Graham v State of New South Wales S230/2001

[2002] HCATrans 554

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S230 of 2001

B e t w e e n -

BELINDA LEE GRAHAM

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 11.04 AM

Copyright in the High Court of Australia

MR J.E. ROWE:   May it please your Honours, I appear with my learned friend, MR J.H. YOUNG, for the applicant.  (instructed by Beston Macken McManis)

MR C.T. BARRY, QC:   I appear for the respondent with my learned friend, MR G.A. LAUGHTON.  (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales)

GAUDRON J:   Yes, Mr Rowe.

MR ROWE:   Thank you, your Honour.  Your Honour, in this application we see the questions of law that are relevant to this Court are:  can a school authority owe a duty of care to a pupil in relation to the pupil’s travelling to and from school and if such a duty is owed, what are its parameters?

In this case in the first instance and in the Court of Appeal, the courts found there was no duty.  But in the circumstances in the Court of Appeal they have opened the circumstances of a possibility of there being a duty but gave no guidance to the circumstances in which such a duty may exist.

KIRBY J:   When I was a boy going to public schools you used to get cheap bus fares.

MR ROWE:   Yes, your Honour.

KIRBY J:   Tuppence, I think, or a penny, and that is all the Department of Education thought it had to do and maybe even it did not…..was probably done by the Department of Transport.

MR ROWE:   At the time that this young lady who was then aged 12 was attending school, the department did provide either buses, or in some cases taxis, for children with disabilities.  The provision of the bus or taxi was really a matter for the department.  In this case ‑ ‑ ‑

KIRBY J:   Do you say that fell under any statutory obligation?

MR ROWE:   No, your Honour.  It appears that at the time the relevant Act was the Education and Public Instruction Act of 1987 which provided compulsory attendance at school and there was a section 4 that also provided that the department may provide facilities.  It appears in the context that the facilities seems to refer to facilities in education but it may be under that facilities that they provided the transport.  I cannot answer your Honour as to whether that is so but that appears to be a possibility.  Nevertheless, it was the department that appeared to have provided the transport where it decided that it was required.

In this case the plaintiff in 1987 was aged 12.  She had been attending school since the age of about five or six.  The particular legislation provides it being compulsory for children between the ages of six and 15 to attend school.  In primary school she had been provided with transport to and from school.  She had a disability, being she was visually impaired and quite seriously so.

GAUDRON J:   But she had been going to a school some distance from her home during her primary school years.

MR ROWE:   Yes, your Honour, it was a greater distance than in this case.

GAUDRON J:   It was some considerable distance, was it not?

MR ROWE:   I do not know about considerable, your Honour, but it was some distance.  It was more difficult than what she is confronted with here.

GAUDRON J:   This was, in effect, her local school.

MR ROWE:   It was, your Honour.

GAUDRON J:   And it was within walking distance of her home.

MR ROWE:   It certainly was, your Honour.

GAUDRON J:   Ordinarily her mother took her halfway there and met her halfway on the way back.

MR ROWE:   Initially the mother took her all the way to the school so that she could be orientated through the suburban area and satisfied herself she could negotiate that.  The problem was Carlisle Avenue which is a very busy road.  It was not far from the plaintiff’s house.

KIRBY J:   Was it far from the school?  I also remember at North Strathfield Public School they used to have children with little flags and supervised by teachers.

MR ROWE:   Lollipop men, I think in some cases, your Honour, but not in Carlisle Avenue.

KIRBY J:   How far was that from the school?

MR ROWE:   Your Honour, there is a map I have provided in some material.

KIRBY J:   I see, yes.

MR ROWE:   Your Honour will see on that map Mt Druitt School near the word “Dharruk”.

KIRBY J:   Yes, I see that.

MR ROWE:   The course that the young lady walked was to go down Stuart Street which leads down to Carlisle Avenue.

KIRBY J:   I see, so it is not a street right outside the school.

MR ROWE:   Carlisle Avenue is not, no, Carlisle Avenue is a street that runs north and south.

KIRBY J:   The school, at least in my day, took responsibility for the immediate curtilage and the crossing of the roads near it, that was also so at Summer Hill School.

MR ROWE:   Yes, your Honour, you see that often at schools when there is a busy road outside the school.  But this busy road was not right outside the school.

