The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian

[2001] NSWCA 308

CITATION:	The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308
FILE NUMBER(S):	CA 41010/00
HEARING DATE(S):	11/09/01
JUDGMENT DATE:	24 September 2001
PARTIES :	The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ana Kondrajian
JUDGMENT OF:	Mason P at 1; Giles JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 774/99
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	I G Harrison SC (Appellant) W P Kearns SC/P Biggins (Respondent)
SOLICITORS:	Makinson & d'Apice (Appellant) Smith Monti & Costs (Respondent)
CATCHWORDS:	PERSONAL INJURY - nervous shock - duty of care - sporting accidents - school's liability for foreseeable risk.
CASES CITED:	The Commonwealth v Introvigne (1982) 150 CLR 258 at 269 State of Victoria v Bryar (1970) 44 ALJR 174 Geyer v Downs (1977) 138 CLR 91 Richards v State of Victoria [1969] VR 136 Lepore v State of New South Wales [2001] NSWCA 112 Edgecock v Minister for Child Welfare (1971) 1 NSWLR 751 at 758 Williams v Eady (1893) 10 TLR 41 at 42 Miller v South Australia (1981) 24 SASR 416 Chapman v Hearse (1961) 106 CLR 112 at 121 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272 Kady v The Trustees of the Roman Catholic Church, unreported, NSWCCA, 19.2.97 Nobrega v The Trustees of the Roman Catholic Church, unreported, NSWCCA 23.3.99 Cooke v Kent County Council (1949) 82 Lloyds L R 823 Wright v Cheshire County Council (1952) 2 All ER 789 Derrick v Cheung [2001] HCA 48 Jeffrey v London County Council (1954) 52 LGR 521 at 523 Rosenberg v Percival [2001] HCA 18
DECISION:	(a) Appeal is upheld; (b) The cross-appeal is dismissed; (c) The orders made by Delaney DCJ are set aside; (d) Judgment is ordered in favour of the appellants; (e) Respondent's claim is dismissed; (f) The respondent to pay the costs of the action between her and the appellants and the costs of the appeal; (g) The responent is entitled to a certificate under the Suitors Fund, if qualifed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41010/00

MASON P

GILES JA

IPP AJA

Monday, 24 September, 2001

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY v ANA KONDRAJIAN



The respondent was the mother of a school pupil who was fatally injured during a sports class at a school administered by the appellants. The trial Judge upheld, inter alia, her claim for damages for the psychiatric injury she sustained as consequence of this accident. The defendants appealed this point and the respondent cross-appealed the assessment of her damages.

At trial and on appeal the parties agreed that the sole issue between them, as regarded liability, was whether the appellants and the teacher supervising the class had breached the duty of care they owed the pupil. They further accepted that should the respondent establish that the appellants or the teacher had breached the duty they owed the student, the respondent would be entitled to recover from the appellants the damages she sustained in consequence of the psychiatric injury she suffered as a result of her son’s death. The case was conducted on the basis that the content of the duty of care owed to the pupil was essentially the same as that owed to the respondent.

HELD, allowing the appeal and dismissing the cross-appeal:

1. The relationship between school and pupil gave rise to a well-recognised duty of care on the part of the appellants and the supervising teacher. That duty extends only to the taking of reasonable care for the safety of the pupils. A school is not absolutely liable for injuries sustained by pupils under its supervision. Where an injury is caused by an unfortunate concurrence of circumstances that reasonable precautions could not have prevented, no breach of duty will have occurred. The plaintiff must show that the school or teacher involved did not take such reasonable precautions for the safety of the child as would have prevented harm.

2. There are undoubted risks in school sporting games of the kind engaged in in this case however they form part of the curriculum in many primary schools and are accepted by the community as being beneficial for young children when properly supervised. The concatenation of circumstances in this case led to a catastrophic result, which, although foreseeable, must be regarded as unexpected and accidental and involved no breach of duty of care on the teacher’s part.

ORDERS


(a) The appeal is upheld;
(b) The cross-appeal is dismissed;
(c) The orders made by Delaney DCJ are set aside;
(d) Judgment is ordered in favour of the appellants.
(e) The respondent’s claim is dismissed;
(f) The respondent to pay the costs of the action between her and the appellants and the costs of the appeal;
(g) The respondent is entitled to a certificate under the Suitors Fund, if qualified.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41010/00

MASON P

GILES JA

IPP AJA

Monday, 24 September, 2001

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY v ANA KONDRAJIAN
JUDGMENT

I agree with Ipp AJA.

