Truffet v State of Queensland

[1998] QCA 160

IN THE COURT OF APPEAL	[1998] QCA 160
SUPREME COURT OF QUEENSLAND

Appeal No. 5862 of 1997

Brisbane

[Truffet v Qld]

BETWEEN:

BARBARA ELIZABETH TRUFFET

(Plaintiff) Appellant

AND:

STATE OF QUEENSLAND

(Defendant) Respondent

Pincus JA Davies JA Byrne J

Judgment delivered 19 June 1998

Joint reasons for judgment of Davies JA and Byrne J; separate reasons of Pincus JA, concurring as to the orders made.

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS:	NEGLIGENCE - duty of care - personal injuries - whether the respondent took reasonable care to avoid exposing its employee to unnecessary risk of injury in the classroom.
Counsel:	Mr T.D. Martin S.C., with him Mr M.P. Kent for the appellant Mr N. Samios for the respondent
Solicitors:	Peter Wallace & Company for the appellant Mr. B.T. Dunphy, Crown Solicitor for the respondent
Hearing date:	20February1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5862 of 1997.

Brisbane

Before Pincus J.A. Davies J.A. Byrne J.

[Truffett v. Qld]

BETWEEN:

BARBARA ELIZABETH TRUFFET

(Plaintiff) Appellant

AND:

STATE OF QUEENSLAND

(Defendant) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 June 1998

I have read and agree with the joint reasons of Davies J.A. and Byrne J. Counsel for the

appellant argued that, there being a foreseeable risk of injury to the appellant in the circumstances

proved, the respondent was obliged to take some steps to avert it. The principal contention was that

the appellant should have been required to attend to the childrens’ problems within an ordinary

classroom rather than having them isolated into a separate area. It was contended the risk of injury

could, in this way, have been lessened. In a larger classroom, it was said, the difficult children could

have been further separated and there would have been at least one other teacher to assist to control

them.

The argument faces a number of difficulties. One is that the way in which educational problems

of this kind should be handled is not a matter in which the Court is likely to have any expertise; if the

trial judge were to be asked to find that the practice advocated before us should have been adopted,

one would have expected some expert evidence to be called in support of that contention, to say that

the methods in fact adopted were unorthodox or contrary to accepted educational principles.

Alternatively, it might have been contended below that the method now advocated was such an obvious

preventive measure that commonsense required its adoption. In the trial judge’s comprehensive

reasons, her Honour dealt with a number of ways of dealing with the children: excluding the children

completely from the educational system, providing the appellant with an aide to assist in controlling the

children, or withdrawing the appellant from teaching by herself. Her Honour rejected all of them. Of

the three, that which has most resemblance to the submission made before us is the suggestion that the

appellant should have been provided with an aide. As to that, the judge remarked:

"She had charge of two 6 year olds in one group and three Grade 3 boys in the other (putting aside the third group who cause no difficulty). There was no basis for the allocation of an aide but even so Mrs Eddy was present on the scissors occasion when the plaintiff dealt with Norman Petersen (sic) as she did."

The judge’s reasons did not, however, deal specifically with the question whether inclusion of the two

boys mentioned in a much larger class was required. It does not appear to me that the case below was

run on that basis; the particulars of breach of duty do not include any reference to it, nor is it mentioned

in the judge’s reasons.

Davies J.A. and Byrne J. explain the purpose and advantages of the arrangements of which

complaint is now made and I agree with their Honours’ observations. But apart from that, it does not

appear to me that this Court could properly, particularly in the absence of expert evidence to support
it, find against the respondent on a basis not litigated below.

A second difficulty in the path of the appellant is the question of credit. The trial judge did not

regard the appellant as a reliable historian and preferred the evidence of the headmaster Mr Engler and

that of Mrs Eddy, who taught with the appellant. I note that Mr Engler had no recollection of the

appellant having asked for an assistant or additional facilities to deal with the boys and that he was

unaware that Norman Peterson and Robbie Thurston fought "in the normal classroom situation". Mrs

Eddy said that neither Norman Peterson nor Robbie Thurston was ever violent towards her. These

matters are relevant to the judge’s observation that there was no need for an aide to be allocated.

