State of New South Wales v Mikhael - [2012] NSWCA 338

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Mikhael [2012] NSWCA 338
Hearing dates: 27 August 2012
Decision date: 22 October 2012
Before: Allsop P at [1];
Beazley JA at [2];
Preston CJ of LEC at [116]
Decision:
(1) Appeal allowed;
(2) Set aside the orders of the District Court and in lieu thereof order;
(a) judgment for the defendant on the plaintiff's statement of claim;
(b) the plaintiff to pay the defendant's costs;
(3) The respondent to pay the costs of the appellant on the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - Negligence - Breach of duty of care - School authority - Student assaulted by fellow student - Student with propensity to violence - Foreseeable risk of harm - Failure to take reasonable care of students whilst on school premises during school hours - Failure to inform teachers of details of prior violent incident involving offending student - Civil Liability Act 2002, s 5B.
TORTS - Negligence - Causation - School authority - Student assaulted by fellow student - Omissions - Onus on plaintiff to establish probable course of events - Factual causation dependent on circumstances - School's assessment of prior violent conduct - Teacher's familiarity and assessment of offending student's conduct - Statutory "but for" test - Factual causation not established - Civil Liability Act, s 5D.
Legislation Cited: Civil Liability Act 2002
District Court Act 1973
Supreme Court Act 1970
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420
Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258
CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1
Fox v Percy [2003] HCA 22; 214 CLR 118
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506
Shaw v Thomas [2010] NSWCA 169
Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53
Strong v Woolworths Ltd [2012] HCA 5
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Texts Cited: C Sappideen, P Vines, Fleming's The Law of Torts, 10th ed (2011)
Category: Principal judgment
Parties: State of New South Wales (Appellant)
Anthony Mikhael (Respondent)
Representation: Counsel:
R J Cheney SC; H Chiu (Appellant)
B Dooley SC; G R Graham (Respondent)
Solicitors:
Moray & Agnew (Appellant)
Coode & Corry (Respondent)

File Number(s): CA 2008/318838
Publication restriction: No
Decision under appeal

Jurisdiction:

9101

Citation:

M v The State of New South Wales

Date of Decision:

2011-08-10 00:00:00

Before:

Sorby DCJ

File Number(s):

DC 2008/4081

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent brought a claim in negligence against the appellant in respect of an incident at a State high school during which the respondent was assaulted by a fellow student (T) and sustained a serious injury resulting in brain damage.

The respondent alleged that the school had breached its duty of care by failing to provide teachers with information as to T's propensity to violence, even if provoked by a minor event. The relevant information was that T had been involved in another serious incident approximately six weeks prior to the current assault, whereby he assaulted another student.

The trial judge held that the appellant had been negligent in failing to take adequate precautions to prevent harm to the respondent. The respondent was awarded $318,288 in damages.

The appellant appealed against the trial judge's decision. Two principal issues were raised on the appeal:

1. Whether the trial judge erred in finding that the appellant breached its duty of care to the respondent?

2. Whether the trial judge failed to make a finding as to causation?

In his notice of contention, the respondent contended that but for the breach of duty, the classroom teacher should and would have taken certain steps to ensure the safety of the respondent.

The appellant accepted that if the Court of Appeal upheld the second challenge to the trial judge's judgment it should make its own determination on the question of causation.

Held per Beazley JA allowing the appeal (Allsop P and Preston CJ of LEC agreeing):

(1) The determination of breach of the duty of care must be made having regard to the terms of the Civil Liability Act 2002, s 5B. This involves the identification of the risk of harm. The question whether there has been a breach of duty under the statutory test is to be assessed prospectively: [70], [75].

Cited: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420; Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53

(2) Section 5B(1)(a) requires a determination as to whether the risk is foreseeable. The common law test of foreseeability remains the touchstone: [76].

Applied: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40

(3) The evidence established that there was a foreseeable risk of harm to students should T be provoked. The risk that he may harm other students was "not insignificant": [77].

(4) The question whether, in the circumstances, a reasonable person would take the identified precautions is to be considered having regard to the factors in the Civil Liability Act, s 5B(2). Section 5B(2) requires the Court to consider the probability of the harm occurring and the burden of taking precautions. The language of s 5B(2)(c) is not confined to the economic burden of taking a particular precaution. The burden of taking precautions to avoid a risk of harm may involve such factors as the cost of implementation, time, distance and communication: [80]-[84].

(5) Privacy concerns are also relevant and appropriate considerations under the Civil Liability Act, s 5B(2)(c) and s 5B(2)(d): [82]-[83].

(6) The school failed to comply with its own procedures, which required the head of welfare, who was also the teacher when the disturbance occurred which preceded the assault, to be briefed on the nature and extent of the first incident. This constituted a breach of its duty to take reasonable care for the safety of the students: [84]-[86].

(7) The onus was on the respondent to prove factual causation, that is, demonstrate that the failure to provide the classroom teachers with the full details of the first assault was a necessary condition of the occurrence of the harm pursuant to the Civil Liability Act 2002, s 5D(1)(a). The statute imposes the "but for" test as the first gateway to proof of causation: [90].

(8) The statutory test under s 5D(1)(a) for the question of factual causation required the determination of the probable course of events had the teacher been informed of T's propensity to a violent response if minimally provoked. The respondent, as plaintiff, had the onus of establishing this probable course of events: [95].

(9) The question of causation has to be determined having regard to the factual circumstances in which the duty of care was owed and breached. The relevant circumstances included the teacher's familiarity with and assessment of T; the principal's assessment of T and the circumstances that existed in the classroom before the incident: [98]-[100].

(10) In the case of negligent omissions, "but for" causation is not made out by the suggestion of a possible outcome should some alternate course have been taken: [96]; [107].

Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420

(11) "But for" causation requires the Court to be satisfied that the precaution or relevant step that ought to have been taken would, on the balance of probabilities, have adverted the harm suffered by the respondent: [110].

(12) It was necessary for the respondent to establish, on the assumption that teacher had been given sufficient information as to the first incident, what the likely outcome would have been had she taken the steps that the respondent contended she should and would have taken: [112].

(13) Although a case, where there is no direct evidence of the necessary causation connection between breach and harm, may be difficult to prove, the court is not precluded from drawing appropriate inference if the underlying evidentiary base for doing so is established: [112].

(14) The respondent did not establish factual causation: [114]

Judgment

ALLSOP P: I agree with Beazley JA.

BEAZLEY JA: On 5 December 2008, the respondent sustained a serious injury, resulting in brain damage, when he was assaulted by a fellow student, T, shortly after the conclusion of a lesson at a State high school (the school). The students were in Year 8 at the time of the assault.

The respondent's claim against the appellant was essentially focused on an allegation that the school had breached its duty of care by failing to provide teachers with information as to T's propensity to violence, even if provoked by a minor event. This allegation was based upon a serious incident in which T had assaulted another student, Tom, after a touch football match at the school some six weeks prior to the incident in which the respondent was assaulted. On the occasion of the earlier attack, an ambulance had been called and the police were contacted. There was no evidence as to whether the injured student required further medical attention. There did not appear to have been any police action.

The trial judge held that the appellant was negligent in failing to take adequate precautions to prevent harm to the respondent and awarded him damages in the sum of $318,288.

The appellant has appealed against his Honour's judgment on liability on two principal grounds. First, that his Honour erred in finding the appellant breached its duty of care to the respondent and secondly, that his Honour failed to undertake any analysis and made no finding as to causation. The challenge to the absence of a finding as to causation must succeed. Although his Honour referred to the Civil Liability Act 2002, s 5D and Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420, his Honour did not otherwise make a finding as to causation.

Both parties argued the appeal in a way that enables this Court to reach its own determination on the question of breach of duty, should the appeal on that ground succeed, and on causation. Insofar as causation was concerned, the respondent filed a notice of contention in which he contended that his Honour should have found that the classroom teacher, Ms Edgar, should and would have taken certain steps to ensure the safety of the respondent, but for the appellant's breach of duty.