: I agree with Ipp AJA.

:

The appeal in regard to liability and the cross-appeal in regard to damages

4 On 25 May 1998 Hovig Kondrajian, who was then 11 years old, died suddenly in tragic circumstances after an accident at St John the Baptist Primary School, the school which he attended. Hovig’s death led to the institution of three actions against the appellants, who owned and operated the school.

5 The plaintiffs in the three actions were Hovig’s mother (who is the present respondent), his father and his brother. Each claimed damages for psychiatric injury (sometimes known as “nervous shock”) arising out of Hovig’s death. Delaney DCJ upheld the claims and ordered the appellants to pay each of the plaintiffs damages assessed by him.

6 The appellants have appealed only against the judgment granted in favour of the present respondent. The respondent has cross appealed in regard to an aspect of the assessment of the damages she sustained.

The fatal accident

7 Hovig died while playing a modified form of mini-hockey (known as “minkey”). Minkey, itself, is a modified form of hockey and is a game designed to cater for the needs of young children. The modifications to the game that Hovig was playing when he was fatally injured were intended to simplify the game even further. Their object was to accommodate the participation of three eight year old grade three pupils in the game that was being played by Hovig’s grade six class. For the sake of convenience I shall refer to the game that was so being played as “minkey”, even though – as I have explained - it was a modified version.

8 One of the three eight year olds who were playing the game was a boy named Ben. As Hovig was running past Ben, Ben unexpectedly and contrary to the safety instructions given by the class teacher, Mr Hughes, swung his hockey stick in such a way that in the follow through he raised it over his shoulder. The crook of the stick struck Hovig in the throat. The combined effect of the blow and Hovig’s own momentum caused him to be fatally injured and he died within minutes.

9 The respondent was called to the hospital and saw her son’s body in circumstances that were shocking. She suffered psychiatric trauma which has endured.

The sole issue as to liability

10 A feature of the dispute between the appellants and the respondent is that they were agreed both at trial and on appeal that the sole issue between them, as regards liability, was whether the appellants and Mr Hughes had breached the duty of care they owed Hovig. This requires some explanation.

11 The parties accepted, in effect, that the appellants were vicariously liable for any breach of the duty of care owed by Mr Hughes.

12 The parties accepted, further, that the appellants and Mr Hughes owed Hovig a duty of care to take such measures as in all the circumstances were reasonable to prevent physical injury to him.

13 The parties also accepted that should the respondent establish that the appellants or Mr Hughes had breached the duty they so owed Hovig, the respondent would be entitled to recover from the appellants the damages she sustained in consequence of the psychiatric injury she suffered as a result of Hovig’s death.

14 Accordingly, the case was conducted on the basis that the content of the duty owed to Hovig was, for all practical purposes, the same as that owed by the appellants and Mr Hughes to the respondent.

15 Further, the appellants did not dispute that, should the respondent establish a breach of that duty, she fell within the category of persons entitled to recover damages for psychiatric injury. In other words, the appellants accepted that, subject to proof of breach of the admitted duty of care, the respondent satisfied all the criteria necessary to be able to recover damages for psychiatric injury. The court was invited to approach the case in the same way and I shall do so.

The findings of the trial judge and the respondent’s support for them

16 Delaney DCJ found that the appellants and Mr Hughes had breached their duty of care to Hovig by:

(a) allowing the three eight year olds in grade three to play minkey with the eleven year olds in grade six.

(b) allowing the eight year olds to play minkey when they had had insufficient instruction in regard to safety matters and insufficient skills in the game.

(c) allowing Ben to stand close to the place where those in the batting team would run from base to base.

17 His Honour accepted the submission made on the respondent’s behalf that “it is well known that young children tend to be playful and lack developed attention and concentration skills and that there was a different level of such skill between eight year olds and eleven year olds.” The learned judge proceeded, “I consider that this was a fact that should have been foreseen by the [appellants]. In addition, it was foreseeable that Ben would use the hockey stick given to him in a manner which was not safe because of his age and secondly because of the lack of drill that someone in his position had been [sic – should have been] given.”

18 Delaney DCJ emphasised this reasoning by observing that the attention span of eight year olds was brief and they “were wont to ignore instructions and needed some discipline”. Accordingly, they should not have been placed in the same class as the eleven year olds.

19 Delaney DCJ concluded that the appellant should have placed the grade three students in other classes, or placed them in classes where sport was not to be played. Of course, had such steps been taken, the accident would not have occurred.

