Gugiatti v Servite College Council Inc
[2004] WASCA 5
•22 JANUARY 2004
GUGIATTI -v- SERVITE COLLEGE COUNCIL INC [2004] WASCA 5
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 5 | |
| THE FULL COURT (WA) | 22/01/2004 | ||
| Case No: | FUL:35/2003 | 17 NOVEMBER 2003 | |
| Coram: | STEYTLER J MILLER J WALLWORK AJ | 17/11/03 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW GUGIATTI SERVITE COLLEGE COUNCIL INC |
Catchwords: | Negligence Standard of care School authority and student Injury not reasonably foreseeable and no duty to prevent students jumping across creek Turns on own facts |
Legislation: | Nil |
Case References: | Camkin v Bishop [1941] 2 All ER 713 Geyer v Downs (1977) 138 CLR 91 Munro v Anglican Church of Australia, Diocese of Bathurst, unreported; Ct of App (NSW); Library No 490/85; 14 May 1987 New South Wales v Lepore (2003) 77 ALJR 558 Ramsay v Larsen (1964) 111 CLR 16 Richards v State of Victoria [1969] VR 136 Roman Catholic Church v Koffman (1996) A Tort Rep 81-399 The Commonwealth v Introvigne (1982) 150 CLR 258 Williams v Eady (1893) 10 TLR 41 Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 Carmarthenshire County Council v Lewis [1955] AC 549 Devries v Australian National Railways Commission (1993) 177 CLR 472 Lloyd v Faraone [1989] WAR 154 Pettitt v Dunkley [1971] 1 NSWLR 376 Prast v Town of Cottesloe (2000) 22 WAR 474 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : GUGIATTI -v- SERVITE COLLEGE COUNCIL INC [2004] WASCA 5 CORAM : STEYTLER J
- MILLER J
WALLWORK AJ
- Appellant
AND
SERVITE COLLEGE COUNCIL INC
Respondent
Catchwords:
Negligence - Standard of care - School authority and student - Injury not reasonably foreseeable and no duty to prevent students jumping across creek - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D M Bruns
Respondent : Mr S F Popperwell
Solicitors:
Appellant : Separovic & Associates
Respondent : Pynt & Partners
Case(s) referred to in judgment(s):
Camkin v Bishop [1941] 2 All ER 713
Geyer v Downs (1977) 138 CLR 91
Munro v Anglican Church of Australia, Diocese of Bathurst, unreported; Ct of App (NSW); Library No 490/85; 14 May 1987
New South Wales v Lepore (2003) 77 ALJR 558
Ramsay v Larsen (1964) 111 CLR 16
Richards v State of Victoria [1969] VR 136
Roman Catholic Church v Koffman (1996) A Tort Rep 81-399
The Commonwealth v Introvigne (1982) 150 CLR 258
Williams v Eady (1893) 10 TLR 41
Case(s) also cited:
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Carmarthenshire County Council v Lewis [1955] AC 549
Devries v Australian National Railways Commission (1993) 177 CLR 472
Lloyd v Faraone [1989] WAR 154
Pettitt v Dunkley [1971] 1 NSWLR 376
(Page 3)
Prast v Town of Cottesloe (2000) 22 WAR 474
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
(Page 4)
1 STEYTLER J: This is an appeal against the decision of a judge of the District Court dismissing the appellant's claim for damages arising out of the alleged negligence of the respondent. At the conclusion of the hearing we dismissed the appeal and said that we would give our reasons for doing so in due course. These are my reasons for dismissing the appeal.
2 On 24 September 1998, the day upon which he was injured, the appellant was 16 years old. He was a pupil at Servite College, the school operated by the respondent. He was one of about 30 year 11 students selected to attend a retreat, near Logue Brook Dam, conducted by the school for the purpose of assisting staff to select potential year 12 leaders.
3 The students were supervised by three schoolteachers.
4 On the afternoon of 24 September 1998 the students were gathered together in a hall, forming part of the accommodation facilities at the retreat, and told that they were going for a walk to the dam. This was so notwithstanding that there was a threat of rain.