KIRBY J:   If the school attended to Carlisle Avenue, they also had to attend to Jersey Road and to Woodstock Avenue and to various other schools, so ‑ ‑ ‑

MR ROWE:   It depends, your Honour, but the fact is that there was no provision made for crossing Carlisle Avenue.  She had to walk down Stuart Street to Carlisle Avenue, cross Carlisle Avenue, into Peterlee Place.  Between Peterlee Place and Runcorn Avenue there was a lane.  Go through that lane to Runcorn Avenue and up Runcorn Avenue there was another land between Runcorn Avenue and Welwyn Road, where she actually lived in a lane.  So the problem was not the suburban streets on either side of Carlisle Avenue and the problem is not the distance.

GAUDRON J:   No, but the problem is really why should there be any greater obligation on an education authority in those circumstances than on the mother?  I mean, if the mother had made special arrangements for her to be kept at school until she arrived and the education authority had not complied with them, then you might have a particular sort of issue, but here the arrangement apparently was the mother would meet her and she did not.

MR ROWE:   Your Honour put your finger on the problem, with respect, and we accept that.  The problem is, is there in the circumstances a duty on the school and if there is, have they discharged it by making ‑ ‑ ‑

GAUDRON J:   We know what the legal issues are, but what is there that would impose such a duty of care on an education authority?

MR ROWE:   Your Honour, at some stage, as sure as God made little apples, the arrangements made by the mother seem reasonable on their face.  At some stage the mother would either fail to meet the child because either the child had left the school early or for some reason or other the mother was detained or running late and at some stage that child would have had to negotiate that busy road.  Given that child’s disability, the busy road is like asking her to wade across a river full of crocodiles.  What actually happened, she walked into a car.  The point is, your Honour, the duty will arise ‑ ‑ ‑

KIRBY J:   The mother was late, was she not?

MR ROWE:   I am not sure whether the mother was late or if the girl was early, it is uncertain, but the mother was on her way down to meet the girl, the plaintiff, when she was met by some young boys telling her there had been an accident.  So the girl had arrived there before the mother had and walked into a car.

KIRBY J:   How old was she at the time of the accident?

MR ROWE:   Twelve.

KIRBY J:   Twelve.

MR ROWE:   She had just started high school.  She had been three weeks at this school.

KIRBY J:   Did she say why she had not waited for her mother or waited for other people to cross?

MR ROWE:   We have no explanations.  She had some mild brain damage.  But we have no explanation as to why she walked onto the road.

KIRBY J:   The difficulty is you are asking us, quite apart from the causation question, to add to the statute duties of care and not only in respect of a visually‑impaired person but for all other impairments and disabilities, to make sure that they get home safely, as distinct from are safe in the school grounds and the immediate curtilage.

MR ROWE:   No, your Honour.  Indeed, I think that is the way the Court of Appeal saw it also but, with respect, your Honour, we say that the duty on the Education Department should be to take into account all of the circumstances, including the nature and extent of the disability if a child has one.  Some disabilities would not warrant the consideration, although ‑ ‑ ‑

KIRBY J:   That is fair enough, but in a circumstance where the mother has not said, “I would like you to escort my child home or put flags on Carlisle Avenue or provide a taxi”.  The mother said, “I will pick the girl up”, and she was running late on this occasion or some misconnect happened.

MR ROWE:   But the mother had.  The mother had approached the authorities at the end of the primary school year and made an application, supported by a medical certificate, that the child be provided transport to and from school as she had up until that time with the school.  Part of that application indicated that she relied on the fact that the child was visually impaired and it was supported by a doctor’s certificate to the effect ‑ although the certificate was lost – that this child required transport to and from school.  So the mother had done that.

KIRBY J:   Yes, I recollect that now, but that having been refused, the mother made arrangements to collect the child.  She did not say, “Keep the child at the school”.  After all, it is not a big extra distance from Carlisle Avenue to the school.

MR ROWE:   The mother found that the application had been refused when the school year commenced and the mother then walked the girl to school and ascertained that she could handle that suburban street but it was Carlisle Avenue that always was the problem.

KIRBY J:   Was there lights at that intersection?

MR ROWE:   No, there are not.  There are no lights at that intersection.  Your Honour, whilst we understand and embrace the problem, the reality is that there are pupils – and we say this child is one – that if they must attend school, do require in some circumstances transport.  The circumstances to be taken into account is the nature and condition of the way in which they have to go home, the distance and the child’s disability.

In the Court of Appeal the judges said, or inferred, that there may be a duty but this one does not get over the line.  We say the duty is not dependent on what arrangements the mother makes, having been refused transport, but the duty to provide transport in the circumstances or some other means of enabling the child to safely get home is a question, first of all, whether or not there is a duty and secondly, to what extent may it go.

