St Mark's Orthodox Coptic College v Abraham - [2007] NSWCA 185

NEW SOUTH WALES COURT OF APPEAL

CITATION: St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185

FILE NUMBER(S):
40734/06

HEARING DATE(S): 26/07/07

JUDGMENT DATE: 10 August 2007

PARTIES:
St Mark's Orthodox Coptic College (Appellant)
Boshra Abraham (Respondent)

JUDGMENT OF: Ipp JA Basten JA Young CJ in Eq

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20186/02

LOWER COURT JUDICIAL OFFICER: Rothman J

LOWER COURT DATE OF DECISION: 24/10/06

LOWER COURT MEDIUM NEUTRAL CITATION:
[2006] NSWSC 1107

COUNSEL:
S G Campbell SC/P R Stockley (Appellant)
L Grey (Respondent)

SOLICITORS:
Curwoods Lawyers (Appellant)
Carroll & O'Dea (Respondent)

CATCHWORDS:
TORTS – negligence – duty of care – respondent’s son injured in an accident on school premises prior to formal supervision – respondent a teacher at the school – whether the respondent owed his son a duty to take reasonable care not to expose him to a risk of harm when he dropped off his son at school earlier than was ordinarily the case on the date of the incident – breach of duty – respondent knew, or should have known, that the system of ad hoc supervision during the time he dropped off his son at school was inadequate – whether the risk of harm required to be taken into account by the school differed from that which the respondent had to consider – whether, if the respondent did owe his son a duty of care, his decision to leave him at school at a time when there was only ad hoc, informal supervision was, in all the circumstances of the case, and taking into account the practical realities of everyday living, reasonable. D

LEGISLATION CITED:

CASES CITED:
Abraham bht Abraham v St Mark’s Orthodox Coptic College and Ors [2006] NSWSC 1107
Brodie v Singleton Shire Council (2001) 206 CLR 512
Geyer v Downs (1977) 138 CLR 91
Hahn v Conley (1971) 126 CLR 276
Harriton v Stephens (2006) 226 CLR 52
McCallion v Dodd [1966] NZLR 710
Neindorf v Junkovic (2005) 80 ALJR 341
New South Wales v Fahy (2007) 81 ALJR 1021
Robertson v Swincer (1989) 52 SASR 356
The Commonwealth v Introvigne (1981) 150 CLR 258
Vairy v Wyong Shire Council (2005) 223 CLR 422
Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40734/06
SC 20186/02
IPP JA
BASTEN JA
YOUNG CJ IN EQ
Friday 10 August 2007

