Gugiatti v Servite College Council Inc - [2003] WADC 30

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GUGIATTI -v- SERVITE COLLEGE COUNCIL INC [2003] WADC 30

CORAM: HH JACKSON DCJ

HEARD: 28 & 29 NOVEMBER 2002

DELIVERED : 19 FEBRUARY 2003

FILE NO/S: CIV 3123 of 2000

BETWEEN: MATTHEW JOHN GUGIATTI
Plaintiff
AND
SERVITE COLLEGE COUNCIL INC
Defendant

Catchwords:

Negligence - Schoolboy - Injured at school camp jumping across a creek

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr S F Popperwell

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Pynt & Partners

Case(s) referred to in judgment(s):

Camkin v Bishop [1944] 2 All ER 713
Carmarthenshire County Council v Lewis [1955] AC 549
Commonwealth of Australia v Introvigne [1982] 56 ALJR 749
Evans v Minister for Education (1984) A Tort Rep 80‑670
Geyer v Downs [1978] 52 ALJR 142
New South Wales v Lepore [2003] HCA 4
Richards v State of Victoria [1969] VR 136
Shire of Wyong v Shirt (1980) 54 ALJR 283

Case(s) also cited:

Western Mining Corporation Ltd v Bouyer, unreported; SCt of WA; Library No 6546; 5 December 1986
EPT Ltd v Orgaz, unreported; SCt of WA; Library No 7914; 3 November 1989

HH JACKSON DCJ: In this matter, for reasons it is not now necessary to repeat, I ordered, prior to trial, that the issue of liability be tried ahead of questions of assessment of damages. I ordered that at the end of the trial of liability, the parties were to make submissions as to whether the matter is to be re‑listed as part‑heard on a date to be fixed before me on the question of damages, or, alternatively, whether the trial Judge on liability is to decide that issue standing alone.
In the end, it was decided that I should deliver my conclusions on the question of liability before further orders were made as to questions of damages.

Background

In 1998, the plaintiff was a Year 11 student at Servite College. He was born in March 1982.
The defendant body conducts the Servite College school.
It is admitted on the pleadings, as is in any event trite, that the defendant as a school authority, had a duty "to take reasonable care of its students and protect them from risks of injury which could reasonably have been foreseen".
The college decided to hold a three‑day retreat or camp in September 1988 at Logue Brook Dam. About 30 students were selected to attend. One of the purposes of the camp was to assist staff to select potential Year 12 leaders. A retreat or camp program and booklet was prepared: Exhibit 9. This describes the purpose and rules thus:
"PURPOSE of the CAMP
•Develop spirituality
•Develop skills which will assist in the role of Student Councillor
•Develop the ability to work as efficient, effective team members
CAMP RULES:
Common Sense
Cleanliness
Care for Others
Co‑operation"
Apart from issues relating to spirituality, much of the booklet is concerned with issues of leadership.
The students attended the camp with three school teachers, Mr Hall, Ms Seers and Ms Kirk. In addition, there were regular camp staff in attendance. The school principal, Mr Kenny, arrived at the camp after the main group.
The statement of claim describes the events of the retreat or camp relevant to these proceedings thus:
"4.... Activities included a rope course, orienteering and a hike around the dam.
5.On 24 September 1998 ('the material date'), the students, including the Plaintiff, commenced the hike around the dam. The weather was overcast and windy. The students were not dressed for wet weather.
6.During the hike, it commenced raining heavily and teachers employed by the Defendant directed the group to return to camp. The students were drenched to the skin and cold.
7.At a certain point on the return journey, it became necessary to cross a stream. The students had been encouraged by the teachers employed by the Defendant to devise their own method of crossing the stream, there being no bridge. The Plaintiff proceeded to cross, as he had done on the outward journey, by taking a long run‑up and jumping across the stream.
8.The rain had made the bank on the other side muddy and the Plaintiff's right foot sank into the mud causing him to wrench his knee and suffer injury."
The plaintiff says the injury was the result of the negligence of the defendant, its servants or agents, and pleads the following particulars of negligence:
1.Failing to have sufficient teachers to supervise all 30 students;
2.Failing to prescribe a safe method for crossing the stream;
3.Failing to intervene whilst students on a leadership course, in using their own discretion to devise methods of solving problems, selected risky options;
4.Placing students a distance from shelter without adequate clothing to keep them warm and dry; and
5.Failing to protect a pupil against a risk of injury which could reasonably have been foreseen.
The defence casts the activities in a different light. It is admitted that the students, accompanied by teachers, went for a walk. At the material time, it was drizzling slightly.
As to par 7 of the statement of claim, the defendant:
1.Says the student and teachers encountered a small creek on the outward journey and worked in teams to devise their own methods of crossing the creek which involved building small rafts from natural materials or placing objects in the creek to walk on;
2.Denies the plaintiff crossed the creek on the outward journey by jumping;
3.Save to say the plaintiff took it upon himself to do so, admits the plaintiff attempted to jump across the creek on the return journey; and
4.Otherwise denies the allegations contained in par 7.
The defendant denies negligence and pleads in the alternative that if the plaintiff sustained injuries (which is denied), the injuries were caused or contributed to by the plaintiff's own negligence.
Particulars of such negligence are pleaded that he:
1.Failed to take any or any reasonable care for his own safety in attempting to jump the creek;
2.Failed to use the methods adopted on the outward journey, by using rafts or placing objects in the water to walk on; and
3.Attempted to jump the creek when he knew or ought to have known there were alternative methods available of crossing the creek, having used these, or, alternatively, observed these being used, on the outward journey.
Whilst the relevant events are simple enough in essence, some questions of the factual background arise on which memories of witnesses differ widely so that it is necessary to set out the witnesses' evidence of those matters.