Background facts

The trial judge undertook an extensive review of the oral evidence given in the case. It will be necessary to refer again to much of that evidence. However, it is convenient at the outset of these reasons to refer to the facts his Honour found having regard to the evidence. Those facts, set out at [60] of his Honour's judgment, were as follows:

"1. On Friday, 26 August 2005 at [the school] at the conclusion of a football game on the school oval, T leaves the field following sideline taunts and walks over to Tom and hits him from behind;

2. The Principal of [the school], Ms Brookton, was made aware of this incident and viewed it as a 'serious assault' and invoked [the school] disciplinary procedures resulting in T being suspended for four days from school, five days of monitoring and 20 days of 'level one' restrictions;

3. Ms Brookton accepted that T was remorseful for the assault on Tom and his assurance that it would not happen again;

4. Mr Drew, the relevant Deputy Principal at the time, investigated the Tom assault and it was his responsibility to advise other staff members of the assault and consequential disciplinary actions taken, if any;

5. At the time, Ms Edgar was the Head Teacher, Welfare at [the school] and according to Ms Brookton, should have been provided with full details of the Tom assault by Mr Drew;

6. Ms Edgar as Head Teacher, Welfare, and a teacher of both [the respondent] and T was not given any formal notifications of the Tom assault by Mr Drew or anybody else, but only 'heard' about it;

7. At the time, in August and September 2005, Ms Brookton was aware that it was possible that T might lose his temper and assault another student;

8. On 12 October 2005, [the respondent] and T were students in Ms Edgar's French language class in the period immediately before the lunch break;

9. During the lesson, Ms Edgar had come to separate [the respondent] from his friend S when they were having a dispute over a worksheet, S moving to a desk at the front of the class;

10. Later during the same class, [the respondent] was involved in a 'tussle' with T over a worksheet and Ms Edgar intervened;

11. Later in the same class, there was an angry exchange between [the respondent] and T involving swearing loud enough for Ms Edgar to be aware of it;

12. The exchange followed [the respondent's] desk being pushed by [the respondent] into the back of T's chair;

13. In the exchange T told [the respondent] to 'piss off' calling him a 'fucking bitch' and [the respondent] told T to 'stop using that shit language to me';

14. At the conclusion of the lesson, both [the respondent] and S stayed back, S at the request of Ms Edgar. [The respondent] stayed back because he thought something might happen with T;

15. [The respondent's] fear of T had not been communicated to Ms Edgar by [the respondent];

16. Ms Edgar had had experience in protecting students from other students in her teaching experience;

17. At this time of the French language lesson attended by [the respondent] and T, Ms Edgar had only a vague idea about the assault by T upon Tom six weeks previously, and had no idea of the serious nature of the assault until shown witness statements in court;

18. Ms Edgar as Head Teacher, Welfare at the time had not been advised by the relevant Deputy Principal, Mr Drew, who investigated the Tom assault, of the nature of the assault;

19. On leaving the classroom at the direction of Ms Edgar, [the respondent] was hit on the left side of his head by Tom, in the landing/transitional area adjacent to Block C of [the school]."

Although his Honour did not make a finding on this, it seems that the classroom incident between the respondent and T occurred about 10 minutes before the end of the lesson.

The appellant challenged his Honour's finding at subpara (17) of those facts, contending that this finding misstated the effect of Ms Edgar's evidence. In this regard, the appellant does not assert that his Honour overlooked any particular evidence, but rather that the overall effect of Ms Edgar's evidence was that she well understood the nature of the first attack, so that it was essentially irrelevant that she had not been formally briefed as to the incident that had occurred following the touch football match.

His Honour, in considering the statutory requirements of the Civil Liability Act, s 5B, also found that precautions to prevent a similar assault occurring again did not involve a burden on the appellant. In his opinion, it was simply a matter, at that time, of ensuring that the nature and seriousness of the assault over a trivial matter was communicated to staff and this had not occurred. His Honour found, at [69], that Ms Edgar had not been advised, formally, or at all, of the earlier assault and its circumstances, and in particular that it was over a trivial matter.

The appellant contended that given Ms Edgar's repeated reference to her knowledge that the earlier incident involving T had been a violent one, it had been erroneous for the trial judge to regard her understanding of that incident to be deficient in the manner he found at [60] subpara (17).

The significance of this error was that the finding at [60] subpara (17) underpinned his Honour's finding of breach. His Honour held, at [71], that the appellant's duty of care to the respondent was breached when the school failed to ensure that staff were alerted to the risk of injury T posed when provoked, even over trivial matters. That breach flowed from his Honour's earlier finding, at [70], that had Ms Edgar been aware of T's anger and violence as had occurred in the assault following the touch football match six weeks previously, over a trivial matter, she could have separated the desks of the respondent and T for the remainder of the lesson.

The description of the first incident

The description of the first incident was derived from the school's records. The deputy principal, Mr Drew, made the following notes:

"29/08/05

[Tom's father] enquired at 3:25pm on progress. Advised of detentions. He was happy with assurances about boys not likely to engage Tom again given their ...

[T] 29 AUG 2005

... Tom was saying things about our game.

He wouldn't keep quiet.

Chris lost his temper and hit him (Tom).

Chris would walk away and ignore him if it happened again."

The following statement was obtained from Tom (the statement was in the third person and was presumably taken by Mr Drew, and was signed by Tom and his father):

"Incident The Assault on [Tom] 26 August 2005

In The Grounds of Glenmore Park High School

At lunch break (2nd half) approx 1.30pm

Year 8 and yr 11 touch footy (on the footy field)

Tom arrived late so he did not play footy but he watched from the side with his mates (lying down with his bag) ...

During the game Tom was giving his friend [S] plenty of verbal while he was playing, they often exchange words, sarcasm, when they play together but it is done in good humour.

Tom remembers a few people who were playing in the game [including T and another boy, J]

After the game finished, while tom was lying down on the ground tom was struck from behind in the head with a fist by [T]. Tom looked around and saw who it was. [T] then moved around a group of people which hid him from sight and then he became visible once again. Tom asked [T] 'why did you hit me' he replied 'because of the things you were saying during the game'. Tom replied 'I was only joking'. [T] then struck tom in the head with that tom then stood up and threw off his bag and then exchanged blows (2 or 3 each) with [T], while exchanging blows someone came down the hill and punched tom from the side in the jaw making tom fall to the ground.

Tom only remembers getting hit a few times while down but is not sure who it was. Tom is not sure what happened after this until being carried to the office.

Thomas awoke on Saturday morning to marks and bruising to his back which indicate him being hit or kicked while on the ground."

The description of the accident obtained from various students (again, it would appear, by Mr Drew) varied in the detail provided. However, there was no doubt that Tom had been calling out during the game and that they had exchanged blows after the game. One student described T and his friend J "punching Tom very fiercely".

The description of the incident involving the subject claim

T made a statement following the incident in which he punched the respondent:

"Well I was sitting down in my seat and I was saying stuff and [the respondent] said stop speaking your shit language and I got mad and I turned around and I was quiet then he pulled my chair and I told him to get lost then he pushed the table towards my chair and I told him to piss off and when the lesson was finished I hit him. When I was next to the basketball courts and he came up and nothing was wrong with him and I said don't come near me and I walked off and he was talking [to J] and when I came back he was crying.

...

I just want to stay away from people for a little bit so I can cool down."

The respondent gave the following report to the police, 10 days after the incident:

"Well, we were just in class and then he was speaking to me and I told him to stop speaking gibberish, and then he got angry and then, well, I moved the table a bit, like, 'cause he was sitting next to me, and it, like, bumped him, and then, like, he got angry and swore at me and then he moved away. And then I went outside and he just starting hitting me."

In his evidence in chief, the respondent said that he had stayed back after the class and told Ms Edgar he was afraid of T. However, he resiled from this in cross-examination. He said he remained in the classroom and told Ms Edgar that he wanted "to stay back with [S]". He said he "hinted" that he was fearful. His Honour then asked the following question:

"[HIS HONOUR]: How did you hint it to her? That's what [counsel] wants to know."

The respondent answered:

"A. By saying that I want to stay back with him because of the reason that I didn't want to walk out there by myself."

The respondent said that Ms Edgar told him to go and he went out of the classroom into the hallway. He said that another teacher was in the hallway saying "It's lunchtime, please go". He recalled this was one of the history teachers. He said that he then went out into the area known as the "transition area", which he described as being "like a balcony with a pergola". In his interview with the police, the contents of which the respondent relevantly confirmed in cross-examination, the respondent said that his intention was to go down the stairs when T came "from behind, side on, kind of thing". T hit him on the chest with his left hand. The respondent turned around and held onto to T. T then hit the respondent in the head with his right hand. T then "just went off".

The appellant's system for dealing with student infractions

According to the unchallenged expert report of Mr Peter Meaney, Senior Lecturer, School of Education RMIT University, which was adduced in evidence by the appellant, the school had "an extensive range of strong and appropriate policies" to deal with altercations and violent incidents and with the individual students involved in such incidents. In particular, the school had procedures whereby disciplinary procedures invoked in respect of a particular student were documented and there was also an inbuilt "level system" for sanctions. In the present case, those procedures were followed in a way to which I will refer in more detail shortly.