ST MARK’S ORTHODOX COPTIC COLLEGE v BOSHRA ABRAHAM

Judgment

IPP JA:
The issues on appeal
The appellant (“St Mark’s”) conducts a school known as St Mark’s Orthodox Coptic College (“the College”) in Wattle Grove, New South Wales. On 23 August 2000, between about 8.05 am and 8.08 am, Christopher Abraham, then nine years old and a student in Year 4, fell from a second floor balustrade on the College premises and suffered significant injuries.
In proceedings brought by Christopher’s mother (Mrs Abraham), acting as his tutor, Rothman J held that St Mark’s was liable in negligence to Christopher for the damage he suffered in consequence of his fall: see Abraham bht Abraham v St Mark’s Orthodox Coptic College and Ors [2006] NSWSC 1107. Christopher elected not to have his damages assessed in these proceedings. His Honour held that the amount of damages sustained by Christopher was to be reduced by ten per cent on account of his contributory negligence. St Mark’s cross-claimed against Christopher’s father, Mr Boshra Abraham, for a contribution to the damages St Mark’s might be ordered to pay. Rothman J dismissed the cross-claim on the ground that Mr Abraham owed no duty of care to Christopher and, if he did, he had not breached that duty.
St Mark’s appeals against the dismissal of the cross-claim. There is no appeal against the finding that St Mark’s negligently caused the injuries Christopher suffered and there is no appeal against the order that Christopher was guilty of contributory negligence to the extent of ten per cent.
Essentially, the issues raised in the appeal are whether his Honour was correct in holding, firstly, that Mr Abraham did not owe a duty of care to Christopher and, secondly, if he did owe such a duty, that he breached it.
The events leading to Christopher’s fall
In 2000, 382 students aged from five to seventeen years attended the College, which was a primary and secondary educational institution. The College had a permanent staff of 32 with seven casual employees.
A public road ran alongside the College campus and the entrance from the road to the campus was along a pedestrian walkway. The campus comprised two-storey and single storey buildings. On the ground floor there was a covered area where students were supposed to sit if they arrived at school before classes commenced at 8.35 am. Adjacent to this covered area was a stairway that led to the second floor of a building containing classrooms. On the second floor there was a bench or rack on which students left their suitcases or backpacks when going to classes on that floor. There was a veranda on the second floor with a balustrade on the side.
It was a rule of the College that if students arrived at school before 8.35 am they had to remain seated in the covered area. They were not allowed to go up the stairs onto the second floor. Also, they were not allowed to participate in any physical activities, such as ball games, in the covered area.
St Mark’s commenced occupying the Wattle Grove premises in 1999. Mr Abraham had been a teacher at St Mark’s since before it moved to the Wattle Grove campus. Christopher had been a student there since 1999.
Christopher lived with his parents in the family home about three minutes drive from the College. Mr and Mrs Abraham had another child apart from Christopher, namely, a daughter who, in 2000, was aged four years and had not yet started school. Each working day Mrs Abraham would leave home before 7.30 am to go to work. Later, Mr Abraham would drive his daughter to a childcare centre at Hammondville and Christopher to the College. Hammondville was about a 15 minute drive from the Abrahams’ home and about five minutes from the College.
Usually, Mr Abraham would drive first to the childcare centre, drop his daughter there and then take Christopher to the College. He would arrive at the College shortly before 8.20 am (that being the time at which teachers were required to be at the College). After parking his car, he would go to the staff room to prepare for the day’s classes and Christopher would wait in the covered area for classes to begin.
Occasionally, Mr Abraham would first drop Christopher at the College, then take his daughter to the childcare centre and return to the College before 8.20 am. He did this because, from time to time, Christopher would ask him to drop him first. Mr Abraham explained, “I respect what he said and I want him to be confident with himself. And he said he want[ed] to sit with [his] friends, so I want to give him a little bit of confidence, so I did”.
On the day of the accident, this is precisely what occurred. Mr Abraham dropped Christopher at the College between 8.00 am and 8.05 am, drove his daughter to the childcare centre and then returned to the College. Not later than 8.08 am, while he was returning to the College, the accident occurred.
On the morning in question, Mr Abraham told Christopher to sit in the covered area, to “do the right thing [and] don’t do any silly stuff”. Christopher, however, disobeyed these express instructions. After walking along the pedestrian walkway into the covered area, he began to play tip with two friends. Within a very short time thereafter, he climbed the stairs to the second floor to put his bag on the rack outside his classroom. He walked onto the veranda, put his foot on the lower rung of the balustrade and, egged on by one of his friends, climbed on to the balustrade. While straddling the balustrade, he slipped. He fell to the ground below, hitting his head and landing on his right side.
Pre-school supervision, the duty of care owed by the College and its breach