20 Mr Kearns SC, senior counsel for the respondent, supported the first two findings. He did not, however, press the proposition that Mr Hughes should not have allowed Ben to stand close to the place where those in the batting team would run from base to base. This finding did not form part of the pleaded particulars of negligence. The finding of breach of duty on this basis depended substantially on whether it was unsafe to allow eight year olds (such as Ben) to play minkey at all, and whether it was unsafe to allow Ben to participate (on the basis that the safety instructions he had been given were inadequate and his skills in the game were insufficient). In this sense, the argument that Ben should not have been allowed to stand so close to the line between the bases was a particular of the other breaches of duty found. Thus, had Ben been properly trained and old enough to participate in the game, it would not have been unsafe for him to stand where he did. According to the respondent, he was not properly trained, and not old enough, and, therefore, to allow him to stand close to the line between the bases amounted to a breach of the duty of care. As I understood Mr Kearns’ submissions, he dealt with the issue in this way and I shall do the same.

21 Mr Kearns submitted that the negligence of Mr Hughes in allowing Ben to play the game was exacerbated by the fact that on 25 May 1998, before the accident occurred, three eleven year old boys, who had in fact received more training than Ben, had wielded their sticks in a dangerous way. This, he argued, should have been a warning to Mr Hughes that the children, and particularly the eight year olds, were not yet ready to play minkey.

22 Save in regard to the proposition that Ben should not have been allowed to stand close to where the batter would run, it was not submitted that Mr Hughes did not supervise the game properly, and on the evidence such a submission could have had no substance.

The training in minkey given to the grade six class prior to 25 May 1998

23 At St John the Baptist Primary School, minkey was part of the class sports programme for grade six children, of whom Hovig was one. Mr Hughes was the physical education teacher for that class and he was responsible for training the children in minkey.

24 In May 1998, Mr Hughes was thirty nine years old. He had been teaching for some sixteen years and had considerable experience as a physical education teacher. He was described by Delaney DCJ as “an honest, straightforward, caring and considerate man”.

25 Mr Hughes commenced the minkey programme on the Monday of the first week of the second term. The set programme for the term involved teaching the children basic stick control, pushing, striking, trapping and stopping the ball, and how players should be positioned. The children were also to be taught the basic rules of the game and they were to play the game itself.

26 On that Monday, Mr Hughes spent the first five minutes of the lesson explaining the basics of the game. He then spent about two minutes telling the children about safety aspects. During this period of some seven minutes, he told the children that the game was a non-contact sport, he explained how to hold a hockey stick in a firm but not “too hard” a manner, he told the children not to let go of the stick at any time and taught them the correct grip, he told them not to lift the stick above waist height and informed them that should they do so they would be first warned (that is, reprimanded) and, eventually, “sin-binned”. He explained that lifting the stick above waist height could be physically dangerous to others, and that they should not swing the stick around carelessly, even below waist height.

27 Thereafter, on that first Monday morning, the grade six children participated in three different kinds of activities. Mr Hughes stood in a central position and watched them. They formed pairs and, using their hockey sticks, they passed tennis balls to each other. In this way Mr Hughes monitored the lifting of their sticks and ensured that they were pushing the ball and not striking it. Then the children formed grids of five in which they pushed a ball to one another. Finally, the children in one grid pushed the ball to each other while the others were required to push a ball around the grid on its outside. Each child had a turn in each of these activities. While this was happening, Mr Hughes reinforced the instructions he had given during the initial seven minute period.

28 On the Monday of the second week, Mr Hughes repeated the five to seven minutes of basic instructions and the grade six children repeated the activities they had performed in the first week.

29 For various reasons, in the third and fourth weeks of the term no minkey lessons of any kind were given.

The inclusion of grade three pupils and the training given on 25 May 1998

30 Early on Monday, 25 May 1998, the commencement of the fifth week of the term, the principal of the school was informed that four teachers had reported sick and were unavailable to attend school. The school had seventeen teachers on the relief list but could only obtain two replacement teachers. In consequence, there were no teachers for the grade three class. The principal and one other teacher then divided up the grade three children and sent them to other classes for the day.

31 Three grade three pupils were sent to the grade six class to be taught by Mr Hughes. Two children in Mr Hughes’ class were absent that day, and, with the additional three, he ended up with 33 children in the class. According to the principal, the approved limit to a class was 35 and the assigning of the two extra children to the class was within the school protocols. Ben was one of the grade three pupils allocated to Mr Hughes’ grade six class for the day.

32 The minkey class was the first class of the morning. Mr Hughes said that, because of the two weeks interruption when no minkey classes had been held, he “basically went back to lesson one”. The two weeks break was too much of an interruption for the children to progress in the usual way.