The respondent did not expressly challenge the nature or adequacy of the school's system. Rather, it contended that the implementation in respect of the student T was inadequate in all the circumstances.

In addition to the expert report, the school principal, Ms Brookton, gave evidence as to the system that applies in respect of a student who had engaged in conduct involving physical violence, such as had occurred after the touch football match six weeks prior to the attack on the respondent, and as to the particular disciplinary measures that were taken in respect of T relating to the first incident. Ms Brookton explained that should there be such an incident, the policy of the school and the Department of Education was to appoint an investigating officer, usually the head teacher or deputy principal, to conduct interviews with the participants and any witnesses, including students. Mr Drew was the person appointed to that role at the school.

When the matter had been investigated, a report, including any recommendation as to how to deal with the incident and the participants in it, would be brought to Ms Brookton, as the principal. Depending upon the circumstances, the participants in the incident may be brought to her office and interviewed by her and a decision made as to any appropriate disciplinary measure that was to be imposed.

The school's disciplinary system in the case of a suspension involved a number of further aspects. When the student returned to school, he or she was subject to a period of monitoring. This required the student to obtain a card each morning and to present it to each of their teachers during the course of the day for their comments as to behaviour and application to school tasks. Ms Brookton said that the monitoring was done until the school was sure that the behaviour would not be repeated.

Ms Brookton acknowledged that the monitoring card was for the purposes of monitoring behaviour in the classroom. She said that "[t]he system is there for students who have behaviour problems in the playground, to be put in a system by teachers". There was nothing in the monitoring cards completed in respect of T on his return to school that related to the playground. However, in re-examination, Ms Brookton explained that when the decision was being made as to whether it was appropriate to cease monitoring, in addition to considering the remarks made by the teachers on the monitoring cards, an interview would be held with the year advisor. Reference would also be made to the risk records, which contained entries dealing with behaviour both inside and outside the classroom, including lunch and recess periods and the time immediately before and after school.

Ms Brookton was challenged in cross-examination as to the protection the monitoring system afforded in this case, given that it was for a short period of time of five or six school days. She explained that the monitoring system was supported by counselling by the year advisor for every day the student was in school. Accordingly, if there was any cause to speak to the student or if anything occurred after the monitoring had ceased, the system of pastoral care encompassed in daily, weekly and yearly meetings between the year advisor and the student was in place to provide support.

Ms Brookton also explained that whilst the school had a "boys' program" whereby a buddy could be assigned to a student who may have needed additional support, that had not occurred in T's case, because he "had a history of completely exemplary behaviour". She reiterated what she had earlier stated in her evidence, that a "one-off incident", as she considered the first incident to be, "didn't show a pattern of behaviour". She said that T's year advisor was a "very close mentor" and took on the role of looking after T. Ms Brookton also explained that sanctions might also be imposed for a period of time by way of further disciplinary action. This could include a prohibition on the student attending activities, such as sport or school excursions.

In addition, information was provided to staff. It was the nature of the information so provided, and the persons to whom the information should have been provided, which was critically in issue in this case. Ms Brookton explained that information would only be given to the year advisor and to the welfare team.

Ms Brookton said that the overall responsibility for welfare matters lay with the teacher in charge of welfare and the deputy principal of that year. The evidence indicated that the deputy principal of a year was the staff member who was also described as the "year advisor". She agreed that both of those persons would be given "the full details of what had occurred". She also agreed that in respect of the first incident, these members of staff would have been informed that T had lost his temper and punched another student who was sitting on the ground. These staff members would also be informed if there had been a suspension imposed and of any consequences, for example, that an ambulance had been called or that a student had been injured, whether the student had gone home, or whether contact had been made with a parent.

Ms Brookton said that information, that a student involved had lost his temper over a trivial matter and had struck a fellow student, would not be divulged to staff, as there were sometimes issues of confidentiality involved. It was the fact of the incident that was communicated to staff.

Ms Brookton explained the system in place when a student was suspended. The year advisor would speak to the classroom teachers to explain that the suspended student needed work to undertake at home during the period of suspension and that on the student's return, they were to complete the monitoring cards. The incident would also be placed on a daily notice sheet so that all staff would know the students were suspended at a particular point of time. In addition, the welfare team was consulted at a weekly Friday meeting where information was provided as to the reinstatement procedures imposed and the support needed to be provided to a student coming back from suspension.

A student who had been suspended would be given a booklet called a "suspension workbook". Part of the school's welfare policy was for students to reflect on their inappropriate behaviour and upon what they could have done in the situation that had given rise to the suspension and how they might respond in the future. The student was also required to record the discussions with parents or teachers in respect of the incident and what goals the student had. The purpose of the document was to set the student on a positive, rather than a negative path.

Upon a student's return to school a risk assessment was undertaken. In T's case, he was assessed as a "very low risk to repeat this behaviour", given that he had no other previous history of violence and had expressed remorse during his post suspension interview and "promised he would not hit anyone again". It was considered that "[n]o other plans other than following school rules [was] necessary". The daily monitoring process revealed that he was progressing and working at an "excellent" level and was well behaved.

Ms Brookton's assessment of the seriousness of the first incident

A significant attack was made upon Ms Brookton's assessment of the seriousness of the assault following the football game. This attack was based upon the documentation prepared at the time of the incident and upon the evidence as to the manner in which T was dealt with by the school.

Included in the documentation maintained in respect of a suspended student was a "Suspension Check List". In the case of T, this form was completed by Ms Brookton. The respondent contended that it was apparent from the manner in which the form had been completed that Ms Brookton had downplayed, in her own assessment, the seriousness of the assault. In this regard, the reason for the suspension was stated to be "aggressive behaviour" when, in fact, what had been involved was a serious violent assault upon a fellow student.

Further support for the submission was sought to be drawn from the fact that T was offered a compromise penalty of two days' suspension and two days' school service. Ms Brookton explained why this approach had been taken, notwithstanding that T otherwise had an exemplary record. She said that as he had breached the school's strict "hands off policy", she considered she had no option but to give him a four day suspension. She had informed T the school would consider a shortened suspension period if he wished to do a period of community service. However, T took the four day suspension.

Ms Brookton was extensively cross-examined as to the adequacy of the information provided to the teachers following the first incident. It was suggested to her that given the seriousness of the assault and the fact that T seemed to be a quiet boy who, "out of the blue, lost his temper and punched one of his friends", it was necessary for him to be carefully watched. She agreed this was an accurate description of what had occurred, but disagreed that he should be carefully watched, because he had never been involved in an incident such as that before. She said that before the school reacted in that manner, a student would need to have a history of poor behaviour. She observed that "[q]uite often boys will lose their temper in a playground and that it will never happen again". She said that in the case of T, it never entered her head that an eye should be kept on him because he had "a short fuse".

The cross-examiner put to Ms Brookton that what could and should have been done was to notify staff that T "had now a history of significant violence and he had a temper problem". She responded:

"A history to me in my understanding is a pattern of behaviour. He had one incident which he was quite remorseful about and I felt at that stage when talking to him and his parents ... that this wasn't a history of violence but it was a one-off incident that was not - he guaranteed to me that it would never happen again."

She added that that was her judgment at the time and that there was no pattern of such behaviour involved.

Ms Brookton was challenged as to the fact that, as a matter of human nature, it could not be guaranteed that T would not engage in such behaviour again. She responded that "sometimes they don't and sometimes they do". When further pressed that the appropriate course to have taken after the first incident was to inform staff that T had a temper problem and that all were to be aware of it, she said:

"In my judgment one off is not a temper problem because people do lose their temper; many boys do on the football field, beside the football field, at lunchtimes, and quite often are quite remorseful and it never happens again. That was my understanding of the way [T] spoke to me and I took his word that it would not happen again. I had no reason to believe that it would happen again. He had never lost his temper in the time that I had known him, and he reassured me he wouldn't, so I took that to mean he would not do it again."

She added:

"I've had 40 years experience and in most cases - in all my cases it hasn't happened. So I had no history of students repeating serious behaviour like that. So I had - my history says a person like this is not going to do it again."

Ms Brookton agreed that she had to weigh the possibility that an incident like this could occur again with the seriousness of the event. This issue was pressed in the following question:

"Q. Do you think ... that it would have been prudent to have warned year 8 teachers that had [T] in his class, that he had anger problems?"

