Introvigne v Commonwealth of Australia

[1980] FCA 129

Re: ROLDANO INTROVIGNE BY HIS NEXT FRIEND AND FATHER TARCISIO INTROVIGNE
And: THE COMMONWEALTH OF AUSTRALIA; BUNNING AND MADDEN; BUNNING AND MADDEN (A
FIRM) (1980) 48 FLR 161
No. G5 of 1977
Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Connor(1) and Lockhart(1) JJ.

CATCHWORDS

Negligence - Occupier's Liability - liability may arise if damage caused by an unusual danger arising out of activities carried out or permitted by occupier - whether positioning of flagpole in school yard assembly area near elevated platform creates dangerous environment.

Negligence - authority of government school teacher derived from Crown - delegation by Commonwealth of provision and administration of education in A.C.T. to Government of New South Wales does not remove liability for breach of duty owed by teachers - principle respondeat superior applies - duty of care owed by teachers to school children prior to commencement of classes.

Negligence - whether architects in designing flagpole under a duty to take reasonable care to guard against schoolboy abuse.

Practice and Procedure - Appeal Court will allow amendment of pleadings if issue emerged at trial and was litigated - amendment different in form and substance to original pleadings not allowed.

Damages - When appeal court will interfere with trial Judge's assessment of damages.

Negligence - Occupier's liability - Liability of teachers in government schools - Duty of care to pupils - Duty of architects when designing - Duty to take reasonable care against schoolboy activities.

HEADNOTE

The appellant was injured while a schoolboy at a school conducted by the first respondent, the Commonwealth. He was injured by a portion (which fell on him) of a flagpole in the school grounds. The flagpole was designed and its position was chosen by the second respondent, which was a firm of architects. When the portion fell on him the appellant was with a group of friends who were swinging on the halyard of the flagpole, although the appellant himself was not swinging at the time. The portion fell on him because it became detached by the swinging. The appellant sued both the respondents. Blackburn C.J. of the Supreme Court of the Australian Capital Territory dismissed the claim. The appellant appealed.

Held: Appeal allowed against the Commonwealth - (1) The Commonwealth was the occupier of the school grounds. However, any unusual danger from the flagpole to the appellant was not foreseeable by it. It was therefore not liable as an occupier.

Burton v. Melbourne Harbor Trust Commissioners, (1954) VLR 353; Commissioner for Railways v. Quinlan, (1964) AC 1054; Hislop v. Mooney, (1968) 1 NSWR 559, referred to.

(2) The Commonwealth owed a duty of care to the pupils at the government school.

Ramsey v. Larsen (1964), 111 CLR 16; Geyer v. Downs (1977), 138 CLR 91, applied.

It had breached that duty because the teachers at the school had failed to take proper steps to ensure that the pupils did not swing on the flagpole halyard or that the halyard was properly secured. It was therefore liable to the appellant.

(3) The architects were not liable to the appellant. They were not asked to design the flagpole to withstand schoolboys swinging on its halyard. Their design was reasonable in all the circumstances.

HEARING

Canberra, 1980, April 9-11, 14; September 25. #DATE 25:9:1980

APPEAL.

Appeal from the decision of Blackburn C.J. of the Supreme Court of the Australian Capital Territory.

The facts appear from the judgment.

M. L. Foster Q.C. and P. L. R. Sheils, for the appellant.

A. M. Gleeson Q.C., J. R. Dunford and K. Sienkowski, for the first respondent.

J. P. Bryson, for the second respondent.

Cur. adv. vult.

Solicitors for the appellant: Snedden, Hall & Gallop.

Solicitor for the first respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the second respondent: Macphillamy, Cummins & Gibson.

J. H. TELFER

ORDER

1. The application of the appellant for leave to further amend the statement of claim be refused.

2. The appeal be allowed against the respondent the Commonwealth of Australia and dismissed against the respondent Bunning and Madden

3. The order of the Supreme Court of the Australian Capital Territory dismissing the claim by the appellant against the respondent the Commonwealth of Australia be set aside and a verdict be entered in favour of the appellant in a sum to be determined by the Supreme Court.

4. The proceeding be remitted to the Supreme Court for further hearing and determination limited to the question of damages in accordance with the directions of this Court and to the question of costs reserved by the trial Judge.

5. The respondent the Commonwealth of Australia is to pay the costs of the appellant of the appeal to this Court.

6. The appellant is to pay the costs of the respondent Bunning and Madden of the appeal to this Court.

7. No order be made as to Skyline Constructions Pty. Limited

JUDGE1

On 19 February 1971 the appellant, then a schoolboy aged fifteen attending the Woden Valley High School, was skylarking with some of his friends in the school quadrangle before school was due to commence at its usual time of 8.30 a.m. They seized the halyard attached to a flagpole in the quadrangle, jumped off steps near the flagpole and swung on the halyard in such a way that at times the full weight of a boy's body was suspended by it as he moved through the air.

At a moment when the appellant was not swinging on the halyard, and without warning, the truck, which was fastened to the top of the flagpole, became detatched from its position and fell, striking the plaintiff on the head and severely injuring him.

In describing the flagpole it is sufficient for present purposes to say that it was less than eleven metres or about thirty-five feet high; the truck contained a shaft and pulley through which ran the halyard; the truck was cylindrical in shape and made of a synthetic material known as "particle board" and was encased in copper and, the evidence was that, together with the halyard, it weighed about seven kilograms or fifteen pounds.

The appellant brought an action for damages against the Commonwealth of Australia, a firm of architects ("the architects") and a company ("the company") which built and erected the flagpole.

In 1976, the action came on for hearing before the Supreme Court of the Australian Capital Territory. The learned trial Judge dismissed the appellant's action against all respondents; but held that, if liability had been established against any of them, he would have assessed the appellant's damages at $32,298.90.

The appellant appeals from the whole of the judgment of the Supreme Court. The appellant discontinued the appeal against the company.

The appellant's case is put on the following bases: -

. that the Commonwealth is liable as the occupier of the school premises to the appellant as an invitee;

. that the Commonwealth, as occupier, was in breach of its duty to him as a person on the premises as of right;

. that the Commonwealth owed a duty to take care for the safety of the appellant as a pupil of the school and breached that duty;

. that the architects were negligent in and about the planning or design of the flagpole; and

. that the Commonwealth is vicariously liable for the negligence of the architects.

