Trustees of the Roman Catholic Church for the Diocese of Canberra & Goulburn (As St Anthony's Primary School) v Hadba

[2005] HCATrans 318

[2005] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry   No C17 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)

Appellant

and

FARRAH HADBA BY HER NEXT FRIEND AND FATHER NOUHAD HADBA

Respondent

GLEESON CJ
McHUGH J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 18 MAY 2005, AT 10.20 AM

Copyright in the High Court of Australia

__________________

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

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR S.R. HAUSEFELD, for the respondent. (instructed by Stacks with Sneddon, Hall and Gallop)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, this appeal turns, it is submitted, on a short point which we have endeavoured to identify in paragraph 20 of our written submissions.  It is whether the majority in the Court of Appeal imposed too high a standard of care or too readily found a breach of duty.  Your Honours, may I deal – and I will endeavour to do so very briefly – with the central facts first then go to the way in which the issue narrowed in the primary judge’s findings and then the way in which the matter was dealt with by the majority in the Court of Appeal.

Your Honours, turning first to the central facts.  The injury to the respondent occurred at the appellant’s school at a morning recess when she was about to use the flying fox.  The flying fox your Honours will see in the book at pages 119 to 121 and your Honours will see at page 119 the nature of it.  There is a bar one holds onto and goes along it and you will see at page 120 the approximate length and also page 121, the height in broad terms above ground level.

When she was on the platform at one end, two other children in her class, one boy, one girl, grabbed her legs and held them.  She remonstrated with them and the girl, but not the boy, let go.  She fell, injuring her teeth and mouth.  It was, and of course is, accepted that the appellant was under a duty to take reasonable care for the safety of the children of the school, but the findings of the trial judge were very much in favour of the view that that had been done. 

Your Honours, first the injury was not caused by any defect in the flying fox itself but rather because the other children pulled her legs.  The findings in that regard may be seen first at page 140, paragraph 8.  Your Honours will see where the judge refers to the fact that there was nothing in the flying fox itself that was the cause of it, and in particular at page 141 in the last five lines of the paragraph:

The nature of this accident was a fall due to other children pulling on the plaintiff’s legs -

Your Honours will see also at page 146, paragraph 22, his Honour said:

The real cause of this accident . . . was the conduct of the other two students, contrary to the well understood school rules, in grabbing hold of the plaintiff and pulling her legs when she was standing preparing for a ride on the flying fox.

The reference there to the school rules gives rise to the second feature which I would seek to mention and it is this; that is the existence of hands off or no touching rules.  There was a finding by the primary judge that there existed and was regularly and appropriately enforced a strong hands‑off rule at the school.  Your Honours, may I give three references in the reasons in that regard.  The first is page 139, paragraph 1 and in the last five lines of that paragraph his Honour says:

the plaintiff was standing on the platform of the flying fox preparing to ride the apparatus when two other Year 3 students grabbed her by the legs.  This was contrary to the school rules.

That is elaborated upon at page 142, paragraph 11 where your Honours will see the reference to:

the “hands off rule”, which emphasised to the children that during playground play they were not to touch other students.  The plaintiff also gave evidence that she was aware of this rule, and that it was enforced.

Your Honours will see the remainder of the paragraph, which I will not read out. 

The third reference in this regard is paragraph 27 at page 148, where the judge found, in the first sentence:

that the school had in place an appropriate policy, which it appropriately enforced to prevent horseplay by way of the “hands off” policy.

Your Honours will see the reference in the next sentence to the fact that the children:

who grabbed the plaintiff by the legs were clearly in breach of this policy, but this action occurred in a very short period of time, and there was no evidence that similar behaviour had ever been observed or reported at the school.  There is no evidence that the students involved had any particular discipline problems or tendency to engage in dangerous conduct.  A momentary breach of school rules occurred at a time when the teacher on duty was facing away from the play equipment and moving towards another part of the school to properly exercise her duty of care.

Your Honours, I will come to what she was doing in just a moment, if I may.

Your Honours, the third feature was that the play equipment was only to be used by one class at a time so that there could not be competition between larger and smaller children.  Your Honours will see that referred to at page 140, paragraph 5 and in the fourth line of that paragraph:

These children were in the same year as the plaintiff, as the school had a policy which was enforced that the year groups had rostered times to use the equipment, so that older children were not in competition with the younger children.

Fourthly, your Honours, there was no evidence of any other incident of a child having been pulled from the flying fox.  Could I refer to page 142, paragraph 10, and it is the last couple of lines of paragraph 10.

Now, pausing there, your Honours, in those circumstances as the primary judge said at page 141, paragraph 9, in the first sentence of paragraph 9, the case stood or fell on the level of supervision provided at the time.  Now, your Honours, in that regard, at the time of this incident, the school had about 540 pupils.  You will see that referred to in the evidence of Mr Smith at page 34, line 25.  Mr Smith had been the deputy principal at the time, he was later the principal.  There were 20 full-time teachers.  There were additional part-time ones but of the full-time teachers there were 20.  The judge refers to that at page 149, paragraph 31 and during each morning recess four teachers were on duty supervising the children. 

The children, your Honours, were in two areas, junior and senior.  The junior area consisted of those who were below Year 3 and they were essentially kindergarten children and Year 1 and Year 2.  The senior group were Years 3, 4, 5 and 6.  Now, your Honours, I will come to the arrangement of the duties of those persons in just a moment if I may but could I invite your Honours to note in passing that the teacher who was responsible for the area where the injury occurred was an experienced and competent teacher.  There are four references I wish to give your Honours in that regard.  The first is at page 142, paragraph 10.

GLEESON CJ:   Was this case conducted as a case of vicarious responsibility of the school for negligence on the part of the individual teacher, or was it conducted as a case of negligence on the part of the school because of absence of some appropriate system?

MR JACKSON:   The latter, your Honour.  That is why it really came down to a very narrow issue, and your Honours will see that the position of the teacher, her competence and performance, was relevant to the question whether the system was one that employed, for example, competent people doing what they were supposed to do.

McHUGH J:   I must have misunderstood the respondent’s case then.  I thought it turned on whether or not there was a very narrow window of time in which a teacher was not supervising the respondent.

CALLINAN J:   Twenty to 30 seconds was the evidence, was it not?

MR JACKSON:   Yes, your Honour, 20 to a maximum of 30.

CALLINAN J:   Yes.

MR JACKSON:   That was the finding of the primary judge.  Your Honour, the way in which it is put, as we understand it, is that the system was deficient in that it was one that allowed, or perhaps required – whichever might be the more appropriate description of it – a situation to obtain where, in order to bring to an end some out-of-bounds conduct that the teacher observed she had to turn away or not give her full attention to what was happening at the play equipment.  Not in a sense that it was something where she was negligent personally doing it, but that the system was one that allowed that to occur.

Your Honours, may I deal with the teacher for just a moment.  At page 142, paragraph 10, your Honours will see the detail of her experience there referred to.  One sees it set out a little more fully at page 80 of the appeal book.  One sees at page 144 in paragraph 16 where – this takes one in a sense to the point your Honour Justice McHugh was mentioning a moment ago.  It is said:

The claimed negligence in this case is the action of Mrs McNamara turning her back on the flying fox in order to look at . . . It seems to me that any criticism here must be a criticism of the system of supervision . . . because I am satisfied on all the evidence that she carried out her responsibilities appropriately.

Your Honours will see that elaborated upon in the remainder of that paragraph.  Also on the next page, 145, paragraph 18, your Honours will see once again that the judge referred to her as an experienced senior teacher and doing the appropriate thing.

Also, your Honours, finally in this regard, page 146, paragraph 21, your Honours will see that the judge says that her conduct did not:

fall short of the standard of care required . . . she was attending to what, I am satisfied, was a potential hazard which had come to her attention –

Your Honours, we would also add, if I may say this, that there had been nothing to put Mrs McNamara on notice that anything untoward might happen.  Could I refer in that regard to the primary judge’s reasons at page 143, paragraph 13, at about line 21 on the page where his Honour said, and he seems to be accepting her evidence:

that the behaviour of the children using the play equipment that morning was entirely appropriate, and there was nothing to put her on notice to pay particular attention to the flying fox that morning.

