster's evidence made it clear that he was aware of the dangers involved in the children playing ball games and he acknowledged that one of the purposes of the rule which he said he had formulated was to avoid accidents such as the one which occurred in the present case. Moreover the Departmental Instructions quoted above drew the attention of the headmaster and of the staff to the importance of supervision in the playground. (at p100)

14. It is not disputed that the case put for the plaintiff at the trial was as stated by Taylor C.J. at C.L. in his summing up, viz.: "That is the legal basis for her claim, a breach of duty on the part of the headmaster who, you may take it for the purpose of these proceedings, was the servant and agent of the Government of New South Wales when he was carrying out his duties as headmaster of that school ..." The claim against the Government of New South Wales is thus in respect of its vicarious liability for the failure of the headmaster in his duty to the plaintiff as a pupil attending his school. No claim was made against the Government alleging any inadequacy in the system which it had established. (at p100)

15. The argument for the respondents was that there was no duty to supervise the playground before 9.00 a.m. 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. It was pointed out in Aiken v. Kingborough Corporation (1939) 62 CLR 179 that the classic formulation of the duty of occupiers as differing according as the plaintiff was an invitee, a licensee or a trespasser is not exhaustive, omitting as it does the cases (inter alia) of those entering by making payment therefor, those entering as employees of the occupier and members of the public entering as of public right. (See per Latham C.J. (1939) 62 CLR, at pp 190-191, per Starke J. (1939) 62 CLR, at pp 199-200 and per Dixon J. (1939) 62 CLR, at pp 205-210 .) If it were necessary to classify in other terms the status of the children enrolled in this school who arrived after the school gates had been opened, it would be more accurate to say that they were there as of right. This was a government-run school as part of the system of compulsory education under which every parent is obliged to ensure that his children attend school. Once they are enrolled in that particular school the conclusion appears inevitable that their presence on a school day after the school gates had been opened is one which is a consequence of the duty imposed on children and parents and of the performance by the Department of its statutory duty to provide schools. Accordingly their presence is not dependant upon a revocable licence or invitation of the headmaster or of the Department of Education. The nature of the duty owed to them is governed by the relationship between schoolmaster and school authority on the one hand and pupils attending the school on the other. (at p101)

16. This conclusion is not in conflict with the views of any member of the Court as expressed in the judgments in Public Transport Commission (N.S.W.) v. Perry (1977) 137 CLR 107 , notwithstanding the differences emerging therein. There is here "another relevant relationship" which is decisive of the nature and extent of the duty of the defendants. (at p101)

17. 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 p 42 : "...it was correctly laid down by the learned Judge,that the schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster." This was restated by Kitto J. in Ramsay v. Larsen (1964) 111 CLR 16, at p 27 where he said: "The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances" and that passage was relied upon in the judgment of Hutley J.A. in the Court of Appeal in this case (1975) 2 NSWLR, at p 841 . (at p102)

18. 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 thirty 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 C.J. in Richards v. Victoria (1969) VR 136, at pp 138, 140-141 . It is not necessary to set out again the passages thus approved, but the result may be summarized in the following passage (1969) VR, at p 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 Court, however, went on to point out that it is of course necessary that the breach of duty of care must be causally related to the injury received. An examination of the many cases on this topic which have been reported both in Australia and in England shows that plaintiffs have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question, notwithstanding that no supervision at all was attempted in the particular case. (at p102)

19. Adopting the formulation stated in that case the question here is whether in the circumstances prevailing at the Blacktown Primary School the headmaster did take such steps as were reasonably necessary to prevent injury to children in the school playground. It is clear that the actual injury is of a kind which was foreseeable, as something which might result from the playing of softball in a small playground in which there were present between 100 and 150 unsupervised schoolgirls between the ages of eight and twelve. Indeed the headmaster acknowledged that his instruction to the girls that they were not to play games or run about before 9.00 a.m. but were all to occupy themselves in sitting down reading or talking quietly, was given because of the risk of such injuries as the kind which occurred in the present case, though no doubt the dire medical consequences of the actual injury would not have been foreseen by anyone. (at p103)