33 On that day he therefore decided to “redo” the first two lessons. Before he knew that the grade three children were to be allocated to his class, he instructed the grade six children to do warm-up exercises and then repeated the seven minute talk he had given them in the first two lessons on safety precautions and the rules and techniques of the game.

34 At about the time that he completed his talk, the three grade three pupils, including Ben, arrived. Mr Hughes decided to include them in the morning lesson “because it was a stage two lesson which accompanied their level anyway”. In other words, according to accepted practice, grade three eight year old children were regarded as competent to play minkey and to perform the activities that Mr Hughes intended the group to perform that morning.

35 Mr Hughes had taught minkey (and the modified version to which I have referred) many times over the years. It was not suggested that there was anything out of the ordinary about the game. He testified that minkey was suitable for eight year olds and there was no evidence to the contrary. Indeed, the evidence of the respondent’s own expert was that the game was not regarded as unsafe, even for eight year olds. Moreover, there was nothing in the relevant literature to the effect that the game was not safe for children of that age. At the trial, the respondent accepted that the game was suitable for eight year olds. On appeal, the respondent adopted the same attitude.

36 After the grade three children had joined the class, Mr Hughes gave the entire group the same safety instructions that he had previously given to the grade six students. He emphasised that they were never to lift the hockey stick above waist height and were not to swing the stick around carelessly, even below waist height. His evidence was to the effect that the eight year olds listened carefully and attentively to his instructions.

37 At some point during the lesson, three grade six boys lifted their sticks above waist height. Mr Hughes said that this was an instance of bravado and the boys concerned were indulging in horseplay. He reprimanded them severely. This was not the first time grade six children had disobeyed Mr Hughes’ instructions concerning lifting the stick above waist height. During the first two lessons (in the first and second weeks of term) there were occasions when Mr Hughes was required to reprimand pupils for not using sticks safely.

38 After Mr Hughes had completed his talk, the children, including the grade three children, participated in the grid activities that the children had performed in the first two lessons of the term. They pushed a ball around the outside of grids while the children inside the grids pushed a ball to each other. Again, during this period, Mr Hughes reinforced the safety instructions he had earlier given.

The modified game of minkey

39 When these activities were completed Mr Hughes formed the children into two teams, one of eighteen and one of seventeen. He sat them down and explained to them the game that they were going to play. In doing this, he again emphasised the safety rules. Thereafter, the children commenced playing the game.

40 The game was played on a softball diamond with four bases in a diamond shape, fourteen steps apart. At the home base, where the batter stood, the batting team sat and Mr Hughes stood beside them. The fielding team were spread out with about half inside and half outside the diamond. There were seventeen in the batting team and eighteen in the fielding team.

41 Mr Hughes had chosen what he described as an “old really squashy kind of soft ball” that would be safer for the children to use. The theory of the game was that the batter would push the ball into the diamond or beyond. The fielders would then stop the ball. The fielders were not allowed to move but would push the ball to one of the other fielders in their team. The fielding side had to push the ball three times until it was pushed to the home base where Mr Hughes was standing. While this was occurring the batter would be running around the diamond without a hockey stick. If the ball was pushed to the home base before the batter completed his circuit around the diamond, the batter was out. If the batter first completed the circuit, a run was scored.

42 The children were not allowed to stand in the running lines or lanes between the bases. If they moved near the running lines, Mr Hughes would make them sit down and move them to other areas. This was to ensure that the batters would not be impeded when running between bases.

The events leading to the fatal blow

43 Playing the game was something new for the children, as they had not previously played an actual game of minkey, modified or otherwise. During the first two lessons they had only performed activities using the grid system. Mr Hughes, however, asserted that the game was not a progression from what had been taught in the first two lessons but rather a repetition of the pushing skills and running with the ball at the stick that the children had previously learned. I do not accept this. Playing the game was a more complex and demanding activity than those previously undertaken.

44 Ben was part of the fielding team. He was standing about two metres from second base and further from the line between second and third base from where Mr Hughes was standing. Mr Hughes said that he had ensured that the fielders were standing further back from the line between the bases where the batter ran. He said that, accordingly, Ben was positioned a couple of metres outside the imaginary line between the second and third bases.

45 The time came for Hovig to bat. He pushed the ball into the field and he started running very quickly around the bases as a fielder, between first and second base, was trying to trap the ball and push it to another fielder.