GLEESON CJ:   The particulars of the breach of duty are on page 3.  The first one is:

Failing to roster a sufficient number of teachers for playground duty.

Putting to one side the possibility of a complaint that Mrs McNamara did not have eyes in the back of her head and putting aside a suggestion that Mrs McNamara did the wrong thing in going to check on these other pupils, it must come down to the proposition that in the circumstances there should have been somebody constantly with eyes on the flying fox.

MR JACKSON:   It must, your Honour, yes.

GLEESON CJ:   Was there any evidence of what other things you would have to constantly have your eyes on if you were going to constantly have your eyes on any possible cause of harm?

MR JACKSON:   Your Honour, it would be a question of – the area was one where, if I could just come perhaps to what the duties of the persons involved were – could I just say this.  May I just say something about the event before going to do this.  The event happened during a very short period, 20 – at the maximum 30 – seconds when she happened to see children in an out‑of‑bounds classroom area.  That is page 143, paragraphs 13 through to 15 on the next page.  The children were divided, as I submitted a moment ago, into a junior group and a senior group.  Four of the teachers were on duty during the recess.

The judge’s findings as to their duties appear in two passages:  page 141, paragraph 9.  Your Honours will see commencing at about line 37 on the page that he said:

that during the morning recess period the school rostered four teachers on duty, with two being at the area described as the “top oval with senior children”, and two for the bottom oval, asphalt and tuckshop area with junior children”. 

The play equipment that is referred to there was the senior play equipment and was available for Years 3 to 6.  The evidence from the little girl who was injured was that there were about 40 children she recalled being in the area at the time.  There were various other estimates, no doubt.

The duties that she had in the senior area were to monitor – one teacher was to monitor the path, oval and between units areas.  Another had responsibility for the toilets, bubblers and fixed equipment.  Now what all that means, your Honours, one can see from the document which shows where things are which is at page 137.  At page 137 your Honours will see that in the middle of it – perhaps if I say this, your Honours, this is, I think, the evacuation diagram, that is in case of emergency, that is why all the arrows are there but you will see in the middle of it “Play Equipment”, that is where this equipment was. 

The evidence did not, I think, your Honours, go into the exact detail of what other equipment was there but there was the play equipment.  You see immediately to the north as it were of that “Handball Courts” and, your Honours, you will see to the left of that with the writing on it vertical “Toilet Block”.  Now, the area that she was patrolling was the area of the play equipment, handball courts and the toilets.

GLEESON CJ:   Where were the out‑of‑bounds children?

MR JACKSON:   Out‑of‑bounds children were, your Honours - your Honours will see a building called “Murrumbidgee” and a doorway or I think it is divided up into three classes, “G”, “B” and “W” but where the letter “W” is there is one of two doorways to the building.  She saw children there where the “W” is and she was in the course of calling out to them when another child came along, rushed up to her and said there had been the accident. 

HEYDON J:   You get a more detailed view on page 128 of the scene.

MR JACKSON:   Yes, there is.  It is a little inaccurate perhaps in the shape of it.

HEYDON J:   It is a little inaccurate and it is around the wrong way.

MR JACKSON:   Yes, and it has some distances marked and your Honours will see in the playground part on page 128 the flying fox and you will see benches and trees but the actual location of the items is slightly off key there. 

HEYDON J:   You said there was no evidence about any other play equipment but was in fact there any other play equipment?

MR JACKSON:   I have just been reminded, your Honour, there was in fact no other equipment.  That is what I was just going to say.  My learned friend told me that.

HEYDON J:   References in the courts below and in the respondent’s written submissions to other items of equipment are more speaking hypothetically of other schools or schools in general, not at this school.

MR JACKSON:   Well, also, your Honour, of course there were the benches and there were bubblers and things.  There was junior play equipment in another part of the school.

HEYDON J:   Yes, but not here.

MR JACKSON:   No.  Now, your Honours, so those essentially were her functions and if she had been looking at the flying fox all the time then the result might be that misbehaviour on the benches that are nearby to it, misbehaviour in the play area where there was a handball court, misbehaviour in or near the toilets ‑ ‑ ‑

McHUGH J:   Where was the second teacher in the senior playground?

MR JACKSON:   The second teacher, your Honour, was in an area described as the oval.  I do not think the oval is actually shown on it, it does not appear.  So, to put it shortly, your Honour, she was the only one in the vicinity where this occurred.

GLEESON CJ:   But what were their respective duties?  I thought I read somewhere that there was some division of labour between these two.

MR JACKSON:   Yes, there was.  You will see, your Honours, at the bottom of page 141, paragraph 9, last few lines:

The duties of the two teachers ion the senior area . . . one teacher is to monitor the “path, oval and between units” area, and another teacher had responsibility for “toilets, bubblers and fixed equipment” -

fixed equipment including the flying fox. 

McHUGH J:   Did the evidence show where the bulk of the senior children were or where they all were?

MR JACKSON:   Well, your Honour, the Court of Appeal expressed the view – this is at page 171, paragraph 32 – that it was likely that she and one other teacher had to supervise about 300 children, since there were more children in the upper classes.  She volunteered the statement that most of them were in the play area and did not seem to demur from the suggestion that 95 per cent of them were congregated in that area.

McHUGH J:   What is the play area?  What does it comprise?

MR JACKSON:   The handball court, your Honour, to put it shortly, the area that she was patrolling.  I was going to refer your Honours also to paragraph 12 at page 142 where:

Mrs McNamara described her duties as being responsible for “supervising the play equipment and eating area that’s adjacent, the walkway area that’s adjacent to the eating area, the senior and junior toilets which are either ends of that walkway and the bubblers and the large handball area that’s adjacent also to the play equipment”.

McHUGH J:   Can I interrupt you once again, Mr Jackson, and ask you, what was the area, what were the dimensions of this play area you are talking about?

MR JACKSON:   You get some idea, your Honour, from the document at page 128 which has two measurements on it.  You will see a dotted line coming southeast, as it were, see the accident site referred to in the playground part, and then a dotted line which is some 27 to 30 metres and then a further 14 to 15 metres, the two items marked “Distance” on the right‑hand side.

McHUGH J:   That is to the Murrumbidgee room, is it?

MR JACKSON:   Yes.  It is giving an idea, your Honours, that in the space of 31 to 45 metres, and one really, I suppose, needs to go to the site plan at page 137 ‑ ‑ ‑

McHUGH J:   Is there any evidence as to how far away the handball courts were?

MR JACKSON:   Except from what one sees at page 137, they would be very close in fact, because the distance from where the accident happened to where the toilet is is only a short distance, 27 to 30 metres.  Your Honour will see, if one looks at the photographs which are at 122, the monkey bars that are there are in place of the flying fox, but you can see the red toilet block behind.  You can see the bubblers also in the photograph which is at page 123 in the kind of alcove in the red brick building – that is the toilet block.

I think I was referring your Honours to page 142, paragraph 12, where there was a description o the duties.  Could I just add something, your Honours.  Mr Smith’s evidence at page 36, about line 40, speaks of the persons who were rostered and one sees that at about line 35 or 36.  They are designated areas and your Honours will see that there set out and over to the top of the next page.

Could I just mention one thing about it.  You will see in relation to the junior area at page 36 at about line 45, 46, that the teacher who was located near the junior play equipment was also to cover the other side of the oval.  I mention that, your Honours, because my learned friend’s submissions say, “Why did you not have in the senior area what there was in the junior area, namely, someone whose only function it was to look at this equipment while it was being used?”.

McHUGH J:   Well, you refer to that evidence in your submissions in reply.

MR JACKSON:   In reply.  In fact, that was not the situation, in our submission.  And as can happen, even if one has someone looking only at the equipment, if some event occurs, such as a child being in a place a child should not be that they see, you would expect them to take some action to stop it.

McHUGH J:   Mr Jackson, a ratio of 1 to 300 pupils does not seem as if it constitutes reasonable supervision.