Occupier's Liability

The appellant claimed that the Commonwealth was in breach of its duty as an occupier of premises in relation to the appellant as at least an invitee but also as a person entering as of right. On appeal it was conceded that the duty involved was virtually the same and no point was made of any distinction.

As has been said time and again, the duty of an occupier towards an invitee is to take reasonable care to prevent injury to him from an unusual danger of which the occupier either knew or ought to have known (Indermaur v. Dames (1866)1 L.R. (C.P.) 274 at p.288). The expression "unusual danger" was considered by their Lordships in London Graving Dock Co. Ld v. Horton (1951) A.C. 737. The effect of their consideration is that "unusual" is objective and means such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand (per Lord Porter at p.745). The knowledge of the occupier expressed in "ought to have known" means "would have become aware if reasonable care had been taken to ascertain whether the premises were safe" (Burton v. Melbourne Harbour Trust Commissioners (1954) V.L.R. 353 per Smith J. at p.371). As the learned trial Judge noted in the Court below, this means that even where there is no likelihood of any dangerous condition arising (so that inspection is not called for) the occupier is required to observe and appreciate the significance of any signs of danger which would have been noticed and understood by a reasonably careful man. The above principles and duties of occupiers must also be applied in any case with reasonable regard to the physical and mental powers which the occupier knew or ought to have known his invitees possessed. As was said by Lord Atkinson in Cooke v. Midland Great Western Railway of Ireland (1909) A.C. 229 at p.238,

"The duty the owner of premises owes to the persons to whom he gives permission to enter upon them must . . . be measured, by his knowledge, actual or imputed, of the habits, capacities and propensities of those persons."

Most cases which come under the head of occupier's liability relate to damage caused by structural defects. The statement in Indermaur v. Dames, supra, was expressed in terms relating to structural defects, no doubt because that was the issue raised by the facts. However, there is authority that an unusual danger may be constituted by activities carried out or permitted by the occupier to be carried out on the premises (see Glasgow Corporation v. Muir (1943) A.C. 448 per Lord Wright at pp.462-463 and Lord Romer at p.466; Lords Thankerton, Macmillan and Clauson dealing with the case on the basis of negligence; Commissioner for Railways v. Quinlan (1964) A.C. 1054 at p.1075; Commissioner for Railways (N.S.W.) v. Hooper (1954) 89 C.L.R. 486 per Taylor J. at pp.503-504; Dixon C.J., Webb and Kitto J.J. dealing with the case on the basis of negligence; Lewis v. Sydney Flour Pty. Limited (1955) 56 S.R. (N.S.W.) 189; Hislop v. Mooney (1968) 1 N.S.W.R. 559; cf. Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274 per Fullagar J. at p.295; and see generally Fleming, The Law of Torts, 5th Edn. p.453).

These cases seem to stem from a line of cases where it was considered that invitors owed a duty to invitees who came upon land in pursuance of a contract to view a spectacle e.g. a sporting event, a play or other performance. In Cox v. Coulson (1916) 2 K.B. 177 the Court said an invitor was responsible if he failed to exercise reasonable care in supervising incidents in a play which were intrinsically dangerous unless carefully performed. It seems this responsibility does not extend to dangers inherent in a particular spectacle which an ordinary spectator can foresee (Hall v. Brooklands Auto Racing Club (1933) 1 K.B. 205). This background would suggest that liability under this aspect of occupier's liability relates to both structural defects and activities carried out on the premises. The occupier is liable, not on the basis of vicarious liability for others, but because he used or gave permission for the use of his premises and failed to guard the invitee from unusual dangers to which he knew or ought to have known the invitee would be exposed arising from the use.

The duty arises with the occupier/invitee relationship but breach is based on reasonable foresight. As a guide to foreseeability, Lord Wright (at p.463) in Glasgow Corporation v. Muir (supra) distinguished between "things intrinsically dangerous or dangerous per se and other things which are not dangerous in the absence of negligence". In that case the carrying by two persons of a 16 inch x 15 inch tea urn with a fitting lid about half full of scalding water through a narrow passage in which were congregated a number of children was held not to constitute an unusual danger that the occupier could have foreseen would injure her invitees: it was not intrinsically dangerous like a lion or a tiger (per Lord Wright at p.464). Presumably, Lord Wright considered a gun in the category with lions and tigers as he relied on Cox v. Coulson, supra, although in that case Swinfen Eady L.J. (at p.182) considered that the play scene involving firearms if "properly performed and without negligence, would be free from danger".

On the other hand, the New South Wales Court of Appeal in Hislop v. Mooney, supra, found that there was an unusual danger created "by permitting someone to work above the heads of those drinking at the bar with no further protection against the dropping or falling of tools or materials than a sheet of thin glass" (per Sugerman J.A. at p.564). It was considered that it was a "common experience for injury or even death to be caused by things falling from above, whether the cause of the fall be carelessness or accident" (p.564). Thus, it would appear that any activity conducted at a height off the ground contains foreseeable inherent dangers, despite the fact that injury could only be caused by carelessness or accident.

We turn to the claim in the present case. It is set forth in paragraph 3 of the appellant's statement of claim which is as follows:

"There was in the quadrangle of the said school a flagpole on the top of which was a heavy object known as a truck. The said truck was at a considerable height from the ground and insecurely attached to the top of the flagpole so that vibration of or bumping against the flagpole could dislodge the said truck and cause it to fall from its said considerable height to the ground. Because of these facts the flagpole and the truk comprised an unusual danger of which the plaintiff (appellant) was unaware."

The learned trial Judge considered occupier's liability only in relation to structural defects because he considered that the pleading was directed only toward this possibility. It did not allege that the unusual danger was constituted by any particular activities on the premises. His Honour found expressly that the fall of the truck was "caused by the weight of one or more boys, either stationary or in motion, being applied to the halyard, and that the fall would not have occurred had it not been for the application of such weight". Therefore, the allegation that the truck was insecurely fastened so that it would not resist bumping against or vibration of the flagpole was not established. His Honour went further and said that even if he was wrong in finding no unusual danger he could find no evidence that the occupier ought to have known about it in the sense expounded in Burton v. Melbourne Harbour Trust Commissioners, supra.

