The Commonwealth v Introvigne

[1982] HCA 40

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Aickin and Brennan JJ. (THE HONOURABLE MR. JUSTICE AICKIN died before judgment was delivered in this case.)

THE COMMONWEALTH v. INTROVIGNE

(1982) 150 CLR 258

3 August 1982

Negligence

Negligence—Crown liability—Commonwealth—Duty of care—School established by Commonwealth—Operated by State under agreement with Commonwealth—Playground accident before commencement of classes—Whether duty of care owed by Commonwealth—Non-delegable duty—Breach—Contributory negligence—Concurrent findings of fact.

Decisions

1982, August 3.
The following written judgments were delivered: -
GIBBS C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I am in agreement with the conclusions which he has reached and am in general agreement with the reasons he has given for reaching those conclusions. (at p260)

2. I would however add some observations with respect to the fact that on the issue of contributory negligence there are concurrent findings by the learned primary judge and by the Full Federal Court. The principles laid down in Warren v. Coombes (1979) 142 CLR 531 apply equally where there are concurrent findings as to any other appeal on a question of fact. Indeed, Warren v. Coombes was itself a case in which this Court disturbed concurrent findings in the court below. (at p260)

3. It has long been the practice of the Judicial Committee to decline to interfere with concurrent findings on pure questions of fact, except where it is shown that there has been a miscarriage of justice or a violation of principles of law or procedure: Robins v. National Trust Co. (1927) AC 515, at pp 517-518 . I have not attempted to state the exceptions exhaustively or accurately, for that is not necessary for the purposes of the present case. The rule is "a rule of conduct which the Board has laid down for itself" (Robins v. National Trust Co. (1927) AC, at p 517 ), for reasons which are apparent, having regard to the position of that tribunal, hearing, as it did, appeals from courts in the many countries which formed parts of the British Empire. The judgments in Owners of the "P. Caland" and Freight v. Glamorgan Steamship Co. (1893) AC 207 suggest that a similar rule is applied in the House of Lords and there are remarks in other cases which support this view: Hatfield (Owners) v. Glasgow (Owners) (1914) 84 LJP 161 ; S.S. Mendip Range v. Radcliffe (1921) 1 AC 556 ; Willmot v. Anglo-American Oil Co. (1923) 67 Sol Jo 678 . In the lastmentioned case Lord Birkenhead said that where there were concurrent findings of fact the House would not interfere unless the conclusion of fact was plainly wrong, but that the rule did not apply where the question was one of drawing inferences of fact. However, it was made clear in Montgomerie &Co. Ltd. v. Wallace-James (1904) AC 73 that there is no special rule of practice in the House of Lords governing concurrent findings of fact. In that case (1904) AC, at p 75 , the Earl of Halsbury L.C., speaking of a case in which concurrent findings were under appeal, said: "where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an Appellate Court." Those remarks were cited with approval in Benmax v. Austin Motor Co. Ltd. (1955) AC 370, at pp 372-373 , and they are consistent with the decision in Warren v. Coombes. In Montgomerie &Co. Ltd. v. Wallace-James (1904) AC, at pp 82-83 Lord Davey said that he did not disagree with what was stated in Owners of the "P. Caland" and Freight v. Glamorgan Steamship Co., if that be regarded merely as a guide to the judgment of the tribunal and not as a rule of law or practice. He went on to say that their Lordships would pay the greatest respect to the concurrent findings on a question of fact of two courts, but that the House could not decline the duty of forming and expressing its own judgment. Lord Lindley said (1904) AC, at p 92 : "I entirely concur in thinking that there is no law or settled practice of this House to prevent it from differing even from two concurrent findings of fact if, on a careful consideration of the evidence, this House comes to the conclusion that those findings are wrong." (at p261)

4. In Major v. Bretherton (1928) 41 CLR 62, at p 68 , Starke J. appears to have drawn the attention of the Court to the then recent decision of the Judicial Committee in Robins v. National Trust Co. (1927) AC 515 which he cited as authority for the proposition that the concurrent findings in the case before the Court were practically decisive (1928) 41 CLR, at p 74 . Higgins J. (1928) 41 CLR, at p 74 left open the effect of Robins v. National Trust Co. "until the subject has received much more attention than has been possible in this case." Isaacs J., however, correctly recognized that Robins v. National Trust Co. laid down a rule for the Judicial Committee only, and said that "This Court stands in a wholly different position" (1928) 41 CLR, at p 69 . However, he regarded Owners of the "P. Caland" and Freight v. Glamorgan Steamship Co. (1893) AC 207 as laying down a rule which he was obliged to follow (1928) 41 CLR at p 70 . The other members of the Court, Knox C.J. and Gavan Duffy J., did not mention the matter. With all respect, it appears that Starke J. may have thought that Robins v. National Trust Co. laid down a rule of general application, and that Isaacs J. did not advert to the comments made in Montgomerie &Co. Ltd. v. Wallace-James (1904) AC 73 on what had been said in Owners of the "P. Caland" and Freight v. Glamorgan Steamship Co. Major v. Bretherton cannot be regarded as laying down any authoritative rule on this question. (at p261)

5. In Baffsky v. Brewis (1976) 51 ALJR 170, at p 172 , Barwick C.J., with whom the other members of the Court agreed, after saying that he found no error in the conclusion reached by the trial judge and the Court of Appeal, continued:
"But it may not be inappropriate to add that where there have been concurrent findings of fact or concurrent views as to the exercise of a discretion, an appellant has in this Court at least a difficult task in persuading it that nonetheless it ought to set aside such findings or that exercise of discretion. This Court must necessarily give weight to such concurrent findings though, of course, in a proper case able to depart from them."
I do not understand this statement to be intended to lay down any principle inconsistent with those subsequently established in Warren v. Coombes. In the latter case it was said (1979) 142 CLR, at p 551 :

"In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."