5 The students, together with the three teachers, headed off on their walk. After a while they arrived at a shallow creek. Rather than get their feet wet, they milled around aimlessly. One of the teachers told them that they had to cross the creek, but left it to them to devise an appropriate means of doing so. A few of them decided to build what they described as a bridge, but which was in truth a collection of rocks and other materials upon which they could stand while crossing the creek. Others stood by watching or helped gather materials. Still others wandered off to see if they could find a narrower part of the creek which could be crossed without fear of getting wet. The appellant was one of this last group. He, and at least one other student, found a narrow part of the creek upstream of the area where the bridge was being built and jumped across the creek at that point.
6 After the bridge had been built the rest of the student group crossed the creek by that means. They then dismantled the bridge and continued on their walk. It began to rain and, at that point, a general decision was made to return to the camp accommodation. Because it was cold and wet, many of the students ran on the return journey. They were stopped by the creek. The students began to rebuild their bridge. However, the appellant decided, once again, to jump the creek at a narrow point. On this occasion, he attempted to do so at a somewhat wider point than that previously jumped by him. The creek was about two and a half metres wide at the place of this jump. The appellant took a running start, made
(Page 5)
- his leap and landed awkwardly in mud (created or contributed to by the rain) on the opposite bank. This caused him to wrench his knee and suffer a significant injury.
7 At the trial, the appellant contended that the injury was the result of the negligence of the respondent. His lawyers alleged five particulars of negligence in the statement of claim. These were to the effect that the respondent was negligent in:
"9.1 Failing to have sufficient teachers to supervise all 30 students.
9.2 Failing to prescribe a safe method for crossing the stream.
9.3 Failing to intervene whilst students on a leadership course, in using their own discretion to devise methods of solving problems, selected risky options.
9.4 Placing the students a distance from shelter without adequate clothing to keep them warm and dry.
9.5 Failing to protect a pupil against a risk of injury which could reasonably have been foreseen."
8 The trial Judge found that there had been no negligence on the part of the respondent. He considered that the provision of three teachers was adequate for the purpose of supervision of 30 year 11 students. He mentioned that the school principal had also been present at the time of the appellant's injury. He said (par 88 of his reasons) that the fact that the camp was designed to test leadership qualities meant 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".
9 After considering events on the outward journey, including the fact of the leap of the stream by the appellant, his Honour went on to say (at [89] and [90]):
"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.
(Page 6)
- 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."
The Grounds of Appeal
10 There are five grounds of appeal. They are as follows:
"1. The learned trial judge having found that:
(a) the teachers gave no explicit instructions to the students on how they should cross the stream [89]
(b) to jump across was to act 'rather rashly' [89]
(c) students were jumping across the stream well before the accident but 'teachers present were distracted from or failed to take notice' of it [89]
it was perverse and an error of fact and law to find that the teachers were not obliged to intervene or even observe whilst students selected their own solutions for challenges set up by the defendant.
2. The learned trial judge erred in fact and in law in finding ([88] and [89]) that the fact that the camp was designed to test leadership qualities lessened the duty and standard of care required of the defendant ([88] and [89]).
3. The learned trial judge erred in fact and in law in failing to take into account his finding that the rain had caused the students to be wet and to run on their return journey ([36] and [53]).
4. Having generally preferred the plaintiff's witnesses to those of the defendant and in the absence of a finding that the plaintiff and his witnesses were not credible and in the absence of evidence that the plaintiff 'and some others' took no notice of instructions given, it was perverse and
(Page 7)
- an error of fact and law to find that it was 'not established' that an order by a teacher would have been effective.
- 5. Given the learned trial judge's statement that the 'real issue is whether the defendant is responsible for the negligence of the staff'[86] and his failure to deal expressly with particulars of negligence 9.2, 9.3 and 9.4, he has erred in fact and law in failing to give sufficient reasons for dismissing the claim."
The Duty of Care
11 Before turning to consider these five grounds of appeal, I should say something about the duty of care which was owed in this case.