Classes at the College commenced at 8.35 am. Generally, students (and teachers) would begin arriving before 8.00 am. A significant number of students would arrive between 8.00 am and 8.20 am. Formal supervision of the students was supposed to (but did not) commence at 7.45 am. It was to the benefit of all that students and teachers would arrive over a 45-minute period as otherwise it would be difficult to cope with the build-up of traffic and the sudden arrival of so many people at once.
In practice, a formal system of supervision of the students was implemented only as from 8.30 am. Prior to 8.30 am, there was only informal supervision on an ad hoc basis. When teachers arrived, some went directly to classrooms, others went to the staff room and then to classrooms, and others stayed in the staff room until 8.30 am. There was no system whereby teachers were required to be in the play areas and, in particular, in the covered area where students were supposed to congregate and be seated before classes commenced.
The judge found (at [33]) that, prior to 8.30 am, the only supervision provided was “the fact that teachers, and/or other staff, [might], on entering the College grounds or otherwise moving around the College, have been in the vicinity of students and, to the extent that the teacher would notice any behaviour that was thought to be inappropriate, would discipline the students in question”. Thus, the system of informal supervision comprised “the irregular and ad hoc movement of teachers between various parts of the school or their arrival at school” (at [53]). Rothman J accepted that there might, from time to time, be periods before 8.30 am in which teachers would be in the covered area. However, their presence there would be “pure coincidence”. His Honour said (at [54]):
“If such a process can be described as a system of supervision, it is a system of supervision which provides significant periods during which no staff member is actually supervising the students. That, in fact, was the situation when the injury in question occurred; that was the situation when the events leading up to the injury occurred.”
Rothman J held that the appellant owed a duty to the students to take reasonable care of them while they were on the College premises during the hours when the College was open for attendance: Geyer v Downs (1977) 138 CLR 91; The Commonwealth v Introvigne (1981) 150 CLR 258.
His Honour held that, in order to fulfil that duty of care during the period from 7.45 am to 8.30 am, the appellant should have provided formal supervision by one or more staff in the relevant area. His Honour held that the informal system of supervision in fact provided was inadequate. The judge said (at [51]) that there had been “a systemic failure of appropriate supervision, in circumstances where it was accepted that a number of students would be on the premises at the time of the injury”. He held (at [68]) that the injury occurred “because there was no effective supervision at the time that [Christopher] ascended to the first floor, at the time that his fellow students agitated for him to jump, and at the time he undertook the course of straddling the balustrade”.
The judge’s findings as to whether Mr Abraham owed Christopher a duty of care and, if so, whether he breached it
Rothman J found that Mr Abraham owed no duty of care to Christopher. His Honour said (at [87]), citing Hahn v Conley (1971) 126 CLR 276:
“[N]o actionable duty arises merely because of the relationship of parent and child. In order for a duty to arise, circumstances or a situation must arise or exist from which an obligation is imposed to take reasonable steps for the care of the child beyond the obligation imposed by the relationship of parent and child.”
His Honour said that the relevant conduct of Mr Abraham was the act of leaving him at school on the morning of 23 August 2000 (or, conversely, not himself supervising Christopher). He said (at [92]) that this conduct did not go “beyond the ordinary incidence of a domestic parent/child relationship”.
His Honour went on to deal with breach of duty on the assumption, contrary to the view to which he had come, that Mr Abraham owed Christopher a duty of care.
His Honour said (at [94]) that the breach of duty alleged by St Mark’s required “a knowledge of the ‘system of supervision’ operated by the College prior to 8.30 am, which knowledge Mr Abraham had, but it also requires, and I find he did not have, the capacity and expertise to determine that the system of supervision was inadequate.”
The judge also held that Mr Abraham, as a parent, was entitled to rely upon the College to carry out its tasks with reasonable care. It is implicit in his Honour’s reasons that he considered that Mr Abraham was entitled to act as he did in the belief that the College would provide appropriate supervision (albeit that Mr Abraham, on his Honour’s findings, knew that the only supervision that the College was providing was the ad hoc, informal, supervision which I have described).
Mr Abraham’s duty of care
With respect to his Honour, Hahn v Conley does not support the finding that Mr Abraham did not owe Christopher a duty of care.
Hahn v Conley concerned the question whether a grandfather owed his grandchild a duty of care. The grandchild was in the care of the grandfather. Unnoticed by the grandfather, the child crossed to the other side of the road where the grandfather was standing. The child called to the grandfather. The grandfather replied, “I am over here”. The child then began to cross the road but was struck by a car.
Barwick CJ (at 284) said:
“[P]arents like strangers may become liable to the child if the child is led into danger by their actions.”
The Chief Justice said that he found the view expressed by McCarthy J in the New Zealand Court of Appeal in McCallion v Dodd [1966] NZLR 710 (at 729) “acceptable”. In that case, McCarthy J expressed the opinion that no general actionable duty of care arose out of the parent/child relationship. His Honour said (at 729):