46 As Hovig came round second base, he deviated from the line between the bases and ran closer to where Ben was standing. As he passed Ben, Mr Hughes heard him say words to the effect that the stick had hit him in the neck. In fact, the crook of Ben’s stick had struck Hovig on the neck. Hovig then collapsed and died.

47 There was nothing that obscured or prevented Mr Hughes’ view of the children in the fielding team and there was nothing that obscured or prevented his vision of Hovig as he ran around the bases. Ben was within his field of vision at the time the incident occurred.

48 A number of the children who witnessed the incident made statements that were tendered in evidence. None was cross-examined. It was accepted by the parties that it was in the best interests of the children that they not give oral evidence.

49 It seems from the statements of the children that, as Ben was swinging his stick, he had turned away from Hovig and was not looking at him. Rather, he was looking towards the point of the diamond where the next batter would stand, that is, in a different direction to where Hovig was running.

50 When Ben swung his stick, it passed across his chest and the crook protruded behind him. Hovig was out of Ben’s field of vision at the time and Ben could not see Hovig coming. Hovig in turn could not see Ben swing the stick. The crook of the stick would only have become visible to Hovig once it passed above Ben’s shoulder. Hovig had no opportunity of avoiding the stick.

51 Ben asserted in his statement that he swung the bat to hit a ball. Another child gave evidence to the same effect and said that Mr Hughes had given Ben a ball to hit. This was not mentioned by the other children and was denied by Mr Hughes when he was cross-examined. There was no factual finding by Delaney DCJ as to this issue, but he found Mr Hughes to be an honest witness. It was not argued on appeal that the matter should be dealt with on the basis that Mr Hughes had given Ben a ball to practise with while the others were playing the game. In the light of the onus on the respondent and the way the case proceeded, Mr Hughes’ denial must be accepted.

52 Ben was not paying attention to the game as it was proceeding. In the words of one of the children who witnessed the accident, “he was at the back of the diamond just doing his own thing. He lifted up his stick, not knowing that Hovig was running where he was holding up the stick and as he lifted it up Hovig ran into it, because he wasn’t able to stop because he was going full speed”.

The content of the duty of care and the legal principles generally applicable

53 The relationship between school and pupil gave rise to a duty of care on the part of the appellants and Mr Hughes. That duty is well-recognised; it was to take reasonable care to prevent Hovig from being injured: The Commonwealth v Introvigne (1982) 150 CLR 258 at 269; State of Victoria v Bryar (1970) 44 ALJR 174 Geyer v Downs (1977) 138 CLR 91; Richards v State of Victoria [1969] VR 136; Lepore vState of New South Wales [2001] NSWCA 112.

54 In many cases it has been emphasised that the duty is only to take reasonable care for the safety of the pupils concerned. A school is not absolutely liable for injuries sustained by pupils while they are under the supervision of their teachers. A school is not the insurer of its pupils.

55 Children, and particularly young children, need protection from their environment, from others and from themselves. Generally, reasonable steps should be taken to guard against foreseeable conduct on the part of children that may result in harm to themselves or others. Some children tend to be mischievous. They may do mischievous things deliberately, and may also be unable to comprehend fully the consequences of what they do: cf Edgecock v Minister for Child Welfare (1971) 1 NSWLR 751 at 758; Williams v Eady (1893) 10 TLR 41 at 42. Children of a particularly young age may also be prone to unpredictability of behaviour: Miller v South Australia (1981) 24 SASR 416. These tendencies are likely to manifest themselves when high-spirited children participate in games, and are factors that a supervising teacher must take into account.

56 Nevertheless, although student participation in games may result in breaches of discipline and irresponsible behaviour, our society recognises that that is no reason, of itself, not to encourage and teach young children to engage in such activities.

57 In considering the question of foreseeability that arises in this case, the following remarks of Winneke CJ at 145, in Richards v The State of Victoria (where the plaintiff schoolboy suffered brain damage as a result of a fist fight in a classroom) are apposite:

“It is tempting to regard the very grave injury sustained by the plaintiff as radically different from any type of minor injury which might reasonably have been anticipated and conclude that it would not be open to a jury reasonably to find that they were of the same class or kind as any injury which was reasonably foreseeable. We think, however, that such a conclusion cannot be reconciled with the principles enunciated in the authorities”.

58 High authorities that support this view are Chapman v Hearse (1961) 106 CLR 112 at 121 and Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 to 48. Applying this approach, it was foreseeable that, in the game of minkey, some child might lift his or her stick above shoulder height and thereby cause serious injury or even death.