Your Honour, our submission is that the department knew that the plaintiff had a handicap.  The plaintiff knew she was vulnerable by reason of her handicap.  They knew of the danger of crossing Carlisle Avenue.  They were able to provide transport – in fact, it provided it after this incident.  The transport would have obviated the risk to the plaintiff and that in these circumstances the department had failed to take into account the plaintiff’s vulnerability when allocating transport.

KIRBY J:   Is there any case in the United Kingdom or Canada or any other common law country that supports your proposition?

MR ROWE:   I cannot answer that, your Honour, and I am not aware ‑ ‑ ‑

KIRBY J:   If you want to get into this Court nowadays, you have to really establish that there is something important, special in the case.

MR ROWE:   I am not aware of any case overseas, your Honour, that is one way or the other.  I am aware that, at least in New South Wales, there is no case that defines one way or the other.  The case referred to in our documents of the Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman is a case in which a student did succeed in relation to the liability, but that case was distinguished, it being a case where the student whilst outside the school was in an area that was still under the control of the school in relation to waiting for a bus.

KIRBY J:   That is pretty standard.  As I said, even in my day they used to have the flags just outside the public schools, and presumably still do.

MR ROWE:   That is right.  That is so, your Honour.  It is really, I suppose, a question of degree.

KIRBY J:   They often got parents, I think, to come and supervise to make sure ‑ ‑ ‑

MR ROWE:   In my experience, your Honour, it is usually an elderly man who likes something to do.  But your Honour’s question, if there is a duty, then how far does it go and what other circumstances there should be taken into account in establishing the duty.  Is it an answer ‑ ‑ ‑

GAUDRON J:   What do you say?  You say here there was a duty to provide transport to and from home every school day ‑ ‑ ‑

MR ROWE:   For this child.

GAUDRON J:   ‑ ‑ ‑ for this child and it was a duty called into existence because they knew of her visual defect or limited eyesight.

MR ROWE:   Of that and the route required to go home, which means crossing a busy street.

GAUDRON J:   On the other hand, why cannot the department just say, “It is a local school; a mother either can or can arrange for someone to get her here and back”, which is what I would have thought would normally be the case.

KIRBY J:   Children do not seem to get buses any more.  Their parents drop them at school.  I see them at Cranbrook and all the other schools that I pass.

MR ROWE:   They are all four‑wheel drive vehicles though, I think, are they not, your Honour?

KIRBY J:   Yes, exactly.

MR ROWE:   Your Honour, in places such as Mt Druitt there are very many parents that do not have vehicles and often they are single parents, as this one was.

GAUDRON J:   But it is within walking distance.

MR ROWE:   Your Honour, we accept that, but what we put to your Honour is that the only criteria is not the distance.

GAUDRON J:   No, that is not the question I am putting to you.  I am really saying why is it the school’s responsibility rather than the parent’s?  Why would it not be reasonable for the department to say to itself, “It is within walking distance.  She has a mother who presumably can make some arrangements about it all.  Why should we do anything further?”  What I want to know is why that is not overall an appropriate an reasonable response to the problem?  And you have to say it is not.

MR ROWE:   It makes some assumptions, your Honour, that the department should not or could not make.  First of all it assumes that the mother is available.

GAUDRON J:   We know she was.

MR ROWE:   In this case she was but that is not a reason ‑ ‑ ‑

GAUDRON J:   Yes, I know, but it might have been, you know, if my aunty were my uncle sort of thing.  We are dealing with particular circumstances.  You have to deal with the circumstances of the particular case surely.

MR ROWE:   And in these particular circumstances the plaintiff’s mother had approached, asked for the transport, and when it was refused had to make some alternative arrangements, which she did.  The question though is, in the first instance, should the department have looked at the circumstances of this case and reached a value judgment as to whether it would be appropriate to provide the transport that was readily available given the problems with the child and the route the child had to take.  Your Honour, our submission is there is a question there of law as to whether or not in the first place there is a duty, and if there is, what are the circumstances in which it should be exercised?

On the question of leave, we say that whilst it is a question that should exercise this Court, it also, we would suggest, on the facts, would overcome the circumstances in which the duty should have been exercised in favour of the plaintiff and transport provided.  Your Honour, I am going around in circles I think.

GAUDRON J:   Thank you.

MR ROWE:   Thank you, your Honour.

GAUDRON J:   Yes, thank you, Mr Rowe.  We need not trouble you, Mr Barry.

The proposed appeal in this matter does not enjoy sufficient prospects of success to warrant the grant of special leave.  Accordingly, although time is extended, special leave is refused and, in accordance with the ordinary practice, will be refused with costs.

AT 11.25 AM THE MATTER WAS CONCLUDED