MR JACKSON:   Well, it was 2 to 300 actually, your Honour.

McHUGH J:   Yes, but how many were on the other side of the oval?

MR JACKSON:   Well, your Honour, the figure of 95 per cent is one that the Court of Appeal seems to have derived.  I do not think that your Honour would find that that piece of evidence was actually accepted by the – you can see that there were a significant number of children, obviously, in the play area, doing various things.  They were only there for 20 minutes.

McHUGH J:   I know.  But if the 95 per cent figure is right – I do not know where their Honours got it from – but it means the ratio is 1 to 285.

MR JACKSON:   Well, it means there are a lot of children there, your Honour.

McHUGH J:   Well, I know, but they are spread over some distance.  Some of them are behind, or likely to be behind, buildings.

MR JACKSON:   Well, your Honour, the position is, of course, that there were children who might be in an area at particular times.  It would vary from day to day.  One is talking about taking reasonable care and not insuring them, as it were.  In relation to taking reasonable care, I mentioned a number of things.  There was a system which appeared to be effective, there had been no difficulties at any occasion before, and, if it came down to the question of supervision, this was something for which there was no prior indication at all.  And my learned friend’s contention, the Court of Appeal’s approach to it, the majority, would seem to have the result that as soon as something happens, where children are naughty, the school is prima facie liable because it did not stop it.

McHUGH J:   But is not the problem you have to face that these are spread over, on one view, maybe 50 metres or more, perhaps even further, and children start fighting, the teacher has first of all got to see it.  It just strikes me that only one teacher for 285 children is a bit much.  Why could they not have doubled it?  It would only mean the teachers were on two days a week.

MR JACKSON:   Well, your Honour, one could double it, one could treble it.  All these things were possibilities.  But to have 20 per cent of the teachers on duty during the short break is not, in our submission, an unreasonable course to take.

GLEESON CJ:   Was there evidence of any standards of student/teacher ratios for supervision?

MR JACKSON:   No.

GLEESON CJ:   I am bound to confess, I have not the faintest idea what would be an appropriate number of teachers to supervise children.

MR JACKSON:   Well, it depends, your Honour.

GLEESON CJ:   I can imagine if you were at a kindergarten, for example, you might have almost as many supervisors as you have children.

MR JACKSON:   That is probably to keep them doing something, more than anything else, perhaps, your Honour.  But the position must depend on a number of things.  Now, if you have circumstances where it is found that there is a strictly enforced “no touching” policy, there were situations where all these children were taught and were taken to this machine and told how to use it and to be careful and these things, you have a situation where there was no prior incident of this kind, there is no hint that it is about to happen and where there is no suggestion, apart from the occurrence of this accident, that there was any prior warning that this might happen, and where what happens is occasioned by a teacher looking to stop something that is suddenly occurring – and that could happen no matter how many teachers one had there, your Honours – then, unless one had a teacher watching this all the time, which is what the Court of Appeal seems to have said, the case is one, in our submission, where the number of teachers actually used is one, we would submit, that would be found to be appropriate.

McHUGH J:   But, leaving aside the educational aspect, if you had in a classroom one teacher for 285 children to supervise children in a classroom, you would regard it as not sufficient, would you not?  This is even worse.

MR JACKSON:   Well, it would depend what for, your Honour.  It may well be they would not learn all that ‑ ‑ ‑

McHUGH J:   Children play up.

CALLINAN J:   But is that not the reason why it probably would not matter how many supervisors you had, you could not prevent every event or every accident which might befall them?  I think there is a causation question here as well as the question of duty of care.

McHUGH J:   That is why earlier I spoke about the 20/30 second opportunity, because it did seem to me that there was a causation issue involved in the case.

MR JACKSON:   Your Honour, that is where – when one does come down to the brevity of the time involved.  The fact of the matter was that whatever the right number might have been, or whatever the optimum number might have been, there is no suggestion that there was anything wrong in the way in which the supervision was being in fact carried out, except that she saw something happening that should be stopped.

McHUGH J:   I know, but if you have a fight over in the handball courts and some children misbehaving in relation to the flying fox, you are in serious trouble.  You have one teacher looking after the 285.

MR JACKSON:   Your Honour, there was no evidence to suggest that those events happened or, indeed, they were likely to happen.  One is really building on the event that did happen to say therefore there should have been more.  Your Honour, I do not know if I can take that beyond that, but that is the reality ‑ ‑ ‑

GLEESON CJ:   How did the trial judge decide this sort of thing?  This trial judge came to the conclusion there was no criticism to be levelled about the number of people who were rostered and it seemed reasonable.  But how on earth does a judge know – let me be blunt about it.  What do judges know about this, in the absence of some kind of standards of practice, or evidence of expert witnesses about what is proper practice?

McHUGH J:   Or industrial conditions.  I do not know, maybe awards deal with this sort of problem.  I do not know.

MR JACKSON:   Your Honour, could I say there was no evidence of any of those matters, except that this was not a case where you had people who gave evidence on the issue who were inexperienced.  Now, what I mean by that is there were two witnesses whose evidence was plainly accepted from our side, one being Mr Smith, who was an experienced teacher, both at this school and elsewhere – and, your Honours, one only has to read through his evidence to see that he was a man who appeared to be pretty competent and a person who, with his experience at the particular school, would know, the judge would be entitled to find, what was an appropriate level of supervision.  That is the first thing.

The second thing was in relation to Mrs McNamara, that she herself was an experienced teacher, both at this school, where she had been for some years, and elsewhere.  So far as she was concerned, she said nothing adverse about the level of supervision that there was.  Now, those are people whose experience one can take into account.  Your Honour, if one were going to say, what is the standard, how do we define how many teachers there should be, then in the ordinary course of events you would expect there to be some perhaps expert evidence given.  Well, these people were experts in their field.

HAYNE J:   Did the plaintiff attempt any case which took either of two paths, either saying this was less supervision of recess than was effected at other comparable schools – that would be one path to follow – or another path to follow would be that this level of supervision at recess at this school had proved inadequate because there were sufficient numbers of occurrences where there were two, three simultaneous rule infractions occurring within the area.

MR JACKSON:   No, your Honour, no. 

CALLINAN J:   Mr Jackson, the trial judge looked at the reasonableness of the number of teachers employed and what would have been involved if they had had to do what the plaintiff’s counsel submitted they should have done and that is in paragraph 31 on page 149.  The school only had 20 teachers, I think.

MR JACKSON:   I am sorry, your Honour, it is difficult to hear, I am sorry.

CALLINAN J:   The school only had 20 teachers and it would probably be unreasonable to say that they should have employed more just for playground duty, I suppose. 

MR JACKSON:   Well, your Honour, anything is possible, no doubt.

CALLINAN J:   But in any event the trial judge did deal with the question of the reasonableness of the allocation of teachers to playground supervision.

MR JACKSON:   He did, your Honour, yes, paragraph 31.  So the case comes down, your Honour, to – I use the term inaccurately – the plaintiff’s case, in our submission, came down to a kind of res ipsa loquitur, because it happened, there must have been negligence.  Your Honours, if one looks at what occurred, our submission is that in the circumstances which took place the primary judge was right in saying, as he said at page 145, paragraph 17, in about lines 19 to 24 on the page, that having seen these children who were in a classroom, that she should do something about it straight away and to remonstrate with them took her away from observing the flying fox for a short time, but there was no practicable alternative.  That is paragraphs 17 to 19. 

Now, your Honours, in our submission, what the judge said at paragraph 28 at page 148 of his reasons was, we would submit, plainly correct, that if her conduct breached the appropriate duty of care, it seemed to follow that the duty:

would require the school to ensure that at least one teacher at all times was observing with full attention any student on the play equipment.

Now, that is what ‑ ‑ ‑

GLEESON CJ:   But why would you limit it to play equipment? You can get a fuss around the bubblers, could you not, and presumably if something wrong was going on around the bubblers you would have to turn your back on the flying fox.