59 But, as Mason J observed in Wyong Shire Council v Shirt at 48:

“[T]he existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

60 Risks of serious injury while playing games of the kind to which I have referred, while real and not far-fetched, are remote. They can be reduced further by training and supervision, and catering for the needs of the individual child. Because the risks are unlikely to materialise when the games are properly controlled, merely to allow children to participate in them will not, in the absence of special circumstances, be regarded as negligent: see for example Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272.

61 Thus, where an injury is caused by an unfortunate concurrence of circumstances that reasonable precautions could not have prevented, no breach of duty will have occurred. See, for example, Kady v The Trustees of the Roman Catholic Church unreported, NSWCCA, 19 February 1997, where a boy fell and broke his arm while taking part in a high jump event; Nobrega v The Trustees of the Roman Catholic Church unreported, NSWCCA, 23 March 1999, where a student was injured while taking part in or using a water slide; Cooke v Kent County Council (1949) 82 Lloyds L R 823, where a boy fell and broke his arm while playing a supervised game of “jockeys and horses”; Wright v Cheshire County Council (1952) 2 All ER 789, where a boy fell and was injured while performing gymnastics; Kretschmar v The State of Queensland, where a child sustained brain injury while playing a game of “rob the nest”.

62 It follows that the mere fact that a serious injury or even death may occur while children are playing a game at school will not automatically result in a finding of breach of the duty of care. Moreover, as I have noted, the fact that such a devastating result was foreseeable will also not necessarily mean that liability is established. It remains for the plaintiff to show that the school or teacher involved did not take such reasonable precautions for the safety of the child as would have prevented harm.

63 The following words of the High Court in Derrick v Cheung [2001] HCA 48 are salutary:

“Few occurrences in human affairs, in retrospect, can be seen to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care”.

64 The need to bear this admonition in mind is particularly important where the consequences of an accident involving a young child are as appalling as they were in this case. As Thomas J observed in Kretschmar v The State of Queensland at 68, 892:

“When such devastating consequences follow, there is a natural tendency to search for someone or something to blame.”

The task of the court is to apply the requisite standards of objectivity and impartiality to the issue before it.

65 Plainly, factors such as the benefits of the game, the magnitude of the risk involved, its degree of probability, the degree of possibility of inadvertence or negligent conduct on the part of participating children, the training given to the children and their level of skill, are important in determining whether reasonable steps were taken to prevent injury occurring.

66 The question of what amounts to reasonable care in a given case must be seen in the context that it is neither practicable nor desirable to maintain a system of education that seeks to exclude every risk of injury. Otherwise, as Morris LJ said in Wright v Cheshire County Council (1952) 2 All ER 789 at 796 “only inactivity and inanition could be planned”. And as McNair J observed in Jeffrey v London County Council (1954) 52 LGR 521 at 523:

“[S]chool authorities…must strike some balance between the meticulous supervision of children every moment of the time when they are under their care, and the very desirable object of encouraging the sturdy independence of children as they grow up…”.

67 Finally, in assessing whether the taking of or the omission to take particular steps is to be regarded as reasonable or otherwise, the court must bear in mind that as Gleeson CJ said in Rosenberg v Percival [2001] HCA 18:

“In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated”.

Was Mr Hughes (and, hence, the appellants) negligent?

68 I turn firstly to the question whether Mr Hughes was negligent in allowing the three eight year olds in grade three to play minkey with the eleven year olds in grade six.

69 Every sport or physical activity carries with it a foreseeable risk of injury. Yet our society accepts that it is desirable for children to acquire skills in sport and physical activities. Games and activities such as gymnastics, rugby, soccer, cricket and hockey are ordinarily part of school curricula. This is so despite the fact that it is foreseeable that participation in these games, even when carefully organised and supervised, can lead to serious injury and, in extraordinary cases, even death.

70 It is hardly necessary to spell out the benefits of participating in sporting activities. Children thereby acquire physical fitness, develop physical co-ordination, and participate in team games. These are all deep-rooted aspects of community life in this country and it is important for children to be taught the skills to be able to participate in them.

71 There are undoubted dangers inherent in minkey. These dangers stem largely from the fact that each player plays the game with a hockey stick, a piece of equipment that is capable of causing serious injury. But, as is manifest from Mr Hughes’ evidence, minkey is part of the curriculum in many primary schools and this is testimony to its acceptance by the community as being beneficial for young children.

72 It is highly significant, in the context of this case, that, as I have mentioned, it was not in dispute that minkey was suitable for children as young as eight years of age. In further elaboration of this crucial fact, Mr Hughes testified that the activities in which Hovig and Ben were participating were “stage two activities,” and stage two activities “catered for eight and nine year olds”. He said that the skill level being used that day “was a basic skill that is taught even in stage one”. He said further that he deliberately modified the game to cater for the differences in age between the children. None of this evidence was contradicted.

