Trustees of Roman Catholic Church v Hadba

[2004] HCATrans 518

[2004] HCATrans 518

IN THE HIGH COURT OF AUSTRALIA

Registry  No C2 of 2004

B e t w e e n -

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY’S PRIMARY SCHOOL)

Applicant

and

FARRAH HADBA BY HER NEXT FRIEND AND FATHER NOUHAD HADBA

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 DECEMBER 2004, AT 9.16 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court please, I appear with my learned friend, MR G.M. GREGG, for the applicant.  (instructed by Sparke Helmore)

MR F.J. PURNELL, SC:   May it please the Court, I appear with my learned friend, MR S.R. HAUSFELD, for the respondent.  (instructed by Stacks the law firm with Snedden, Hall & Gallop)

CALLINAN J:   Yes.  Mr Purnell, we thought we might be assisted by hearing you first.

MR PURNELL:   Your Honours, it is our submission that the grounds of appeal in relation to ground 2 do not accurately reflect the decision of the Court of Appeal.

CALLINAN J:   What page is that, Mr Purnell?

MR PURNELL:   It is 67 of the application book, ground 2.

CALLINAN J:   It is only one of the grounds.

MR PURNELL:   We put that forward for two reasons.  At the relevant time there was almost 300 primary school students in the play equipment area.  We have the observations of Justice Mason that were incorporated in President Crispin’s decision in paragraph 27 at page 41 of the application book, or in 26, first, where, in the second quote, his Honour said:

“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.”

Then the observation that:

“The immaturity and inexperience of pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety” –

What we have here is eight year‑olds on a flying fox, where they were relatively unfamiliar with the flying fox.  That comes from the finding of Justice Crispin at paragraph 38 at page 46 of the application book, where his Honour said:

Whilst the system adopted by the school might otherwise have been adequate, I have ultimately concluded that the use of the flying fox by eight year old pupils who were relatively unfamiliar with the apparatus required constant supervision ‑ ‑ ‑

HEYDON J:   It was not the lack of familiarity with the apparatus that was the problem.

MR PURNELL:   I am sorry, your Honour?

HEYDON J:   It was not an unfamiliarity with the apparatus which had any causal relationship with the injury.  It was an attack, in effect.

MR PURNELL:   In terms of the issue of causation, yes, your Honour.

CALLINAN J:   It could have been anything.  The child could have been dangling from anything and another child could have tried to take hold of that child.

MR PURNELL:   Yes, your Honour, but if a teacher had have been present, it is our submission – because it is a finding of Justice Crispin and it is a concession made by Mr Smith when he gave evidence – that the presence of the teacher would have stopped the mischievous play and thus the injury.

CALLINAN J:   How many teachers do you say should have been in the playground?

MR PURNELL:   One or two.  One without the responsibility of going on the other part of the bailiwick that this teacher was asked to go.  Once this teacher had responsibilities other than supervision of the playground area, it was incumbent upon her to go into an area where she could not supervise the playground area, so that gave 95 per cent of the students an opportunity to get up to mischief.  We say that is the fault that leads to the negligence in the system that was employed by the school.

CALLINAN J:   Justice Crispin seems to think, so far as paragraph 39 reveals, that a teacher should have been assigned to supervise the flying fox at all times.

MR PURNELL:   No, your Honour, the flying fox ‑ ‑ ‑

CALLINAN J:   Line 40:

constant supervision during the use of the flying fox ‑ ‑ ‑

MR PURNELL:   Yes, but in the context of the flying fox being part of the general equipment.  If you go back to paragraph 33 of Justice Crispin, he talks about the area being the subject of the criticism and he says:

It was also the area that contained the flying fox.  Whilst Mr Smith resisted the suggestion that the machine was inherently dangerous, the fact that a child using it dangled over the ground from a triangle moving from one side of the apparatus to the other obviously involved some additional measure of risk than that involved in equipment such as monkey bars which have no moving parts.  Mr Smith was obviously conscious that there was some measure of additional risk because he conceded that there had been accidents where children had fallen off and the school had instituted a rule that only children in Years 3 to 6 could use the equipment.  When asked what was the reason for that rule he explained – “Because of the height and the nature of the equipment I suppose in that you know we wanted to make sure that the children had been skilled up to a certain level before they were using that equipment”.  Furthermore, both Mr Thiele, who was the plaintiff’s teacher, and Mrs McNamara had taken their classes out to the flying fox and given specific instructions as to its safe use.