MR JACKSON:   Yes, your Honour, unless there was someone there as well.  Either you have someone looking at the bubblers and patrolling the bubblers and the toilets, stopping the fight at the toilets while one is going on inside ‑ ‑ ‑

GLEESON CJ:   But if you just wanted to limit your concerns to broken teeth, horseplay around bubblers is a good place for that to occur.

MR JACKSON:   Yes, indeed, your Honour, particularly pushing down, one recalls, and matters of that kind.  Your Honours, the point I am seeking to make about it is that the judge was right, in our submission, in saying what he said in paragraph 28.  When one comes to what was done by the majority in the Court of Appeal, Chief Justice Higgins at page 159 in paragraphs 2 through to 6 took the view that the duty could have been satisfied by adopting the system which was used for the junior school area but, your Honours, that, in our submission, was a misapprehension of the evidence.  I have taken your Honours to page 36 and 37 so far. 

The second thing was that Justice Crispin’s approach at page 174 was that the use of the flying fox – it is paragraphs 38 and 39 - required constant supervision by a teacher and your Honours will see if one goes also to paragraph 34 that he too said there was no reason why the practice in relation to the area of the junior pupils could not have been adopted and that again, in our submission, was a misapprehension of the evidence.

GLEESON CJ:   What page is that?

MR JACKSON:   Page 172, your Honour, paragraph 34.  Could I just say that in relation to the views expressed that there needed to be constant supervision of the play equipment, effectively that meant that the flying fox required constant supervision.  It is difficult, your Honours ‑ ‑ ‑

McHUGH J:   You do not dispute that, do you, that it requires constant supervision?

MR JACKSON:   It depends what one means by it.

McHUGH J:   Exactly.

MR JACKSON:   Constant supervision does not mean constant “super vision”, as it were.  What I mean by that is that constant supervision of a flying fox involves keeping an eye on what is happening there.  It does not mean that one cannot blink or has to watch it every moment.

McHUGH J:   But you could not have intermittent supervision, so you have to have constant supervision, have you not?  So in a sense you ‑ ‑ ‑

MR JACKSON:   You have to have constant supervision of the children, your Honour.  These things are dynamic, not static.  One is looking at the behaviour of children.  Even if you have 10 children or 200, you have to keep an eye on them, but one does not have eyes in the back of one’s head, and that is the time when children tend to misbehave.

HAYNE J:   At some point you hope the child will turn into a responsible person.

GLEESON CJ:   Usually about 40 or 45.

HAYNE J:   If you are lucky.

MR JACKSON:   Your Honour, that is an issue into which, if I may say so, I would prefer not to enter, because it is one on which there may be a multiplicity of views, none of them commanding a majority in the Court.  Could I just say this, that the approach taken by Chief Justice Higgins and also taken by Justice Crispin of the requirement for constant supervision – it is difficult to see how those propositions sit with the apparent adoption by Justice Crispin of the submissions of the then counsel for the present respondent.  By that I mean if one goes to page 170, paragraph 30, your Honours will see that he there says that he agrees that:

it would have been unrealistic to expect that a teacher be stationed at every item of play equipment, the plaintiff’s case was not dependent upon such a proposition.  Mr Purnell . . . argued only that there should have been a teacher assigned to the senior play area where the flying fox and other equipment . . . was located.

Your Honours, if one is going to have constant supervision of the use of the flying fox, as is said in paragraphs 38 and 39, you have to have someone looking at the flying fox all the time.  If that is the case, then, in our submission, that is one where the standard of care that is imposed is too high or, alternatively, too easy a test has been required for breach of duty. 

Could I just say one other thing, your Honours, before going to another matter, and it is this.  At paragraph 31 at page 170 one sees again the reference to what was done in the junior play equipment area.  That, in our submission, reflects the evidence. 

Could I take your Honours to our written submissions and particularly to the argument part of our submissions in‑chief.  May I take your Honours to paragraphs 21 and 22.  Our submission is, as we have put it there, that the obligation was to exercise reasonable care or to see reasonable care was taken, but it was not the duty to prevent all harm.  Your Honours will see the quotation from Lepore at the top of page 7.  We would say – and we refer to paragraph 25 of our written submissions – there was a question of practicality and degree involved.  We refer to a number of features which I will not repeat, but your Honours will see set out through paragraph 25.

Your Honours, what we would submit, in the end, if I could take your Honours to what was said by Justice Spender in dissent at page 181 in the record, in paragraph 59 – we would submit that his Honour was there stating the correct position. 

Your Honours, so far as the 95 per cent of children is concerned, perhaps our learned friends will be able to tell your Honours where it comes from.  We have a little difficulty working it out.

McHUGH J:   Obviously, the judge’s figure comes from counsel’s submissions.  It was in Mr Purnell’s written submissions and that is referred to.

MR JACKSON:   But, your Honours, where that came from remains – my learned friend will tell your Honour, I am sure.  Your Honours, those are our submissions.

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   That reference is in the appeal book at 100 and 101 about line 40 or thereabouts onto the top of page 101.  It does not look, in the course of that cross‑examination, to be anything in the nature of an accurate head count, if I may say so.

HEYDON J:   They are all double questions. 

MR WALKER:   Yes, I stand by what I said.  I think they are at least double, your Honour, would be a more accurate way of putting it.  Your Honours, may we answer the way in which the case is put against us by referring, in particular, to a number of factual matters which are now presented to this Court as if they were matters of difference between the parties below.  In our submission, properly understood, there is either no difference, leaving the Court of Appeal in the familiar position of discharging its appellate duty, or else such difference as there was does not tell in favour of the present appellant.

First, may we start in particular with the way in which the matter is put concerning Mrs McNamara’s departure from the scene where the equipment is being used.  In relation to the equipment itself, at page 121 where one sees a photograph of what I think is then the locked up, that is, the disabled, flying fox, you will see that integral in that as part of a fixed piece of equipment is that device which has the horizontal yellow bar on the left attached to the same frame.  So the frame is a frame for flying fox and it is also a frame for – I do not know what the children call it – walking chains.  There is a chain which moves and there are chains from which it is suspended, presumably in an attempt to inculcate some physical boldness and balance.

HEYDON J:   That is the other equipment.

MR WALKER:   I draw that to attention because there is reference to other equipment in a number of different contexts; that may be one way of giving it substance.  In other words, there are different activities with different dangers of bumps and grazes and the like, all part of the same fixed equipment.  What I cannot do is, however, give you a catalogue to show exactly how many manoeuvres children are invited to carry out.  For example, on page 121 itself, I notice tantalisingly that there is, between lines 35 and 40, what appears to be a curved white bar.  I have no idea what that relates to, I am afraid, and the evidence, on my examination of it, does not reveal.

HAYNE J:   It looks to be the yellow bar in the first photo on 119.

MR WALKER:   Yes.

HAYNE J:   Which may or may not be a netball ring, I do not know.

MR WALKER:   No, neither do I.  On page 119 you will see the yellow bars attached to the flying fox frame which have those walking chains on them on the left.  I am afraid the record does not enable quite a few matters, or features, to be identified such as the top and bottom ovals.

GLEESON CJ:   What is the ground surface?

MR WALKER:   The ground surface appears to be something in the nature of tanbark.

GLEESON CJ:   Yes, as you see in children’s playgrounds.

MR WALKER:   Although whether it is a fixed or one of those rubberised compounds is hard to tell.  If I look at 121 it looks as if it is a rubberised compound.  If you look at 123 it looks like tanbark.  I think there is a reference to it being tanbark.  Something better than old-fashioned concrete or asphalt to fall on, I think.

HAYNE J:   All this is minor premise.  What is the major premise of the plaintiff’s argument?

MR WALKER:   The plaintiff argued - the Chief Justice has referred to the pleadings – that there were two relevant shortcomings, and the plaintiff succeeded in persuading the Court of Appeal that these amounted to negligence, that is, a failure to achieve reasonable care.  They really are, both of them, systemic; that is, they do not involved castigating Mrs McNamara.  They have to do – see page 3, particulars a) and b) of paragraph 10 just above line 50 – either not enough teachers or a failure to ensure that of the same number, it happens to be four, that one was on playground duty to supervise the play equipment area.  That is one of the factual matters that is made to appear as a difference between the parties but probably is not.

