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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read St Mark's Orthodox Coptic College v Abraham and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWCA 185
Decision Date: 10 August 2007

CaseChat Overview and Summary

The case of *St Mark's Orthodox Coptic College v Abraham* concerned an appeal to the New South Wales Court of Appeal. The respondent, a teacher at the school, had brought his son to school earlier than usual on the day of the incident. The son was subsequently injured on school premises before formal supervision commenced. The dispute centred on whether the respondent owed his son a duty of care in these circumstances and, if so, whether he breached that duty.

The primary legal issues before the Court of Appeal were whether the respondent owed his son a duty to take reasonable care to avoid exposing him to a risk of harm when dropping him off at school earlier than usual, and whether his actions in leaving his son at school at a time of informal supervision were reasonable in all the circumstances. The court was required to consider whether the risk of harm the respondent should have foreseen differed from that which the school itself might have been expected to consider, and to assess the reasonableness of the respondent's decision in light of the practical realities of everyday life.

The Court of Appeal, in a unanimous decision, dismissed the appeal. The reasoning, as articulated by Ipp JA and agreed to by Basten JA and Young CJ in Eq, concluded that the respondent had acted reasonably and was not negligent. The court found that, after considering all relevant factors, the respondent's decision to leave his son at school at a time when only ad hoc supervision was available was reasonable, taking into account the practicalities of everyday living. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

YOUNG CJ

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. IN Eq: I agree with Ipp JA.

Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

Full text does not contain this section.