Ms Brookton responded:

"A. I can't remember, you'd have to ask Mr Drew or Mr Panioli what they said."

Mr Panioli was the Year 8 Deputy Principal. Neither Mr Drew nor Mr Panioli was called to give evidence, although Mr Drew was present in the court precincts during the course of the hearing.

The questioning continued:

"Q. I'm asking if you thought it would be prudent to do that.

A. Would it be prudent, yes, I guess, given that he was--

Q. Because it's a serious assault.

A. Yes.

Q. You don't have many of them.

A. No.

Q. And--

A. But they would have been told--

Q. But he did have, I mean, it's not an isolated incident, but on the other hand it's a severe incident. It's not just--

A. And certainly staff were very surprised and that's why he--

Q. And therefore in those circumstances, were they not, there just might be something in the personality of [T] that would lead him to perhaps be sort of, maybe watched a bit in class so that it didn't happen again, or so they could report back?

A. That's what the monitoring is for.

Q. Yes but specifically in class, about him. Not just the fact that he does his homework.

A. No, no, his behaviour is what's being monitored; his behaviour, whether he's fighting with the kids, whether he's offended anyone, whether he's aggressive in any way, that's the behaviour monitoring card for you. It's not to do with whether he's done homework or late to class; it's to do with his behaviour to others."

Ms Edgar's evidence

In addition to being the class teacher on the occasion of the incident between the respondent and T, Ms Edgar had been transitioning into 'Head Teacher Welfare' over the course of 2005. In that capacity she supervised student advisers from Years 7 to 12, liaising with them and training them to be leaders of the year groups. She also worked closely with the Deputy Principal of the school. She explained that it was a "whole school role involving supervision of student advisors and issues, and drawing all that together from 7 to 12".

Ms Edgar said that in her observation of the respondent, he needed to be fairly closely monitored to ensure that he was on track with his work. Ms Edgar said that there were times when she had to speak to him about disruptions to the class. She said she had no worries about T in terms of his class participation and his ongoing progress in her subject and she had no cause to intervene with him in respect of his behaviour in her classroom. She had not previously observed any interaction between the respondent and T that warranted her intervention.

The evidence upon which the appellant relied to support its submission that his Honour's finding, at [17], failed to accurately reflect Ms Edgar's evidence, had been referred to by the trial judge at [42] and [53] of his reasons. That evidence was:

"Q In August 2005 there was an incident between [T] and another student [Tom].

A. Yes, I did hear that. Yes

Q. In terms of hearing about it, how did you hear about it? In what context?

A. My only memory is that I heard it, and I don't remember the source, I heard there had been an incident between the boys on playground duty.

Q. When you heard that, what was your reaction with respect of T's involvement in that type of incident?

A. What I recall is just surprise that he would be involved in a violent incident.

Q. In the period between 26 August 2005 and the end of term, what did you notice about T's behaviour in your language classes?

A. I had no concerns. I saw no evidence of any anger or change in his behaviour. Things were fine, and he just participated as per normal." (Trial judge's emphasis)

In cross-examination, Ms Edgar said that she was not advised formally of the first incident. Rather, it was something she "heard, perhaps in the staff room":

"[Counsel for the respondent] Q. And the note I made - tell me if I'm wrong - is that what you heard was that there'd been an incident between the two boys on playground duty, I think is my note of your words. Does that sound right?

A. Yes, in the playground, yes.

Q. In the playground. Is that all you heard?

A. I heard that it was during a football - a touch football match, and there'd been some kind of racial comment or taunt, and then there was a violent incident, and that's all I recall.

Q. Did you hear about what form the violent incident took?

A. I don't remember until much later when I - I don't remember at the time what violent incident, I don't remember being told what the violent incident was; I just assumed it was some kind of physical violence.

Q. Well, were you told what condition [Tom] was in, after the incident?

A. I don't remember being told.

Q. Were you told that T had come off the field, walked up the hill and hit [Tom] in the back of the head whilst [Tom] was sitting on the ground. Were you told that?

A. No, I don't remember being told that.

Q. Right. And were you told of the involvement of the gentleman we'll call J ... were you told that he was involved in this altercation?

A. No, I don't remember his involvement, no.

Q. And of course, he was one of the students you taught?

A. Yes.

Q. And it would be very important information for you to have, would it not, if one of your students had been involved in a significant physical assault.

A. If it was a cause for concern in the classroom--

HIS HONOUR: It was two students, wasn't it?

[Counsel]: Yes, well, two students.

Q. But would you not agree, as a teacher, that you would think it important that you be told if two of your students had been involved in a significant physical assault on another student?

A. Yes, probably.

Q. Well, not probably.

A. Yes.

Q. It's very important you know that, isn't it?

A. Yes.

Q. Because it's information you should be armed with when you're dealing with the children.

A. Yes.

Q. And it would be very important information for you to be told that T had lost his temper and then having walked up to [Tom], hit him on the head. You should have been told that, shouldn't you?

A. Yes.

Q. And you weren't told anything about that, were you?

A. I don't recall being formally briefed.

Q. And you were the head teacher, by that stage, of welfare. Weren't you?

A. Yes.

Q. And there were no discussions between you and Mr Drew about this event that had occurred Tom?

A. I don't remember formal discussions, no.

Q. No. Well, you don't remember any discussions with Mr Drew, do you?

A. No.

Q. So in September, you had in your class both the gentleman J and T in your class, and you knew absolutely nothing of the detail of what had actually occurred?

A. I knew just the general outline that I gave you before.

HIS HONOUR

Q. It could have been just a little tiff, or it could have been a major assault. You had no idea?

A. I knew it was a violent incident." (Trial judge's emphasis)

Ms Edgar confirmed that she recalled hearing something about the incident, but could not remember the source of the information. She did not believe that she was told of it during the course of a meeting. She said "I believe it was just something I heard, perhaps in the staffroom. I don't remember where or when, really". She said that she did not believe that she had heard of the incident in any formal context.

Ms Edgar said that she did not make enquiries about the matter herself as she was not involved in playground duties. The cross-examination continued as follows:

"Q. But if you are in charge - if you are the head teacher of welfare, if I said to you the description of [Tom's] condition after the assault was that he had to immediately have attention from a teacher - I think Ms Elford, or Eckford, some name like that? Does that sound right?

A. Elford, yes.

Q. If I told you that the documents show she had to attend him to prevent him choking on his own blood, that would surely be a matter that should be immediately brought to the attention of the head teacher of welfare, wouldn't it?

A. Not necessarily, because it would have involved direct - the staff directly involved, and there would have been a critical incident follow-up with medical attention. I wouldn't necessarily be told every detail.

Q. If the welfare head teacher wasn't told about an assault where a child had to receive that sort of attention, what on earth would you be told about?

A. I'd be told about many, many things, and I was told many things, but I don't recall being told--

Q. But surely one of the most fundamental parts of your job is to provide a safe environment for the children, and indeed for yourselves.

A. Of course.

Q. It's one of the paramount duties.

A. Yes.

Q. If there has been such a significant assault on a child, doesn't that immediately give rise to concerns as to the safety of the school?

A. It was managed, as far as I know, so that - it was managed by whoever was concerned at the time.

Q. If I can ask the question again, does not an assault of that description give rise to the most serious concerns about the safety of the school?

A. Of course.

Q. And surely that's something that should have been brought to your attention.

A. Yes." (emphasis added)

As to the particular incident subject of this claim, Ms Edgar said that there had been some disruptive activity between the respondent and his friend S over S' worksheet and that she had moved S to the front of the class and given him a new worksheet. She said she then proceeded to move around the room, when she "heard something happening and ... turned around". This occurred well into the latter half of the 76 minute lesson. Ms Edgar said that she did not "recall the words", just that she heard students exchanging "comments". When she turned around, she saw T and the respondent "tussling" over a worksheet.

Ms Edgar said that she went across to the two boys and asked T to "face the front, to leave it, not to worry about it, because I'd fixed up the sheet with [S]". She said that T turned around and continued with his work and did as she asked. She then continued on with the lesson. Ms Edgar said she did not recall seeing the respondent bump his desk into the back of T's chair. She said there was some further distracting behaviour engaged in by the respondent. That behaviour did not involve T.

Ms Edgar said she did not recall instructing the respondent to move his desk, nor did she recall T yelling at the respondent at any stage during the lesson. She did not hear him swear at the respondent. She was asked:

"Q. Had you heard any loud swearing from [T] towards [the respondent], what would you have done?