An alternative suggestion made by counsel for the appellant was that, if not taught in a larger

classroom, boys thought to create a risk should have been taught individually, one at a time. Again, this

is not a matter raised by the pleading, nor, so far as one can tell from the judge’s reasons, argued below.

Apart from what has been said above, with respect to the principal basis of the argument on

appeal, I would add that I quite agree with the general conclusion reached by the primary judge that the

"arrangements made for the plaintiff’s work did not fall below acceptable standards for her safety".

I agree with the orders proposed by Davies J.A. and Byrne J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5862 of 1997

Brisbane

Before Pincus JA Davies JA Byrne J

[Truffet v Qld]

BETWEEN:

BARBARA ELIZABETH TRUFFET

(Plaintiff) Appellant

AND:

STATE OF QUEENSLAND

(Defendant) Respondent

JOINT REASONS FOR JUDGMENT - DAVIES JA & BYRNE J

Judgment delivered 19 June 1998

This appeal is brought against the dismissal of the appellant's action claiming damages for

personal injuries said to have been sustained as a consequence of a breach by the respondent of the

duty of care owed to the appellant as its employee.

In 1984 the appellant was employed by the respondent as a special needs teacher at the St

George Primary School. On 16 July that year one of her pupils kicked her in the abdomen as she was

separating him from fighting another boy. Not long afterwards, the naughty boy threatened to attack the

appellant with a pair of scissors. Trying to disarm him, she suffered an injury to her neck and back.

Another incident occurred in December 1984 when she injured her upper arm while intervening in a fight

between grade 3 boys.

The appellant was born in England in 1942. After obtaining her qualifications as a teacher in

Great Britain, she began her career there by teaching secondary school children with learning difficulties.

Soon after her marriage in 1965, she travelled with her husband to Germany where she taught in military

schools. When she returned to England, she taught primary school children. Later she became a house

parent to anti-social children. In 1981, the year she came to Australia, the appellant applied to the

Queensland Department of Education for employment in special education, nominating remedial teaching

as her area of specialisation in her training course and as her preference. In her application form, she

wrote of her success in improving the “schooling and behaviour” of nine maladjusted children with

learning difficulties who were eventually able to be fostered within a normal family. Her application

indicated that she was a person experienced and successful in dealing with seriously maladjusted

children.

The appellant was given a trial at a Toowoomba special school where she worked satisfactorily

for about six weeks. Before taking up her appointment at St George, she went to the school to discuss

her duties with the headmaster, Mr Engler. She was to teach a special needs class to be established on

her arrival. The pupils were to be those in the lowest grades who were exhibiting inappropriate

behaviour and had learning difficulties. A primary object of this initiative was the modification of the

behaviour of the chosen children so that in time they would fit within the school's programs in the upper

years of their education. The children were to spend time with the appellant in a building that was

separated from other primary school buildings. In mid-1984, shortly after the appellant commenced her

work at St George, Mrs White-Davidson, a remedial support teaching adviser with the Department of

Education who assisted special learning support teachers with professional development and teaching problems, met with her to discuss the principal behavioural management strategies pertinent to the

appellant's responsibilities.

With the assistance of an Education Department regional office and staff at the school, the

children who were to participate in the program were identified before the appellant's arrival. The

regional office had recommended that the children be withdrawn from their regular classes at certain

times of the day and taken to a room to be taught by the appellant in small groups. The selected children

fell into three groups: Norman Peterson, Robbie Thurston and a third boy, all from grade 1; three or

four children from grade 2; and Jamie Delaware, Wesley Wilson and Jonathan Wright from grade 3.

Jamie Delaware was older than the other two grade 3 boys, who were about 7 or 8. Norman Peterson

and Robbie Thurston were both 6 years old.

The separate room the appellant was to use was not ready when she arrived at the school. So

she spent about six weeks working in existing classrooms or in a small room within the primary school

complex. There she came to know of her special pupils, some of whom frequently misbehaved.