HAYNE J:   Now, in relation to both of those matters, was there anything other than fact of the occurrence in question which was said to warrant the conclusion that reasonable care had not been taken?

MR WALKER:   Yes.  I am going to come to that in one moment – probably more than one moment, but soon.  It comes in the cross‑examination, particularly of Mr Smith, in relation to the impossibility of trying to see too much at one time, bearing in mind the usual anatomical arrangement of both eyes.  Therefore, it was not just this accident having occurred, it was what could be revealed from two things.  One, what we knew the school stipulated formally in relation to the junior children – that is one of the matters of supposed difference that you have seen particularly referred to in the written reply in submissions in this Court.

Two, the fact that the configuration of the areas in question assigned for the second teacher on playground duty for the senior children simply did not permit safely, that is, with an appropriate degree of prudence, bearing in mind the understood risks – all this comes from the cross‑examination – a stipulation which would permit or require Mrs McNamara to be doing what she did.

HAYNE J:   Does it come to more than the proposition that one teacher could not deal with more than one incident?

MR WALKER:   No, it does not come down to that.  It means that the nature of the particular task, which is supervising the use of playground equipment.  That is the key to it.  I am going to put some more flesh on that bone.  The nature of that particular task was such that it could not be shared with tasks so disparate that you would have to neglect entirely that task while you were attending to others, whereas, for example, take bubblers in toilet block or bubblers in playground area or bubblers in handball area, if that was the yoking then the fact is they are all within the same scan, particularly if you are moving ahead and you are moving around, as the teacher said they understood they had to.

Now, could I in dealing with these supposed but, we respectfully submit, really spurious differences, first of all go to the question of the particular incident.  What took Mrs McNamara away?  Now, we are told it is 20 to 30 seconds.  In our submission, it is a commonplace upon which very little evidence would be necessary, indeed query whether expert evidence would be admissible, that within half a minute terrible things can occur to the physical safety of children if, in particular, rules which – the very making of which show the anticipation of mayhem, are being broken.  Half a minute is a long time for physical damage to be caused.  It is not a short time at all.  This is not a tiny gap.  This happens to be precisely the kind of interval in which bad things can happen which, as the evidence in this case showed, could reasonably, without any identifiable expense or concern, have been dealt with by a different form of rostering.

HEYDON J:   Just on that, let us say that you have one teacher looking at either the flying fox or whatever other equipment is associated with it or there, if there is to be only a second teacher, then that teacher has to look at the path, the between units area, the toilets and the bubblers.

MR WALKER:   Your Honour, assuming that ‑ ‑ ‑

HEYDON J:   Now, walking around as fast as you like, that does sound a bit of a ‑ ‑ ‑

MR WALKER:   Quite.  I am about to add to your Honour’s observation this.  That, of course, assumes something which the evidence does not justify, namely, that those designated areas are the only areas of possible concern.  We have an inbounds/out of bounds exercise to be taken into account as well.  In other words, the duty of care at common law, regardless of any roster, would involve being alert to what might reasonably be noticed out of those designated areas.  Now, the point therefore is that the question of more teachers being necessary arises and that brings into play the way in which the trial judge dealt with that, which, if you will forgive, I will come to a bit later.  The trial judge dealt with that by overstating the proposition tremendously, to an extreme which is self-evidently wrong, in order to deal with our argument.

HEYDON J:   Do you submit now that there should have been a third teacher?

MR WALKER:   No.  Whether there should have been a third teacher or not would depend upon matter which was not fully explored.  In particular, it might have been that there should have been a third and fourth teacher.

HEYDON J:   But it was not explored at all?

MR WALKER:   Well, it certainly was not explored.  The word “explored” does not bear – I cannot use that word.  It was touched on in passages to which I will come.  But, no, I am not going to be able to show you anything that amounts to exploration, your Honour, at all.

GLEESON CJ:   Is one of the reasons why the classrooms are out of bounds during playtime that they cannot be supervised while they are in the classrooms?

MR WALKER:   It would appear so.  There is also what we have characterised as judicial notice being taken.  I am not quite sure whether that really is judicial notice, but it is certainly not contested that classrooms include a variety of matters in which children not intent on being calm and obedient might well harm themselves or others.  The evidence does not permit one to say that they are focuses of danger at all.  As a matter of common sense, what your Honour the Chief Justice has raised is one of the obvious matters.  One suspects, from the nature of the roster and the timetable, and without being disrespectful to school teachers as a cast, that the primary reason why they are not supposed to be in the classrooms is that they are supposed to be out of the classrooms.  It is a break between classes.  They are meant to be getting some exercise.  So one assumes that the primary reason is, this is out of classroom time. 

In answer to, perhaps, questions from another era as to children who are swots, staying in to read, there is no evidence here about anything except that the classrooms were out of bounds.  Now, apart from what is said about electricity and sharp points and the like, there is no other evidence, particularly for people as mature as Year 6 children, about anything particular about classrooms.

GLEESON CJ:   Apart from such confrontations and cross‑examination of teachers as might have occurred, was there any evidence of practice or standards?

MR WALKER:   No, nor was there anything industrial except insofar as based upon unarticulated assumptions.  There is reference to the desirability of teachers doing only one such duty per week.  Four into 20 goes five.  Four teachers are rostered for this duty.  Now, that ‑ ‑ ‑

HEYDON J:   Two duties actually.  I think one recess in the morning and one at lunchtime.

MR WALKER:   Yes.  I will take your Honour to the roster in a moment, but it would appear that it is – and I am not saying this is why it is only four, but it just so happens that one per week is yielded by dividing 20 teachers by five days to get four or by four teachers to get five days.

HAYNE J:   That does not count pre‑school, post‑school supervision either?

MR WALKER:   No, and I will take your Honour to the roster about that.

HAYNE J:   We are heading down paths which demonstrate simple mathematical ability, that is all.

MR WALKER:   It is not mine that your Honour – that is as far as the evidence goes.  There is nothing really industrial at all.  There is assumptions involved about whether one is par, below par, above par.

GLEESON CJ:   There are licensing authorities, are there not, as it were?  I do not know exactly what they are called, but presumably you cannot just start up a school and make your own arrangements with your staff about how many teachers are going to be on hand at particular times of the day.  There is some kind of supervision these schools are under.

MR WALKER:   Not any more, I do not think so, your Honour.  That is, you cannot just start up Dotheboys Hall any more.  There are requirements, but they would include industrial, not just child welfare regulations – but they would include educational, child welfare regulations plus industrial.  Your Honours are extracting, with respect, from me, elaborately and in detail, information about what was not before the court in a case where the onus was on us.  So, no, there is none of that material. 

Now, there appears to have been, as I say, a case probably most clearly put now in the written submissions whereby it is said that there is some real difference factually between the parties in relation to what Mrs McNamara had to do, what her duty statement was.  Could we start at the end of the narrative, that is, testing it by what actually happened.  If your Honours go to page 84 and 85 of the appeal book – this is examination‑in‑chief – at about line 25 or thereabouts – I am using the smaller figures – she is asked:

did you turn your back on the open area including the handball courts and the flying fox and walk somewhere?---Yes.

Then she talks about “irregular pattern” and then at about line 37:

Was it indeed, was it necessary to turn your back on the flying fox from time to time to carry out your duties?---It was, yes.

Just explain why?---Well, I had to supervise the junior toilet block which is – unsights the play equipment, I was also required to look at the senior and junior toilets and the bubblers on the end of the – and all those areas necessarily cause you not to be able to see the play equipment.

Now, it is not possible, in fact, from either photographs or the plan at 137 or the sketch at 128, to reconstruct why that reasoning of Mrs McNamara is correct, but it is fair to say that she was not challenged as to any of that reconstruction.

GLEESON CJ:   Does supervising the toilet block mean that you have to go actually into it from time to time?

MR WALKER:   There was cross-examination, not particularly conclusive, about that.