On appeal it was not argued that his Honour's findings as to liability in the above sense were wrong; but rather that it was open on the appeal to press for consideration of the wider aspect of occupier's liability with respect to activities causing an unusual danger. Even though his Honour considered that activity-caused unusual danger had not been alleged or argued, Counsel for the appellant submitted that it was open on the pleadings and that all relevant evidence had been before the Court below even though it may have been argued in a different context. He admitted that the pleadings would have to be read with an open mind and some mental agility but if the worst came to the worst he proposed an amendment. It was submitted that this was a case where the appeal court could look at the matter afresh and put the appellant's cause of action into the facts proved at the trial, there being no question (so it was argued) that, if the particular basis had been advanced at the trial, any different result would have occurred by way of the introduction of evidence by any party.

The unusual danger thus put to the appeal court was a composite one consisting of the positioning and construction of the flagpole which permitted the truck to be dislodged by activities constituting improper use of the halyard which was foreseeable as arising from the permission the occupier gave for the use of the premises.

Before deciding whether it is open to the appellant to argue or amend his pleadings in this way, it is convenient to examine this cause of action and any chance of success.

The law of occupier's liability has been amended in England by statute and recommendations have also been made in New South Wales and South Australia to eliminate anomalous distinctions between occupier's liability and liability in negligence generally. However, as yet we are tied to the common law as it has evolved. As the law of negligence has matured, special relationships giving rise to a general duty of care have multiplied with new sets of circumstances before the courts. However, the particular law relating to occupiers was re-emphasised in Commissioner for Railways (New South Wales) v. Quinlan (1964) A.C. 1054. As a result, in the area of liability for injury caused by activities of the occupier or a third party on the occupier's land, there has arisen in the case law evidence of a demarcation problem. In some cases involving activities, the matter has been determined under the Donoghue v. Stevenson principles (Slater v. Clay Cross Co. (1956) 2 Q.B. 264; Commissioner of Railways (New South Wales) v. MacDermott (1967) 1 A.C. 169) and in others, both general negligence and occupier's liability have been applied (Glasgow Corporation v. Muir supra; Hislop v. Mooney supra). In Lewis v. Sydney Flour Pty. Ltd. (1956) S.R. (N.S.W.) 189, the Full Court refused to consider any negligence principles other than those in Indermaur v. Dames.

The difference in the cases can be explained by a passage in the judgment of Gibbs J. in Public Transport Commission (N.S.W.) v. Perry (1977) 137 C.L.R. 107. His Honour (at pp. 130-131) said:

"The special rules which the common law has evolved to govern the liability of an occupier of premises to a person who sustains injury while on those premises do not in every case state exhaustively the nature of the occupier's duty to the person who has come on to his premises. The relationship between the parties may be such as to give rise to a duty upon the occupier to take reasonable care for the safety of the other person. If the relationship between the parties imposes upon the occupier this general duty of care, which may be higher than that which he owes in his capacity as occupier, the fact that he is an occupier does not relieve him of the higher duty."

The important point is that occupier's duties are not the same as duties imposed on neighbours under Donoghue v. Stevenson, though they may co-exist. This is obvious in cases involving licencees and trespassers; but in cases involving invitees the distinction has often been blurred (see Glasgow Corporation v. Muir, supra). In the context of this aspect of the case, the task is not simply to find an occupier/invitee relationship and tack on a general duty of care. Similarly, although we are moving into another aspect of the present case in attempting to expound the law, one does not grasp the occupier/invitee relationship as the one to which a general duty of care is applicable. One must first ask whether there is a special relationship to which a general duty of care attaches. In some "activity" cases there is a very fine line of distinction to be drawn to ascertain whether the only relationship is that of occupier/entrant or whether the pursuit of the occupier or the permission he gives raises a general duty of care towards the appellant: more of that later.

We return to the question of occupier's liability. The Commonwealth can only be liable if damage to the appellant was caused by an unusual danger arising out of activities carried out or permitted by it, which danger the Commonwealth could foresee and against which it took inadequate protective or supervisory steps, so that damage resulted. There was some question as to the relevant activity permitted by the occupier; but there was no doubt that the occupier permitted the carrying on of a school with all that that entailed in terms of children using the playground for play and general congregation. The unusual danger alleged in argument seems to come down to the positioning and structure of a flagpole so that it did not cater for mischievous interference of school boys playing daily in its vicinity and led to the dislodging of the top of it in play. It was unusual presumably because this invitee would not expect a structure available in the play area to fall to pieces, especially during the short time in which he and his fellows played with it. Counsel for the respondent, although maintaining that this unusual danger was a matter for evidence, which in the context of the case at first instance had not been called, did contend that the appellant invitee was not an innocent bystander but had used the flagpole in a way it was not meant to be used and could therefore expect that his and others' abuse, might lead to breakage and possible injury. Despite the fact that the invitee here was fifteen years old, we are not convinced that the danger was not an unusual one in relation to him. The reasonable fifteen year old's conception of a flagpole probably goes no further than the halyards and pole and certainly would not have encompassed the actual truck as being a readily detachable part of the pole.

In Glasgow Corporation v. Muir, supra, the occupier's foresight of the danger was said to depend on whether the permitted activity was inherently dangerous although this at first sight may be difficult to reconcile with the fact that the danger must be unusual to the invitee. In Hislop v. Mooney it was considered that in an activity conducted above ground level there were foreseeable dangers even though they may be the result of negligence. In this case, we have the permitted activity as a necessary part of running a school, of high school children playing and congregating in and around buildings and structures. Can this be said to be "inherently dangerous" in the above senses? Can we call upon "common experience" as Sugerman J.A. (at p.564) did in Hislop's Case and say that even high school children play with tempting accessible objects and in these circumstances the occupier should have foreseen that some such accident as the kind that occurred would occur? Moreover, should not this class of activity case have the same standards of foresight as were used in Burton v. Melbourne Harbour Trust Commissioners, supra? This would mean that even in situations where the occupier had no reason to suspect a danger, he should be aware of and appreciate as a reasonable man would, any signs of danger. In this case it was submitted that there was sufficient evidence of occasions on which objects other than the flag had been hoisted up the flag pole to indicate that the occupier should have been aware of likely abuse which could lead to stress on the pole and possible breakage and injury.