Plaintiff's evidence

The plaintiff gave evidence that prior to lunch on the second day of the camp, the students undertook an orienteering course and a ropes course. It seems that after the ropes course, he fell off the back of a utility as a result, it seems, of it being driven by a camp staff member erratically, and suffered minor "scrapes and stuff" to his hands and knees.
Towards late afternoon, the students were gathered together in a hall and told they were going for a walk. He thought there had been some concern expressed about the weather:
"They just said we were going for a walk to the lake - or the dam, whatever it is, and they took us down there. So we went down the driveway which is really long and then went down like a sealed road and then we ended up getting to the entrance of the dam and we sort've just milled around the sign there and took photos and stuff ...
BRUNS, MR: Was there any discussion at that point about what the plan was or how it was going to be organised or anything else?---I just remember it being really vague, like the teachers weren't ... giving us the full story of what we were going to be doing. I was saying to people and stuff, 'Well, what's the point of this?'
Were you told what the destination was or how long you were going to be away or - - -?---They just said we were going to go for a walk around the dam.
All right. When you set off, did you set off in any particular formation?---Not that I remember. I think it was just us as a group sort've walking down - although the group by the time we got there had probably spread out a bit.
What do you remember about - I think I can perhaps direct your attention to coming to a stream. What do you remember at that point?---Yes, we came to a stream and there was again a lot of milling around and then it was - I think maybe Mr Hall might've said - because people said, 'What are we doing do?' and he said, 'We'll just have to somehow get across I suppose.' I think it was him but it was definitely implied that we had to get across.
Did he say how?---No. Again it was like really vague. I guess the purpose of the camp was to see who would lead and come up with the ideas and stuff like that.
And did anyone do anything?---Yes. I don't know who decided it, whether it was the teachers or the students, but they starting building a bridge across.
And who's 'they'?---The students.
How many? Can you remember who they were or ‑ ‑ ‑?‑‑‑When it started all the group was at the point where they were building the bridge but as a few students started to build it, some of us, including me and some other people, gradually trickled away down - upstream, yes, upstream, and there were a few people in the group that were building the bridge who were obviously more leading than others. Like Dane and Dominic Trimboli were two that were like really keen and stuff to show that they could lead and build this bridge.
So what did you do?---... I thought it was going to take forever and ... I thought the idea was a bit stupid, so I walked upstream once I had seen that other people had walked up there as well, which included Vlad.
Is that Vladimir Martinovich?---It is, yes.
What happened then?---I'd seen that Vlad had jumped.
What did you see and when was that?---Further upstream and where it was narrower, much narrower, than where they were building the bridge. Vlad just took a run up and jumped and he did it a few times because Lara Moltoni was taking photos of him doing it and he did it a number of times. So I said to myself, 'This looks like a good idea,' and so I gave it a go and the jump was successful.
Did you jump over the stream only once?---No. Because the building of the bridge took so long to get the whole - because once they built it, all the people who were crossing that way had to like one by one go across, which took for ages. Me and the other people that were jumping, which included Vlad, were jumping back and forth, helping other people get across that were wading through and stuff like that.
Can you say what proportion of the group of 30 stayed building the bridge - or at the bridge site and what proportion moved away?---When they first started building the bridge most people were at that point but by the time the people who were crossing by the bridge got across there was probably like 10 or 15 trying to find other ways to get across by jumping or wading or something further upstream where it was narrower.
Were they in your line of sight when you were upstream?---The group building or - - -
The group building and group waiting to cross?---Yes, yes, because there was only like shrubs on the ground. You could see - although the river was sort of bendy, you could see because there was only shrubs. It only got bushy further back.
So as the crow flies, how far were you from that group when you were jumping?---I can't be sure but maybe like 100 metres, something like that, 200 metres.
Are you talking about following the stream round in a curve or as the crow flies?---Maybe closer to a hundred then, like straight from the group, I guess.
Was there more than one place where people were jumping?‑‑‑Yes, because as it got further upstream it got narrower and narrower and narrower, so some people just went over there - like went right upstream, walked for ages and got across that way and, yes, there were people around me jumping where I was."
He identified the place where students were building a bridge with Mr Hall and Ms Seers watching: Exhibit 2.
"BRUNS, MR: After you jumped and got to the other side, what did you do and what did others do who had got to the other side by those alternative means?---Once I got to the other side I sort've just kept jumping and helping other people get across that were trying to find alternative means and walking further upstream and downstream and stuff, just like wasting the time out."
Others arrived from the main group. He thought someone, having crossed upstream, had gone back to the main group and alerted them to that possibility.
When the bridge had been built and everyone, by one means or another, had crossed the stream, some students dismantled the bridge. The group walked on towards the dam. It started to rain and the rain became heavier. There had been no earlier instructions about clothing. After walking for a distance in the rain, the group sheltered under trees for a few minutes:
"I remember at this stage Mr Kenny was there but he didn't start out the walk with us, he came down later. He must've come when they were almost finished crossing the bridge area but I know he was there at that stage.
...
So were there any particular instructions on how you should return?---No. It was just said, 'We're going back,' and that's it.
Did everyone go in a particular pattern? Were they in single file or were they in groups or how did they go back?---By this stage the group was pretty spread out. I think I was towards the front of the group and we just wanted to get back.
And why did you want to get back?---Because it was raining.
Was there anything else about the weather that you can remember?---It was windy and then cold and all the rest that comes with the rain. It was really overcast and getting late in the day.
H.H. JACKSON DCJ: What do you call that? What's late in the day?---I think it seemed later because it was overcast but towards late afternoon, 4 o'clock, 5 o'clock or something.
BRUNS, MR: What do you remember happening next?‑‑‑That's when I jumped back across.
Did you jump in exactly the same place as you had jumped earlier?---It was little further closer to where the bridge was being made, not as further upstream as it was when I first crossed it but not enough to make me say, 'This is too wide to jump.' It was pretty close to the width.
Did you successfully clear the water?---Yes, I made it to the other bank but because it had been raining the bank was all muddy because that whole area is pretty flat there and there wasn't much scrub and it was all sort of muddy. I landed but my foot sunk into the mud."
He said his right foot went into the mud, his knee twisted and he tore his anterior cruciate ligament. He identified the place at which he landed as being shown in Exhibit 7 and Exhibit 8. A student, Carl Maloney, was first to assist him: Exhibit 8, then Adam Maravillas:
"... waded straight through the water and came over to help me. I remember they were the first two to help me but even that seemed like an eternity, like it seemed forever before anybody would help me. I just remember seeing like all the teachers and all the students up on the bank just looking down on me and not doing anything and people laughing and people taking photos and that's why I was swearing and showed them my rude finger and stuff.
Can you say how long it was before a teacher came to you?‑‑‑I think the first teacher was Mr Hall and it would've been like 2 to 5 minutes or something."
He was hurt and crying and it seemed a long time for a teacher to arrive. He was asked about instructions being given on how students were to cross the stream:
"There wasn't any teaming up or anything. I mean, by the time it finished people grouped off into maybe what their friends were and stuff like; people walking upstream like I did but basically it was just implied that you had to get across and people started building a bridge, which was, yes, lying rocks and logs in there. I don't know so much about rafts because I don't know how you'd float a raft on there but, yes, putting logs and rocks and stuff - - -
And before the jump on which you injured yourself, how many times had you jumped across the creek?---Quite a few, maybe four or five or something like that.
H.H. JACKSON DCJ: In the opposite direction?---Back and forth.
Yes, but when you were going?---Yes, on the outboard journey.
This was your first jump on the return journey?---Yes.
BRUNS, MR: Was there any direction from anyone that you had to use the methods adopted on the outward journey to recross the stream?---No. By that stage everyone was really spread out and just wanting to get back, so people just ...
H.H. JACKSON DCJ: ... What you're saying is on the return journey there were no instructions as to how to cross the creek?‑‑‑No. I mean, there wasn't really any definite instructions by the teachers how to cross the creek on the outbound journey."
He then gave evidence of being taken for medical assistance in Harvey and being driven home to Perth by the principal.
Cross‑examined, he agreed he had been provided with a copy of Exhibit 9 before or at the camp and knew of its purpose. In hindsight, he said, he agreed there was an expectation on those attending to be mature. He was vague as to what briefings the student group had been given at different times. He did not recall any instructions being given about the walk or its purpose or being told to walk with, and speak to, someone he did not know. He did not do so.
He doubted that they had been told to do so and, asked if he really wanted to go on the walk, said, "I don't think anybody did." He estimates the distance they had walked as about one kilometre. At the point at which the bridge was built, the creek was perhaps five metres or six metres wide and knee deep, upstream perhaps ankle or calf deep. He had, on the return journey, taken a running jump downhill from the higher bank where the creek was perhaps two metres wide:
"When you got to the creek was it raining, on the outward journey?---No.
No. Did everybody arrive at the creek together?---Pretty much.
Nobody had to wait for the teachers to arrive or anything?‑‑‑Apart from Mr Kenny coming down later, no.
No. Were you given any instruction by the teachers as to how to get across the creek?---Not much. If any, very minimal. Not the method to get across the creek but it was implied that we had to cross the creek.
...
Would you agree with me that Mr Hall said something to the effect, 'Guys, you've got to work together, try and get across while remaining dry and keeping yourself safe'?---Not so much keeping dry. Keeping safe, together, all that, but it was sort of, 'Okay, we have to work out a way to get across - - -'
Well, in the terms of - the purpose of the camp was cooperative assistance to try and overcome obstacles?---I guess that was something we were meant to keep in the back of our mind.
Mr Hall is going to give evidence that he said to all the students, 'Work together to get across this creek' - set you an activity. You don't agree, is that what you're saying?---He said - it sounds like he - I think he said - not work together but, 'Try and get across this creek. We have to get to the other side. We're not going back, we have to get to the other side.'
So it was a challenge?---Yes, yes.
And he set at a challenge for you and at the back of your mind 'work cooperatively to do that'?---I was thinking more about the whole leadership thing because I knew they wanted to see who was a leader and who was a follower.
Okay. You say you went up the creek and jumped over it a couple of times. Do you think you were participating in the activity?---I think I was still within the purpose of the camp because that's showing initiative and doing what I thought was appropriate to get across the creek.
Initiative, leadership, taking control of people and jumping across the creek, That's an initiative, is it, in the purpose of leadership and cooperation?---I also thought the idea of crossing by the bridge was a bit dumb and stupid.
Why is it dumb and stupid. Isn't that a safe and clean way of getting across?---It was pretty dangerous actually because I know people were really struggling getting across. They were falling off and falling in.
They were getting a bit wet?---Yes. So it just seemed like a pointless thing.
So you weren't very encouraged by this thought of cooperative assistance to get over the creek?---Not so much - because I did help other people get across, like by the way they are in this photo, like helping each other do that. I did help other people do that further upstream where it was narrower.
You say you went further upstream. Is that right?---Mm'hm.
Did you see any teachers go upstream with you?---No.
So you didn't see Mr Hall wandering around up there?---No. They just stayed right there with the group."