If you then go from there to the paragraphs that your Honour Justice Callinan took me to, 39 and 38.  If I go back to 38, he says:

Whilst the system adopted by the school might otherwise have been adequate, I have ultimately concluded that the use of the flying fox by eight year old pupils who were relatively unfamiliar with the apparatus required constant supervision and that teachers such as Mrs McNamara should have been stationed in the play area at all times when the apparatus was in use.  If that proved impracticable for the reasons that do not appear from the evidence, then the apparatus should have been padlocked to prevent its use when such supervision was not available.

HEYDON J:   So it either has to be an extra teacher, has it, or padlocking of the apparatus, because you cannot ‑ ‑ ‑

MR PURNELL:   Either an extra teacher or the teacher with her responsibilities in terms of leaving the playground area being assigned to another teacher.

HEYDON J:   An extra teacher somewhere else?

MR PURNELL:   Not necessarily, your Honour.  The system that was applied for the junior school was the system that we say could have been used for the senior school.  The same system.

HEYDON J:   Well, how does this same system cope with the problem of the children all playing in the area where the injury took place and a child being observed going into a classroom with a risk of injuring itself there?

MR PURNELL:   But that was not what Justice Crispin found happened.  She went on her walk to go to another area to observe whether there were children in that other area.  When she got there, she saw that that was the case and then made the other inquiries in relation to those children, but Justice Crispin found that she was going to do that because that was part of her duty in terms of her supervision.

HEYDON J:   If she were not to do it, someone else would have to do it.

MR PURNELL:   Yes.

HEYDON J:   Therefore another teacher was needed.

MR PURNELL:   We say the other teacher could have done that because, your Honour, we have 95 per cent of the students at recess time, at playtime, in the play equipment area.  The students are likely to play up, in our submission, in relation to play equipment and it is more foreseeable that an injury will occur, in relation to play equipment area, on a machine such as the flying fox.  In relation to causation, there is a matter, if I could take your Honours to – it is not in the application book – some of the cross‑examination of Mr Smith, which comes at page 73 of the transcript at line 35.  He was asked this:

Now if you as a teacher had come across a pattern of behaviour as occurred here where Farrah was on the flying fox and young Ryan and Alise had one leg each, if you had seen that you would have told the children to stop doing that?---Yes, yes.

And if you had seen one child hanging onto a leg of somebody on the flying fox, you would also stop that behaviour?---Yes.

Recognising of course that that behaviour is inherently dangerous on that piece of equipment?---Yes.

And the rules that you set down, with respect, seemed to be reasonable in terms of ensuring as best you could that the equipment was to be used properly that we’ve heard about?---Yes.

And certainly that sort of behaviour I think you accept is dangerous and should be stopped?---Yes.

At page 75 of the transcript at line 45:

And that a teacher would be able to stop that sort of behaviour before it became to grief?---If – if it was noticed.

Yes?---Yes.

And it would be your hope and expectation that a teacher in the area would have seen that behaviour and stopped it before it came to grief?---It would certainly be my hope but one of the things you have to take into consideration is the – the other children, you’re – you’re not supervising just one spot, that’s the problem.

Then it becomes a question of whether you need more supervisors or things like that?---Possibly.

But accepting that you had the right number of teachers ‑ ‑ ‑?---Yes.

‑ ‑ ‑ then you agree that if a teacher is down in the area of the doorway then there’s no way that he or she is ever going to be able to stop this sort of behaviour because it can’t be observed?---Correct.

We say it is recognised that if you had a teacher in the area, obviously, it is going to be an impediment to children being mischievous, but if they start to be mischievous, then the teacher should be able to see it and stop it and then this accident would not have happened.  So we say that the issue of causation was wrongly seen by the trial judge, who seemed to say that it was a breach of the school rules in terms of touching that caused the accident.

We say that if there had been a teacher there in the playground, that would have been an impediment to the mischievous behaviour, or, once the mischievous behaviour started, the teacher should have been able to stop it and prevent the accident.  The system did not require an extra teacher, simply a reassignment of duties in the same way as it operated for the junior school, that is, the Year 7s, we say, with the teacher having simply the playground as her or his area of constant area of supervision, and not the other areas, to take that teacher out of the position where they could see and observe potentially mischievous behaviour.

The second thing we say, your Honours, is that there was criticism in the appeal in relation to ground 3 in terms of hindsight.  In relation to that particular aspect, we say that both Chief Justice Higgins and Justice Crispin addressed that and said that there was no need for hindsight, that all that had to be done was to be the adoption of the system that applied for the junior school to the senior school.  That is made clear at application book 32 at line 26 in relation to Chief Justice Higgins and in relation to Justice Crispin, application book 39 at line 47.

CALLINAN J:   What do you say about Justice Spender’s observations at paragraph 47 on page 49?