On balance, however, we are of the opinion that the occupier could not have foreseen the unusual danger alleged. We cannot see that the activity was "inherently dangerous" in the sense illustrated by the case law because the occupier did not authorise playing on the flagpole. Evidence on the positioning of the flagpole in the assembly area adjacent to an elevated platform ideally suited for a launching pad does not necessarily lead to the conclusion that the school yard was a dangerous environment or a magnet for mischief makers. Indeed, such an exposed position in an area where many congregate may be a disincentive for mischief. Even if the standard of foresight requires that occupiers keep an appreciative eye out for danger signals, there is no evidence that anyone had ever swung on the flag pole halyard before. Further, if the occupier, through his agents, was aware that objects other than the flag had previously been hoisted by the pupils they were the type of objects,, a pair of knickers, a school bag, a garbage tin lid, a garbage tin, that would be unlikely to cause damaging stress on the truck but would be more likely to fall themselves. Foreseeability of the danger is more specific than in general negligence cases.

It is obvious from the above analysis that several evidentiary gaps emerge. Evidence relating to "unusual danger" was sparse, the actual activity alleged was very broad and foreseeability was only aired at the trial in relation to the general duty of care of school teachers. Even if this aspect of occupier's liability was open on the pleadings, it was not particularised. We do not believe it is possible to say that the respondent has encountered this case before.

For this reason it would be unjust in any case to decide this matter against the respondent or indeed to allow any amendment of the pleadings. An appeal court will only allow an amendment of pleadings in relation to an issue if it emerged at the trial and has been litigated. The court is then only formalising the actuality of the case being made. As Jacobs J. said in Malony v. Commissioner for Railways (1978) 18 A.L.R. 147 at p.151 the principle is that a respondent should not be able to disregard an issue which is clearly raised and argued at the trial, just because it is not in the pleadings. But this does not mean that an appeal court of its own motion should seek out a case for the appellant if he has not sought to rely on it before.

The statement of claim was amended five times by the appellant, twice during the trial before the Supreme Court. The trial lasted some eight days. It is now more than nine years since the accident occurred. It was not until the last day of the hearing of the appeal that the appellant sought this amendment.

The proposed amendment is in the following terms: -

"3A Alternatively, the unusual danger was constituted by the presence in the school quadrangle near steps, of a flagpole having upon it a heavy truck capable of becoming detatched and falling and thereby causing serious harm should the pole and/or its attachments be subjected to mischievous interference by the pupils."

It is not merely a restatement in different language of the allegation as to the unusual danger in paragraph 3 of the statement of claim. It is different in both form and substance. In our opinion it would be unjust to the respondents to permit the amendment at this stage. Accordingly, the application for leave to amend is refused.

Negligence - Alleged breach of duty of teaching staff

We turn to the question whether the activities pursued or permitted by the occupier gave rise to a general duty of care towards the appellant.

The appellant asserts that the Commonwealth is responsible for negligent acts or omissions of the teaching staff at the Woden Valley High School which are said to have caused the injuries to the appellant.

It is plain from the pleadings and the conduct of the trial before the Supreme Court that the claim was, as the learned trial Judge said, "confined to breaches of duty by members of the teaching staff of the school".

It is now established as the law of Australia that a government school teacher, in performing his duties, is exercising authority derived by him from the Crown in respect of obligations assumed by the Crown. The doctrine that a government school teacher derives his authority, not from the Crown, but by direct delegation from the parents of the pupils, which was the basis of the decision of the Full Court of the Supreme Court of New South Wales in Hole v. Williams (1910) 10 S.R. (N.S.W.) 638, was rejected by the High Court in Ramsay v. Larsen (1964) 111 C.L.R. 16.

That the basis of the authority of the government school teacher is derived from the Crown and not by delegation from the parents of the pupil was clearly expressed by Ferguson J. in the following passage from his reasons for judgment in Ramsay v. Larsen (1963) 80 W.N.(N.S.W.) at pp. 1634-1635, his Honour being a member of the Full Court of the Supreme Court of New South Wales from whose decision the appeal was brought to the High Court:

"Pupils of the prescribed school age attending public schools have, during school hours, been compulsorily removed, by the authority of the Crown, from the protection and control of their parents. In view of that compulsion, by the establishment of public schools for the reception of such pupils, and the provision of teachers to impart instruction and maintain discipline, the Crown must be regarded as having taken over, in respect of the pupils those obligations of which their parents have been deprived, including the obligation to take reasonable care for their safety - an obligation which is to be measured by that care which a careful father would take of his own children. It does not seem to me to be right to say, as was said in Hole v. Williams (1910) 10 S.R. (N.S.W.) 638, that a teacher in maintaining discipline and imparting instruction, is exercising an authority delegated to him by the parents of a pupil and unless there is evidence of an express or implied delegation I would not think that compulsion provided that evidence. However that may be, I prefer the view that a public school teacher in the exercise of his functions as such is exercising an authority delegated to him by the Crown in respect of obligations assumed by the Crown.

At common law where a person has assumed a legal duty towards another he cannot escape liability for a breach of that duty by delegating its performance to somebody else. I therefore think that the maxim of respondeat superior applies to the circumstances of the present case."

This passage was approved in the High Court by Taylor J., with whose reasons for judgment Windeyer and Owen JJ. agreed, in Ramsay v. Larsen (supra) at pp. 37 and 38.

The Crown is liable in tort for the teacher's acts or omissions in the course of his employment which would be a tort if they were the acts or omissions of the school authority itself. The principle respondeat superior applies: Ramsay v. Larsen (supra); State of Victoria v. Bryar (1970) 44 A.L.J.R. 174; Geyer v. Downs (1977) 138 C.L.R. 91.

The position may be different in the case of non-government schools or, as they are sometimes called in Australia, independent or private schools. In their case there may be delegation by the parents of the pupil of parental authority to the school council, trustees or other governing body of the school. The delegation would arise from the contract between the parents and the school authority and may be express or implied.