He had not seen Mr Hall where he was, but had seen him with the group at the bridge site. He agreed that further upstream, the stream could be stepped over and that where he jumped it, no great athletic ability or effort was needed. He insisted that from where he jumped the stream in the outward journey, he could see the teachers and they him. They had not been assisting in constructing the bridge, to his knowledge.
After everyone had crossed the stream, they walked for 10 minutes or 20 minutes in which he estimated they covered 300 metres or 400 metres, and by which time it was raining heavily. The group had spread out. After they turned to go back, he was near the front. He decided to jump the creek at a point near where he had jumped it earlier. He had seen others do it and saw no danger.
After the event, he waited for assistance. The teachers assisted "somewhat but nowhere near adequately". He denied being told to wait where he was until the principal brought a car.

Other students

The plaintiff called evidence from a number of fellow students at the camp.
Lauren Moltoni recalled there being about 36 students and three teachers and that the principal, Mr Kenny, also attended for a time. On the second day, she took her camera on the hike. Exhibit 1 to Exhibit 8 were taken using the camera either by her or someone else. Exhibit 3 and Exhibit 6 show her and Simon Fazari crossing the creek at a point different from that at which others were building a bridge. Exhibit 4 shows Alicia Russo wading through the creek. Exhibit 5 shows Vlad Martinovich jumping the creek. She commented: "That was his second jump as well because I missed the first. I was there but the camera wasn't ready so I made them do it again." Chronologically, they were taken in the order 1, 2, 5, 4, 3, 6, 7 and 8, with the first six being taken on the outward journey.
She described what had occurred:
"When you got to the bank what happened?---Well, basically we got to a point - we had walked a fair bit up the stream and we decided that there wasn't going to be a point too much closer than it already is because we would have to walk too far up to cross over, so we had to use - the teachers said we had to use our own initiative to get across and it was decided that we would start building a bridge, so everyone was sort of helping out building a bridge. I thought it was a silly idea, so a few of us started walking upstream to see if there was a point we could cross over instead of helping building the bridge. Vlad decided he would jump; Alicia decided to go across, take her shoes off; me and Simon found some rocks, so we cross over them. We had to walk a pretty fair way up, no‑one could see us.
...---The photos of Simon and I were 3 and 6, so they were - we found that. That was right near where they were jumping, just around a little bend. Photo 4 of Alicia wading, that was pretty close to where the bridge was being built and photo 5 of Vlad jumping was - there were heaps of bends and stuff, so we had basically trudged a fair bit down to find a spot that was higher to lower, so he could jump and he could make the distance because he was a basketballer.
After everyone got across, what do you remember about the hike?---So we had all got across. We walked up - starting walking around the dam and we were all pretty much spread out. It started to pour down with rain and we were told get under the trees and after it sort've lightened up a bit they decided, since it was too much of a walk to get around the rest of the dam, because it was pretty big, that we'd just come back the way we came.
When you say 'they', can you remember who said what?---Well, we were all - I really can't remember who said it. It had to be one of the teachers to be definite, so - I don't want to guess but.
How wet were you?---I don't remember being that wet at all because I ran straight to the trees. Coming back my jumper got a bit damp, because it wasn't raining that much when we decided to get out, so, you know, a bit damp and that was it. Simon gave me his hat, so that was it really.
What do you recall happening when you got back to the stream?‑‑‑The bridge had been washed away, so Dominic and a few others started to quickly rebuild it. I remember someone calling, 'Gugiatti's' - sorry, Matthew. 'Matthew's fallen over,' or whatever they yelled out. I had to run around a bend to see it and I took photograph 7."
She did not actually see him jump.
Cross‑examined, she agreed there may have only been 30 students on the camp and that she was not sure when Mr Kenny was present. The teachers had spoken to them on the first day about looking for leadership and skills qualities, but "we sort of blocked that all out." She recalled various briefings being given. Before the walk, they were told to walk with someone they did not know and to get to know them. She agreed that after leaving in mid to late afternoon whilst it was not raining, they strolled for about 10 minutes, waiting for each other and the teachers on arriving at the creek. Basically, the teachers then stood back and let the students use their initiative to cross. The students decided to build a bridge. The teachers stood and watched. The creek there was three metres or four metres wide. She went upstream and was helped across by Andrew. Vlad was jumping across.
Vladimir Martinovich gave evidence of assembling in the hall on the second day and being told they were going for a walk, then walking to the creek. At the creek, "the teachers told us that we've got to cross it somewhere. So I looked for the most narrowest point in the creek to jump to get over as quick as I could." He jumped over, back and over again, when the photo was taken, then walked 40 metres or 50 metres to meet up with the others. Probably three or four students jumped the creek. He urged those still making a bridge to hurry. A group assembled, waiting for others to cross, then walked off. It was starting to drizzle then and, after some minutes, to rain. He sheltered under bushes and a female teacher told them they were all returning to camp. On the return journey at the stream, some built the bridge back up, others walked through the water. He was intending to cross at the point he had earlier jumped when he was told the plaintiff had fallen. He met the plaintiff and assisted others who tried to help him walk to clearer ground. He and Amanda made a "fireman lift". No teachers were present. He then lifted him on to his own back. Cross‑examined, he agreed he had seen the camp program and knew the purpose of the retreat. As to the walk, he recalled only the three teachers, not the principal. Nor did he recall any instruction that they were to work together to cross the stream or to team up with someone they did not really know. He jumped the creek after going upstream about 40 metres. The width was less than two metres. He could not recall who else did so. He thought the plaintiff jumped the creek on the return journey at a point only slightly wider. He thought teachers may have arrived whilst he was assisting the plaintiff, but he did not recall anyone telling the plaintiff not to walk. Only later did the principal bring a car to assist. By then, the plaintiff had got to an access point.
Amanda Christou had a clearer memory of events. She recalled there were 30 students with three teachers, and the principal arriving later. The camp was to select leaders for Year 12. On the second day, "we were called together in the general meeting hall and led down the driveway of the camp where we met again and we were told that we were going to be continuing to walk around the dam or as far as we could get." She did not recall any purpose being explained. A comment was made that it looked as if it might rain soon. Mr Hall, she thought it was, said they would be back before it started raining or before it got late. They walked along a gravel drive, spread out but within sight, to a creek bed where they "milled around aimlessly for a little while". Mr Hall then said:
"... 'Well, we do have to cross this,' and waited for a little while until a bridge was proposed. I don't remember who proposed the bridge but Dominic Trimboli took charge of the construction of the bridge, along with a couple of other students. They rolled up their pant legs, jumped in the water and a fair majority of us began to scavenge rocks and bits of log and stuff to pass to them and build the bridge.
What were the teachers doing during all this?---They were watching.
Were there any exceptions? Were all 30 students doing what you said, scavenging rocks and so forth?---No. We kind of flaked off a bit. The majority of students stood around watching, only a few were really building the bridge. A couple I think, maybe one or two, decided to wade across and a few more went upstream quite a bit further to find an area where they could cross safely, a narrower point.
So the ones that went upstream, could they still be seen from where you were?---I could see them, yes.
What do you remember seeing?---I remember seeing Vlad Martinovich jump, I remember seeing Lauren Moltoni take a photo of him jump. I don't remember who else was with them. I don't remember seeing anybody else jump but a few other students did come around to the other side of the stream and talked to us and to the guys who were building the bridge for the rest of us to cross.
Did they say anything in particular about how they'd got across?‑‑‑Yes. Vlad specified that he had jumped across but to who I don't who, or whether it was in response to a question. Mr Hall was aware that he had jumped because he asked when Vlad disappeared, 'Where's Vlad?' and someone responded that he went upstream.
Where were the teachers - at the time when you were watching Vlad jump and Lauren Moltoni take a photograph of that, where were the teachers in relation to you?---They were right on the creek bed and I was maybe about 5 metres back from the creek bed but we were in a fairly tight cluster; like I could see the teachers and I could see the person who was jumping."
She identified the teachers watching students building the bridge: Exhibit 2. She recalled Mr Hall asking "where Vlad was" and someone pointing upstream. This was "before Vlad had jumped". People waited 10 minutes or 20 minutes for the bridge to be built. After everyone was across, the bridge was dismantled so that it did not obstruct the flow. The weather changed. It started to drizzle, then pour. They walked on. Mr Hall then led them under trees, by which time the group was "really spread out". The group turned around and went back. One or two ran. She walked and by the time she got to the stream, the group was still very spread out: "The boys were already in the water trying to build the bridge again. We waited for a couple of minutes, some stragglers caught up and that's when Matthew tried to jump." She saw him do that about five metres or six metres from the bridge, and much closer than where Martinovich had originally jumped: "I saw him do a bit of a run up. He jumped across ... and his legs sank in." He fell and started crying out. Carl Maloney and Adam Maravillas waded across the stream from where she was. The water was about three metres wide and knee deep. The two boys helped the plaintiff to firmer ground and left him to sit. By then, the bridge was finished. She was helped across and went to the plaintiff. She and Martinovich made a fireman's lift and helped carry him a certain distance.
It started to rain again. She was shorter than Martinovich. The plaintiff's weight was too much for her and she left it to Martinovich to carry him while she went ahead. The principal arrived in a car to drive the plaintiff the last 200 metres up a fairly steep hill.
Cross‑examined, she recalled the camp program and a briefing on the first morning and also briefings before and after activities. However, she did not recall a specific briefing on the purpose of the walk, nor any formal instruction at the creek.
Mr Hall "just said 'Well, we have to cross it. What are you going to do? How are you going to do it?' and ... somebody proposed a bridge. ...":
"So Mr Hall was giving some kind of instruction to get across the creek, use your initiative?---Yes."
She stayed at the bridge site and saw only Vlad Martinovich upstream. She did not know where the plaintiff then was. Nor did she see anyone wade across. The teachers stayed at the bridge site. The stream there was about four metres wide. Where the plaintiff jumped on the return journey, it was about three metres wide. Before he jumped, he had been standing with her watching others rebuild the bridge. After the accident, she had no recollection of any teachers being with him.
Carl Maloney recalled that some activities at the camp were "mainly leadership based", others were "ice breakers" where people worked in pairs or groups in completing a task. He recalled that the program after lunch on the second day called for activities on the lake but, mainly due to bad weather, this was changed.
Asked about any discussion or rules, he replied: "Not really, just get ready, like 15 minutes, get your shoes on and just go for a walk. We didn't know how long it would take or - that's about it."
At the stream, "the teachers mainly just said that we had to cross the stream but we had to work our own way ... they didn't tell us how to cross it, so we just had to make our own decisions." He and others decided to build a bridge, which a small group did. The teachers watched with most of the students. Five or six found other ways across somehow because they appeared on the other side:
"I remember them saying, 'We just jumped over,' and then they were just jumping over again, showing us how easy it was."
He was still building the bridge. The teachers were waiting to get across. When everyone was across, he and another student dismantled the bridge. After walking further on for 20 minutes, it was drizzling and then it rained "pretty heavily". A lot of people were drenched. They were instructed to go back:
"How were people behaving?---People were like running, panicking sort of stuff. They wanted to get out of the rain, so people were in a rush, like separating from people, trying to keep up.
What do you recall when you got back near the stream?---I remember thinking, 'Oh, no, we destroyed the bridge, so we've got to build it again.' So Dominic and myself started building the bridge again and everybody was just like hurrying, so we were just throwing rocks into the pond. Everybody was throwing sticks and everything into the river, trying to build the bridge again. It wasn't as good as the first time we made it but everybody was just trying to get across. I was standing in the middle helping even the teachers and students across and got like pretty wet in the process but everybody was trying to get across very fast, so everybody was just running through.
...
Did you observe Matthew Gugiatti coming back on that return crossing?---Yes.
What do you remember?---Well, because he didn't take the bridge the first time, I guess he just thought it would be easier jumping, so he just jumped across the lake again but this time when I saw him his leg seemed to be stuck in the mud when he jumped and then everybody fell over that. So that's when I think he probably hurt his leg.
And what did you do?---I saw people were just looking and some people were laughing and taking photos but I saw that he was in pain because he was screaming out, so I went over to try and help him up and stuff.
How did you get to him?---I walked a little bit into the water and then jumped the rest of the way to get to him - try not to get wet but.
Once you got there what were you able to do?---I saw his leg stuck up to his knee, so I knew that he couldn't stand by himself, so I was trying to issue other people to come over and help him up, just like try and stand him up and just try and comfort him, saying, 'It's all right.'
Did anyone else come?---Some other students came when they saw he was in trouble, I think Amanda and Vlad.
So that's Amanda Christou and Vlad Martinovich?---Yes.
What did they do?---They picked him up to take him where we were building the bridge, because he couldn't stand by himself, couldn't walk.
Were there any teachers on the scene at that point when they picked him up?---It was just the students. I think the teachers were still down where we were building the bridge, because they were trying to get across from the other side."
Cross‑examined, he said that on the outward journey, "some people just kept jumping across, just coming around the other side and showing us." He then said he heard them say it, and did not actually see it. Other students were telling them. He then said the plaintiff was one of those building the bridge.
Marco Palermo recalled no particular instructions or information being given about the walk. At the stream on the outgoing journey:
"I think there was a general idea that we had to cross the river in some way and some people decided to make a dam. I think the teachers might have supported that view but it took quite a while, so the rest of us - or a few of us decided to look for an alternate path to getting across."
He got across, but not by using the bridge. He could not recall exactly what he had done. On the return journey:
"I don't think there was much direction as to what we had to do. I mean, generally a few people started rebuilding the bridge that was there and of course, because some people had jumped successfully before, it seemed like a good idea to do that as well.
So how did you decide you were going to cross on the return journey?---I was going to jump.
And what happened?---Well, I saw Vlad - Mr Martinovich - jump quite easily, then I saw Mr Gugiatti jump and hurt himself and that kind of stopped me from wanting to jump. I had a look at that and I thought, 'There's no way I'm jumping,' but then I think I just took the bridge across later, after that."
Cross‑examined, he was confident Martinovich had jumped the creek on both journeys. He was less confident this was ahead of the plaintiff on the return journey. He also conceded that they might have been told to team up with, and get to know, someone they did not really know. He did not think he had. He also conceded Mr Hall may have said at the creek that they were to get across working co‑operatively. He saw people wandering off.