A. I would have immediately gone over to see what was going on.

Q. Why?

A. Because that's unacceptable to speak like that in a classroom.

Q. And when you say go over to see what was going on, what would you do?

A. I would go over, and I would ask both parties what was going on. And I would listen to both of them and ask what was going on. And I would listen to both of them and ask what was going on, and then depending on what was said, I would have had some kind of intervention.

HIS HONOUR

Q. But if you didn't hear what they said, you wouldn't have gone over.

A. That's correct."

Ms Edgar later said in cross-examination that she "managed the situation in [her] classroom believing that [she] had kept everybody safe and on track with their learning".

Ms Edgar had no recollection of the respondent staying back after class or, for that matter, of S staying back. She accepted she may have had a "quick chat" with S but said he was not kept back for any disciplinary reason as he had settled down after she separated him and the respondent.

Ms Edgar was asked whether she had had experiences where a student had approached her with a concern as to their own personal safety and she referred to an occasion where a boy stayed back after class because he was worried. Ms Edgar said that on that occasion, as it was the last class of the day, she had escorted the student to the front office so that his parents could be called. She described that occasion as a "similar circumstance" and added, "that's what I would normally do, is to ensure that they are safe".

Ms Edgar was asked what she would have done if a student had shouted at another student for a period of 10 minutes and whether she would have allowed that to happen. She responded:

"A. I most certainly wouldn't, and if it had happened, I would have managed it by going to the student, most certainly having a few words to determine what was going on; point out to them the interruption it was causing and try to establish why it happened, and how to prevent it happening again. And if necessary, I might have moved the student away if that was quite clear, that there was a reason for the shouting or whatever, I would have moved students around. That's the quickest and basic method of defusing a situation."

Ms Edgar was also cross-examined that it was possible that she had heard T say to the respondent "piss off". She responded that it was possible, but that she did not hear it. She also said that she did not hear T call the respondent a "fucking bitch", or the respondent say to T, "stop speaking your shit language". Ms Edgar said that when she was standing "right next to them", she "didn't hear any of those words", although what had been said was enough to make her turn around and go over to them. She said she could not tell what the comments were when she was further away from them. What she heard was not part of ordinary class discussion. Rather, she described it as a "disturbance" and said that she "went across because it was a disturbance". She was asked:

"Q. So it could have been an angry word you heard.

A. It was enough for me to turn around and go over and see what was going on."

The cross-examiner suggested to Ms Edgar that T "was obviously, visibly angry". She did not agree. Rather, she described T as being "minimally annoyed". Ms Edgar also disagreed that T's action in turning around and grabbing the worksheet was "an aggressive act at some level".

Ms Edgar's attention was drawn to T's statement made on the day of the incident. In that context, the cross-examination proceeded as follows:

"Q. What I suggest to you, I put something to you. You can comment as you would, that [the respondent] had the very best of reasons to be concerned about [T], because of the incident that had happened in the class, as described by [T]. What do you say about that?

A. There was no indication that he was worried during my class. After the tussle with the paper with [T], he got out of his seat, he moved to speak to some girls. There was no indication to me that there were any concerns about his safety.

Q. But your evidence is you can't explain in any way why this assault happened?

A. No. I can't explain that.

Q. You say it was a pure random event that had happened at that time and that place?

A. I don't know about random. But I managed the situation in my classroom with what happened and I had no reason for concern for anyone's safety.

Q. Of course, no-one had told you that [T] appeared to have a significant problem with controlling his anger, did they?

A. Well, there was no - definitely no problem with anger in the classroom.

...

Q. When you were told or when you heard from someone about the [Tom] incident ... you heard nothing about the fact that there were real grounds for concern about [T's] ability to control his temper?

A. No.

Q. You were never told that, were you?

A. No.

Q. If indeed we accept what [T] says, that he got mad and that he was swearing at [the respondent], as he alleges, then that would be a matter which would call for your immediate intervention, wouldn't it?

A. If I'd sensed any aggression, I would have definitely intervened. Yes.

Q. It would be important to make sure they were separated?

A. One means of intervention would be to move the students. Yes.

Q. Make sure you kept them apart for a good period, until everyone cools down?

A. If I was concerned enough to - about the - any aggression, yes.

Q. Can I put it to you this way. It's just simple commonsense as to what you do in a situation like that, with two adolescent boys?

A. Yes. It's basic classroom management strategy.

Q. Exactly. Keep them apart and let them cool down?

A. Yes.

Q. Of course, if we look on the second page of the student report you've got there, it's exactly what [T] said, that he just wanted a little bit of time, so he could cool down?

A. Yes. That's what he's got written here."

Ms Edgar was finally asked to assume that something had occurred between T and the respondent whereby T's chair had been bumped as a result of the respondent moving his desk:

"Q. Can I just ask you this, if we accept for the minute - I know you say you don't say it did happen - but if we accept for a minute the desk got moved, [T's] chair got hit, [T] turned around and responded, saying words to the effect, 'Piss off', that would become more than a minor dispute, wouldn't it?

A. Yes, because the incident I dealt with was over the paper.

Q. What I've described to you would be a dispute that required your immediate intervention?

A. Yes, if it was aggressive like that.

Q. Because it could easily get out of hand?

A. Yes.

Q. If you'd known that [T] very recently had demonstrated anger control problems, you would have been very keen indeed to ensure that the dispute didn't get out of hand?

A. Yes, but the - I saw no evidence of anger management issues in the classroom."

Breach of duty

The question whether the appellant breached its duty of care, as the trial judge observed, is to be determined having regard to the Civil Liability Act, s 5B. That section provides:

"5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

His Honour, at [63], accepted the submissions of the appellant's trial counsel that he was required to determine:

(a) whether there was a reasonably foreseeable risk that on the day of the attack, the respondent would be assaulted by T on the landing outside the classroom after the altercation between the two students, in the sense that the appellant knew or ought to have known of the risk at the time the respondent was in Ms Edgar's class;

(b) whether the risk that the respondent would be assaulted by T was not insignificant, on the basis that the risk was assessed at the time that the respondent was in Ms Edgar's class; and

(c) whether, in the circumstances, a reasonable person in the appellant's position as at the date of the assault would have taken "precautions" and what precautions were reasonable.

His Honour further understood that he was required, under the second limb of s 5B, to assess the probability that the respondent would have been assaulted by T on the landing at the commencement of the lunch recess and the likely seriousness of the harm. He was also required to consider the burden of taking precautions to avoid the risk that the respondent would have been assaulted by T and the social utility of the risk that created the risk of harm. These matters had to be assessed at the time that the respondent and T were in class.

An appeal to this Court from the District Court pursuant to the District Court Act 1973, s 127 is by way of rehearing: Supreme Court Act 1970, s 75A. The Court is required to assess and evaluate the evidence for itself, maintaining due regard for the advantage of the trial judge in having seen and heard all of the evidence: see Fox v Percy [2003] HCA 22; 214 CLR 118; CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1; Gett v Tabet [2009] NSWCA 76; 254 ALR 504.

The factual findings that underpinned his Honour's finding of breach have been set out above: see at [7]. The factual finding specifically challenged was his Honour's finding, at [60] subpara (17), that Ms Edgar had only a vague idea as to the assault T had perpetrated upon Tom six weeks previously and had no idea of the serious nature of the assault until shown the witness statements in court. The respondent did not contend that Ms Edgar or Ms Brookton was not a credible or reliable witness. Rather, the challenge was that the system the school had implemented to supervise a student, who had already seriously transgressed school rules, was inadequate. In Ms Edgar's case, she was challenged as to the source and the extent of her knowledge as to what occurred. Her evidence was that she knew that the first incident involving T was a violent attack after a touch football game and that it occurred in circumstances where T had been taunted by the student he attacked. That evidence was not successfully attacked, notwithstanding persistent cross-examination.

In my opinion, his Honour's finding, at [60] subpara (17), understated the effect of Ms Edgar's evidence in a way that did not accurately reflect what she said. In accordance with this Court's function under s 75A, I consider the appropriate finding on the evidence was that Ms Edgar knew T had been involved in a fight that involved violence following taunts from the victim during a touch football game. This was more than having a vague knowledge as to what occurred. However, she did not know that T had responded violently to minor provocation. I will return to the significance of that matter below.