Obviously the Court will pay the greatest respect to concurrent findings of two courts. Nevertheless, it would be wrong to think that there is any rule of practice, akin to that of the Judicial Committee, which would prevent this Court from reviewing concurrent findings. In the end this Court must give effect to its own conclusion and it will depart from concurrent findings of fact if it considers them to be erroneous. (at p262)

6. In the present case, upon an independent consideration of the matter, I agree that the learned trial judge and the Federal Court were correct in holding that the appellant was not guilty of contributory negligence. (at p262)

7. I would dismiss the appeal. (at p262)

MASON J. The facts of this case are adequately stated in the judgment of the Full Court of the Federal Court: Bowen C.J., Connor and Lockhart JJ. (1980) 48 FLR 161; 32 ALR 251 . On 19 February 1971 the respondent, then a schoolboy aged fifteen attending the Woden Valley High School, was skylarking with some of his friends in the school quadrangle before school was due to commence at its usual time of 8.30 a.m. They seized the halyard attached to a flagpole in the quadrangle, jumped off steps near the flagpole and swung on the halyard in such a way that at times the full weight of a boy's body was suspended by it as he moved through the air. (at p262)

2. At a moment when the respondent was not swinging on the halyard, and without warning, the truck, which was fastened to the top of the flagpole, became detached from its position and fell, striking the respondent on the head and severely injuring him. (at p263)

3. The flagpole was less than eleven metres or about thirty-five feet high; the truck contained a shaft and pulley through which ran the halyard; the truck was cylindrical in shape and made of a synthetic material known as "particle board" and was encased in copper and, together with the halyard, it weighed about seven kilograms. (at p263)

4. The respondent brought an action for damages against the Commonwealth of Australia, a firm of architects and a company which built and erected the flagpole. (at p263)

5. In 1976, the action came on for hearing before the Supreme Court of the Australian Capital Territory. The primary judge dismissed the respondent's action against all defendants; but held that, if liability had been established against any of them, he would have assessed the respondent's damages at $32,298.90. (at p263)

6. The Full Court of the Federal Court allowed the respondent's appeal against the Commonwealth and dismissed the appeal against the firm of architects (the respondent having discontinued the appeal against the company). (at p263)

7. At first instance the respondent put his case on the following bases: that the Commonwealth was liable as the occupier of the school premises to the respondent as an invitee; that the Commonwealth, as occupier, was in breach of its duty to him as a person on the premises as of right; that the Commonwealth owed a duty to take care for the safety of the respondent as a pupil of the school and breached that duty; that the architects were negligent in and about the planning or design of the flagpole; and that the Commonwealth was vicariously liable for the negligence of the architects. The primary judge found against the respondent on each issue. He found that the respondent's teachers were not negligent, that the Commonwealth was not negligent and that even if the defendants were negligent there was no chain of causation between that negligence and the respondent's injuries. (at p263)

8. The Full Court rejected the respondent's case in so far as it was based on occupier's liability. The correctness of this finding has not been questioned in this Court. What is in question in this appeal are the findings of the Federal Court: (1) that the teaching staff, including the principal and acting principal, were negligent; (2) that the Commonwealth was liable for that negligence; and (3) that the respondent was not guilty of contributory negligence. (at p263)

9. Mr. Gleeson for the Commonwealth concedes that, in accordance with the decisions of this Court in Ramsay v. Larsen (1964) 111 CLR 16 and Geyer v. Downs (1977) 138 CLR 91 , the teaching staff owed a duty to the pupils to take reasonable care of them. However, he submits that on the evidence no breach of that duty was established. It will be noted that Mr. Gleeson's submissions assume that the case against the Commonwealth is one of vicarious liability arising out of a breach by the teaching staff of their duty of care. This assumption is based on the manner in which the case was presented on behalf of the respondent and dealt with at first instance and in the Federal Court. However, as will appear, there is a case for saying that, quite apart from the issue of vicarious liability, the Commonwealth owed a duty of care similar in material respects to that owed by the teaching staff to the respondent. (at p264)

10. The Federal Court held that the teaching staff were negligent in three respects: (1) in failing to make provision for proper supervision of the pupils in the school grounds in the period of approximately half an hour preceding commencement of instruction; (2) the failure of the principal or acting principal to ensure that the halyard was secured by its padlock to the pole; and (3) failing to make it a rule that the flagpole was not to be used unless with the express authority of a teacher.