The nature and scope of the duty owed by a school teacher to his pupils has been variously defined. In Geyer v. Downs (supra) it was expressed thus by Murphy and Aickin JJ., with whose reasons for judgment Mason and Jacobs JJ. concurred, at pp. 101-102: -

"The classic formulation of the duty owed by a schoolmaster to a pupil is that of Lord Esher in Williams v. Eady (1893) 10 T.L.R. 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 C.L.R. 16, at p. 27 where he said: 'The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances' and that passage was relied upon in the judgment of Hutley J. A. in the Court of Appeal in this case 1975 2 N.S.W.L.R., at p. 841.

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 A.L.J.R. 174 where this Court agreed in the description of the duty owed by a teacher to each of his pupils formulated by Winneke C.J. in Richards v. Victoria 1969 V.R. 136, at pp. 138, 140-141. It is not necessary to set out again the passages thus approved, but the result may be summarized in the following passage 1969 V.R., at p. 141:

'The duty of care owed by' (the teacher) 'required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to' (the pupil). 'This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi' (the teacher) 'should reasonably have foreseen'.

This Court, however, went on to point out that it is of course necessary that the breach of duty of care must be causally related to the injury received. An examination of the many cases on this topic which have been reported both in Australia and in England shows that plaintiffs have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question, notwithstanding that no supervision at all was attempted in the particular case."

In the present case the accident happened a few minutes before the time when school was due to commence at 8.30 a.m. There were some nine hundred pupils attending the school, both boys and girls. Many of them were walking and playing outside the school buildings. The Acting Principal arrived at school at 8.10 a.m. and called a meeting of the staff for 8.20 a.m. to inform them that the Principal had died in the early hours of that morning and to mention the funeral arrangements. The meeting lasted a few minutes only namely, until about 8.25 a.m., during which time the accident appears to have happened. The practice was for a bell and hooter to sound at 8.25 a.m. so that the pupils could assemble preparatory to going to their classrooms at 8.30 a.m. Neither had sounded when the Acting Principal heard of the injury.

Before calling the staff meeting the Acting Principal had detailed one member of the staff to be absent from the meeting and to be present in the school grounds to maintain supervision over the activities of the pupils in the grounds. This supervision was normally exercised by the staff generally without any roster or specific detailing of individuals; and the number of staff in fact exercising supervision in the grounds at such time was normally between five and twenty.

The appellant's case is that the teaching staff, including the Principal and Acting Principal, were negligent in various respects.

First, it was submitted that there should have been a rule that the flagpole and its attachments were not to be touched or used without the express authority of a teacher. That is, they were to be out of bounds. There was no such rule. The Acting Principal gave evidence that there was no rule in force at the school relating to the use of flagpoles. He said that if a teacher were to see a boy swinging on the halyard it would be appropriate to stop him from doing so, to prevent the risks of injury both to the boy and the flagpole.

In our opinion there should have been a rule that the pole was not to be used unless with the express authority of a teacher. Some nine hundred pupils attended the school. The pole was about thirty five feet high with a truck on its top. A flagpole standing in school grounds close to a flight of steps would present an inducement to mischievous boys to swing on its halyard which was in easy reach, and to use the steps as a launching pad to propel themselves into mid air, and thus suspend their whole body weight upon the halyard; and that a load would thus be placed on the truck and the pole.

There is no evidence that the flagpole had been used before for the same purpose that it was used on the morning of the accident; but there is a fair degree of evidence that it had been misused in various ways for some time previously, at least since the latter part of 1970. Boys, on more than one occasion, had hauled up to the top of the pole, objects such as school cases, knickers, a garbage can lid and a garbage can itself. Pranks were played on other boys, usually big boys bullying small boys, by threatening to haul them up the halyard by their ties.

Although there is no evidence that any of the teaching staff knew that these pranks had been played, it was reasonably foreseeable in any event that the flagpole more likely than not, would be used in this way.

Second, it was submitted that there was inadequate and improper supervision of the pupils in the school grounds during the period before commencement of lessons. It was not suggested that the teachers owed no duty of supervision merely because teaching of lessons had not commenced that morning. Indeed, usually supervision was exercised by members of the staff at this time. Although each case depends on its own facts, Geyer v. Downs (supra) is authority for the proposition that the duty of care owed by teachers to pupils may extend during the period before the commencement of classroom instruction.

The teaching staff, including the Principal and Acting Principal, owed a duty of care to the pupils to take reasonable care of them. There should have been provision for proper supervision of the pupils in the school grounds during the period preceding the commencement of instruction (in this case, a period of less than half an hour beforehand). Indeed, it is clear that the necessity for this supervision was recognised from the normal practice whereby between five and twenty members of the staff exercised supervision in the grounds at this time.

It was submitted by Counsel for the Commonwealth that the exigencies of the occasion, due to the sudden death overnight of the Principal and the need to call a special staff meeting, justified there being one member of staff only on supervisory duties in the grounds before the commencement of school instruction. This may be the reason why only one member of staff was allotted to supervise the whole of the school grounds; but in our opinion it does not diminish the extent of the duty of care owed to the pupils. In Geyer v. Downs (supra) Stephen J. with whose reasons for judgment Mason and Jacobs JJ. agreed, said at p. 94: -

"It is for schoolmasters and for those who employ them, whether government or private institutions, to provide facilities whereby the schoolmasterly duty can adequately be discharged during the period for which it is assumed. A schoolmaster's ability or inability to discharge it will determine neither the existence of the duty nor its temporal ambit but only whether or not the duty has been adequately performed. The temporal ambit of the duty will, therefore, depend not at all upon the schoolmaster's ability, however derived, effectively to perform the duty but, rather, upon whether the particular circumstances of the occasion in question reveal that the relationship of schoolmaster and pupil was or was not then in existence. If it was, the duty will apply. It will be for the schoolmaster and those standing behind him to cut their coats according to the cloth, not assuming the relationship when unable to perform the duty which goes with it.

In the present case it may be that the defendant schoolmaster was unable adequately to perform his duty before 9.00 a.m. on school days. If so, he should not have assumed the relationship of schoolmaster towards pupils of the school at an earlier hour, as the jury found he did. Having done so his inability, if such it was, satisfactorily to discharge that duty provides, in my view, no ground for doubting the existence of the duty."