Evidence from the staff

The defendant called three of the four teaching staff present at the camp.
Mr B J Hall, the deputy principal, commenced at the college in 1998 and organised the retreat in conjunction with Mrs Seers and Mrs Enfield‑Kirk. He had organised various camps at earlier school teaching posts. The Servite College Year 11 retreat involved, as well as other aspects, "training activities for our potential leaders and ... a number of ... physical exercises which would focus on aspects such as teamwork, getting to know members of the group working together co‑operatively, building confidence." He had not visited the site but had details of facilities, previous camps there, maps, etc. He arrived the day before the students and viewed the site and accommodation which were all satisfactory. The principal came after the three teachers and the students:
"Was there a mission involved in the walk?---There was a couple of objectives that I would have hoped to have achieved on the walk. One of them was just some physical activity. We had been doing a lot of inside work on the day. One of them was an exercise in which they had to get to know one of their colleagues. Each student had been assigned to be what we call a guardian angel of another student. They did not know who their guardian angel was; that the purpose was for their guardian angel to get to know that person, to spend some time with them, where perhaps they mightn't do that, they might not have been close friends. In fact some of these students were pretty well strangers at the time. Then the exercise of getting across - there was a creek which I was aware of an exercise in teamwork in getting across together in a dry, safe manner. The creek itself was not a deep creek. ...
Before this walk started, what did you tell the students?‑‑‑Before we left the camp site I said to the students that we were going on the walk. Some information about preparations. I mentioned the weather may turn, so advised if they had a spray jacket to prepare for that and instructions about - reminded they were to talk to someone they hadn't talked to before, get to know someone, particularly that day. They were to spend some time with one of the students they hadn't been talking to.
What was the weather like when you set off?---The weather was cloudy but not raining.
And how many teachers were with the group when they set off on the walk?---The four teachers, four staff.
How long was it before you reached the creek?‑‑‑Approximately 10 minutes.
What happened when you reached the creek?---When we reached the creek as a group I briefed the students on the objective of getting across the creek so we could continue our walk and the manner in which to cross the creek to work together to find the safest, best way to cross the creek.
In the location where you were at the creek, can you describe first of all the creek, it's depth, it's width, etcetera?‑‑‑The width would've been approximately 7, 8 feet, so around 2 metres at the crossing point we selected. The trail down from the camp naturally led to a crossing point. It wasn't a track but there was a natural trail that led into that, so it was a fairly naturally‑defined crossing point. We still had to scout an area probably 50 to 60 metres along just to ensure that was the best place to cross.
And what did the students do?---The students set about examining - make sure that was the best place to cross to creek, so that was where the creek was at its narrowest, looking for materials to use as stepping stones. There were several logs lying around, some materials to help them build a bridge to get them across the creek dry.
And what were you doing?---I was continually moving, just observing where the students were, what they were doing, just making sure that students on task, not running - nor doing anything they shouldn't be doing.
Did you stay where they were building the crossing?---I continually rotated upstream. We didn't have to go downstream because very obviously the creek widened from the point where we were building the crossing, so it was obviously not a good place to cross.
So where did you travel?---I travelled between the point where we eventually crossed to upstream no more than 50 metres.
What was the terrain like 50 metres up?---It was rocky, it was fairly muddy, lots of tributaries of channels there, some reed grass. It wasn't as flat or as clear as the terrain which we had decided was the best place to cross.
What about the creek at that point 50 metres up?---It was not as wide but muddy, very muddy.
How did the students get across the creek?---The students got across the creek by - at least one of the students but I think several of the students actually crossed the creek, took of their shoes, waded through the water to get some material from the other side to put it there and then the majority of the students crossed on the bridge we constructed. Some of those students, if I could use the term, sacrificed themselves. It wasn't a dangerous activity but they took off their shoes, got their feet wet - it was September and fairly cool weather - did that for the sake of the other students.
At some point did everybody get on the other side?---Yes.
What happened at the crossing point?---The crossing point was left intact. It was not an environmental hazard, so there was no need to dismantle it. Possibly we could've used it again.
Was it the intention to come back the same way?---The intention was to do the full circuit of Logue Brook Dam."