Failure to Provide Adequate Supervision. (at p264)

11. The circumstances in which the respondent sustained injury were described by the primary judge as follows:
"The accident happened a few minutes before the time when classroom instruction was to begin, which was 8.30 a.m. Many of the pupils were walking and playing outside the buildings. All members of the teaching staff except one were at a staff meeting called by the acting principal, to inform the staff that the principal had died in the early hours of that morning, and to mention the matter of arrangements for the funeral. The meeting was called for 8.20 a.m. and lasted till about 8.25 a.m., during which time the accident appears to have happened. Before summoning the staff to the meeting, the acting principal had expressly detailed one member of staff to be absent from the meeting and to be present in the school grounds for the purpose of maintaining supervision over the activities of pupils in the pre-class period when most of them were in the grounds. This supervision was normally exercised by the staff generally, without any roster or specific detailing of individuals, and the number of staff actually exercising supervision in the grounds at such a time was normally between 5 and 20."
The primary judge held that to provide only one staff member for supervision was not a failure to take proper precautions for the safety of the pupils. His reasons for so concluding were that the acting principal could not reasonably foresee that by requiring all his staff but one to attend a meeting between 8.20 and 8.25 a.m. he was exposing the pupils to the risk of the fall of the truck caused by boys swinging on the halyard. He found that the evidence that the boys had previously applied their weight to the halyard was slight and unclear and that there was no evidence that this practice had ever come to the attention of the staff. (at p265)

12. On the other hand the Federal Court concluded that the acting principal was negligent in this respect. They said:
"There is no evidence that the flagpole had been used before for the same purpose that it was used on the morning of the accident; but there is a fair degree of evidence that it had been misused in various ways for some time previously, at least since the latter part of 1970. Boys, on more than one occasion, had hauled up to the top of the pole, objects such as school cases, knickers, a garbage can lid and a garbage can itself. Pranks were played on other boys, usually big boys bullying small boys, by threatening to haul them up the halyard by their ties.
Although there is no evidence that any of the teaching staff knew that these pranks had been played, it was reasonably foreseeable in any event that the flagpole more likely than not, would be used in this way." They went on to say:

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

With respect to the claim that the need to call a special staff meeting justified the allocation of one member of staff only to supervise the pupils in the playground, their Honours said: "This may be the reason why only one member of staff was allotted to supervise the whole of the school grounds; but in our opinion it does not diminish the extent of the duty of care owed to the pupils." (at p265)

13. The Commonwealth attacks this finding on the ground, first, that the school teachers' duty of care does not require that fifteen year old boys be kept under constant observation and supervision - see Rawsthorne v. Ottley (1937) 3 All ER 902, at p 905 ; Camkin v. Bishop (1941) 2 All ER 713, at pp 715-716 . So much may be conceded. Here, however, there were up to 900 pupils in the recreation area in the half hour preceding the commencement of instruction. It would be unreal to suggest that no supervision was called for. In ordinary circumstances supervision at that time was provided by members of the teaching staff ranging in number from five to twenty. This provides some measure of what was considered to be appropriate, it being notorious that school pupils in large numbers, if left to their own devices in a recreation area, will on occasions engage in activities involving some risk of personal injury. (at p266)

14. The Commonwealth's second submission is that the Federal Court was wrong in asserting that the meeting was an irrelevant consideration. I do not read the Federal Court judgment as asserting that it was an irrelevant consideration, but rather as saying that the need to have a meeting was not in itself a sufficient justification for assigning one teacher only to supervision of the recreation area at the time in question. Quite obviously it would have been possible to assign more than one teacher to the task of supervision, having earlier acquainted them of the death of the principal and of arrangements made in consequence of his death. (at p266)

15. Mr. Gleeson also makes the point that the acting principal, Mr. Scott, was called as a witness by the respondent, that it was put to him in cross-examination by counsel for the firm of architects (who was seeking to establish negligence on the part of Mr. Scott) that the provision which he made for supervision on that morning was an ineffective way of supervising the pupils and that his answer was "No, I wouldn't agree with that". That was the sum total of what was put to him and no further evidence was called on the issue. Even so, there was material on which, in my opinion, the Federal Court was entitled to conclude that the risk of injury was reasonably foreseeable. To take the flagpole specifically - it would, I think, have occurred to a reasonable man that there was a possibility, and not merely a fanciful possibility, that someone might swing on the halyard and suffer injury because the halyard or the flagpole was not strong enough to withstand the weight of a pupil swinging on the halyard. True it is that there was no evidence as to the likelihood of the truck being moved by the weight of the school boys swinging on the halyard. But the reasonable man would have perceived that a flagpole is built to enable a flag to be raised and lowered and that there was a real risk that it was not strong enough to support a school boy swinging on it. (at p266)

16. In passing I note that the Full Court applied a test of foreseeability that was overly stringent. They said:
"Although there is no evidence that any of the teaching staff knew that these pranks had been played, it was reasonably foreseeable in any event that the flagpole more likely than not, would be used in this way." (at p266)

17. The decision of this Court in Wyong Shire Council v. Shirt (1980) 146 CLR 40, at pp 44-49 establishes that a risk of injury is foreseeable, so long as it is not far-fetched or fanciful, notwithstanding that it is more probable than not that it will not occur. (at p267)

18. It was suggested that there was an inconsistency between that part of the decision of the Federal Court which rejected the respondent's claim based on occupier's liability and the finding that there was negligence in failing to provide adequate supervision of the children in the playground area. The Federal Court held that the evidence did not warrant a finding that there was an unusual danger. I am by no means satisfied that there is an inconsistency between that finding and the finding of negligence based on inadequate supervision. But if there be such an inconsistency, then it would require reconsideration of the Federal Court's rejection of the occupier's liability claim, an issue which does not require to be determined.