Children are in need of supervision. Their parents cannot provide this when the children are at school. The teachers must provide it. It was unfortunate that the death of the Principal led to the brief staff meeting and only one member of staff being made available to perform supervisory duties in the grounds; but this neither diminishes the scope of the duty of care nor operates to prevent the conclusion that the duty was breached, as it was on that occasion.

Nor is the case for the Commonwealth assisted by the provisions of passages in the New South Wales Department of Education Handbook No. 5.2.3.8. relating to "Playground Supervision". They do not assist in the resolution of the questions arising in this appeal.

A third element of negligence relied on by the appellant is the failure of the Principal or the Acting Principal to take proper steps to ensure that the halyard was adequately secured to the pole, for example, by a padlock.

The evidence is that there was a school janitor, who was not a member of the teaching staff of the school, but a man who performed such light duties as the Principal requested of him. He was employed by the Commonwealth. His duties included raising and lowering the flag on the flagpole (as well as on another flagpole in a different part of the school grounds) as the occasion required. Normally the halyard was secured to the base of the pole by a padlock which locked the halyard to a bracket which was in turn secured to the pole near its base. It was not so secured on the morning of the accident.

In our opinion it was the duty of the Principal, and later the Acting Principal, to ensure that the halyard was secured by its padlock to the pole, whether this was done by directions to the janitor or some other person; and that there was a breach of that duty on this occasion. The halyard might have been designed so that its lowest point was out of the reach of school children. But the Principal and the Acting Principal knew that it was within easy reach of pupils. In our opinion this made it all the more necessary to ensure that it was secured.

The breach of duty of care must be causally related to the injury received. The test is whether, more probably than not, the doing of the act or acts, the failure to do which being the relevant negligence, would have prevented or minimised the injury which was in fact received: State of Victoria v. Bryar (supra). In our opinion it is more probable than not that the accident would not have occurred if proper supervision had been exercised over the pupils in the grounds of the school on the morning of 19 February 1971. Nor as a matter of probability would it have occurred if the halyard had been padlocked to the pole.

If the rule had been promulgated that the flagpole was out of bounds except with the express permission of a teacher, the accident may not have occurred; but we are not satisfied that it is more likely than not that it would not have occurred. However the promulgation of the rule when taken in conjunction with either or both of the other matters, would lend additional support to the conclusion that the accident probably would have been prevented.

Counsel for the Commonwealth contended that even if negligence was established against any member of the teaching staff of the school and, even if such negligence was shown to be a cause of the appellant's injury, the Commonwealth is not liable because the members of the teaching staff were not servants or agents of the Commonwealth, but of the State of New South Wales.

The learned trial Judge set out in his reasons for judgment the evidence which showed that, at the time of the accident, there was in force an "arrangement" between the Commonwealth and the State of New South Wales for the provision and administration of a public system of education in the Australian Capital Territory. His Honour concluded that at the time of the accident all the teachers at the Woden Valley High School were officers of the New South Wales Department of Education; their salaries were paid by that Department and control of their duties was exercised by it. His Honour held that it was impossible to find that they were servants of the Commonwealth; and that, as the case against the Commonwealth was pleaded as resting only on the vicarious liability of the Commonwealth, the appellant must fail on this branch of his argument.

If a person owes a duty to the plaintiff it is no answer to assert that someone else has been asked to perform it. The performance of the duty can be delegated to another, but the responsibility for its performance cannot.

In Cassidy v. Ministry of Health (1951) 2 K.B. 343 Denning L.J. said at p. 363: -

"I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services. Lord Blackburn laid that down on many occasions; see Tarry v. Ashton (1876) 1 Q.B.D. 314, 319; Dalton v. Angus (1881) 6 App. Cas. 740, 829; and Hughes v. Percival (1883) 8 App. Cas. 443, 446; and so have other great judges, see per Parke, B., in Grote v. Chester and Holyhead Ry. Co. (1848) 2 Ex. 251, 254, and what a strong court, including Willes and Williams, JJ., said in Pickard v. Smith (1861) 10 C.B. (N.S.) 470, 480; see also per Lindley, L.J., in Hardaker v. Idle District Council (1896) 1 Q.B. 335, 340 and per this court in Woodward v. Hastings Corporation (1945) K.B. 174, 182."

We respectfully agree with his Lordship.

This is not to say that an employer is liable for the acts of an independent contractor. Generally an employer is not responsible for the negligence of an independent contractor; although there are cases in which such liability has been held to exist. Some of them are referred to by Widgery L.J. in Salsbury v. Woodland (1970) 1 Q.B. 324 especially at p. 338; and see Stoneman v. Lyons (1975) 133 C.L.R. 550. See also Atiyah, Vicarious Liability Chapters 8, and 29 and Chapman "Liability for Contractors" (1934) 50 L.Q.R. 71. Thus, the duty of an invitor to an invitee cannot be escaped merely by delegating its performance to an independent contractor: see Thomson v. Cremin (1935) All E.R. 1185 and Voli v. Inglewood Shire Council (1963) 110 C.L.R. 74 per Windeyer J. at p. 97 with whose reasons for judgment Dixon C. J. and Owen J. agreed.

The principle is expressed in these terms in Winfield on Torts 8th Ed. (1967) at p. 649: -

". . . the true question in every case in which an employer is sued for damage caused by his independent contractor is whether the employer himself was in breach of some duty which he himself owed to the plaintiff."

It is erroneous to say that the Commonwealth owes a duty to educate children; but the Commonwealth has established government schools in the Australian Capital Territory to receive pupils and to provide teachers to instruct them and take care of them. These schools are maintained "by or on behalf of the Commonwealth": sub-s. 8 (1) of the Education Ordinance 1937. The Woden Valley High School is one such school. Indeed, the Commonwealth compulsorily removes children from the control of their parents. Parents are required by law, (ss. 8 and 9 of the Education Ordinance 1937) under pain of penalty, to cause their children aged between six and fifteen to attend at schools in the Territory maintained by or on behalf of the Commonwealth or schools registered under the Education Ordinance 1937.