GLEESON CJ:   Presumably you would at least have to go in it if something wrong was going on in there.

MR WALKER:   Yes, that is, it is not only what you see but it is also what you hear, although, as the cross-examiner pointed out, terrible things can be happening quietly.

GLEESON CJ:   Well, if you saw puffs of smoke coming out from it, you might have to go in and have a look.

MR WALKER:   Also perhaps what you would smell, if you would recognise the smell, that is, yes.  Page 85, asked about how she managed her resources and time dealing with those different areas:

most of my time was spent where all the children were, in that handball and play equipment area.

Now, “all the children” bears comparison with the 95 per cent to which reference was earlier made.  Obviously both of them are references to nearly all or virtually all the children being in the handball and play equipment area.

On this day, as you’ve told us, you’d done your irregular circuits, from time to time you had your back turned to the flying fox, but did something happen that caused you [to] walk towards the Year 6 unit?

Your Honours could be given for thinking, not least from the way in which an extract was given to you from the trial judge’s findings, that the occasion for going away from the play equipment area being unsighted, no longer being able to supervise that, was something in the nature of what I will call an emergency or an out‑of‑bounds incident, but this evidence rather shows to the contrary.

No, I just knew I had to do it, that was part of my job and that’s why I went there.

What the antecedent of that is, I suppose, as a matter of language, it would be walking towards the Year 6 unit, but that perhaps would be a bit unfair.  It may be that that could have been explored but it was not.

So, you walked through that gap and did you see something as you were going towards the toilets as part of your duties?

So the questioner leading, “as you were going towards the toilets as part of your duties”.  There is an objection.

Why did you walk through the gap occasioned by the toilet block and the adjacent unit?

Not surprisingly, given the objected question, the answer was:

Because I felt I should.

Why?---Because it was part of my job and I thought I must go round there and just see that – that was expected of me ‑ ‑ ‑

What were you intending to look at?---The behaviour in the toilets.

So this is part of the assigned or designated toilet area as now explained.

In the course of doing that, did you see something?---I did, yes . . . 

I saw children in the Year 6 unit -

That is then a reference to the “W” to which my learned friend took you at page 137.  About line 20 on that page is the “W” and the “Murrumbidgee Year 6” building.  Your Honours have seen the toilet block and your Honours can see the general configuration of the play equipment area and the handball courts area in relation to that toilet block.  If you go back to 128, that is where the distances come in that my learned friend drew to your attention.  The walk, as it were, from near the equipment, although the evidence does not reveal where the walk started, treating near the equipment as being the accident site, is 27 to 30 metres to the corner of the toilet block past…..of course, one would be unsighted, and then from that to the door near “W” at 137 is then said to be 14 or 15 metres.

In our submission, put together, both graphically and as a matter of evidence, it is clear here that the teacher – and she was never challenged on the proposition that she thought she was doing her duty – had been given a job by the system which positively involved walking away from, being completely unsighted from, and quite a distance from, the use of play equipment by children who had only been able to use it at all for a few weeks – this is February, the beginning of the school year, they are Year 3, they have just made it to the so-called seniors – this is their first few weeks after they have been in the juniors proscribed from using this equipment, hence the references your Honours have seen to some of the teachers having actually taught children how to use the flying fox particularly. 

If one then goes to the material concerning duties, can I start your Honours with the answers to interrogatories which start at page 129.  You will see at page 130 that questions are asked about parts of a so-called general procedures document and those annexures A1 and A2 are then referred to including question a)(ii), whether those annexures set out:

The areas that teachers rostered for playground duty at the school are to monitor or supervise during morning recess?

A:       Yes.

b)       Were teachers rostered for playground duty made aware of the contents of documents A1 and A2?

A:       Yes.

Then there is a reference to Mrs McNamara being the teacher…..for that duty and that is expanded on at 131, line 30, question 6:

was there a teacher rostered for playground duty at the school whose duty it was to monitor and supervise playground equipment including the flying fox?

That is another of those references to what might be called other equipment.

A:       Yes, Mrs Pauline McNamara was rostered to supervise an area of the playground which included the toilets, bubblers and fixed equipment.

Your Honours have been supplied, I think, separately those annexures A1 and A2, which for some unaccountable reason are not in the appeal papers - at least I hope your Honours have been supplied with those papers.  A1 has a heading halfway down, “DUTIES”, and then another heading, “PLAYGROUND” and then one sees in the “Note”:

When 2 teachers are rostered together for a period of duty they should negotiate responsibilities so that each area is covered as specified.

And then, in relation to “Dry Weather”, after “MORNING DUTY”, that is before lessons where one notes, for example, that “all playground equipment” is “OUT OF BOUNDS”.  Then we come to the foot of that page, “RECESS DUTY”, there are:

Four teachers rostered.  Two for top oval with senior children –

and then at A2:

Two for bottom oval, asphalt and tuckshop area with junior children.

If one goes to the plan at page 137, your Honours will see some of those features identified but I regret to say not all of them.  You do have “Asphalt Area” about line 25, you do have a tuckshop identified about line 30, but which part of the site plan corresponds with the bottom oval or the top oval we are unable to tell your Honours. 

Then comes a passage which was relied upon, as your Honours have seen, by the majority in the Court of Appeal.  This is relevant to the matter that is said to be different if you look at the written submissions.  For the juniors:

Areas in bounds are oval and fixed equipment with the exception of the high bar, the hurdles and roman rings.

So we are obviously talking about other equipment that may be in another location.  You will see in relation to the juniors – my client, of course, was a junior, just a few school weeks before this happened and a vacation beforehand – you will see that the second of the two teachers is to supervise playground equipment, and that is it.  However, in relation to seniors, we have:

First teacher:  Path, oval and between units.

It is not possible to be precise, by reference to page 137, as to where exactly all that would take the teacher.

Second teacher:  Toilets, bubblers and fixed equipment.

So that it is clear that the system positively required, in accordance with Mrs McNamara’s unchallenged understanding of her duty, that she would from time to time walk well away from and be quite unsighted from the use of the fixed equipment, which relevantly, prominently, perhaps principally, although probably not solely, was the flying fox and in an area where virtually all the children would be congregated.

We throw in as well the aspect that this is equipment where the difference of age and, inferentially, of size, maturity, between children is taken into account for safety reasons, not only, one suspects, for “fair go” reasons, in relation to who can use it at any given time.  Your Honours were taken to that evidence earlier.  One then comes to the actual appreciation at this school before this accident in relation to the flying foxes.  Could I take your Honours to – sorry, before I go to the flying fox, I should finish off this designation of duties.

At page 36 in the appeal book Mr Smith is being examined in‑chief, the deputy at the time, now the head, about the teachers’ rosters for playground duty – see line 30 – four of them.

And did they have designated areas?---They did.

Apart from wanting to add handballs, in a passage I will not take your Honours to, to the list in the printed sheet to which I have taken your Honours, which was verified by the school as being correct and what the teachers were told, he did not contradict that list or say, for example, “That was only part of the story”, apart from wanting to add the designation “handball” to the playground.  In the longer answer starting at line 34, he proceeds as follows:

There’s two areas that were for the junior playground . . . one teacher would be looking after the asphalt area, the junior toilets, the canteen area and moving on to the – on to the side of the oval closest to the car park –

your Honours can try and compare that with the site plan, but it does not actually locate the oval very well –

another teacher would be located near the junior play equipment –

this is the juniors, where the printed sheet had one teacher solely with the equipment –

and the – and covering the other side of the oval.

It is those words following that hesitation, “and the – and covering the other side of the oval”, which are said to justify the supposed factual difference by which it could be said the Court of Appeal was not proceeding on the basis of undisputed facts.  This is all for the use made by the Court of Appeal of the fact that the school had thought about it in advance in relation to playground equipment and junior children and had a teacher whose job was to look after the children on the equipment and they could have and, bearing in mind, for children of my client’s age, the lack of any explanation from the school as to why they could not, because they could have, they should have, by reason of the ready appreciation that, had they done so, the accident would most likely have been avoided.  I will come to the evidence about that in a moment.