Failure to Padlock the Halyard. (at p267)

19. The Federal Court stated that the halyard was secured to the base of the flagpole by a padlock which locked the halyard to a bracket which was in turn secured to the pole near its base. It was not so secured on the morning on which the accident took place. The Commonwealth criticises the first of these two statements because, according to the evidence of a school boy named Owen, the purpose of the padlock was to stop the theft of the flag, the padlock being used only when the flag was up the pole. It was not used to keep the wire to the pole except on the occasions when the flag was up the pole. However, it seems that when the padlock was in use it was impossible to swing on the halyard because it was secured to the pole near its base although, according to the primary judge, even if the halyard had been padlocked, school boys could support their weight on it. (at p267)

20. No doubt the halyard was less attractive as a source of recreation or amusement if it was padlocked to the pole with the consequence that the boys could not swing on it. If, as I have already held, there was a foreseeable risk of injury to the boys arising from the possibility that they would swing on the halyard, the Federal Court was correct in holding that there was negligence in failing to take steps to see that the halyard was secured to the pole by padlock when that precaution would have substantially diminished the risk of any injury.

Failure to Make a Rule Prohibiting the Use of the Halyard. (at p267)

21. I do not find it necessary to consider this head of negligence because it seems to me the evidence does not support a finding that the failure to make the rule was the cause of the respondent's injury. So much was, I think, acknowledged by the Federal Court, although their Honours concluded that the three heads of negligence found were in combination the cause of the respondent's injury. No attack has been made on this finding. However, it is necessary for me to say that I consider that there is enough to support an inference that the failure to provide adequate supervision of the playground area at the time in question and the failure to padlock the halyard to the pole were the cause of the respondent's injuries.

Was the Commonwealth Liable for the Negligence of the Teachers? (at p268)

22. At the time of the accident there was in force an arrangement between the Commonwealth and the State of New South Wales for the provision and administration of a public system of education in the Australian Capital Territory. The terms of the arrangement were set out in a memorandum enclosed with a letter dated 18 November 1912 from the Premier of New South Wales to the Prime Minister. The memorandum records that the State Department of Public Instruction would: " . . . continue the administration of education in the Federal area, by
(a) the appointment and control of the teachers; (b) the inspection of the schools; (c) the maintenance of existing school buildings; (d) the direction of the instruction in accordance with the Public Instruction Act of 1880 and Regulations thereunder." The memorandum then records:

"2. That all charges incurred for salaries and some other matters be in the first place paid by the Government of New South Wales and be refunded by the Federal Government.

3. That in other matters with respect to the schools in which the desire of the Federal Government may be expressed the Department act as the agent of that Government in carrying them out." (at p268)

23. In accordance with this arrangement all the teachers at the Woden Valley High School were officers of the State Department of Education. Their salaries were paid by the State and control of their duties was exercised by the State Department. Consequently they were not servants of the Commonwealth. (at p268)

24. Further, the Commonwealth submits, it can be under no liability for the acts or omissions of teachers over whom it exercises no right of control. The liability of an authority for the negligence of teachers at a school is, according to the Commonwealth, correlative to the control which it exercises over the teachers. For this proposition Smith v. Martin and Kingston-Upon-Hull Corporation (1911) 2 KB 775, at pp 781, 784 is cited. It decided that the authority was liable for the negligence of the teacher which it employed and controlled. It was a case of the master's responsibility for the act of its servant. (at p269)

25. In conformity with this decision this Court decided in Ramsay v. Larsen (1964) 111 CLR 16 that a public schoolteacher in maintaining discipline and performing his functions is exercising authority derived, not from a delegation to him by the parents of the pupil, but from the Crown in respect of obligations which it has assumed. It follows, so the argument runs, that the teachers at the Woden Valley High School are exercising authority from the Crown in right of the State in respect of obligations which it has assumed. (at p269)

26. The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability. A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance. In Carmarthenshire County Council v. Lewis (1955) AC 549 the House of Lords held that the authority was liable for an injury to a motorist caused by a little child wandering onto the road through an unlocked gate at the school due to the failure of the authority to take reasonable steps to prevent the escape of the child. The Court of Appeal had held that a teacher, Miss Morgan was negligent in allowing the child to escape. However, by majority, the House of Lords held that the teacher was not negligent but that the authority was liable on the footing that it was in breach of duty to the child and to the plaintiff. Lord Reid said (1955) AC, at p 563 :
"However careful the mistresses might be, minor emergencies and distractions were almost certain to occur from time to time so that some child or children would be left alone without supervision for an appreciable time. The actions of a child of this age are unpredictable, and I think that it ought to have been anticipated by the appellants or their responsible officers that in such a case a child might well try to get out onto the street and that if it did a traffic accident was far from improbable. And it would have been very easy to prevent this, and either to lock the gates or, if that was thought undesirable, to make them sufficiently difficult to open to ensure that they could not be opened by a child so young that it could not be trusted alone on the street." (at p269)

27. The decision recognizes that there is a liability on the part of the school authority for its failure to take reasonable steps to prevent the escape of the child on to the highway. It proceeds on the footing that the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated. As Denning L.J. said in Cassidy v. Ministry of Health (1951) 2 KB 343, at p 363 :
" . . . where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services." (at p270)