“The duties which that relationship cast on the father to care for and protect the child are moral duties not enforceable by action in tort. The occasions when a child can sue his parent in tort are the result of specific situations in which the parties find themselves. In those situations the fact that the defendant is a parent may, as a matter of fact, be very material, but the relationship is not the foundation of the right of action. It is the situation which creates the enforceable duty.”
These observations by McCarthy J cast light on what the Chief Justice had in mind when he stated that parents might become liable to the child if, by their actions, they lead the child into danger.
Consistently with this approach, McTiernan J recognised in Hahn v Conley that there might be circumstances under which a grandfather could owe a grandchild a duty of care. His Honour said (at 287):
“As de facto custodian of the child in his home there would be circumstances which would raise a duty of care on his part towards her.”
Menzies J (with whom Walsh J agreed), albeit dissenting as to the result, was of a similar view. He considered that, had the grandfather called the child to cross the road to him, “that would have been negligent because, by so doing, he would both have exercised control over her and exposed her to danger” (at 288). His Honour was of the view that, had the grandfather called the child and told her to come to him, a duty of care would have arisen (see at 288).
Windeyer J, in substance, was of a like mind. His Honour applied the ordinary criteria (according to the law of negligence at the time) governing the existence of a duty of care (see at 294). He accepted that the grandfather could owe a duty to take reasonable care for the safety of the child. That duty, his Honour said (at 294), would arise “from the particular situation” (not from the “blood relationship”).
In my opinion, the ratio of Hahn vConley was that, while the mere existence of a parent/child relationship does not bring about a duty of care on the part of a parent towards a child, the circumstances of a particular situation may give rise to such a duty. As Kirby J said in Harriton v Stephens (2006) 226 CLR 52 (at 92, [129]), citing Hahn v Conley, “Australian law does not recognise any principle of parental immunity in tort.”
It has been said that in Hahn v Conley Barwick CJ drew a distinction between omissions and commissions (see Yeo, ‘Parental Liability in Negligence’ (1998) 12 Australian Journal of Family Law 150 at 153). There are echoes of this notion in Robertson v Swincer (1989) 52 SASR 356 (at 359 to 360 per King CJ). In my view, however, when regard is had to the judgments of all the members of the High Court in Hahn v Conley, such a proposition is not part of the ratio of the Court. I would add that the modern approach to the law of negligence does not favour liability being dependent upon categories of “misfeasance and nonfeasance”: Brodie v Singleton City Council (2001) 206 CLR 512 (at 551 to 554 per Gaudron, McHugh and Gummow JJ).
In any event, in this case, Mr Abraham did perform a positive act, namely, he took Christopher to school and dropped him off there at a time when, to Mr Abraham’s knowledge, the supervision at the College was inadequate.
The following example, albeit extreme, illustrates that in such circumstances a duty of care must arise. Assume that parents, for reasons solely of convenience to themselves, leave their nine-year old son at school, alone, at, say, 3.00 am in mid-winter, to fend for himself until the students and teachers arrive at about 8.00 am. Assume that in the darkness, in an attempt to find shelter, he injures himself. It could not be suggested that, in these circumstances, the parents did not owe a duty of care to their child.
Taking a nine-year old child from his home environment and leaving him at school is conduct that will usually involve a potential risk of harm to the child (which will vary in degree depending on the circumstances). In my view, any parent who performs such an act may owe a duty to the child to take reasonable care in not exposing the child to foreseeable harm in doing so. This duty, if it arises, will spring out of the particular situation: not the mere fact of the parent/child relationship. The duty may arise from the control that the parent (as guardian of the child) exercises over the child, the dependence of the child on the parent, the vulnerability of the child, the foreseeability of harm, and other factors that, according to the modern law of negligence, are relevant.
In my view, in the circumstances, Mr Abraham owed Christopher a duty to take reasonable care not to expose him to a risk of harm when he took Christopher to school on 23 August 2000.
Breach of duty
I do not agree with the basis on which the trial judge found that any duty of care that Mr Abraham may have owed Christopher was not breached.
Firstly, in my view, the question whether the system of supervision was adequate or not was a matter of commonsense. It was something that any parent, with knowledge of the facts, should have been able to judge. The judge found that Mr Abraham knew that there was no formal system of supervision and that only the ad hoc informal system, the details of which I have described, was in place. Mr Abraham knew that the prospect of a teacher being present to observe the behaviour of children in the covered area and its surrounds depended on “coincidence”. With that knowledge, it required no special skill or expertise to appreciate that the system was inadequate.
Secondly, it is no answer to the allegation of breach of duty that Mr Abraham relied on the College to comply with the system of ad hoc informal supervision. The point is that Mr Abraham knew, or should have known, that that system was inadequate.