He estimated that as being more than two kilometres. In the event after no more than a few hundred metres the temperature dropped, the breeze picked up and it began to rain. The students were told to turn and go back, which they did, spread over about 100 metres, all within sight and heading for the crossing point. Mr Hall and Mrs Kirk brought up the rear. He saw a student about 75 metres or 100 metres in front of him run along or towards the bank and jump across the creek downstream of the crossing point. The creek at that point was nine feet or 10 feet wide. He said it had surprised him that someone would jump at that point. Mr Hall crossed at the crossing point and went along the bank to him. He had neither seen nor been told of anyone jumping the creek prior to that time. When he reached the plaintiff, Mr Kenny, the principal, was there. Mrs Seers was nearby:
"He was holding his leg, so at that stage I wasn't sure what the injury was, how serious it was, what the nature of it was, so I said to him, 'The first thing you need to do is not move the leg.' Mr Kenny was there. Mr Kenny said, 'I'll get the vehicle and bring it down here, so don't walk.' Mr Kenny went to the camp site to pick up his car to drive it down and I stayed with Matthew. I said to him, 'Just don't walk, you may exacerbate the injury if there's an injury,' because at this stage it appeared to be the knee. His words were something that I recall like, 'I know. It's all right, I'm okay, I'm okay.' To my surprise he got up and he began to walk and I said to him several times, 'Don't do this. You may do yourself an injury; if there is an injury, make it worse,' and he insisted that he was okay.
... It was slow progress to the site, although Mr Kenny did meet us up the hill on the final stage with his vehicle."
Cross‑examined, Mr Hall denied that people had been soaked and said the rain was spitting rain but not for long. Later, he had completed an accident report form in which he said the accident occurred at 4 pm, that the plaintiff had landed on a rock and that Mr Kenny was a witness. A program had been compiled in advance and was handed to students on the first day. The program for the second afternoon had been changed to a walk, partly because of the weather, partly for time reasons:
"You talked about briefings but you don't particularly remember any briefing before the walk around the lake, do you?---I do remember a briefing. I don't remember the exact words that I spoke at the time.
...
When you got to the creek there was no particular direction of the students, was there? You were happy for them to use their initiative?---The objective, as explained, was to get across safely and dry. The creek wasn't deep. The objective was to work together. It was another exercise in working together as a team, cooperating, to achieve the objective, which was to cross the creek.
That was what was in your mind?---Correct. And that's what the students were told, to get across the creek, work together to find the best crossing point, work together cooperatively ‑ ‑ ‑
Do you recall whether you actually used those words to them and when?---Recalling the exact words, no, but they were the same type of words that I used and we did the same activity a year later with the same kind of briefing and instructions.
All right. I put it to you that the situation that arose was that everyone got the creek. They were a little unsure of what to do next. They turned to you for some kind of direction and essentially you said to them, 'You'll just have to work out a way to cross it'?---The nature of the exercise was to work together to get across the creek.
All right. But your words could've been something like that, 'You'll just have to work out how to get across'?---Part of the - yes. Part of the idea is talking to people and listening to people in the group, suggesting ideas.
Some of the students came up with the idea of a dam and set about building one and you were okay with that?---Yes.
Other students wandered off, to find their own ways and you were okay about that?---Well, I recall the students spread out finding the best way to cross, looking for - students ranged around the area looking for materials to aid in building the bridge to cross it.
Sure, but lots of people were just planning to cross - or were proceeding to cross without any use of - any thought of the bridge at all, weren't they?---Well, you could cross without using the bridge. The water was not deep. In fact, as I said, some of our students I believe did cross to get materials to actually use in building the bridge.
... Others were waiting I presume for that to be done so they could use it.
Do you remember what any other students were doing? Some wandered off but what did they actually do, as you recall it?‑‑‑Just walking around exploring, inquisitive, checking out what was upstream.
What about wading across?---There were - at least one student, possibly more, that waded across to get materials on the other side to use in building the bridge.
Any other ways used to get across? We're talking on the outward journey now?---Not that I recall, not that I saw.
You didn't see one student jumping backwards and forwards across the creek?---Not the creek that divided the opposite sides of the main channel of the water into Logue Brook Dam. There were channels, there were tributaries upstream, I recall crossing a trench or a channel myself, stepping across. It wasn't a wide area.
I'm talking about someone stepping over a little ditch. I'm talking about someone jumping backwards and forwards a number of times over what I'll call the main channel?---No.
You didn't see that?---I don't recall it, no. In fact the objective of the exercise was to work together.
...
So do you accept that some people went upstream and simply took off their shoes and waded across and then came back on the other side of the bridge?---That is a possibility.
Do you accept that some people jumped across and walked over on the other side to look at you?---That could be a possibility. I wasn't at one point. I was moving along the area - a 50 metre stretch."
He said he had moved along about 50 metres of creek. Although he could not keep all students in sight at all times, there were four staff involved. Mrs Seers was, he thought, the furtherest upstream. Most of the teachers were at the bridge site with most of the students. The principal was there. He did not recall being aware either of students jumping across or of being told they had. Nor did he accept that the bridge was largely dismantled on the outward journey after the crossing and re‑built on the return. It must have been very quickly done. He did agree that students were keen to return and that some ran. Although students had reached the plaintiff before him, the period was very short. He did not recall students carrying the plaintiff at all. He recalled being surprised that the plaintiff said he could walk. Notwithstanding advice that Mr Kenny had gone for a car and that he should not walk, the plaintiff continued to do so, with assistance. He confirmed that, in his view, the students had chosen the crossing point and that it was at a narrow, safe, and not muddy, point.
Mr M F Kenny, the school principal, said he had attended the camp on the second day to support Mr Hall but only for a short time. Late on the second afternoon, the students and the four teachers went for a walk.
"Do you remember what the intention was with the activity?‑‑‑The intention, initially, was students to pair off with another student, to walk together to get to know someone that they hadn't known very well at school, so in other words, a team building exercise. The more students they could get to know, the closer the team would become."
After walking for about 30 minutes, they reached a creek:
"When we got to the creek, Brad Hall called the students in and said, 'Our aim is to get across the other side of the creek. We will work together in a team building exercise to build a little bridge so that we could assist each other to get across to the other side.' So the intention, very clearly, was students working together to get across to the other side at that point that we were building the bridge.
What did you do after that instruction had been given?---I helped other students and stayed very close to that area, bringing logs and stones to build a bridge, and supporting others trying to get across to the other side.
What did you observe students doing?---Working together very collaboratively and very supportively to assist each other across, and there was a great deal of applause when each student got across the other side having had the assistance of each other person to get there.
How wide was the creek where this activity was taking place?‑‑‑Approximately 2 metres.
...
POPPERWELL, MR: All the students got across the creek?‑‑‑All students got to the other side of the creek."
After all had crossed, they walked on. It commenced to spit a little. The students and teachers were spread out a little, but "within fairly close proximity of each other". The rain became "a little heavier" and the weather colder, so they turned back. The students again began to spread out over about 100 metres. He saw two boys jump the creek about 10 metres from the crossing point. He crossed at the bridge and reached the boys. The plaintiff was sitting down, in discomfort. He advised the plaintiff to sit still while he went for a car. Surprisingly, the plaintiff stood up and said he was all right and would walk back. Mr Kenny brought a car to where the plaintiff was being assisted to walk or hobble, although apparently in discomfort. He did not see the plaintiff either being given a "fireman's lift" or carried on anyone's back.
Cross‑examined, he said he recalled the students being briefed about teamwork and leadership and the term "guardian angel" being used in terms of forming bonds with another student. On the outward journey, students were in reasonably close proximity. At the creek, Mr Hall gathered them together. His understanding was that Mr Hall suggested they build a bridge across, but he was unsure of that. He stayed nearby. He had no knowledge of some students wandering away or see anyone jumping across the creek. He thought all the students had been together at the crossing point. He was not aware of any being on the far side of the creek before the bridge was completed, although he was not focussing on that. They had crossed and walked for a period. He did not think for a very long distance. It was raining steadily and cold. Students were wet. He was not aware of those sheltering under trees. On the return, some ran. He did not accept that to attempt to walk around the dam had been ambitious. It had been cold and overcast, but certainly not dangerous. He estimated such a distance to be three kilometres or four kilometres and to take 1‑1/2 hours as a leisurely stroll.
Mrs T Seers recalled that Mr Hall briefed the students on the purpose of the walk being to walk with someone they did not know very well, with a view to introducing that person to the group later that night. The principal and three teachers walked with the students. At the creek, Mr Hall told the students to come up with a way of getting across. Mrs Seers helped students obtain rocks and logs. The crossing was about two metres wide and just over ankle deep. She did not see anyone cross by other means. Staff and students crossed and the walk continued in cold, overcast weather for about half a kilometre when it began to drizzle. They all turned back. Some students ran. All were within sight. She did not see the plaintiff jump. She saw him after re‑crossing the creek, one metre or two metres upstream of the bridge. He was on his feet. The other three staff were with him. She advised him not to walk but he insisted on doing so. He walked about halfway back before Mr Kenny arrived with a car.