28. The duty thereby imposed on a school authority is akin to that owed by a hospital to its patient. As Lord Greene M.R. observed in Gold v. Essex County Council (1942) 2 KB 293, at p 304 , the liability of the hospital arises out of an obligation to use reasonable care in treatment, the performance of which cannot be delegated to someone else, not even to a doctor or surgeon under contract for service, according to Denning L.J. in Cassidy (1951) 2 KB, at p 364 ; cf. Hillyer v. Governors of St. Bartholomew's Hospital (1909) 2 KB 820 ; Collins v. Hertfordshire County Council (1947) 1 KB 598 . Thus a hospital was held accountable for an injury caused by negligence of a radiographer in Gold, of a part-time anaesthetist in Roe v. Minister of Health (1954) 2 QB 66 and Toronto General Hospital v. Matthews (1972) SCR 435 , and of a special consultant in Samios v. Repatriation Commission (1960) WAR 219 . Fleming, Law of Torts, 5th ed. (1977), p. 361 makes the point that the uncontrollability of professionals in the performance of their tasks is no longer a bar to recovery, certainly so long as they are part of the hospital organization and are not employed by the patient himself. If, as I have indicated, liability on the part of the hospital is for breach of a "personal" duty to which the hospital authority is subject then the distinction between servant and independent contractor is immaterial. (at p270)

29. The concept of personal duty, performance of which is incapable of delegation, has been strongly criticised, especially outside the master and servant relationship where its introduction was designed to overcome the consequences of the doctrine of common employment (see Glanville Williams "Liability for Independent Contractors" (1956) Cambridge Law Journal, p 180) It has been said that the concept of personal duty departs from the basic principles of liability and negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. This criticism fails to acknowledge that the law has, for various reasons, imposed a special duty on persons in certain situations to take particular precautions for the safety of others, e.g. the occupier of premises. (at p271)

30. There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J. in Ramsay v. Larsen (1964) 111 CLR, at p 28 . The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants. (at p271)

31. If it be accepted that a school authority is under a duty to ensure that reasonable care is taken of pupils attending the school, does the principle apply to the Commonwealth? By ss. 8 and 9 of the Education Ordinance 1937 (A.C.T.) parents are obliged to have their children aged between six and fifteen years enrolled "at a school in the Territory maintained by or on behalf of the Commonwealth" or at a school registered under the Ordinance, that is, a private school, and to cause the children to attend that school. Failure to comply with these requirements is an offence punishable by fine. The Commonwealth established the Woden Valley High School as a school maintained on its behalf to receive pupils and to provide teaching staff to instruct them. (at p271)

32. By establishing a school which was "maintained" on its behalf at which parents could enrol their children for instruction pursuant to the obligation imposed on them by the Ordinance, the Commonwealth, in my opinion, came under a duty of care to children attending the school. The nature and scope of that duty of care was co-extensive with the duty of care owed by any authority or body conducting a school to pupils attending the school. It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score. (at p271)

33. The fact that the Commonwealth delegated the teaching function to the State, including the selection and control of teachers, does not affect its liability for breach of duty. Neither the duty, nor its performance, is capable of delegation. It is not enough for the Commonwealth, in providing a school, to leave it to the State to take care for the safety of the children attending the school. Nor does it matter that the Commonwealth does not control and cannot direct the teaching staff in the performance of its duties. That would be a relevant factor if the question was: Are the teachers servants of the Commonwealth? However, that is not the issue here. The issue is whether the Commonwealth is liable as a school authority when it establishes the school and arranges with the State to run the school on its behalf. In my opinion, the Commonwealth does not cease to be liable because it arranges for the State to run the school on its behalf. (at p272)

34. In a judgment written prior to his death, Aickin J. pointed out that the Government of the State of New South Wales is not a subcontractor. What it did was to supply the services of its employees to perform for the Commonwealth a task which the Commonwealth had undertaken, i.e. the establishment and operation of schools in the Australian Capital Territory. That was a governmental function long recognized in Australia as a responsibility of the Executive Government of each of the States in their respective areas and appropriately recognized by the Commonwealth as its responsibility in the area for which it is solely responsible and in which it has exclusive and unlimited executive and legislative power. A teacher "borrowed" by the Commonwealth from a State Educational Service on the terms that it will reimburse the State for the salary and costs incurred by the State in supplying the services of such a teacher is no doubt not an employee of the Commonwealth and is an employee of the State. That however is not enough to make the State a subcontractor and the teacher an employee of a subcontractor. It can in such circumstances make no difference whether it is one teacher, or an entire teaching staff, who is "borrowed" in such a way. His Honour concluded that the Commonwealth is in the same position of responsibility with respect to a school established by it in its own Territory whether it employs teaching staff directly as its own employees or arranges with a State to provide it with qualified teachers on terms that it reimburses the State for the costs involved. The Commonwealth is responsible for the acts and omissions of the staff so borrowed by it to carry out and provide the educational service which it wishes to establish. (at p272)

35. I agree with all that his Honour said on this score. It inevitably leads to the conclusion that the establishment and maintenance of a school in these circumstances is a function of government to which the notions of contractor and subcontractor are not applicable. If the case concerned the construction of a school building the position would be very different. The Commonwealth had undertaken a governmental function for the conduct of which it was responsible, whether it employed it own teachers or arranged for teachers to be made available to it by a State. The Commonwealth is therefore as liable for the acts and omissions of its borrowed staff as it would have been for staff directly employed by its as teachers in schools established by it.