Now that covering the other side of the oval is never explained in the evidence at all for the junior children ‑ ‑ ‑

HEYDON J:   It was not the subject of any cross‑examination.

MR WALKER:   No.  It is neither pursued in-chief nor further explained in cross‑examination, nor does it become one of the matters for the relatively far-ranging re-examinations in this case.

HEYDON J:   This is probably because this idea that you could transpose the junior system to the senior system no problem is not an idea that was run at the trial at all.  It seems to be an appellate ‑ ‑ ‑

MR WALKER:   It certainly was not at the forefront of the case, but neither is it the only point in the Court of Appeal.  In the Court of Appeal it is not an essential, but rather a useful part of the reasoning to give content by more than just a retrospective view based on causation of the actual argument, to give content to the notion that it is perfectly okay to recognise the nature of this equipment, the nature of the children and what reasonable care was required.

HEYDON J:   It is the whole of Chief Justice Higgins’ reasoning.

MR WALKER:   It is not so much the whole of his reasoning, as the burden of his added observation in agreeing with Justice Crispin.

HEYDON J:   Yes.

MR WALKER:   I am not running away from the point, your Honour.  I am bound to use it, and I do.  With respect, your Honour’s observation about a change of emphasis between trial and appeal may well be justified, with respect.

The first question is, at the foot of page 36, “What exactly does that mean?”  It certainly is not possible to say that the school had set out with the junior children on their equipment to set up a system whereby the teacher supervising would be unsighted in order to carry out his or her duty.  It does not say that at all.  “Covering” is of course an expression perfectly apt to encompass the possibility that by looking at the equipment and by refocusing your eyes you are also looking, covering, the other side of the oval.  It says nothing about perambulation of a kind that we do know for the seniors was necessary by the stipulated system.

So for those reasons there really is nothing in, ultimately, this supposed difference, assuming it be a difference at all.  In short, it is not possible on the basis of that evidence to know that covering the other side of the oval requires, in terms of sight lines and physical locations, the movement, the irregular pattern of the teacher supervising the children.  We do not know whether that is really just effectively the same as looking after the juniors on the play equipment and raising your eyes from time to time, which of course makes sense, bearing in mind that all the teachers obviously have implicitly an obligation to notice things, such as they do see within their vision, which are out of bounds.

In relation to safety in the nature of the equipment, your Honours have been given references.  Can I add to them 38, line 10 in relation to the mixing of the children.  Can I then come to some passages in the cross‑examination of Mr Smith starting at page 49.  These are the ones particular to the flying fox.

It is to be recalled the flying fox is a piece of equipment which obviously involves the possibility of falling, one might in fact say that is the purpose of it – learning how to fall, a bit of balance, boldness – and the Year 3 children – my client being just into Year 3 – were being introduced – this is the first time they had access to this.  So about line 20 or thereabouts:

when you took the year 3 students to the flying fox at Kambah –

that is a flying fox in a public park –

first of all how many year 3 children did you take . . . 

between 65 and – and 90 . . . 

We’d probably take – be taking all the year 3 teachers plus myself . . . 

Teachers would be 5, adults – adults on top of that, parent supervision as well . . . 

Probably up to another 10 . . . 

So you might have 15 –

and then at the foot of the page:

We’d probably have one teacher –

unresponsively, but nonetheless informatively –

stationed at the flying fox permanently and the rest on the other pieces of equipment –

et cetera.  Top of page 50 ‑ ‑ ‑

HAYNE J:   Sorry, this is a flying fox that is 30 to 50 metres long.  How high off the ground?

MR WALKER:   I do not know that the evidence gives you how high that one is off the ground, your Honour.  This is a quite different flying fox at a public park.

HAYNE J:   On a quick look at 47, it looks to be 12 foot off the ground.

MR WALKER:   Twelve feet high.  Yes, at line 17:

From the very bottom of the ground to the platform would be well and truly twice my height.

About 12 foot high.

HAYNE J:   Right.  Now, what is the point we are making?

MR WALKER:   That when one is talking about equipment which might cause harm to children, one has supervision one on one.  And that was established ‑ ‑ ‑

HAYNE J:   Yes.  I can understand that with a flying fox of this kind, but we are talking about a radically different piece of equipment in the schoolyard, are we not?

MR WALKER:   Yes, much more dangerous.

McHUGH J:   The 6 foot drop to the ground?

MR WALKER:   Yes.  Much more – well, depending on how high one is, yes.  Much more dangerous, your Honour.  But these are matters of degree and that is why, when the cross‑examiner asked the questions, on the first half of page 50, the question is well and truly – see line 12:

Now when the flying fox is used at St Anthony’s –

We know how different that is –

how many teachers supervise each child getting on to the flying fox?---None.

And one might detect some surprise in the answer:

And the reason that you have a teacher supervising each child going for a ride –

And that is referring to Kambah –

is because you recognise that without doing that there’s a danger –

So he is establishing what one does in advance.  Not after, but before an accident –

We need to make sure that there’s – we – we’re insuring the – the best safety for the child.

That’s right, you do it for safety reasons?---Yes.

And then one goes over to page 112 to see, in relation to the particular flying fox, Mrs McNamara after the event in relation to safety.  Well, perhaps I should start at 110, I am sorry.  Comparisons being drawn between classroom, a child inside a classroom, a child inside a toilet and then asked about the flying fox.  Line 12:

You would accept, wouldn’t you, that if a young girl is holding the triangular handle of a flying fox and another child grabs hold of her leg, that that’s an unsafe activity?---Yes.

That’s an activity whereby you would’ve assumed that if you were present children would not engage in if they could see you?---Yes – no ‑ ‑ ‑

Sorry?---(No audible response)

If they could see your presence you’re not really saying that one of the children would then go and grab a leg of a girl and engage in dangerous activity if they saw you –

“there” that should be rather than “dead” – it is not that desperate, I do not think –

would they?---That’s not always the case, children do continue to do things when in front of them.

But something as dangerous as this you would assume that a child would not do that if you were present, particularly little ‑ ‑ ‑?---Yes.

Yes, you said yes, particularly little children that are only aged 8 like these kids were, 8 to 9, I assume, is that right?---Yes.

Now, it is legitimate to call in aid the ease with which a different outcome could have been brought about by way of avoiding an obvious danger and this was an obvious one.

HEYDON J:   This Kambah flying fox was not mentioned by the trial judge, was it, or by the Court of Appeal or in your written submissions?

MR WALKER:   No, no.  I am drawing it to your attention, your Honour, because it is not correct to say that this was a school that only had this accident to go on in relation to working out what was necessary by way of supervision for what might be called unsafe activities.  It is just not true that it was only this accident which enabled this school to understand exactly what Mrs McNamara said at 110.  Now, she is speaking after an event.  Mr Smith, in relation to Kambah, a different kind of danger of exactly the same genus, namely, misuse of equipment, mishaps on equipment, showed, as one would expect, an understanding in advance of the need to consider how much supervision was necessary. 

We have never said you needed a teacher to put a child on a flying fox in a playground.  It is an illustration against the proposition put against us that this was entirely a retrospective, and wrongly retrospective, outcome by the majority in the Court of Appeal.  What Mrs McNamara was talking about on page 110 is of precisely the same safety orientation order available in advance of the event as the far more obvious matter at the park in Kambah.  Page 112 one then sees, compared with what she appreciated at 110, what the actual system required of her.  And one sees at line 15:

You agree that once you patrol the out of bounds area –

That includes, relevantly, the class 6 room –

you can’t supervise the playground area, agreed?  You can’t see or observe what’s happening, agree?---I was unable to see the flying fox area because my duties took me away from it.

And I have taken your Honours to the page 84, 85 reference to how she saw her duty there.

And there was no system in force at that school to ensure anybody that when you went away from that area, that is the playground area, that there would be continuous supervision of the playground area, was there?---There wasn’t but I think I was doing my duty.

And then she accepts, as one would expect with eight year olds, as one would expect from the rule of the week enforcement program, see line 40:

the purpose of having a supervisor is to ensure that the instructions the children are given are carried out to keep them safe?