20. 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. Recognition of the dangers involved would require appropriate steps to ensure that other children should be prevented from walking near the batter, or that the batter should not be located near places where the children were likely to be. (at p103)

21. It was the headmaster who made the decision to open the school gates at some time between 8.00 a.m. and 8.15 a.m. It is true that he said that he did this for more than one purpose, but it is undoubted that one of his purposes was to enable the children to enter, and he knew that they did arrive from that time on. The decision to open the school at 8.00 a.m. to 8.15 a.m. 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 a.m. 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 a.m. there were 100 to 150 girls in the playground, and that this was known to the headmaster. (at p103)

22. It was urged for the respondent that there was no duty of supervision owed to the children before "school hours". That expression was taken in the present case to mean the period of time beginning at 9.00 a.m., at which the "Daily Routine" stated that the playgrounds were to be supervised. Reliance was also placed upon the Departmental Instruction 5.2.4.1 as set out above which it was said produced the result that the headmaster had no power or authority to require teachers to supervise the playground otherwise than during the hours 9.00 a.m. to 3.30 p.m. as set out in that Instruction. It was said therefore that the headmaster could not be regarded as negligent by failing to take measures to provide supervision of the playground prior to 9.00 a.m. when he had no authority to direct any teacher to be present to perform that function. (at p103)

23. So to regard the case is to take an unduly restricted view of the relevant circumstances. There is no case which lays down that there is no duty of supervision prior to "school hours", however that expression may be understood. The point seems to have been seldom referred to. In Ward v. Hertfordshire County Council (1970) 1 WLR 356, at p 361; (1970) All ER 535, at pp 538-639 Salmon L.J. expressly reserved the question whether lack of supervision could give rise to a cause of action in a case where the injury occurs at 8.50 a.m. but "the school does not start until 8.55 a.m.". There seems no basis for treating it as a rule that there can be no duty of supervision outside "ordinary school hours" or "before school started". The question must depend upon the nature of the general duty to take reasonable care in all the circumstances. It is not enough to look only at the Departmental Instructions and to say that the duty of supervision arises only during the periods referred to in those Instructions. (at p104)

24. In the present case a significant aspect of the circumstances is the fact that the headmaster had arranged for the school grounds to be opened prior to 9.00 a.m. to permit the entry of school children, amongst other persons. He did that with the knowledge of the risks of injury involved from children playing ball games in a small and crowded playground without supervision. The only step taken to prevent that injury was, according to his evidence, an instruction to the girls that they were not to play or run around. It was open to the jury to find that he knew that that instruction was honoured more in the breach than in the observance. The fact that the danger was appreciated was illustrated not merely by the Departmental Instructions but by the headmaster's own instruction that softball bats and like articles were to be kept locked-up and issued only upon the instruction of a teacher. It was open to the jury to conclude that the bat being used was in fact a school bat obtained by one of the girls notwithstanding the general rule about safekeeping. If they did so conclude then to that extent the precautions were ineffective on that occasion. (at p104)

25. 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 a.m. It is no answer to that claim to say that the "Daily Routine" required supervision only after 9.00 a.m. or that he had no power under the Departmental Instructions to instruct any member of his staff to be in attendance before 9.00 a.m. 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. The jury were entitled to regard the lack of supervision as a failure to exercise reasonable care in the circumstances and as causing the injury. (at p105)

26. For those reasons the verdict was one which was open to the jury on the evidence and the argument that the case should have been taken away from the jury cannot be sustained. Accordingly the appeal should be allowed with costs and the order of the Court of Appeal set aside and in lieu thereof it should be ordered that the appeal to the Court of Appeal be dismissed with costs. (at p105)

Orders

Appeal allowed with costs.

Order of the Court of Appeal of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeal to that court be dismissed with costs.