In our opinion this gives rise to a legal duty of the Commonwealth towards pupils attending those schools to take reasonable care of them; and the Commonwealth cannot escape liability for a breach of that duty if it chooses to delegate its performance to somebody else. The maxim respondeat superior applies: see in particular Ramsay v. Larsen (supra) per Taylor J. at pp. 37 and 38. The fact that the appellant was some five months outside the age of compulsory attendance at school (he was born on 14 September, 1955) does not exonerate the Commonwealth from liability. The critical matters are that the Commonwealth established the Woden Valley High School to receive pupils and to provide teaching staff to instruct them and look after them. The School continued to accept him as a pupil after he attained the age of fifteen.

In fact the Commonwealth has chosen to delegate the function of teaching and the control over teachers to the State of New South Wales. What if the State of New South Wales enacted a law absolving itself from liability for the negligence of teachers appointed by it? Is it seriously to be suggested that a child accepted as a pupil at a Commonwealth school in the Australian Capital Territory is without effective redress for injuries received by him as a result of negligence of the teaching staff? Surely not.

The Commonwealth may choose to delegate the teaching function and the control of teachers of schools generally or a particular school to a private corporation whose function it is to provide teaching staff and facilities for the instruction of children. It may become insolvent and be wound up. Is the child attending school in Canberra, who receives injury due to the negligence of the teachers, to have no rights against the Commonwealth in those circumstances? If this is the law, then so be it; but we do not think it is.

The Commonwealth's duty of care to the pupils cannot be delegated to the State of New South Wales. It matters not whether the teachers are the servants or agents of the Commonwealth; but in the present case the statement of claim pleads the relevant duty of care and breaches thereof as being those of the Commonwealth, by its servants and agents. Whether the pleader's reference to servants and agents is mere surplusage is not necessary to decide as the teaching staff, although not servants of the Commonwealth, were, in the relevant sense, its agents. That the State of New South Wales acted on behalf of the Commonwealth appears from the terms of the "arrangement" between them.

In the result, we are of the opinion that the Commonwealth is liable to the appellant for the injuries received by him.

Alleged negligence of the architects

The appellant's allegations against the architects are contained in paragraphs 7 to 10 of the statement of claim. They read as follows: -

"7. The Woden Valley High School was planned designed and supervised in construction by the secondnamed defendant being a firm of architects retained by the National Capital Development Commission on behalf of the firstnamed defendant pursuant to s. 14 of the National Capital Development Act.

8. The said planning, designing and supervision by the secondnamed defendant included the flagpole and the truk thereon.

9. At the time of the said planning, designing and supervision of the construction of the said flagpole it was apparent to the secondnamed defendant that the same would be in a public school in close proximity to pupils such as the plaintiff and that should the truk dislodge and fall it was likely to injure a pupil.

10. The secondnamed defendant was negligent in and about the said planning, designing and supervision and as a result the said truk did fall and injure the plaintiff causing him the injuries set forth in paragraph 6 hereof.

Particulars

(a) The planning and design were not such as to ensure that the truk would not fall from the flagpole.

(b) The supervision was not such as to ensure that the truk would not fall from the flagpole.

(c) The secondnamed defendant did not warn any person who might have in turn warned the plaintiff of the danger inherent in the flagpole."

It was sought at the trial to make the architects liable on a number of grounds. On appeal, however, only one ground was argued. It was said by the appellant that the architects, in designing the flagpole and the truck, should reasonably have foreseen that teenage schoolboys in the assembly area of a high school were likely to suspend their weight on the halyard or swing on it. Consequently, it was said, that the architects were negligent in failing to design a flagpole and truck which would resist these stresses.

At the trial, Counsel for the architects objected to evidence led by the appellant for the purpose of establishing negligence on this ground. The learned trial Judge received the evidence subject to a decision as to its admissibility. In his reasons for judgment the learned trial Judge held the evidence to be inadmissible on the ground that this head of negligence was not open on the statement of claim which had been amended five times. His Honour said: -

"I have already set out the paragraphs relevant to the claim against the second defendants. Paragraphs 9 and 10 clearly do not amount to an allegation of a duty on the part of the second defendants to design equipment to a higher standard of resistance to a particular type of misuse than would normally be expected of such equipment, the higher standard being required because of the foreseeability of the particular type of misue by the sort of persons who would frequent the place where the flagpole was to be erected. On the contrary, the meaning of the pleading is that in designing the flagpole and truck the second defendants had a duty to remember that persons such as the plaintiff would be close to the flagpole and would therefore be in the area of risk should the truck fall from the flagpole. This is a duty breach of which is not established by proof that by reason of misuse of a flagpole and truck designed and constructed to normal standards, the truck fell and caused injury.

I therefore uphold the contention of counsel for the second defendants, that the allegation of a duty to design for foreseeable mischievous or wanton conduct on the part of schoolboys is not open to the plaintiff, on this statement of claim."

It is therefore necessary to decide whether it is open to the appellant to rely upon this ground of negligence in this appeal.

The problem is not made easy by the ambiguity in paragraph 9 of the statement of claim. The concluding words "and that should the truk dislodge and fall it was likely to injure a pupil" may be read as limiting the generality of the earlier allegation of the proximity of the flagpole to pupils; or they may be regarded as merely adding one consequence of such proximity. Read in the first way they tend to support the exclusion of an allegation of special care to cope with abuse. If the concluding words are read in the second way, then paragraph 9 is barely adequate to support such an allegation. Abundant evidence on this issue, albeit under objection, was led on behalf of the appellant and on behalf of the architects. Paragraphs 9 and 12 of the statement of claim lack the clarity desirable in pleadings. Had they been amended to achieve such clarity it does not appear that the case for the architects would have been conducted differently. In all the circumstances we think it just that this Court should regard the allegation of special care to avoid schoolboy abuse as having been raised and litigated by the parties at the trial and consequently available to the appellant in this appeal.

It is convenient to describe in more detail the flagpole and the truck. The height of the pole was a little less than 11 metres or about 35 feet. It was "stepped" or, as the learned trial Judge described it, "not tapered, but formed of a succession of cylindrical sections each of which was slightly smaller in diameter than the one below it." The diameter of the pole at the top was a little less than 8 centimetres or about three inches. At this point the hollow pole was closed off by solid metal which did not project beyond the circumference of the top of the pole. The head of a coach screw was welded into this metal capping and the shank of the screw was perpendicular to the capping and projected for a distance of about six centimetres or two and a half inches from the capping.