Submissions

Mr Bruns for the plaintiff says that on the facts, when the students arrived at the creek on the outward journey, there was little formal direction given to them and that a number, perhaps 10, went about 40 metres upstream from the main group, unnoticed by the teachers. Three or four waded across and three or four jumped across. Ms Christou's evidence that from her position at the crossing she could see Martinovich jumping ties in with the plaintiff's evidence that he could see the people at the crossing from where he was. Whether or not teachers saw, or had their attention drawn to this, he says, the conclusion is inevitable that they were not paying any or any adequate attention. Had they done so, he argues, they were under an obligation then to ensure that jumping the creek stopped. He stressed that the width of the creek was at the limit of the plaintiff's jumping capacity and that, given the run up and the downhill slope, considerable impact was inevitable on landing. It was a considerable jump with a foreseeable risk of injury. The defendant's own counterclaim supports that, he argues. The duty of the staff was to use reasonable care to prevent injury to the plaintiff even from his own behaviour.
On the return journey, there was still no attempt to regulate how students were to cross the creek, even though may were wet and cold and eager to return to camp. Jumping was foreseeable, given especially that the bridge had been dismantled.
As to the evidence, Mr Bruns urges me to prefer other evidence to that of Mr Hall who he says was wrong, for example, about the number of students at the camp, whether the plaintiff's jump was downstream of the bridge and whether the bridge was dismantled after the outward crossing. The students' recollection of Mr Hall's briefings is consistent, he says, but differs from Mr Hall's own recollection. No safe crossing system was either prescribed or required. There was no express or implicit forbidding of other methods of crossing. There is no case, he argues, to attribute contributory negligence to the plaintiff, given the relationship between the parties.
The defendant says that in an unremarkable atmosphere the students were instructed to embark upon an activity which did not involve any great or particular demanding athletic prowess, which involved a calm and unremarkable involvement in meeting a challenge which one would expect to form part of the usual educational processes. The law is that the students are required to be provided with adequate supervision, and in this context, the evidence is that most of the students were under the observation of the three teachers who remained around the crossing point and Mr Hall, who went further upstream and observed students upstream, noted no particular hazard or danger and came back to the main group.
In the defendant's submission, there was no reasonable foreseeability that any student, on the return journey, would jump the creek. The fact that some had earlier done so was not known to the teachers. If there was adequate supervision, then there can be no finding, it says, that they ought to have known. The teachers did not stand idly by and watch students select risky options. Liability would also involve, the defendant says, a conclusion that jumping the creek with these characteristics, with this depth and with this width, was a risky option for a student. The methodology of crossing that the teachers observed was not, in the terms of the pleading, a risky option.
To conclude that the fact that there were students out of vision represents a breach of duty involves finding that, on an afternoon walk for 16‑year‑old students, crossing a creek requires constant staff supervision. That is not a requirement of the law. What is appropriate supervision depends on the particular circumstances including not only the number of children, their age and educational level, but also the place where they are gathered, the reason for their being there. This case involves only about a 10 minute to 15 minute period of time on an afternoon walk where the students are being set the task of devising methods to get across this creek. Supervision was adequate in those circumstances.
On contributory negligence, the defendant says the plaintiff himself gave evidence of the perhaps inappropriate place where he leapt the creek and that it took him some time to build up the courage to actually make the jump in the first place. He was at a location where his fellow students were waiting to cross the creek. The more athletic Martinovich used his common sense and went a bit further north to jump upstream.

The general law

It is not in doubt that there is a non‑delegable duty on the part of a school authority to ensure that reasonable care is taken for the safety of its students in circumstances such as these, in addition to the vicarious liability of the authority for the negligence of its servants or agents. The plaintiff says that:
"The defendant's duty is a demanding one which extends to protecting the plaintiff from injuring himself. If the teachers were not aware of students jumping across the stream before the plaintiff's accident, they should have been. The injury was foreseeable."
These legal concepts have been discussed very recently by the High Court of Australia in New South Wales v Lepore [2003] HCA 4, delivered 6 February 2003, albeit in the very different context of the three appeals thereunder consideration. Whatever the doctrinal issues there discussed, there is no doubt in the facts of the present case both that the defendant had a non‑delegable duty of care to the plaintiff and that it was potentially vicariously liable for the negligence of the staff.
At par 31 of New South Wales v Lepore (supra), Gleeson CJ said:
"31.The failure to take care of the plaintiff which resulted in the Commonwealth's liability in Introvigne was a negligent omission on the part of the teachers at the school, acting in the course of their ordinary duties. ... A responsibility to take reasonable care for the safety of another, or a responsibility to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm."
At par 100 et sequentes of New South Wales v Lepore (supra), Gaudron J said:
"100.Within the law of negligence, certain relationships have been identified as giving rise to duties which have been described as 'non‑delegable' or 'personal', ... education authority and pupil. The relationships which give rise to a non‑delegable or personal duty of care have been described as involving a person being so placed in relation to another as 'to assume a particular responsibility for [that other person's] safety' because of the latter's 'special dependence or vulnerability'.
101.It has been said that a non‑delegable or personal duty of care is 'a duty ... of a special and 'more stringent' kind' and that it is a 'duty to ensure that reasonable care is taken.' In Scott v Davis, Gummow J said that a non‑delegable duty 'involves, in effect, the imposition of strict liability upon the defendant who owes that duty.' To say that, where there is a non‑delegable duty of care, there is, in effect, a strict liability is not to say that liability is established simply by proof of injury. As Gummow J pointed out in Scott, there must first be a duty of care on the part of the person against whom liability is asserted. And, obviously, there must also have been a breach of that duty and resulting injury.
102.The law of negligence is concerned with a duty to take reasonable care to avoid a foreseeable risk of injury to another. As the law of negligence has developed, however, it has become possible, in the case of some relationships, to identify more precise duties of care. ... in Introvigne, Murphy J identified the duties of an education authority as duties '[t]o take all reasonable care to provide suitable and safe premises ... to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and ... to see that the system is carried out.'
103.There is a tendency to speak, ... of ... in the case of an education authority, a duty to provide a safe school environment, without acknowledging either that, in that context, 'safe' means 'free of a foreseeable risk of harm' or that the duty is a duty to take reasonable care. If the duty of an education authority to provide a safe school environment were not confined by considerations of foreseeability and reasonable care, it would result in strict liability in the sense that the authority would be liable upon proof of injury being sustained on school premises during school hours. But that would follow not because the duty of an education authority is non‑delegable but because of the absolute nature of its non‑delegable duty.
104.There is another feature of the duty arising out of the particular relationships that have been identified as giving rise to a non‑delegable duty of care which should be stressed. It is that the relevant duty can be expressed positively and not merely in terms of a duty to refrain from doing something that involves a foreseeable risk of injury. Thus, the relevant duty of ... of a school authority, to take reasonable care to provide a safe school environment. Once the relevant duty is stated in those terms it is readily understandable that the duty should be described as non‑delegable.
105.If a pupil is injured on school premises during school hours because reasonable care has not been taken to provide a safe school environment, the school authority is thereby shown to be in breach of its personal or non‑delegable duty to provide a safe environment. And that is so no matter whose act or omission was the immediate cause of the pupil's injury or whose immediate task it was to do that which would have eliminated the risk of injury or to refrain from doing that which created that risk.
...
Thus, to describe the duty of a school authority as non‑delegable is not to identify a duty that extends beyond taking reasonable care to avoid a foreseeable risk of injury. It is simply to say that, if reasonable care is not taken to avoid a foreseeable risk of injury, the school authority is liable notwithstanding that it engaged a 'qualified and ostensibly competent' person to carry out some or all of its functions and duties."