73 Once it is accepted that the game was suitable for eight year olds (as, on the evidence, it must be), it cannot be said, in my view, that there was any lack of care merely in allowing the eight year olds in grade three to play the game with the older children in grade six. Once the game is suitable for eight year olds, the fact that eight year olds are permitted to play it with eleven year olds does not introduce an additional risk factor into the equation. That is to say, the mere fact that the age groups were mixed did not make the game more dangerous to any of the participants.

74 Underlying the finding by Delaney DCJ that allowing the grade threes to play with the grade sixes was negligent, was his view that the attention span of the eight year olds in grade three was limited and Ben could readily use the hockey stick in an unsafe way. Mr Hughes disputed the assertion that eight year olds were less disciplined than eleven year olds, but in my view that is not to the point. One cannot escape the conclusion that, once it was appropriate for eight year olds to play the game with each other, there was no reason why it was not appropriate for eight year olds to play the game with eleven year olds.

75 In my opinion, it follows that Mr Hughes did not breach his duty of care merely by allowing Ben and the other eight year old children in grade three to play minkey with the eleven year old children in grade six.

76 I turn next to the finding that Mr Hughes breached his duty of care by allowing the eight year olds to play minkey when they had had insufficient instruction in regard to safety matters and insufficient skills in the game.

77 Mr Kearns strongly urged that this finding be upheld. He made two important points in this regard.

78 Firstly, he drew attention to the fact that the grade six children had had instructions in safety on two previous occasions, during which they participated in the grid activities, while the eight year olds were only taught the safety rules when they were first exposed to the game on the morning of 25 May 1998.

79 Secondly, he drew attention to certain evidence given by Mr Hughes when he was cross-examined as to why he had chosen not to allow the children to play the game with a hockey ball. As I have mentioned, he had found a particularly soft ball for them to play with. Mr Hughes said that, on 25 May 1998, he had decided not to let the children play with a hard hockey ball as some of them were still trying to hit the ball too hard. He agreed that they were swinging their sticks with too much power and, potentially, with dangerous effect. Mr Kearns submitted that this testimony showed that the eight year olds had insufficient training to be allowed to play minkey. As he put it, once eleven year olds, with their additional training, were still lifting their sticks to unacceptable heights, there was a strong risk that the eight year olds would do the same.

80 As regards the first point made by Mr Kearns, I am not persuaded that the fact that the eight year old children did not participate in the first two minkey lessons during the first two Mondays of the term made any appreciable difference to their ability to play the game safely. Mr Hughes focused, explicitly, on safety instructions for only some two minutes during each of those lessons (although it is true that he reinforced those instructions during the grid sessions that followed them). The brief instructions in question were given three and four weeks before the day on which the accident occurred. In my view they were not likely to have left a lasting impression on the children to whom they were given.

81 Importantly, shortly before the accident occurred, Mr Hughes gave the eight year old children detailed instructions in regard to the safety measures they were to apply when using their hockey sticks. As I have stated, not only did he tell the children clearly what they should and should not do, he also emphasised the safety techniques by a physical demonstration.

82 The safety measures in question were not complicated or sophisticated. They principally amounted to instructions not to lift the stick above waist height. The dangers of disobeying this instruction would have been obvious, even to eight year olds.

83 The effect of Mr Hughes’ testimony was that he gave the customary instructions to the grade three children on the morning of 25 May 1998 and it was generally accepted practice for eight year old children, having received that training, to proceed to play minkey. He said that the skills required for minkey were regarded as being at a “basic level”. His evidence was to the effect that it was generally accepted that those skills would be acquired by eight year olds after they had participated in a training session of the kind that was given to Ben and the other grade threes that morning (that is, before they had commenced playing the game). There was no evidence to the contrary.

84 Further, in my opinion, the fact that, shortly prior to the playing of the game, three boys in grade six lifted their sticks above waist height, did not mean that the children were not ready to play the game. The boys concerned were deliberately disrupting the group. They were “mucking around”. According to Mr Hughes, they lifted their sticks out of boisterousness, at a time when the actual game was not being played. This incident did not demonstrate a lack of training or a lack of understanding of the safety needs. Rather it was an instance of high spirits and bravado that would not have been particularly unusual or unexpected. In my view, to regard the lifting of the sticks by the older boys that morning as an indication that Ben (who was not part of the group) might do the same while the game was being played, would be to indulge in the kind of exercise in hindsight judgment, without due regard to the context, which Gleeson CJ warned against in Rosenberg v Percival [2001] HCA 18.