In 1984 Mrs Eddy taught a composite grade 1 class with Mrs Poplawski. Their class of about

42 children included Norman Peterson and Robbie Thurston. Mrs Eddy described Norman as “rather

naughty at times, disruptive to the class” and as a boy who “sometimes used to ... push Robbie

around”. Mrs Eddy spoke of Robbie as “an angry little boy at times”, usually when he had not eaten

breakfast before coming to school. Typically, the boy settled down after a teacher arranged breakfast

for him at the school tuckshop. Animosity existed between these two boys. Mrs Eddy thought that they

fought each other in the classroom about twice a week. She or Mrs Poplawski used to separate them,

usually by holding Norman in a bear hug while the other teacher took charge of the class. Mrs Eddy

regarded Norman as a strong little boy, although he had never attacked her or tried to run away when she restrained him. Mr Engler described Norman Peterson's behaviour as “at times inappropriate”, in

that he would wander around the classroom, disrupt others and be cheeky. He did not regard the boy

as violent but thought that at times he was an aggressive, unruly and disobedient child. Mrs Eddy

described Jamie Delaware as having behavioural and learning problems. She had not seen Wesley

Wilson display bad behaviour. Neither of those two older boys was in her 1984 class.

There were, it seems, discussions between the appellant and the headmaster concerning the

animosity between Norman Peterson and Robbie Thurston. In one such conversation before 16 July

1984 she told Mr Engler that she had worked out a plan whereby she could work with those boys and

increase their tolerance for each other. Each boy was to be withdrawn separately for teaching. They

were then to spend some time together under the appellant's supervision. The appellant testified that

before 16 July her efforts had reached the stage where Norman and Robbie would tolerate each other

for about 20 minutes, playing quite happily. A fight between those boys on 16 July 1984 resulted in the

litigation.

Eight days after the 16 July incident, the appellant wrote a description of it which the judge

treated as largely reliable. The substance is this. The appellant went to the grade 1 classroom to find

Norman Peterson walking around the room. It was “show and tell” time, and Norman's turn. After a

while, Robbie Thurston arrived. The three of them then walked to the room set aside for the small group

teaching. Once Norman got inside, he began kicking Robbie. The appellant broke up the fight by

separating the boys. Norman, who was upset, “rampaged” around the room. Robbie went to sit at a

desk. Norman attacked again. When the appellant intervened, Norman became angrier, punching a tape

recorder with his fist before running out of the room and returning to the grade 1 classroom. About 10-

15 minutes later, he came back and started kicking Robbie, who ran across the room to hide. The appellant pulled Norman away. She held his wrists, one in each hand, as the boy faced her. Norman

swung up, supporting himself on the appellant's wrists, and kicked her hard in the stomach with his feet.

She dropped him to the floor in self-defence. Norman then ran out. Five minutes later, Mrs Eddy

brought him back. He stormed around the room, screaming. Robbie was taken away to a safe place.

Norman picked up a table and threw it at the appellant. He pulled pictures off the wall; he turned on

sink taps; then he found a pair of scissors. As the appellant approached Norman slowly and calmly, he

opened the blades of the scissors and motioned to stab her in the chest. She took his wrist. He pulled

away strongly, jerking the appellant's arm and straining her neck muscles. She felt a sudden pain in the

spine. Then she grabbed the boy's foot with her left arm and lifted him off the ground. In doing so, she

“pulled” the lower part of her spine. The other teacher then carried Norman away.

The appellant was away from her work for a few days in the latter part of July. For a while, she

experienced discomfort in the region of the abdomen. No abnormality was observed and, fortunately,

there were no physical consequences. However, another incident took place a few months later and

eventually the appellant suffered a nervous breakdown.

On 11 December 1984 the grade 3 boys assigned to the appellant were playing a word game

near a blackboard. Jamie Delaware and Wesley Wilson were antagonising each other. Thinking that

Jamie was going to punch Wesley, the appellant put out her hand to move Jamie away. His hand struck

on her left arm. Some swelling resulted. The appellant sought medical attention 11 days later when she

told Dr Bleier that the boy had “karate chopped” her arm. She did not return to see Dr Bleier, who had

suggested that she go to an orthopaedic specialist if the problem were not resolved within two weeks.

In commenting upon the likelihood of such events as actually happened on 16 July 1984, the

judge said:

“It would not be far-fetched or fanciful to suppose that a teacher going to the aid of another child might sustain some physical injury from an attacking child either deliberately or because he or she intervened in a fight. The children were selected for the (appellant) to teach because they had behavioural problems which, apart from other learning difficulties which they might have had, did not permit them to participate appropriately in the educational programmes of the school.”