There was another factual finding of his Honour that I consider to be of significance. His Honour found, at [60] subpara (11), that after the tussle between T and the respondent over the worksheet, there was an angry exchange between them "involving swearing loud enough for Ms Edgar to be aware of it". There was no doubt there was a verbal exchange between the boys which, on the evidence, was appropriately described as "angry" and which involved swearing. Ms Edgar was cross-examined extensively about this issue. Ms Edgar did not agree that she observed that the exchange was angry. Rather, she said she observed that T was "minimally annoyed". Further, save possibly for one response, she said that she did not hear the words that had been exchanged. The possible exception was that Ms Edgar had responded affirmatively to his Honour's question that if she had not heard what the boys said she would not have gone over to them. That answer may be the basis for his Honour's finding, at [60] subpara (11), if his Honour included in it a finding that Ms Edgar actually heard the students swearing at each other.

An examination of the evidence at the point where his Honour asked that question reveals that the respondent's counsel had been posing a number of hypothetical circumstances for Ms Edgar's consideration. His Honour then asked the question to which I have referred. The flow of this evidence is set out above at [51]. Having regard to the totality of her evidence, I consider Ms Edgar understood his Honour's question to be a continuation of the hypothetical scenarios to which she had been asked to respond. Otherwise, her answer to his Honour is inexplicably contrary to every other part of her evidence in which she said she did not hear swearing. The agreement with his Honour's question was not taken up by the cross-examiner, which provides support for the way I have interpreted this part of the evidence.

It is not entirely clear whether his Honour's finding, at [60] subpara (11), was a finding that Ms Edgar heard the swearing, or whether his Honour found that there was an exchange between the two students which was sufficiently loud to attract her attention, without her having heard the words used. In order to be consistent with the evidence, I am of the opinion that his Honour's finding was that Ms Edgar heard an exchange of words sufficient to be a disturbance to the class. It should not be understood as a finding that Ms Edgar heard the swearing. If his Honour made a finding that Ms Edgar heard swearing, I am of the opinion that such finding was not supported by the evidence. The effect of the evidence upon which this Court should act is as I have stated it.

Having regard to these matters and the findings otherwise made by his Honour, it is necessary to consider whether the respondent established that the appellant breached the duty of care that was owed to him as a student at the school. The duty upon which the respondent relied was as stated by the High Court in Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258, namely, that a school authority owes a duty to its students to ensure that reasonable care is taken of them whilst they are on school premises during ordinary school hours. Neither party sought to argue for a specific content of that duty of care. However, in the manner in which the respondent argued its case, the duty of care propounded was one that involved the school taking reasonable care to ensure the safety of students in a context where early teenage males are known from time to time to lose their tempers and from time to time to resort to retaliatory physical violence if provoked.

As I have said, the determination of breach had to be made having regard to the terms of the Civil Liability Act, s 5B. That required, in the first place, the identification of the risk of harm. The appellant's submission accepted by his Honour, to which there was no demur by the respondent, was that the risk of harm was that the respondent would be assaulted by T shortly after the class was dismissed, unless reasonable precautions were taken to prevent that harm. The reasonable precaution that the respondent contended ought to have been taken was to have provided teachers with adequate information of the nature and circumstances of the first incident, so they would be aware of T's propensity for violence in response to even minor provocation.

The evidence disclosed that the school had policies and procedures in place to deal with students who transgressed school rules. T had been involved in a serious transgression and had been dealt with in accordance with those procedures. The school principal, Ms Brookton, had personally invoked those procedures against T because of her assessment that the first incident was serious. The school had a "hands off" rule, that is, that physical altercations between students were not tolerated and that T had breached that rule.

However, Ms Brookton resisted any suggestion that the school ought to have taken the further precaution of informing teachers involved with T that he had been violent on slight provocation. It was her assessment that it was sufficient in all the circumstances to implement the usual supervisory procedures that applied on a return from suspension.

In making her assessment that nothing further was required, Ms Brookton had taken into account that almost immediately after the first incident, T had reported to the deputy principal, rather than waiting to be summoned. She said this was unusual for a student and was indicative that he was "quite remorseful". He had never engaged in this type of behaviour before. It was her assessment that there was no reason to believe T would engage in such behaviour again and that it was "a one off". She denied, in the face of repeated challenges, that T's behaviour had been such that he was a student who needed to be watched. She said:

"... No more than a normal boy would be watched; he had no history of anything like this again, and he remarked that he was remorseful and came and told the deputy, and that he would guarantee it wouldn't happen so the ... monitoring of the school policy took place ... I've had 40 years experience and in most cases - in all my cases it hasn't happened. So I had no history of students repeating serious behaviour like that. So I had - my history says a person like this is not going to do it again."

Ms Edgar gave evidence to like effect. She said that T was a compliant student who did his work. She also said she saw no evidence of anger management issues with T in the classroom on the day of the assault on the respondent. Her evidence was that she had heard and observed on the day of assault something occurring in the classroom between T and the respondent. She had dealt with it at the time by telling T to turn around to the front and he had done so. Nothing had occurred thereafter to cause her any concern.

The Civil Liability Act, s 5B essentially enacts in statutory form the common law test of breach of duty: see Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53 at [28] per Allsop P. However, as Allsop P noted, despite the closeness of the statutory regime to the common law test, it is the statute to which regard must be had. See also Adeels Palace Pty Ltd v Moubarak at [27]. The High Court in Adeels Palace also confirmed that the question whether there had been a breach of duty under the statutory test was to be assessed prospectively: see Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422.

Section 5B(1)(a) requires a determination as to whether the risk is foreseeable. As the authorities stand at present, the common law test as stated in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 remains the touchstone for the determination of foreseeability. In regard to foreseeability, Mason J said, at 47:

"A risk of injury which is quite unlikely to occur ... may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable."

In my opinion, the evidence established that there was a foreseeable risk of harm to students, should T become provoked. He had reacted violently only some weeks previously in circumstances of a low level of provocation. He had transgressed a clear school rule in this regard and had failed to observe the school's "walk away" policy should something occur between students. Whilst Ms Brookton had made a professional assessment that T would not offend again, that does not answer the question as to reasonable foreseeability in the sense explained in Wyong Shire Council v Shirt. Ms Brookton accepted that it could not be guaranteed that T would not behave violently again if provoked. As she said as to the prospects of students who had engaged in serious misbehaviour of re-offending, "sometimes they don't and sometimes they do".

Ms Edgar agreed that an assault of the nature that occurred after the touch football game gave rise to the most serious concerns and was something that ought to have been brought to her attention. She also agreed it was important for her to have been told that T had lost his temper and had hit the other student. She accepted it was important for her to have that information for the purposes of "dealing with the children".

There could be no doubt that, as T had, in Ms Brookton's own terms, severely punched the other student after the touch football game, the risk that he might do it again and therefore the risk of consequent harm to other students was "not insignificant". In this regard, this Court has said that this imposes a higher test than that imposed at common law, "but ... not by very much": Shaw v Thomas [2010] NSWCA 169 at [44] per Macfarlan JA (Beazley and Tobias JJA agreeing).

The question next arises whether "in the circumstances, a reasonable person would take [the precaution]" of providing those teachers involved with T either in the classroom or in the playground with information that he was a boy who had acted violently on minimal provocation. The factors in s 5B(2) are to be considered in determining that question, to the extent that they are relevant.

Section 5B(2)(a) requires the Court to consider the probability of the harm occurring, that is, that a person would be injured, if reasonable precautions were not taken. In the present case. Ms Brookton, and I would infer, Ms Edgar, had assessed that there was a very low risk that T would re-offend. However, if T did re-offend, the likely seriousness of the harm would not be insignificant: see s 5B(2)(b). This had already been demonstrated in the first incident.

Section 5B(2)(c) refers to the burden of taking precautions. Usually, reference is made to the cost of implementing a particular precaution. However, there is nothing in the words of the section, nor in the common law principles which stand behind s 5B, that requires this provision to be confined to the economic burden of taking any particular precaution. In a given case, s 5B(2)(c) may require consideration to be given to the burden of taking precautions to avoid a risk of harm. Such consideration may extend to factors such as time or distance or communication. It may be that a precaution, for some reason, would be difficult to implement. Depending upon the circumstances of a particular case, consideration may need to be given to less tangible burdens, such as the privacy concerns to which Ms Brookton referred in this case. On the facts here, however, Ms Brookton agreed it would have been prudent for teachers to have been told that T had anger management problems.

It would seem, therefore, that notwithstanding the privacy issues of concern to Ms Brookton, she recognised that the risk of harm in not taking the precaution of providing adequate information to teachers, outweighed that consideration. That leads to a consideration of s 5B(2)(d). It was the privacy concerns that had dictated that part of the school's procedures which created the risk of harm. Privacy concerns were appropriate and relevant considerations. However, a different or more sensitively calibrated privacy policy, having regard to particular circumstances, was required, so as to balance the concerns of the physical safety and emotional security of all students at the school.