At par 143, McHugh J said:
"143.The duty extends to protecting the pupil from the conduct of other pupils or strangers and from the pupil's own conduct. The measure of the duty is not that which could be expected of a careful parent. The statement of Lord Reid to that effect in Carmarthenshire County Council v Lewis is no longer law. Murphy and Aickin JJ rejected the parent analogy in Geyer v Downs saying that it was unreal to apply that standard to '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'."
At par 160, his Honour added:
"160.If the education authority has delegated the performance of some aspect of its duty to a teacher, the authority will be liable if the teacher failed to take reasonable care for the safety of the pupil. However, the pupil does not have to point to any particular teacher as being responsible for the failure to take reasonable care for his or her safety. All that the pupil has to show is that, given the general situation that gave rise to the harm suffered, a reasonable education authority would have protected the pupil from the harm‑causing event. That is a necessary consequence of the duty owed to a pupil being personal and non‑delegable. Thus in Carmarthenshire County Council v Lewis, the House of Lords upheld a finding that an education authority was liable for the death of a driver killed when avoiding a child who had wandered onto the road. It did so even though the teacher who was supervising the children at the relevant time was not guilty of negligence. The child had obviously gone through an open gate, and the plaintiff succeeded even though she could not point to the person responsible for the opening of the gate. In Geyer v Downs, this Court held that the education authority was liable for injuries suffered by a pupil playing in the school grounds although teachers at the school were not required to be on duty at the time and none were present. Similarly in Watson v Haines, The Supreme Court of New South Wales held the education authority liable for failing to devise an effective system to prevent injury to the plaintiff even though the plaintiff could not identify any particular officer of the authority who was liable."
At par 261 to par 263, Gummow and Hayne JJ said:
"261.None of the considerations we have mentioned suggests that the person upon whom the duty is cast should be the insurer of those to whom the duty is owed. The duty that is identified is imposed on a person in relation to a particular kind of activity ... conducting a school or hospital. The duty concerns the conduct of that activity. It is not a duty to preserve against any and every harm that befalls someone while that activity is being conducted.
262.Two examples may suffice to make good that point. Is a school authority to be held liable if, without any negligence on the part of it or its employees or contractors, a child is injured on school premises, during school hours, when the child stumbles and falls in the perfectly maintained and supervised school yard? Is the authority to be held liable if, without negligence on the part of it, or its employees or contractors, a child is struck and injured by a bottle thrown into the school yard by a passer‑by?
263.In each case the answer 'no' should be given. In neither case was there any want of care by the authority; the authority did not fail to see that any person whom it employed or engaged to cared for the pupil acted with reasonable care towards that pupil. That is, in neither case was there any default by the authority or any person to whom it delegated its task of caring for the pupil. Yet, as was pointed out earlier in these reasons, it might be said that, the child having been hurt, the authority did not ensure the result that no harm befell the pupil."
Whilst the abstract expression of the general principles may not be in doubt, their application to particular facts leads to more particular expressions of judicial view as to their real content. Dealing with the authorities to which I was referred in their chronological order, let me turn first to Camkin v Bishop [1944] 2 All ER 713, a case of boys skylarking unsupervised, Scott LJ said, at 714:
"The defendant, as headmaster, owed no duty to the boys to refuse to let them go to help the farmer in his need of labour without an under‑master, or an under‑nurse for that matter, in charge. The incident might have happened just as easily on a natural history expedition, or on any other country outing, on which the boys were regularly allowed to go without supervision. Indeed, it might have happened even if a master had gone for he might have been temporarily absent and the two boys who quarrelled might have done so during his absence."
Goddard LJ commented:
"The question we have to determine is whether there was any breach of duty by the headmaster, his duty being that of an ordinary careful parent. I ask myself whether any ordinary parent would think for a moment that he was exposing his boy to risk in allowing him to go to a field with others to weed beet or lift potatoes, occupations far safer than bicycling about on the roads in these days.
I confess that I have some difficulty in appreciating the view taken by the judge. He found that the defendant failed in his duty by reason of a lack of supervision. If this means anything, it must mean that it is the duty of a headmaster to see that boys are always under supervision, not only while at work, but also at play, or when they are free, because at any time they may get into mischief. I should like to hear the views of the boys themselves on this proposition. Would any reasonable parent forbid his boy of 14 to go out with his school‑fellows because they might possibly get up to mischief, as all boys will at times? Here at this school on free afternoons the boys are allowed out, their bounds being some 8 miles, and they are left to themselves, provided they are back by a certain hour. No complaint is made of this freedom. If there is nothing wrong in that, how can it be wrong to let a boy go with others to such a harmless occupation as doing some farm work of the most innocuous character? As Clauson LJ put it during the argument, if the headmaster is not guilty of any breach of duty in allowing the boys to go off for walks and so on by themselves, how can he become liable because during the walk they go and work in a field and meet with some accident while thus engaged? If he is liable in this case, so will he be if some boy does a mischievous act in the playing field which injures another while a master or prefect does not happen to be present, or while out for a walk climbs a tree and breaks his legs.
...
Nor was there any duty on the master to ask the farmer to supervise the boys for their safety. How could it occur to anyone that there was any danger in the occupation? If every master is to take precautions to see that there is never ragging or horseplay among his pupils, his school would indeed be too awful a place to contemplate. Of course there was no supervision on this occasion. Nor was there any duty to provide it, having regard to the innocuous nature of the occupation. This case bears no anology to those in which boys have been allowed to handle dangerous chemicals or to be in proximity to dangerous machinery. There was no evidence, in my opinion, of any breach of duty whatever.
... Boys of 14 and 16 at a public school are not to be treated as if they were infants at creches, and no headmaster is obliged to arrange for constant and perpetual watching out of school hours. For one boy to throw something at another is an ordinary event of school life, but the fact that there was in this particular case a disastrous and wholly unexpected result is no reason for throwing responsibility on the master."
In Carmarthenshire County Council v Lewis [1955] AC 549, a case involving a 4‑year‑old straying onto a highway unsupervised, Lord Oaksey said, at 559:
"I think, therefore, that the case ought to stand or fall upon the issue of Miss Morgan's conduct, and, in my opinion, it cannot be decided in favour of the respondent without inferentially holding that education authorities are bound to keep children under constant supervision throughout every moment of their attendance at school, which, in my opinion, is to demand a higher standard of care than the ordinary prudent schoolmaster or mistress observes."
In Richards v State of Victoria [1969] VR 136, at 138 ‑ 139, the Full Court of the Supreme Court of Victoria, dealing with a matter in which a 16‑year‑old was injured in a fight at school, said:
"We are of opinion that it is now clearly established by authority that in general a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. It is not, of course, a duty of insurance against harm but a duty to take reasonable care to avoid harm being suffered. As was said by Kitto J, in Ramsay v. Larsen (1964), 111 CLR 16, at p 27; [1964] ALR 1121: '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. It is indisputable that in general a schoolmaster owes his pupil a duty of that order.' 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 cay cause him injury couples 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: vide Ramsay v. Larsen, supra, per Kitto J, at (CLR) pp 28, 29, and per Taylor J, at pp 37, 38; Williams v. Eady (1893), 10 TLR 41; Camkin v. Bishop, [1941] 2 All ER 713 at p 715; Wray v. Essex County Council, [1936] 3 All ER 97, at p 102. It was submitted by the Solicitor‑General, however, that whilst in general a duty of care may be said to arise out of the relationship of teacher and pupil, the facts in any particular case must be examined to see whether the duty arose in such case, and that the existence of any such duty must be determined having regard both to the age and maturity of the pupil concerned and to the reasonable foreseeability of injury resulting in the particular circumstances if care be not taken to prevent it.
One contention was that in the instant case the plaintiff, having reached the mature or relatively mature age of 16 years, must be regarded as a person competent to protect himself against injury in a fisticuff encounter with another pupil of 18 years who was not of dissimilar height and weight, and thus not in special need of protection. Accordingly, as it is the need of protection that is the reason for the imposition of any duty of care it was said that the master was under no duty to the plaintiff to take any steps to forestall any such encounter or safeguard him against any risk of injurious consequences should it eventuate.
As to this submission, we are of opinion that it cannot be postulated as a matter of law or fact that a schoolboy of 16 years of age must be taken to have attained such a degree of maturity of judgment or experience as no longer to stand in need of the protection of his schoolmaster or parent against risk of injury arising from his own conduct or the conduct of others in relation to him. Impulsiveness, lack of fear, of full appreciation of risk and of inhibitions are characteristic of such adolescents. True it is that an age will be reached when it would seem quite inappropriate to regard a teacher as under a duty of care to his pupil arising merely out of the relationship as, for example, a University professor and a student of mature years and status. That, however, is not this case which is one of a schoolboy subject to the control and discipline which the 'school' and the teacher as an integral part of it, are in a position to exercise over him and his classmates. No doubt the relatively mature age he had reached is a relevant factor in considering and determining whether the duty to exercise reasonable care had been discharged - in other words to the question whether there has been a breach of the duty - but that is another matter.
We may add that we have found nothing in the authorities to suggest that no duty of care is imposed on a schoolmaster where the pupil is of an age comparable with that of the plaintiff. Indeed in Langham v. Governors of Wellingborough School (1932), 101 LJKB 513, in which case the plaintiff was aged 17 years, nothing was said by any member of the Court of Appeal casting any doubt on the existence of a duty of care owed by the schoolmaster to him."
In an authority to which I was not referred, Geyer v Downs [1978] 52 ALJR 142, Murphy and Aickin JJ said, at 147:
"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 JA in the Court of Appeal in this case.
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 State of 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 CJ in Richards v. State of 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 quoted from 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."
The plaintiff places great weight on the decision of the High Court of Australia in Commonwealth of Australia v Introvigne [1982] 56 ALJR 749. Much of the Court's reasoning was concerned with legal issues not now relevant. The Court did, however, re‑assert the principle, from Shire of Wyong v Shirt (1980) 54 ALJR 283, that a risk of injury is foreseeable, so long as it is not far‑fetched or fanciful, notwithstanding that it is more probable than not that it will not occur.
On the facts, the case concerned a situation a long way from the present one. Boys, "including the respondent then aged fifteen years, were swinging on the halyard of a flagpole shortly before commencing time for lessons in the morning. Shortly after the respondent had ceased swinging on the halyard, a truck, which was fastened to the top of the pole about thirty‑five feet above the ground and which sustained the halyard, became detached and fell, striking the respondent and injuring him. The truck weighed seven kilograms. At the time only one teacher was allotted to supervise activities in the playground containing about nine hundred boys. This was due to the fact that for about five minutes the other teachers had been called together to hear funeral arrangements for the headmaster, who had suddenly died that morning. Ordinarily from five to twenty teachers would have been supervising in the playground. There was evidence that the halyard had been used before for pranks by boys, but no evidence that the teaching staff knew of these pranks or as to the likelihood of the truck being moved by the weight of the schoolboys swinging on the halyard."
It was held by the whole Court that "there was reasonable foreseeability of an injury to the boys arising from the possibility that they would swing on the halyard, and there had been negligence in failing to provide adequate supervision of the playground area at the time when the injury occurred and in failing to padlock the halyard to the pole, and there was sufficient evidence to support an inference that these failures were the cause of the respondent's injuries".
In Commonwealth of Australia v Introvigne (supra), Mason J said, at 753:
"The Commonwealth attacks ... on the ground, first, that the school teachers' duty of care does not require that fifteen year old boys be kept under constant observation and supervision - see Rawsthorne v. Ottley, [1937] 3 All ER 902, at p 905; Camkin v. Bishop, [1941] 2 All ER 713, at pp 715‑716. So much may be conceded. Here, however, there were up to 900 pupils in the recreation area in the half hour preceding the commencement of instructions. It would be unreal to suggest that no supervision was called for. In ordinary circumstances supervision at that time was provided by members of the teaching staff ranging in number from five to twenty. This provides some measure of what was considered to be appropriate, it being 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."
Later, at 755, his Honour said:
"There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J in Ramsay v. Larsen (at p 28). The immaturity and inexperience of the 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."
In Evans v Minister for Education (1984) A Tort Rep 80‑670, Commissioner E M Heenan, as he then was, said:
"As Mason J commented in Commonwealth of Australia v. Introvigne (1982) 41 ALR 577 at p 583, it is notorious that 'school pupils in large numbers, if left to their own devices in a recreation area, will on occasion engage in activities involving some risk of personal injury'. Mrs Leat acknowledged as much in her evidence when she commented, 'invariably children being children, if an adult person in charge isn't there some of them would most definitely get up to mischief' ... Thus, in performing their duty to take reasonable care to prevent injury to their pupils (qv Geyer v. Downs (1977) 138 CLR 91 at pp 101‑102) teachers are required to exercise appropriate supervision - if only to protect some against the conduct of others. What is appropriate supervision depends upon the particular circumstances, including not only the number of children involved, their age and educational level, but also the place where they are gathered and the reason for their being there.
...
Accepting, as I do, Miss Wilson's assessment of the class as being 'a beaut group of children' and perhaps the best class she had, one which had not previously presented any problems in behaviour, I am satisfied that it was left unsupervised for too long. Of course it did not have to be supervised all the time. Had they been engaged in some organised sporting or social activity or even in class work with some particular task assigned to them, perhaps the plaintiff and his classmates could reasonably have been left unsupervised for quite a long period. But, in my opinion, to have them awaiting the arrival of their teacher for anything like five minutes with nothing else to do and without direct supervision was to court mischief. In those circumstances a reasonable person would have expected some horseplay to occur and horseplay must always carry with it a foreseeable risk of injury.
The remedy, I believe, was a simple one, requiring little adjustment to the system: either the teachers should have left the staff room before the end of recess so as to be at the classrooms when the siren sounded or other teachers should have been given the task of supervising those pupils who were awaiting the arrival of their class teacher.
In the circumstances, I find that the defendant by his staff was negligent in not providing adequate supervision and that the plaintiff's injury resulted from such negligence. ..."