12 Until Geyer v Downs (1977) 138 CLR 91 it had often been said that a teacher "was bound to take such care of his boys as a careful father would take of his boys": Williams v Eady (1893) 10 TLR 41 at 42, per Lord Esher; Ramsay v Larsen (1964) 111 CLR 16 at 27, per Kitto J, and Richards v State of Victoria [1969] VR 136 at 138. However, in Geyer v Downs, at 102, Murphy and Aickin JJ (with whom Mason and Jacobs JJ were in agreement) said:
"This formulation is, however, somewhat unreal in the case of a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of thirty or more children. What may be a useful guide applicable to a village or a small country school cannot be of direct assistance in the case of a large city or suburban school with some hundreds of children attending it. The nature of the duty is more appropriately stated in Victoria v Bryar (1970) 44 ALJR 174 where this Court agreed in the description of the duty owed by a teacher to each of his pupils formulated by Winneke CJ in Richards v Victoria [1969] VR 136, at pp 138, 140-141. It is not necessary to set out again the passages thus approved, but the result may be summarized in the following passage (… at p 141):
'The duty of care owed by' [the teacher] 'required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to' [the pupil]. 'This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against
(Page 8)
- risks of injury which ex hypothesi' [the teacher] 'should reasonably have foreseen.'"
13 It was established in The Commonwealth v Introvigne (1982) 150 CLR 258 that the liability of a school authority in negligence for injury suffered by a pupil attending the school is not purely vicarious (see Mason J, at 269 - 270; Murphy J, at 274 - 275 and Brennan J at 280).
14 Mason J, after making this point, went on to say (at 269) that a school authority "owes to its pupil a duty to ensure that reasonable care is taken of them [sic] whilst they are on the school premises during hours when the school is open for attendance". His Honour also said (at 270) that the duty is one "to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated".
15 Murphy J, at 274 - 275, said that once the Commonwealth assumed the role of conducting a school it became fixed with certain non-delegable duties as follows:
"1. To take all reasonable care to provide suitable and safe premises. The standard of care must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards.
2. To take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out."
16 His Honour went on to say (at 275) that the Commonwealth also became vicariously liable to pupils and parents for the acts and omissions of the teaching and other staff.
17 Brennan J said, at 280:
"The primary duty of care owed by a school authority extends to the provision of the staff and resources necessary to discharge the duty to the pupil which it undertakes by accepting him (Geyer v Downs (1977) 138 CLR 91, at p 94). That duty is no less than the duty of the schoolmaster, who is bound to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen (per Murphy and Aickin JJ in Geyer v Downs …)."
(Page 9)
18 More recently, in New South Wales v Lepore (2003) 77 ALJR 558, the High Court has again found it necessary to consider the standard of care owed by a school to its pupils, albeit in the somewhat different context of whether or not a school authority could be held responsible for deliberate physical and sexual abuse of students under its control. There, the Court was at pains to stress that a responsibility to take reasonable care for the safety of another, or to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm (see Gleeson CJ at [31]; Gaudron J at [103]; McHugh J at [159] and Gummow and Hayne JJ at [261]). Gaudron J, at [103] said that:
"There is a tendency to speak, in the case of an employer, of a duty to provide a safe system of work or, 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."
19 In this case the injury to the appellant occurred outside ordinary school hours and also outside the school grounds. However, the appellant was, of course, still in the care of the school and the duty of care which it owed to him continued unabated: Geyer v Downs, above, Roman Catholic Church v Koffman (1996) A Tort Rep 81-399 and Munro v Anglican Church of Australia, Diocese of Bathurst, unreported; Ct of App (NSW); Library No 490/85; 14 May 1987 (involving a school excursion designed to test the leadership capabilities of students).
Ground 1
20 That brings me back to ground 1 of the grounds of appeal, by which the appellant contends, in effect, that the teachers who were in charge of the excursion were obliged to intervene so as to prevent conduct of the kind engaged in by the appellant in jumping across the stream.
21 In my opinion, the trial Judge was entirely correct in finding that no negligence had been established simply because no instructions were given as to how the stream should be crossed and because nothing was done to prevent the students from jumping across the creek.
22 As the trial Judge said, this was "a very modest creek". It was shallow and gave rise to no particular danger. As his Honour also said, it is difficult to imagine that any serious harm, as distinct from, for example, a twisted ankle, could have come of the act of jumping a two and a half
(Page 10)
- metre wide shallow creek. If 16-year-old boys are to be prevented from engaging in even such ordinarily harmless pursuits, school life will soon become intolerable for both pupils and teachers.