There was a coincidence in the present case in that Ms Edgar was also the head of welfare. According to Ms Brookton's evidence, in the ordinary course, Ms Edgar, as head of welfare, should have been briefed by Mr Drew of the nature and extent of the first incident. As his Honour found, at [60] subpara (18), Ms Edgar was not briefed in accordance with the school's procedures. Ms Edgar said she had only heard about the incident in passing, perhaps from something said in the staffroom. However, as I understand the evidence of both Ms Brookton and Ms Edgar, it was important for any teacher involved with T to know that the assault had occurred on little provocation, for the purposes of managing the welfare of the students. Ms Edgar expressly said so and Ms Brookton eventually made a similar concession.

In the present case, therefore, in circumstances where there was a foreseeable risk of harm, the school had failed to take the precaution that both the principal and the head of welfare considered appropriate in order to take reasonable care for the safety of the students. In the coincidental circumstances of Ms Edgar being the head welfare teacher, the procedures devised by the school to deal with circumstances such as occurred in this case, had not, in any event, been implemented.

In my opinion, notwithstanding that I have concluded that his Honour's finding of fact, at [60] subpara (17), was correctly challenged, and given that the factual underpinning to the finding, at [60] subpara (11), requires that finding to be read as I have indicated, I am of the opinion that the respondent had established a breach of its duty of care.

Causation

The Civil Liability Act, s 5D(1) provides:

"5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."

His Honour's consideration of causation involved a reference, at [63], to s 5D and the following statement (taken from counsel's submissions at trial):

"The relevant test under s 5D of the CL Act has been enunciated by the High Court in Adeels Palace Pty Ltd v Moubarak ... The test is not the 'matter of common sense' test of March v E and MH Stramare Pty Ltd, but s 5D(1) of the CLA which 'treats factual causation and scope of liability as separate and distinct issues'. The two stage test under Section 5D(1) is:

a. The negligence was a necessary condition of the occurrence of the harm (factual causation), in the sense that a specific reasonable action of the school (or the teacher) would have prevented [the respondent] from subsequently being assaulted by T; and

b. It is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."

Having considered the factors relevant to breach, his Honour concluded, at [75], that the appellant had been negligent. No other consideration was given to the question of causation, except for his Honour's finding, at [70], that Ms Edgar could have separated the desks had she been aware of the circumstances of the first incident. His Honour's failure to make findings or to engage in any reasoning as to causation or to apply the provisions of s 5D are the subject of ground 4 of the notice of appeal.

The breach of duty in the present case was one of omission. In order to establish causation, the respondent had to demonstrate that the school's negligence in failing to provide Ms Edgar with the full details of the earlier assault, including the minor provocation that had caused it, was a necessary condition of the occurrence of the harm: s 5D(1)(a). In other words, he had to prove factual causation. Notwithstanding the almost universal criticism of "but for" causation in cases of omission: see March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506; C Sappideen, P Vines, Fleming's The Law of Torts, 10th ed (2011) the statute imposes that test as the first gateway to proof of causation.

In Adeels Palace Pty Ltd v Moubarak, the High Court examined the operation of s 5D(1)(a) in the context of an omission to provide security personnel at the entry to nightclub premises. A patron who had left the nightclub returned with a gun and shot another patron during the course of a fight. The Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) pointed out, at [55], that unlike the position at common law, where "but for" causation was not always a sufficient test of causation, the statutory "but for" test is a necessary test, save for the exceptional case to which s 5D(2) applies. It was not suggested in the present case that this was an exceptional case in respect of which s 5D(2) should be called in aid.

The Court, at [45], articulated the statutory test in s 5D(1)(b) in terms: "but for the negligent ... omission would the harm have occurred?" The Court held that the "but for" test of causation was not made out. In the Court's opinion, the evidence did not establish that the presence of security personnel would have deterred the re-entry of the gunman, or could have prevented re-entry. It was not sufficient that the engagement of additional security might have deterred or even prevented the gunman entering the premises and/or shooting patrons in the night club.

Section 5D(1)(a) was also considered in Strong v Woolworths Ltd [2012] HCA 5. The plurality stated, at [20]:

"Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. This is pertinent to the appellant's attack on the Court of Appeal's reasons, which is directed to par 48 of the judgment:

'Now, apart from the 'exceptional case' that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words 'comprises the following elements' in the chapeau to section 5D(1). 'Material contribution', and notions of increase in risk, have no role to play in section 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case.'" (emphasis in original)

Strong v Woolworths was a "slipping case". Mrs Strong had slipped in an area under the control of Woolworths, when she placed her crutch either on a chip or on some grease left by a chip on the floor. In that context, the plurality stated, at [32]:

"The appellant was required to prove on the balance of probabilities that Woolworths' negligence was a necessary condition of her harm. Woolworths' negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W."

In this case, in order to prove causation, the respondent was required to establish what Ms Edgar should have done that would have prevented the harm to the respondent. In other words, the question of factual causation under s 5D(1)(a) involved the determination of the probable course of events had Ms Edgar been informed of T's propensity to a violent response if minimally provoked. The respondent, as plaintiff, bore the onus of establishing this probable course of events: see s 5D(5). To this end, the respondent filed a notice of contention in which he contended:

"His Honour having found that Ms Edgar ought properly been made aware of [T's] likelihood of losing his temper and assaulting other students, then in circumstances where an altercation had occurred, his Honour should have found that the appellant should have, and would have, taken the following steps to ensure the safety of the respondent:

(a) Leaving the classroom to check whether [T] was in the near vicinity; in which case, she would have been able to observe [T] and diffuse the situation.

(b) Escorting the respondent to a position of safety.

(c) Having heard raised voices and swearing in the classroom, to have separated the students, counselled [T] to ensure that his anger and aggression had fully abated and posed no risk to fellow students including the respondent (particularly so given his behavioural history).

(d) Enquire of the respondent whether he had any fears for his safety and thereafter taken the steps set out above.

(e) Further, that Ms Edgar should have discerned that the respondent remaining present in the near vicinity of the classroom, after class had been dismissed, was due to his apprehension and fear of [T] and thereafter had taken the steps set out in (a)-(d) above."

As the concern at this point is with factual causation, the respondent was required to establish some underpinning factual circumstance that either of itself, or by inferential reasoning, enabled the court to find that "but for" the negligent omission, the harm to the respondent would not have happened. I have referred to the difficulty of establishing "but for" causation in the case of negligent omissions and as Adeels Palace Pty Ltd v Moubarak amply illustrated, the presentation of a range of possibilities is insufficient. In the present case, Ms Edgar was not only the teacher whose specific conduct was under scrutiny, she was an experienced teacher whose responsibilities included the position of head of welfare. She was also familiar with T and his general behaviour. In that regard, T was generally regarded as a student who applied himself to his work, was well behaved and had demonstrated himself to be compliant with directions and instructions. Ms Edgar was thus the very person who was likely to know what steps were likely to be effective in dealing with T's classroom conduct on the day in question.

The respondent accepted that if all that had occurred in the classroom between him and T was a minor disturbance, there would be no causal link between the school's omission to inform Ms Edgar sufficiently of the circumstances of the assault and the serious attack that occurred outside the classroom. He contended, however, that there had been an angry exchange between the boys, that included swearing, which Ms Edgar heard. He submitted that in those circumstances, Ms Edgar would have realised that T had once again become very angry. Had she known that T could be "set off" and that his reactions could be out of proportion to the incident that was causing him to get angry, she should and would have done something about the situation that was occurring.

The question of causation has to be determined having regard to the factual circumstances in which the duty of care was owed and breached. That included the overall assessment the school had made of T's behaviour and personality, Ms Edgar's familiarity with T and the particular assessment she made of the disturbance that had occurred in the classroom. Having dealt with the immediate problem as she perceived it, she made a professional assessment that the incident was over and that there were no ongoing anger management issues with T.

The factual circumstances also included Ms Brookton's assessment that T had been an exemplary student up to the time of the first incident, that he had shown remorse for his behaviour on that occasion and had been responsive to the sanctions imposed and that "a person like this is not going to do it again". That assessment was carefully and genuinely made having regard to her experience, her knowledge of T and his personality and included an interview with T and, it appears, his parents, following his return to school.

In addition, the circumstances occurring in the classroom just before the incident were relevant and critical, although those circumstances were to be assessed in the context of the general assessment of T's behaviour, to which I have referred. I have expressed the opinion that the evidence did not support a finding that Ms Edgar heard swearing. However, there was a disturbance which was sufficient to cause Ms Edgar to go over to the students to investigate what was happening.