Conclusions

In my view, the claim that the defendant is itself in breach of its non‑delegable duty of care for failure to provide adequate staff must fail. The school provided three teachers to supervise this group of 30 Year 11 students and the school principal also attended at the relevant time.
No complaint is made as to the nature of the camp itself or the activities involved. The students were Year 11 students engaged in a leadership selection course of very moderate difficulty and, in my view, adequately explained and briefed. There is complaint about the number of staff involved but, in my view, given these matters, that must fail.
In my view, the real issue is whether the defendant is responsible for negligence of the staff involved, either individually or collectively.
That could be either because the school is regarded as in breach of its non‑delegable duty of care or is vicariously responsible. In the present case, the issues essentially merge. But negligence must be established.
The fact that the camp was designed to test leadership qualities meant, in my view, that room for initiative and opportunity to display common sense and co‑operation had to be left, as well as room to allow observation of their absence. This was a walk, perhaps a stroll of moderate length involving the crossing of a very modest creek.
It seems that because of the building of a bridge, the teachers present were distracted from or failed to take notice of what some students were doing upstream on the outward journey in wading or jumping across. It seems that some of that at least could have been seen from where they were. I accept Amanda Christou's evidence as to what occurred at the crossing on the outward journey. However, no harm came of it on the outward journey and serious harm, as distinct from, say, a twisted ankle, is difficult to imagine from such straightforward and untoward activities. I do not think it negligent to allow 16‑year‑old boys on camp to jump a small creek, especially during a period when potential leadership qualities are to be observed. At most, an order could have been given that jumping the creek was not to happen. Given the attitude of the plaintiff and the lack of notice taken by him and some others of the instructions given at the camp and on the walk, it is not established that he would not have jumped on the return journey anyway. The plaintiff took it on himself to act rather rashly without real warning. In my view, supervision was adequate.
I do not find liability established. If I had, I would be obliged, in any event, also to find contributory negligence established. I do not need to quantify an apportionment.
The claim is dismissed.