23 Also, while it must be recognised that a 16-year-old schoolboy cannot be taken to have attained such a degree of maturity or judgment or experience as no longer to stand in the need of the protection of a schoolmaster against risk of injury arising from his own conduct (see Richards v Victoria, above, at 139), it must also be accepted that 16-year-old boys "are not to be treated as if they were infants at creches …": Camkin v Bishop [1941] 2 All ER 713 at 716, per Goddard LJ.
24 While it is true that the trial Judge said that the appellant acted "rather rashly" in jumping the creek, and that "teachers present were distracted from or failed to take notice" of the act of jumping on the outward journey, that does not mean that his finding that the duty of care was not breached was "perverse", as counsel for the appellant described it. Rather, as is readily apparent from the judgment read as a whole, his Honour formed the view, appropriately in my opinion, that it was not reasonably foreseeable that an injury of the kind which occurred would result from this kind of activity and that it would not be reasonable to expect a teacher, or a school, to take steps to prevent 16-year-old boys from engaging in that kind of activity.
Ground 2
25 Ground 2 is premised upon the assumption that the trial Judge found that the fact that the excursion was designed to test leadership qualities lessened the duty and standard of care required of the defendant. I am not at all persuaded that that assumption is correct. All he said was that the fact that the excursion was designed to test leadership qualities meant that there was room for initiative and opportunity to display common sense and co-operation and to allow observation of their absence. His Honour considered that the question whether there had or had not been any breach of the duty fell to be considered in that context. There was, in my opinion, nothing inappropriate in that approach.
Ground 3
26 As to ground 3, the fact that the rain caused the students to be wet and to run on their return journey seems to me to be a matter of little consequence in the circumstances of this case. It is not seriously contended, and nor could it be, that the teachers should have prevented the students from running. While the existence of the rain might have caused
(Page 11)
- the appellant to make his judgment to jump the creek in a hurried, rather than a considered, way, that does not alter the fact that the action of jumping the creek was not inherently dangerous. The point remains that it was open to the trial Judge to conclude that the risk was not such as to require the taking of steps to prevent conduct of that kind.
Ground 4
27 By ground 4, the appellant challenges the finding that it was "not established" that an order by a teacher would have been effective in any event. It is enough to say of that ground that that finding was unnecessary to the conclusion arrived at by the trial Judge. I have already said that it was open to him to find, as he did, that there was no negligence in allowing a 16-year-old boy to jump a modest creek. It is consequently unnecessary to give further consideration to this ground.
Ground 5
28 That leaves ground 5, by which the appellant contends that the trial Judge failed to deal expressly with particulars of negligence 9.2, 9.3 and 9.4 and thereby erred in fact and in law in failing to give sufficient reasons for dismissing the claim.
29 There is no substance to this contention.
30 The trial Judge did deal with particulars 9.2 and 9.3. He found that there was no need for the teachers to have prescribed a safe method for crossing the stream or to have intervened in the events which occurred. One of the very purposes of the excursion was the reasonable purpose of encouraging and assessing leadership skills. It would have been inimical to that purpose for the teachers to have told the children how to undertake so simple a task as crossing a stream. I have already said that it was open to the trial Judge to conclude, as he did, that the option taken by the appellant of jumping the creek was not so risky as to have required intervention.
31 As to particular 9.4, the fact that the students were placed a distance from shelter without adequate clothing to keep them warm and dry, if, indeed, that was the fact, adds nothing to the appellant's case. He was injured solely as a consequence of jumping the creek and not as a consequence of a failure to keep himself warm and dry. Insofar as it is intended by this particular to assert that the fact of the rain caused the appellant to act rashly, I have already dealt with that contention.
(Page 12)
32 In my opinion, the trial Judge's reasons were entirely adequate in each of these respects.
Conclusion
33 It follows from these conclusions that the appeal should be dismissed.
34 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Steytler J. I agree with those reasons as the basis upon which this appeal was dismissed at the hearing on 17 November 2003.
35 WALLWORK AJ: I agree with the reasons for judgment and the conclusions of Steytler J.
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