MR PURNELL:   This, your Honour.  It goes back to the situation that we put forward before.  If you are standing in that area, it is not a large area, and if the teacher initially missed the misbehaviour, then with the little girl yelling out, “Stop, let go”, as Justice Crispin said, surely she would have heard that cry and then the accident would have stopped.  Alternatively, one would hope that as you are scanning visually the equipment that you would pick up the mischievous behaviour and stop the accident occurring.  So we submit that there is a different interpretation that can be put than that which Justice Spender put. 

In relation to the Fox v Percy issue, your Honours, we submit that clearly the Court of Appeal was entitled to draw its own inferences and come to its own conclusion, because there was no issue of credit and no disputed facts.  The categorisation, again, by the applicant in relation to this issue, we submit, with respect, is erroneous.

In relation to causation, it is our submission that Justice Crispin has correctly addressed that in paragraph 40, which is at page 46 of the application book, which answers in part that which your Honour Justice Callinan put to me about Justice Spender, where he says:

A plaintiff must also demonstrate that, having regard to the nature and duration of the conduct leading to the injury, a reasonable system of supervision would have been likely to prevent it –

Authorities are referred to and his Honour says:

However, in the present case, that issue may be readily resolved.  There was clearly no misconduct in relation to the use of the flying fox whilst Mrs McNamara was present and it seems unlikely that either of the children who grabbed the appellant’s legs would have done so had she remained.  Furthermore, even if both had been undeterred by her presence, she would have been in the position of seeing what was happening and to have responded to the appellant’s loud and repeated cries for them to let her go.  I have no doubt that the accident would not have occurred.

We submit, with respect, that that must be so and that it was a reasonable system simply to have one teacher who had to observe all of the play equipment, which included the flying fox.  If that had occurred, then this accident would not have happened. 

It must be negligent, in our submission, to require a teacher to go from an area where you have almost 300 young children using playground equipment, to take herself out of that area to a position where she cannot see or hear things that are going on in the playground.  It does not require, in our submission, for there to be any additional teachers, or, if it does, at most it only needs an additional one.  If that was the case and if that system had been involved, which is reasonable in terms of the fact that there were 20 teachers at the school, the accident would not have occurred.

CALLINAN J:   Was there any evidence about how long the flying fox had been in position?

MR PURNELL:   Yes, I think there was, your Honour.  Your Honour will recall that after this it was padlocked and taken away and monkey bars were replaced.  I think it had been in – it was either four or six years.

CALLINAN J:   Is there any evidence of any previous accident?

MR PURNELL:   Previous accidents?  Yes, there were tendered, your Honour, some accident reports and I think the full interrogatories had accidents in relation to the playground area.

CALLINAN J:   No, I meant the flying fox.

MR PURNELL:   Just pardon me, your Honour, I think I can pick that up.  I recall that Mr Smith could not recall one of the accidents in terms of an accident report.  There was exhibit L, which was this one, and exhibit C2, where a boy pushed a girl on the flying fox, she fell off and was screaming – I am sorry, exhibit M – and she had problems with her left hip – “okay when she was still, hurts when moving”, and that was in 1997.  I think there was evidence about the length of time that it had been there.

CALLINAN J:   I see page 1 of the application book contains some examination in‑chief of Mr Smith, line 7:

To my knowledge up to that time serious accidents, no, there had been accidents where children had fallen off.

But with what consequence?---Skinned knees, bruises, I have a recollection of – not on this actual piece of equipment but another piece . . . a child breaking a wrist during a vacation care after school.

Then he said at line 18:

But on this equipment no serious injuries you said?---No, not that I – not that I know of.

MR PURNELL:   Then in cross‑examination, at page 72 of the transcript, line 1, he was asked about this Alison, your Honour, and he accepted that there had been a number of accidents in relation to the flying fox that he did not know about.  He was given the one and read out that:

Alison complained of it hurting above her left hip, okay when she was still, hurts when moving.

CALLINAN J:   Your time is up, Mr Purnell.  Is there anything further you want to say?

MR PURNELL:   Yes, your Honour.  We say that it was open to the Court of Appeal, carrying out its duty under Fox v Percy, to come to the decision that it did.  All it did was draw different inferences from the trial judge that the system that was criticised could have been easily fixed with the same number of teachers with a realignment of duties, as we have submitted, with simply having constant supervision of the play equipment.  That would have been reasonable and inexpensive, and, had that been the case, in our submission, the accident would not have occurred.

CALLINAN J:   Yes, thank you.  We need not hear from you, Mr Jackson.  There will be a grant of special leave in this case. 

The Court will adjourn to reconstitute.

AT 9.38 AM THE MATTER WAS CONCLUDED