The truck was shaped like a round biscuit tin. It was about eight centimetres or three and one-quarter inches high and about twenty-three centimetres or nine inches in diameter. The body of the truck consisted of particle board. The surface was thin copper sheeting which was nailed to the particle board. There was a hole in the copper at the centre of the circle formed by the underside of the truck. This was for the purpose of taking the coach screw.

In the underside of the truck there was a metal pulley having a diameter of about five and a half centimetres or two and one-quarter inches. There was a hole in the centre of it through which ran a cylindrical shaft forming an axis on which the pulley could rotate. This shaft was inserted into the underside of the truck at right angles to a radius of the circle of the underside and about two thirds of the distance along such radius from the centre of the underside circle. The shaft was secured just below the surface by two metal brackets bolted into the underside. As a result, a little over half of the pulley was counter sunk into a depression made for it in the underside of the truck and, when the truck was in position on top of the pole, the remainder of the pulley projected outwards from and below the surface of the underside. The rim of the pulley was shaped in a groove capable of receiving a steel cable or halyard for the purpose of raising and lowering a flag.

The truck was attached to the pole by screwing it on to the coach screw. When fully screwed down the copper sheeting on the underside should have fitted tightly onto the metal cap of the flagpole. Near the top of the flagpole was a metal bracket which the learned trial Judge described as follows: -

"Projecting horizontally outwards from the top of the pole, and having its upper surface flush with the surface of the capping, was a strip of metal apparently about 1 1/2 inches wide, rather less than 3 inches long, and only a small fraction of an inch thick. I call this piece of metal a bracket, and its exact dimensions are immaterial. The bracket was perforated by two nail holes."

Through these holes nails were driven into the truck. After some initial uncertainty, it seems to have been established clearly enough at the trial that the only function of this bracket was to prevent rotation of the truck which could have had the effect of unscrewing it. The bracket was not intended to provide lateral support for the truck.

The learned trial Judge described the halyard and the manner in which it was attached to the pulley in the following terms: -

"Through the pulley ran a halyard of steel or wire rope, having an eye splice at each end, with a brass shackle in each eye. Apparently each shackle was designed to be fastened to a corner of a flag, so that the flag could be hoisted to the truck. When no flag was being flown, the shackles could be clipped together, and the result of doing so would be to join together the two ends of the halyard so as to prevent one end from running up out of reach of a person standing on the ground. But the fastening together of the two shackles would not by itself prevent the running of the halyard through the pulley, nor would it prevent the halyard from swinging like a pendulum away from the flagpole. When the truck was produced as an exhibit at the trial, the halyard was in position running through the pulley, and the base shackles were fastened together. Through one of the eye splices there was a locked padlock. There was no evidence about this particular padlock. I refer later to the question whether the halyard was ever fastened to the flagpole by a padlock or otherwise. At this point all that it is necessary to say is that by so fastening the halyard to a fitting on the flagpole near the ground, it would be possible to prevent both the running of the halyard through the pulley and also the swinging of the halyard away from the pole."

The evidence was that the truck and halyard together weighed a little over fifteen pounds or seven kilograms. It will be noted that the radius of the circle formed by the top of the flagpole was one third as long as the radius of the circle formed by the underside of the truck. Consequently the area of the smaller circle was only one ninth of the size of the area of the larger circle. Thus, when the truck was screwed down on to the pole some eight ninths of the surface of the underside projected beyond the circumference of the circle formed by the top of the pole.

The learned trial Judge found that after the erection of the flagpole rain had entered underneath the truck and had created moisture which caused the coach screw to erode. He therefore deduced that initially the truck was not screwed down tightly. This finding was corroborated by the fact that, when the truck and pole were painted after they had been assembled, paint entered between the truck and the top of the pole.

The learned trial Judge found, as we think he was plainly entitled to do, that the fall of the truck was caused by the weight of boys swinging on the halyard, thus applying weight to the pulley which in turn put downward pressure on the truck which then caused the corroded coach screw to bend at right angles and thus enabled the truck to come off it and fall to the ground. The learned trial Judge also found that the normal use of the flagpole and truck could not possibly have caused the truck to fall as and when it did.

In our opinion, this assessment does not take properly or fully into account the adverse effect of the appellant's brain damage upon his earning capacity and upon his prospects of gaining employment in the future. He completed his schooling in 1976 in his twenty-first year with a low pass. His unsatisfactory employment pattern is consistent with brain damage. He has been slow to learn and unable to hold down jobs. There must be problems ahead of him in relation to gainful employment. The very pattern now established shows a likelihood of there being periods of unemployment in the future and of gainful employment only in limited areas of activity.

In our opinion the award of damages in relation to loss of earning capacity is plainly inadequate.

During the course of the appeal we admitted into evidence an affidavit of Gregory Alan Stretton sworn on 11 April 1980 for the limited purpose of determining whether, in the event that this Court was of the opinion that the appeal should be allowed, it should itself determine the amount of damages to be awarded or order that there be a new trial limited to the question of damages. We did not receive the material contained in the affidavit as evidence of the facts stated therein for the purpose of assessing damages. In brief, this affidavit suggests that since the date of his Honour's judgment the appellant has exhibited signs of epilepsy which he had not exhibited before. No evidence was led on this question at the trial. In all the circumstances, in our opinion there should be a new trial limited to the question of damages.

In the result, the appeal should be allowed with costs.

The order of the Court is that the appellant's application for leave to further amend the statement of claim be refused. The appeal be allowed against the respondent the Commonwealth of Australia and dismissed against the respondent Bunning and Madden. The order of the Supreme Court of the Australian Capital Territory dismissing the claim by the appellant against the respondent the Commonwealth of Australia be set aside and a verdict be entered in favour of the appellant in a sum to be determined by the Supreme Court and the proceeding be remitted to the Supreme Court for further hearing and determination limited to the question of damages in accordance with the directions of this Court and to the question of costs reserved by the learned trial Judge. The respondent the Commonwealth of Australia is to pay the costs of the appellant of the appeal to this Court. The appellant is to pay the costs of the respondent Bunning and Madden of the appeal to this Court. Order 52 r. 19 of the Federal Court Rules renders it unnecessary to make any orders as to Skyline Constructions Pty. Limited.