Contributory Negligence. (at p273)

36. In the Supreme Court Blackburn J. held that the defence was not established. He found: (a) that the respondent swung on the halyard at a time shortly before the fall of the truck; this was a failure to take reasonable care for his own safety; (b) that the fall of the truck did not occur at a time when the respondent was swinging on the halyard; (c) that other persons in succession also swung on the halyard at times shortly before the fall of the truck; and (d) that the cause of the fall of the truck was the suspension by the halyard of the weight of either one person or more than one. His Honour said that could not find on the balance of probabilities: (a) how many persons swung on the halyard; (b) in what order they swung on the halyard; (c) whether any person swung on the halyard after the respondent; (d) what were the relative weights of the respondent and of those other persons; (e) whether the fall would have occurred if the respondent had not swung on the halyard; and (f) whether the cause of the fall was the suspension of the weight of one person or of more than one. (at p273)

37. In these circumstances his Honour was unable to find that the conduct of the respondent in swinging on the halyard was the cause of the fall of the truck as a matter of probability. The Full Court of the Federal Court considered that his Honour's finding was correct on the footing that "it would be mere conjecture, and not a proper inference to find that the accident was partly caused by negligence" on the part of the respondent. I agree with this conclusion - the evidence does not justify a finding that the fall of the truck was caused by any action on the part of the respondent or by any action of his in conjunction with the actions of other pupils with whom he was playing. The evidence establishes that the respondent was walking away from the flagpole with his back to it at the time he was struck. (at p273)

38. The appellant submits that the Federal Court was in error in looking to the cause of the accident, instead of the cause of the injury. In some cases it is of importance to distinguish between the cause of the accident and the cause of the injury but this is not such a case. Here the injury was brought about by the fall of the truck. To say that the respondent did not cause the fall of the truck is to say that he did not cause the injury. (at p274)

39. It remains only for me to say, as was conceded by Mr. Gleeson, that the appellant faces a difficult task in seeking to overturn concurrent findings of fact. In Major v. Bretherton (1928) 41 CLR 62 Isaacs J. discussed the unwillingness of appellate courts to disturb findings of fact in which courts below have concurred. After examining earlier statements in the Privy Council, his Honour acknowledged that he was bound to consider the evidence and form his own opinion, but that he would not depart from the concurrent findings unless he was convinced they were wrong (1928) 41 CLR, at pp 70-71 ; see also Higgins J. (1928) 41 CLR, at p 74 and Starke J. (1928) 41 CLR, at p 74 . The correct view was stated more recently in Baffsky v. Brewis (1976) 51 ALJR 170 . Barwick C.J., with whom Stephen, Jacobs and Aickin JJ. and I agreed, stated (1976) 51 ALJR, at p 172 :
" . . . where there have been concurrent findings of fact or concurrent views as to the exercise of a discretion, an appellant has in this Court at least a difficult task in persuading it that nonetheless it ought to set aside such findings or that exercise of discretion. This Court must necessarily give weight to such concurrent findings though, of course, in a proper case" (it is) "able to depart from them." (at p274)

40. This approach is not inconsistent with Warren v. Coombes (1979) 142 CLR 531 which had particular reference to the responsibility of an intermediate court of appeal in reviewing a finding of fact made at first instance. It did not deal with the responsibility of an ultimate court of appeal. (at p274)

41. In the result I would dismiss the appeal. (at p274)

MURPHY J. The Commonwealth assumed the role of conducting a school; it is immaterial whether it was required to do so by Act of Parliament. It became liable for damage caused by any lack of reasonable care of the students or pupils placed in its care. In terms of the prevailing concepts of duty, the Commonwealth became fixed with certain non-delegable duties: (at p274)

2. 1. To take all reasonable care to provide suitable and safe premises. The standard of care must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards. (at p274)

3. 2. To take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out. (at p275)

4. The Commonwealth also became vicariously liable to pupils and parents for the acts and omissions of the teaching and other staff (whether or not these were supplied by another entity or agency). (at p275)

5. In this area the common law should follow the developments in protection of employees (see Wilsons &Clyde Coal Co. Ltd. v. English (1938) AC 57 ) and those of other social organizations such as hospitals. Fleming refers to the increasing support for the view that " . . . a hospital by receiving a patient assumes a non-delegable, personal duty to ensure that he receives careful treatment at the hands of such staff as it provides, including even visiting specialists and other independent consultants." (Law of Torts, 5th ed. (1977) pp. 361- 362; see also Albrighton v. Royal Prince Alfred Hospital (1980) 2 NSWLR 542 . The notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent. A school should not be equated to a home. Often hazards exist in a home which it would be unreasonable to allow in a school. A better analogy is with a factory or other undertaking such as a hospital. Parents and pupils have in practice no choice of the classmates or other students. Injury occasionally occurs through foolish or sometimes malicious acts of other students. The school has the right to control what occurs at school, just as an employer has the right to control what happens in its undertaking. Where a student is injured by the negligence of another student (and perhaps by act or omission which if it were that of a person of full capacity would be negligent) without breach of personal duty by those conducting the school, and without act or omission by those for whom otherwise it is vicariously liable, it may be that the loss is best spread by treating the body conducting the school as vicariously liable just as an employer would be for its employee's acts or omissions; but it is unnecessary to decide this. (at p275)

6. In this case the damage to the plaintiff may be attributed to causes for which the Commonwealth is liable, unsafe premises and lack of supervision of the children. It is enough that Introvigne's injuries were due to the inadequate system of supervision and care. The system did not provide for sufficient staff to exercise proper supervision over the children in the playground. As well, there was a failure to ensure that the system was carried out. The departure from the system by the teachers was understandable because of the death of the school principal, but this does not excuse the breach by the Commonwealth of this non-delegable duty. (at p276)