The respondent's oral submissions were substantially directed to ground (c) in the notice of contention. He submitted that Ms Edgar's evidence as to the intervention strategies she would have implemented in different scenarios provided a sufficient factual basis to satisfy the "but for" test of causation. Those strategies involved separating the students or accompanying a student, who was in fear of another, to a place of safety.

Even if the classroom incident was sufficiently serious such that Ms Edgar should have separated T and the respondent, a strategy which she said was basic and usually effective, the evidence does not support a conclusion that "but for" the omission to take that precaution, the assault would not have occurred. Ms Edgar had, as I have said, implemented a measure that had appeared to be effective. In her observation, nothing further had occurred between the two students and nothing was brought to her attention at the end of class to raise any concern.

It is relevant to this consideration that the incident occurred at least 10 minutes before the end of class so that there was a reasonable time for T to calm down and, perhaps more relevantly, there was a reasonable period of time for Ms Edgar to observe any continuing problem. She saw no such evidence of T needing to calm down or of any continuing problem with him.

Indeed, the respondent said that after the incident occurred, he separated himself from T by moving his chair and table back away from T and that, until the bell went 10 minutes later, he sat there and did his work. The respondent did not say that there was any continuing problem with T during this period. Hence, separating the desks of T and the respondent did not prevent the assault that later occurred.

It was also submitted that had Ms Edgar known the full extent of the first incident, she should have taken a further step and spoken to T so as to be satisfied that he had calmed down. Even if that was a step Ms Edgar should have taken, it cannot be assumed that had she spoken to T, she would have concluded that he was not calm and taken some further step such as counselling T or escorting the respondent from the classroom. Ms Edgar had interacted with T, observed mild annoyance only and considered the steps she had taken were adequate. There was no evidence to indicate that T gave any outward indications that he remained seriously angry and stirred up.

In assessing the causal link, based on the breach that occurred, the communication that ought to have been made to teachers, including Ms Edgar, could and indeed should have included, not only the information that T had reacted violently on slight provocation, but that he had been remorseful and an assessment had been made that it was unlikely he would do it again.

The respondent placed some emphasis upon the fact that in his statement, T had said that he wanted time to be away from other people and to cool down. It was suggested that had Ms Edgar separated the boys or taken some other action to defuse the situation, T would have had time to cool down. This was a possibility. Even if Ms Edgar had gone over to T and counselled him, the most that can be said is that the outcome might have been different. T might have calmed down and walked away. He may have assured Ms Edgar that he was not angry, when in fact he was quietly seething and intent on doing harm to the respondent. However, as was explained by the High Court in Adeels Palace v Moubarak, the suggestion of a possible outcome should some alternate course have been taken does not satisfy the "but for" test.

It was also submitted that had Ms Edgar known the details of the first incident, she would have perceived the respondent was afraid and either checked to see that T was not lingering in wait for the respondent: notice of contention ground (a), or escorted the respondent from the classroom: notice of contention ground (b).

The trial judge found that the respondent had lingered in the classroom because he was afraid of T, but that he did not convey his fear to Ms Edgar. However, Ms Edgar was not asked what she might have understood or perceived in the respondent staying back had she been aware that T had previously acted violently on slight provocation. Nor was she asked what she would have done, given the incident between T and the respondent in the classroom, had she been aware of the full details of the first incident. Not only was Ms Edgar not asked about this, there was another teacher in the hallway who did not observe anything untoward.

Further, the contention in ground (b) that Ms Edgar should have escorted the respondent to a position of safety was raised in general terms and itself raised a number of questions that are not dealt with in the evidence. No indication was given as to where a "position of safety" might be. Was it the front office? Was it the playground? Was the respondent required to be kept away from his fellow students in case T should come along? If so, for how long? Was T to be kept away from other students in circumstances where he had not transgressed school rules, other than for the classroom incident that Ms Edgar had dealt with? Whilst these questions are posed rhetorically, they demonstrate that this contention amounts to no more than a series of possibilities, which if implemented might have adverted the accident. "But for" causation requires the Court to be satisfied that some such step, if taken, would, on the balance of probabilities, have adverted the harm suffered by the respondent.

The notice of contention, grounds (d) and (e) raised similar matters. The respondent contended that Ms Edgar should have enquired whether the respondent was afraid, or should have perceived that he was afraid, and taken one or other of the steps referred to in grounds (a), (b), or (c). Given that I consider that the respondent has not made out his case on causation in respect of those paragraphs, these contentions must also fail.

In summary, therefore, it was necessary for the respondent to establish, on the assumption that she had been given sufficient information as to the first incident, what the likely outcome would have been had Ms Edgar taken the steps that the respondent contended she should and would have taken. Although a case, where there is no actual or direct evidence of the necessary causative connection between breach and harm, may be difficult to prove, the court is not precluded from drawing appropriate inferences if the underlying evidentiary base for doing so is established.

In the absence of any other evidence on causation, Ms Edgar was the appropriate person to give evidence as to the hypothetical circumstance with which the respondent's case was required to deal. It was imperative for the respondent to ascertain from Ms Edgar what she should and would have done, given that the appellant had failed to take the precaution which constituted the appellant's breach of duty. As I indicated, Ms Edgar had been forthcoming in her cross-examination as to what information should have been provided to her. It was her evidence that essentially grounded my finding as to breach. As an experienced teacher, she would know the likely outcome of the steps that the respondent contended should have been taken. However, she was not asked and the Court is not entitled to speculate as to what her evidence may have been. I would only add that Ms Brookton was not relevantly cross-examined on the essential matters going to causation for which the respondent contended.

It follows, in my opinion, that as the respondent did not establish factual causation, the appeal should be allowed and verdict entered for the appellant. I would only add for completeness that had factual causation been established, I consider that this is a case where it was appropriate for the scope of the appellant's liability to extend to the harm so caused within the meaning of s 5D(1)(b).

The orders I propose are as follows:

(1) Appeal allowed;

(2) Set aside the orders of the District Court and in lieu thereof order;

(a) judgment for the defendant on the plaintiff's statement of claim;

(b) the plaintiff to pay the defendant's costs;

(3) The respondent to pay the costs of the appellant on the appeal.

PRESTON CJ of LEC: I agree with Beazley JA.

**********

Decision last updated: 23 October 2012

Medium Neutral Citation:	State of New South Wales v Mikhael [2012] NSWCA 338
Hearing dates:	27 August 2012
Decision date:	22 October 2012
Before:	Allsop P at [1]; Beazley JA at [2]; Preston CJ of LEC at [116]
Decision:	(1) Appeal allowed; (2) Set aside the orders of the District Court and in lieu thereof order; (a) judgment for the defendant on the plaintiff's statement of claim; (b) the plaintiff to pay the defendant's costs; (3) The respondent to pay the costs of the appellant on the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - Negligence - Breach of duty of care - School authority - Student assaulted by fellow student - Student with propensity to violence - Foreseeable risk of harm - Failure to take reasonable care of students whilst on school premises during school hours - Failure to inform teachers of details of prior violent incident involving offending student - Civil Liability Act 2002, s 5B. TORTS - Negligence - Causation - School authority - Student assaulted by fellow student - Omissions - Onus on plaintiff to establish probable course of events - Factual causation dependent on circumstances - School's assessment of prior violent conduct - Teacher's familiarity and assessment of offending student's conduct - Statutory "but for" test - Factual causation not established - Civil Liability Act, s 5D.
Legislation Cited:	Civil Liability Act 2002 District Court Act 1973 Supreme Court Act 1970
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420 Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258 CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1 Fox v Percy [2003] HCA 22; 214 CLR 118 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506 Shaw v Thomas [2010] NSWCA 169 Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53 Strong v Woolworths Ltd [2012] HCA 5 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Texts Cited:	C Sappideen, P Vines, Fleming's The Law of Torts, 10th ed (2011)
Category:	Principal judgment
Parties:	State of New South Wales (Appellant) Anthony Mikhael (Respondent)
Representation:	Counsel: R J Cheney SC; H Chiu (Appellant) B Dooley SC; G R Graham (Respondent) Solicitors: Moray & Agnew (Appellant) Coode & Corry (Respondent)
File Number(s):	CA 2008/318838
Publication restriction:	No
Decision under appeal	Jurisdiction: 9101 Citation: M v The State of New South Wales Date of Decision: 2011-08-10 00:00:00 Before: Sorby DCJ File Number(s): DC 2008/4081