85 For the same reasons, I do not regard the fact that because - during the earlier two lessons in the first and second weeks of term - some children had raised their sticks to an impermissible level, Mr Hughes should have refused to allow the eight year old children to participate in the game.

86 Additionally, I think I can take notice of the fact (it being common knowledge) that in every level of hockey, from schoolchildren to international players, there would be very few games where there would not be some instances of dangerous play caused by lifting of sticks. Is it worth saying that sometimes this will involve breaches of the rules of the particular game. This is simply one of the inherent risks of the game, like being struck by a bat or a ball or a wicket used in a cricket game, or being injured in a tackle in soccer, or a scrum or a lineout in rugby, or falling while participating in some form of gymnastics. Injuries that so arise may well result from participants in the game concerned not complying with the rules applicable. While it is possible for the risk of serious injury to materialise, it is rare for it to do so. As I have pointed out, despite the risks, the community regards it appropriate, under properly supervised conditions, for these games to be played by young children.

87 It is also necessary to have regard to the fact that the game the children were playing when Hovig was injured was different to and more complex than the activities they had previously undertaken. Against this, however, is the generally accepted practice of allowing eight year old children to play such a game after receiving training of the kind that had been provided on the morning of 25 May 1998.

88 It is, I think, important to focus on the precise circumstances in which Hovig was injured. Firstly, as Hovig ran, he deviated away from the direct line between the bases and ran close to Ben. Secondly, as he passed Ben, Ben stood in such a way that the movement of his stick was obscured from Hovig’s sight, so that Hovig could not see Ben swing his stick. Thirdly, Ben was not looking at Hovig and did not observe Hovig running, nor did he take note of the position Hovig was in when he swung his stick. Fourthly, Ben swung his stick, not at the ball that was being used for the game, but as a practice shot at a time entirely unrelated to the state of play, when there was absolutely no cause for him to do so. Fifthly, Ben swung his stick so that it was raised above his shoulder in the follow through. Sixthly, the crook of the stick came over Ben’s shoulder at the precise moment that Hovig was passing behind him, in such a way that it struck Hovig’s throat.

89 Had any one of the six actions I have mentioned not occurred in the precise manner and time in which it did occur, Hovig would not have been injured. They amounted to a sudden concurrence of actions, several being unexpected and spontaneous. This concatenation of circumstances led to a catastrophic and tragic result, which, although foreseeable in the sense of Wyong Shire Council v Shirt, must be regarded as unexpected and accidental. It constituted a materialisation of an extremely remote risk.

90 In my opinion, in the light of all the relevant factors, I do not consider Mr Hughes breached his duty of care by allowing Ben to play minkey when he had had insufficient instruction in regard to safety matters and insufficient skills in the game.

Appeal against the assessment of damages

91 In the light of the conclusion to which I have come it is not strictly necessary for me to deal with the appeal against the assessment of damages, but I shall very briefly express my views in that connection.

92 The appellants argued that the award of $100,000 for general damages was excessive. It is not necessary to detail the consequences that the loss of Hovig has had on the respondent. It is sufficient to say that they were profound. I consider that the award was within discretion.

93 The appellants challenged the awards in respect of past economic loss and future loss of earning capacity. There was evidence to support the findings in regard to the award for past economic loss. The submissions made on the appellants’ behalf in regard to future loss of earning capacity ignored the fact that the trial judge was entitled to make an appropriate allowance for the possibility that the respondent might not work after a period of five years from the date of trial (found to be the period during which she would not likely be able to be gainfully employed). When this contingency is taken into account, the award for future loss of earning capacity is within discretion. I would not uphold the appellants’ arguments on these issues.

94 The respondent cross-appealed, contending that Delaney DCJ had erroneously omitted to award her $4,412.50 in respect of past loss of superannuation benefits and $18,000 in respect of her loss of future superannuation benefits. But for the conclusion to which I have come in regard to liability, I would have upheld the cross-appeal.

Conclusion

95 I propose the following orders:

(a) The appeal is upheld;

(b) The cross-appeal is dismissed;

(c) The orders made by Delaney DCJ are set aside;

(d) Judgment is ordered in favour of the appellants.

(e) The respondent’s claim is dismissed;

(f) The respondent to pay the costs of the action between her and the appellants and the costs of the appeal;

(g) The respondent is entitled to a certificate under the Suitors Fund, if qualified.
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