However, holding that the arrangements made for the appellant did not fall below acceptable

standards for her safety, the judge dismissed the action. The appellant's contention is that the

respondent, in discharging its duty to take reasonable care to avoid exposing its employee to

unnecessary risk of injury,[1] ought not to have permitted the appellant to be on her own when Norman

[1]             As to the nature of an employer's duty of care at common law, see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307-309; McLean v Tedman (1984) 155 CLR 306, 311-313; and Kondis v State Transport Authority (1984) 154 CLR 672, 679-680, 693-694.

Peterson and Robbie Thurston were together. These two children should, it was said, have remained

in the grade 1 class where two adults would usually be present. Alternatively, it was suggested that, if

it were necessary that the appellant should teach those boys outside the classroom, she should have

taught them one at a time, not together. Implicit in the argument was the contention that such a

precaution would likely have prevented the adverse impact on the appellant's mental health which

resulted.

The reasonable employer, in deciding what response ought to have been made to such

reasonably foreseeable risks of harm as the judge identified, would have accorded prominence to

balancing “the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting

responsibilities”[2] which the respondent had.

[2]             Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48, per Mason J, applied in Miletic v Capital Territory Health Commission (1995) 69 ALJR 675, 677; cf Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208, at 235 per Kirby J, at 240 per Hayne J.

The experience of the headmaster and other teachers, including the appellant, suggested that

even minor physical injury to the appellant was unlikely. Her Honour concluded - and this view was not

challenged - that “although the risk of injury of some minor physical kind, such as bruising from a kick,

a twisted arm or wrist or even a bite from a young child, was foreseeable, it was unlikely to occur

against the past experience of the class teachers of these boys”. The prospect of serious interference

with the appellant's physical or mental health would have seemed slight indeed. The appellant was a tall,

strongly built woman. There was, her Honour said, nothing about the appellant which might have caused

concern as to her ability to control the children. On the judge's findings, the appellant had not expressed

reservations about her capacity to deal safely with the boys. Norman Peterson had not previously

exhibited violence towards a teacher, even when restrained from fighting Robbie Thurston. As has been

mentioned, after the appellant had been at the school for a short while, she told the headmaster she was

achieving some success with Norman and Robbie by teaching them together. And nothing remarkable

occurred on the day to alert Mr Engler, Mrs Eddy or the appellant that “anything untoward was likely

to occur which would put the (appellant) in a position of peril”, as the judge expressed it.

The small group arrangement served a purpose. The experts in the regional office expected that

anti-social tendencies which inhibited learning would be ameliorated in the appellant's supervising these

small groups away from the rest of the class. A desirable objective accounted for the decision to place

her, a remedial teacher used to coping with children with behavioural problems, with two six year old

boys, neither of whom had previously offered or threatened violence to a teacher.

In the circumstances, although “it has long been recognized that what is a reasonable standard

of care for an employee's safety is ‘not a low one’”,[3] the judge was not in error in concluding that the

[3]             Bankstown Foundry Pty Ltd at 308 per Mason, Wilson & Dawson JJ, citing O'Connor v Commissioner for Government Transport (1954) 100 CLR 225, 230.

appellant had not demonstrated that the respondent failed to take precautions that a reasonable

employer would have taken in the interests of her safety.

Little attention was given in argument before us or, it seems, at the trial to the December

incident when the appellant suffered the blow to her arm in another altercation with a child. The judge

made no distinct finding of any causal relationship between the blow - which caused no appreciable

physical injury - and the appellant's subsequent difficulties with her health. In any event, such evidence

as there was concerning this incident did not indicate that there was other than a remote chance that the

plaintiff might suffer more than mild inconvenience were she to intervene in a fight involving Jamie

Delaware or Wesley Wilson, neither of whom had any demonstrated propensity to physical conflict. A

breach of the employer's duty of care was not established in respect of this incident either, which makes it unnecessary to consider whether the incident was shown to be a cause of the appellant's mental

distress and depression.

The appeal should be dismissed with costs to be taxed.