Mr Campbell SC, who, together with Mr Stockley, appeared for St Mark’s, adopted the proposition that once it is accepted (as the judge held) that St Mark’s was negligent, Mr Abraham should also be held to have been negligent as he had the same knowledge as St Mark’s and was able to control Christopher’s presence in the inadequately supervised environment.
The point, however, is that the College owed a duty not only to the individual students but to the students (all 382 of them) as a class: Geyer v Downs (1977) 138 CLR 91; Wyong Shire Council v Shirt (1980) 146 CLR 40 (at 47 per Mason J); Vairy v Wyong Shire Council (2005) 223 CLR 422 (at 432 to 433, [27] per McHugh J).
St Mark’s was required to take into account the risk of injury to the class comprised of 382 students (including Christopher). The risk so to be assessed involved the risk of one or more of those students suffering harm during the period from 7.45 am each day (when students had already begun to arrive and from which time, according to St Mark’s, supervision should have been formally undertaken (but, in practice, was not) until 8.35 am (when classes commenced). Mr Abraham, on the other hand, was required to take into account the risk of injury to Christopher, alone, on a single occasion on 23 August 2000 between 8.00 am and 8.20 am. The risk was that Christopher, a dutiful child, might be mischievous and something untoward might happen to him in that short period.
Accordingly, the risk of harm that St Mark’s was required to take into account differed substantially from that which Mr Abraham had to consider. The former was far greater than the latter and obviously required the taking of precautionary measures that did not apply to the risk that Mr Abraham had to bear in mind. There was no inconsistency and no anomaly in the judge’s findings.
Mr Campbell accepted that it would not have been negligent for Mr Abraham to have first taken his daughter to the childcare centre, then taken Christopher to the covered area in the College while he, Mr Abraham, went about his duties (in the staff room or classroom, where he would prepare for his classes for the day). Mr Campbell accepted that there would be no negligence in those circumstances as Christopher would be more likely to obey the rules while his father was on the premises and Mr Abraham, himself, might have been in a position, from time to time, to keep an eye on Christopher. Further, Mr Abraham’s duties, as a teacher at St Mark’s, required him to be doing other things from 8.20 am onwards and it would have been unreasonable for him not to have complied with those duties. Thus, the negligence alleged amounts to leaving Christopher at school between 8.05 am and 8.20 am, a period of 15 minutes.
I would preface what follows by noting that not all the facts that I recount were expressly found by Rothman J. Those that were not so found are based on the evidence given by Mr Abraham. This course is open as his Honour said (at [47]) that he accepted Mr Abraham’s evidence “without qualification”. The judge said that Mr Abraham’s “manner and demeanour displayed a remarkable integrity”. His Honour said that Mr Abraham “gave the impression that great effort was taken to ensure as accurate an answer as possible” (at [47]).
As I have mentioned, Mr Abraham had on a few occasions previously dropped Christopher off at school before taking his daughter to the childcare centre. Mr Abraham thought that this was appropriate as it would allow Christopher to gain in confidence and maturity. This was his reason for doing the same thing on 23 August 2000.
Mr Abraham had done this in the knowledge that not all children complied with the instruction to remain seated in the covered area before classes began. He said that only about two-thirds of the children would “do the right thing”.
On the morning of 23 August 2000, Mr Abraham realised, from the cars in the teachers’ carpark, that some teachers had already arrived at the College. This was a factor that he bore in mind when he dropped Christopher off first.
That morning, he told Christopher to “be a good boy; you know where you are supposed to be seated; don’t do silly stuff”. Christopher was an obedient child and Mr Abraham thought that he would behave properly and do nothing untoward. He regarded the proposition that Christopher might climb onto the railing and sit upon it as a “wholly surprising thing for Christopher to do”. He did not think that Christopher was capable of the behaviour that resulted in his injuries. He was “in shock” after learning what had happened.
When Mr Abraham left Christopher at the College on the morning of the accident, he thought that, in all the circumstances, it was in Christopher’s best interests to spend the brief time before school started with his friends. He thought that Christopher would be safe. He was wrong, and the question is whether his decision was reasonable. The question of negligence depends on the answer to this question. As Gleeson CJ observed in Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460 (at 472, [39]), in determining negligence, the question is, ultimately, “what a reasonable person, in the position of the defendant, would do by way of response to the risk.” See also Shirt (at 47 per Mason J), Vairy (at 456, [105] per Hayne J), New South Wales v Fahy (2007) 81 ALJR 1021 (at 1034, [56] per Gummow and Hayne JJ, 1044, [108] per Kirby J, 1062, [214] per Callinan and Heydon JJ). This is a question of judgment for the court.
The legal principles applicable to the law of negligence must accommodate the practical realities of everyday living: Neindorf v Junkovic (2005) 80 ALJR 341 (at 345, [8] per Gleeson CJ). One of those practical realities is that the bringing up of children cannot be made risk-free. It is inevitable that children, even in the most careful and ordered households, will be exposed from time-to-time to risks of harm. This is inherent in the process of growing up, undergoing new experiences, and maturing in an appropriate way.
The risk to which Mr Abraham exposed Christopher was on the brink of foreseeability in the Shirt sense. For the risk to materialise in the brief period between 8.00 am and 8.20 am in which he was left at the College, Christopher had to be incited to act mischievously by other students, he had to disobey the express instructions he had been given and thereby act completely out of character, his conduct had to be unnoticed by the teachers present at the College, and he had to act in such a way as to cause himself harm. It was not likely that all these factors would coincide. On the other hand, Mr Abraham, understandably, believed that there were potential benefits to Christopher in allowing him to be at school during this period.
In my opinion, taking all the factors that I have mentioned into account, Mr Abraham acted reasonably. I do not think that he was negligent.
Conclusion
I would dismiss the appeal with costs.
BASTEN JA: I agree for the reasons given by Ipp JA, that this appeal should be dismissed with costs.
YOUNG CJ IN Eq: I agree with Ipp JA.

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LAST UPDATED: 10 August 2007