7. The injuries were also attributable to the system's defect in failing to provide for padlocking the halyard of the flagpole. The flagpole and the halyard in particular were lures for children. If as the evidence suggests, the supervising teachers did not see children swinging on the halyard, this does not excuse the Commonwealth. The question is not what supervised, but what unsupervised or inadequately supervised, children might do. The Full Federal Court stated the question as whether "it was reasonably foreseeable in any event that the flagpole more likely than not would be used in this way". That was an application of the erroneous test of foreseeability formulated in Caterson v. Commissioner for Railways (1973) 128 CLR 99 . A moment's reflection will show that such a test would absurdly confine the tort of negligence. As I pointed out in Wyong Shire Council v. Shirt (1980) 146 CLR 40 it would reduce the scope of the negligence action almost to instances of deliberate harm, to cases where the defendant's act or omission was foreseeable as more likely than not to cause harm. Regrettably however, the erroneous test seems to have gained currency. A recent example which reached this Court was in Warren v. Coombes (1979) 142 CLR 531 . The trial judge applied as a test of foreseeability whether when a car in a residential suburb approaching a T-intersection (one into which the joining road was sloping down to the intersection) it was "more likely than not" that a child would suddenly ride down the intersection from the sloping road. On that test, it was inevitable that the defendant would succeed. That any other vehicle or person, let alone a child on a bicycle, would enter the intersection as the defendant approached in this quiet residential suburb was unlikely. This Court, in reversing the judgments below, stated that the test was whether "a reasonable driver should have foreseen that other persons, drivers or pedestrians, adults or children might be using those streets in a suburban residential area" (1979) 142 CLR, at p 553 . Following that, members of this Court expressly disapproved the erroneous test in Wyong Shire Council v. Shirt. The later application of the erroneous test in this case by the Full Federal Court (although they held it was satisfied) shows that it requires more emphatic disapproval. There should be no misunderstanding about the standard which is required to be applied in hundreds of cases every week throughout Australia. The "more likely than not" test of foreseeability is not part of the common law in Australia. (at p276)

8. The finding of no contributory negligence should not be disturbed. The appeal should be dismissed. (at p277)

BRENNAN J. Roldano Introvigne was fifteen when he was injured. He attended the Woden Valley High School in the Australian Capital Territory. One morning, shortly before school hours, he was injured in the school grounds. A "truck" - a cylindrical mass of particle board sheathed in copper - fell from its position on the top of a flagpole and struck him on the head. He was grievously injured. (at p277)

2. The truck fell because a group of boys, including Introvigne, had been swinging on the halyard which ran through the pulley on the truck and swung free below. The steps of one of the classrooms provided a convenient spot from which to swing on the halyard. There were no teachers nearby to stop them. The teachers were at a meeting called by the acting principal of the school to inform them of the death of the principal earlier that morning. Usually not less than five, and sometimes as many as twenty, teachers would supervise in the playground. That morning only one teacher had been left on playground duty. He did not see the skylarking; nor could he reasonably be expected to have seen it. There were some nine hundred pupils at the school. (at p277)

3. The halyard could have been padlocked to the base of the flagpole. Sometimes it was, but not to stop boys swinging on it. It was padlocked to safeguard a flag hoisted on the pole. That morning the halyard swung free. (at p277)

4. Introvigne sued for damages in the Supreme Court of the Australian Capital Territory. The first defendant was the Commonwealth of Australia. The Commonwealth had established the school and the Commonwealth maintained it. The second and third defendants were respectively the architects of the school and its builder. The learned trial judge (Blackburn J., as he then was) rejected the claim against the first and second defendants and the claim against the third defendant was not pressed. The plaintiff's action was dismissed. The Full Court of the Federal Court allowed an appeal by the plaintiff against the judgment in favour of the Commonwealth and remitted the action to the Supreme Court to reassess the plaintiff's damages. The Commonwealth appeals against the judgment of the Full Court, and seeks an order restoring the judgment of Blackburn J. (at p277)

5. In their joint reasons for judgment, the Full Court (Bowen C.J., Connor and Lockhart JJ.) found:
"In our opinion it is more probable than not that the accident would not have occurred if proper supervision had been exercised over the pupils in the grounds of the school on the morning of 19 February 1971. Nor as a matter of probability would it have occurred if the halyard had been padlocked to the pole."
The Commonwealth challenges these findings of fact. Even if they stand, however, they do not expose the Commonwealth to liability unless the Commonwealth was under a duty to provide proper supervision or to padlock the halyard. The Commonwealth denies that such a duty rested on it. (at p278)

6. At the time when this accident happened, the teachers at the school were employees not of the Commonwealth but of the State of New South Wales. At that time, an arrangement was in force - it had been in force since 1912 - whereby the Department of Education of New South Wales appointed and controlled teachers in schools in the Australian Capital Territory and directed the instruction of pupils in accordance with the Public Instruction Act 1880 (N.S.W.) and the Regulations thereunder. The New South Wales Department acted as the agent of the Commonwealth in carrying out "the desire of the Federal Government" with respect to its schools. The Commonwealth reimbursed the State for its expenditure on teachers' salaries and some other charges. This arrangement founded a submission that the teachers at the Woden Valley High School, not being the Commonwealth's servants, were not amenable to Commonwealth control, and that the ability of a school authority to control the teachers is an essential prerequisite to a duty to its pupils to provide supervision of them. (at p278)

7. The submission invokes the general rule that a person is not responsible for the negligence of an independent contractor (Stoneman v. Lyons (1975) 133 CLR 550, at p 577 ). That rule ordinarily has no relevance to a school authority's responsibility for the negligence of its teachers. Ordinarily, teachers are employees of the school authority and sufficiently subject to its commands to render the school authority liable for a teacher's negligence (Ramsay v. Larsen (1964) 111 CLR 16, at pp 38-39 ). If this were a case where the plaintiff's entitlement to damages depended upon the school authority's vicarious liability for a teacher's negligence, it would have been relevant to inquire into the relationship between the Commonwealth and the teacher for whose negligence the Commonwealth was said to be vicariously liable. If the theory of vicarious liability espoused by the majority in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long (1957) 97 CLR 36 were to be adopted - and it is unnecessary in this case to choose between the competing theories - there may have been difficulties in the way of establishing that a duty of care rested on the Commonwealth if the actions of the teacher which were relied on to give rise to that duty were not within the scope of his employment by the Commonwealth. In the Darling Island Case (1957) 97 CLR, at p 63 , Kitto J., analyzing the judgment of Uthwatt J. in Twine v. Bean's Express Ltd. (1946) 1 All ER 202 (where an employee van driver had given the plaintiff a lift), pointed to the employee's action in the course of employment as the source of the employer's duty to the plaintiff:
"Whether the giving of the lift to the stranger, i.e. the continuing permission to the stranger to be in the van, was in the course of the employment determined whether the giving of that permission should be attributed to the master, so as to create in favour of the stranger a duty of care on the part of the master which otherwise would not have existed." (at p279)

8. If the plaintiff had relied upon a duty of care which owed its existence to the actions of the teaching staff at the Woden Valley High School, the capacity of the staff to create the duty would have required consideration. In the case of a school authority, however, there is a duty of care resting upon it which depends in no way upon the actions of the teaching staff, a duty which arises directly by reason of its acceptance of a child as a pupil in the school. In Ramsay v. Larsen, Kitto J. said (1964) 111 CLR, at p 28 :

"In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a Government or a corporation or an individual, that the school authority undertakes not only to employ proper staff but to give the child reasonable care."

The primary duty of the school authority is, so to speak, antecedent to its employment of staff. The existence and nature of that duty do not depend upon the staffing arrangements which it makes; nor is the duty discharged or extinguished by making arrangements for the staffing of the school. Though the primary duty, so far as it requires supervision of the pupils, will ordinarily fall to be discharged by the teachers at a school, a school authority's liability for damage caused by a failure to provide supervision is founded on the school authority's failure to discharge a duty which it assumed when the child was enrolled and which is sustained by the continued acceptance of the child as a pupil. Of course, a teacher may be under a like duty to the child, but the teacher's duty is not determinative of the duty of the school authority. (at p279)

9. The primary duty of care owed by a school authority extends to the provision of the staff and resources necessary to discharge the duty to the pupil which it undertakes by accepting him (Geyer v. Downs (1977) 138 CLR 91, at p 94 ). That duty is no less than the duty of the schoolmaster, who is bound to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen (per Murphy and Aickin JJ. in Geyer v. Downs (1977) 138 CLR, at p 102 ). (at p280)

10. In the present case, there was a failure to exercise proper supervision of the playground and to padlock the halyard. It was foreseeable that, in the unsupervised clamour of boys around the flagpole, some would enjoy the opportunity to swing upon the halyard and risk bringing down the truck. The foreseeable folly of youthful exuberance made supervision or the padlocking of the halyard necessary if the boys were to be safeguarded from the risk of injury (cf. Ramsay v. Larsen (1964) 111 CLR, at pp 30-31 ). The circumstances of the case required positive action to discharge the duty to take reasonable steps to protect the pupils from foreseeable risks of injury. The necessary steps were not taken, the duty resting on the Commonwealth as the school authority was breached and the plaintiff was injured. The fact that the necessary steps were not taken establishes the breach of the duty for which the Commonwealth is liable. The calling of the meeting that morning did not preclude the discharge of the duty, though it explains why the teachers did not take the necessary steps to supervise the boys playing around the flagpole. Whether or not the teachers who might have discharged the duty resting on the Commonwealth were its servants, the material fact is that the steps necessary to discharge the duty were not taken. The status of the teachers is not material to that conclusion. There is therefore no reason to disturb the Full Court's finding that the Commonwealth was negligent. (at p280)

11. This is not a case of a school authority's vicarious liability for the negligent acts of a teacher. Ramsay v. Larsen and Smith v. Martin and Kingston-Upon-Hull Corporation (1911) 2 KB 775 was cases of that kind. Although the present case was conducted in part as though it were a case of the same kind, it is not a case where liability is sheeted home by attributing a teacher's act to the school authority. The present case is a case of a negligent omission by a school authority to take reasonable steps to protect a pupil. That view of the case was put forward in the pleadings, and the Full Court was right so to regard it. It is analogous to Carmarthenshire County Council v. Lewis (1955) AC 549 as that case was viewed by Lords Goddard and Reid (1955) AC, at pp 561, 563 . (at p281)

12. The Full Court was right also in finding that Introvigne was not guilty of contributory negligence. It was not shown that the fall of the truck and Introvigne's injury were caused by his swinging on the halyard. And the danger attendant on his participation in the activities of the group of boys around the flagpole was precisely the danger against which the Commonwealth was bound to take reasonable steps to protect him. I would dismiss the appeal. (at p281)

Orders

Appeal dismissed with costs.