Then, at 113, in relation to this very flying fox, in advance there is the reference to introducing the Year 3 children to it and ones sees that it was included for safety reasons, line 12. 

Now, in our submission, that is evidence upon which it cannot be said that there was any disputed fact between the parties about the flying fox being understood to be a piece of equipment upon which, particularly if rules were broken, there could be danger to the children.  That is evidence upon which it cannot be said there were disputed facts concerning the ease with which the continuous presence of a teacher in the area would be likely to prevent, that is, to minimise to a reasonable degree, that outcome occurring.  It does not mean elimination; it means minimising to a reasonable degree. 

It is for those reasons, in our submission, that it was perfectly within the function of the Court of Appeal, in accordance with principles which are not in question in this case, to disagree with the primary judge on that which is a conclusion from those facts, namely, whether the system provided was reasonable or not. 

HEYDON J:   No one is contesting that, surely.  I mean, it is a non-credit case.  The Court of Appeal could intervene if it thought it right to do so.  The only question is was it right to do so.

MR WALKER:   Nobody is contesting that.  I accept that as well, your Honour.

HEYDON J:   Do you know offhand when this flying fox came to the school, how many months before the accident?

MR WALKER:   I think at the beginning of Mr Smith’s evidence there is – yes, top of page 34, line 10, “a bit short of 6 years” before the accident.

HEYDON J:   Yes, so it had been used presumably six multiplied by 250 multiplied by two multiplied by the number of rides in a recess without either a serious accident or someone’s legs being pulled, so that they were pulled down off the ‑ ‑ ‑

MR WALKER:   Obviously nobody would know about whether the latter was correct, but certainly so as to have caused a reportable, reported serious accident, your Honour is right.

McHUGH J:   There was an accident on one.

MR WALKER:   There have been accidents but ‑ ‑ ‑

HEYDON J:   Well, people had scraped their knees and things like that.

McHUGH J:   A child fell off.  There was an accident report.  It is set out at 58 and 59 of the appeal book.

MR WALKER:   That is right.  Mr Smith is confronted with one of his own reports that, not surprisingly, he had forgotten.

HEYDON J:   But did that get into evidence, that report?

MR WALKER:   It was not, no.

HEYDON J:   I wonder why not.  It does not seem to have been tendered. 

MR WALKER:   No, I think it is.  It is exhibit M, page 61.  This is Alison’s left hip.  So you see those references on page 60.  It is “hard to read”.

HEYDON J:   Well, exhibit M is on page 136 and that is about the plaintiff, not Alison.

MR WALKER:   Well, that must be wrong, I think, your Honour.  That is ‑ ‑ ‑

HEYDON J:   You mean what is on 136 is not exhibit M?

MR WALKER:   If you look at page 60, he is trying to read, line 15:

it’s something to do with the hip?---It said “Alison…” . . . Alison complained –

and he is trying to read it.  Then at line 40:

I tender that document, your Honour.

MR GREGG:            It’s a bit hard to read, your Honour.

I am sorry, your Honour, that ‑ ‑ ‑

HEYDON J:   Yes, where is exhibit M?

MR WALKER:   We do not have it with us, I am afraid, your Honour.  I apologise.  It is quite impossible to square 136 with page 60.

HEYDON J:   And yet 136 is something you would ‑ ‑ ‑

MR WALKER:   Indexed as exhibit M.

HEYDON J:   Yes.

MR WALKER:   Now, if I could go back to the matters that Justice Heydon was raising, one would not have needed a previous accident to have in advance taken precautions in relation to the use of play equipment, the very purpose of which is to launch children into the air.

HEYDON J:   They did take precautions.  They had Mr Thiele give instructions and they had the “hands off” policy ‑ ‑ ‑

MR WALKER:   “No touch” rule.

HEYDON J:   And they had the rule of the week in which the “no touch” rule was a frequent component.

MR WALKER:   “Yes” is the answer to all of that.  The question is ‑ ‑ ‑

HEYDON J:   But is it not possible to say that if something has happened many, many, many times in the past without a serious mishap or a mishap of this serious character, it is at the very low end of foreseeability to start with?

MR WALKER:   It is possible to say that, but that does not mean that one ‑ ‑ ‑

HEYDON J:   That is what the majority of the Court of Appeal reasoned in Makita, for example.

MR WALKER:   I am sorry, your Honour?

HEYDON J:   Justice Priestley and Justice Powell reasoned that way in Makita.

MR WALKER:   Well, it is one thing to be reasoning about treads and surfaces.  It is another thing in relation to children, where herding cats comes to mind as a description.  It is another thing, as I say, in relation to children where you have rules, the very existence of which bespeaks the knowledge that there will be conduct which is dangerous, each to the other – that that is exactly what “hands off” imports – and it is quite impossible, as a matter of factual reasoning, in our submission, to say that there is, as it were, one free shot, that is, so long as something has not happened, it is not reasonable to require precautions against it.

Now, one can leave aside possible fatalities and the like at the moment.  We are talking simply about the kind of very bad accident that occurred to my client, which could have been, as your Honours appreciate, terribly disfiguring as well as bad for one’s capacity to eat and the like.  If one contemplates that kind of accident, then, in our submission, it cannot be factually correct to say that a court would err by finding conduct unreasonable to avert something which had never happened before.

It is, of course, a balance between the relative remoteness of the chance of the mishap and the difficulty of dealing with it by way of precaution, but the school’s own roster, the school’s own rules, demonstrate that they understood that children needed supervision, that the promulgation of rules was not enough, precisely because they would not become rules effective for safety unless their observance or otherwise could be supervised and, when necessary, disciplined or checked. 

Particularly in relation to a new piece of equipment, with children of this age, in our submission, the kind of precaution in advance that is exemplified by the exercise at Kambah – there is no evidence there had ever been a disaster in a public park from one of these big flying foxes – it was perfectly reasonable to have carried out the precautions in advance there, coupled with the obvious thought that had gone into working out areas, designated areas, for teachers, the question was, did the Court of Appeal err by finding it unreasonable to have a system which unsighted the teacher as part of her duty for up to half a minute – a considerable period in the scheme of things – from the very use of the very kind of equipment for which she had been designated in part to supervise?  And against that background, in our submission, asking the relevant question, did the Court of Appeal err, bearing in mind the uncontested application of the principles concerning the appellate statutory jurisdiction here, the answer ought to be no, the Court of Appeal did not err.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I turn first to the question of the numbers who were in the area at the relevant time.  Could I take your Honours to page 21 of the appeal book.  You will see at the bottom of the second half of page 21 commencing at about line 30 that there was a roster for equipment every day and the roster was kept on the noticeboard.  The result, if one goes to the bottom of page 21 through to the top of page 22 to about line 23, was that the only children who were in the vicinity of the equipment were the Year 3 children.

And not all the children from year 3 were playing on the play equipment . . . 

Just some of them?---Yes.

Some were in the handball courts but most of the Year 3 children were up on the oval.  An endeavour was made by counsel for the plaintiff then to get some idea of the numbers in the area.  Your Honours will see that after some debate about the issue which went on at page 30, at page 31 commencing at about line 22, she was asked:

MR PURNELL:   How many children approximately were in the playground at the time – the playground area at the time you had your accident, doing your best?---Probably about 40.

Of course, there is some question of definition of where exactly the playground area was.  That is the closest in the evidence to anyone saying how many children were in the general vicinity, “Probably about 40.”  That, your Honours, was adduced on behalf of the plaintiff.  Attempts were made by the double‑barrelled questions, if I may say so with respect of course, that were made to introduce a number but it was very difficult to say that those figures were accepted.  That is the first thing, your Honours.

The second thing is in relation to what could actually be seen.  Your Honours will see that dealt with in the evidence at page 37.  At the top of the page your Honours will see Mr Smith giving evidence about what the second teacher would be doing, patrolling.  Then your Honours will see on the next page, page 38, between lines 15 and 20, he said that the allocation of resources to playground supervision had proved adequate over the years he had been there.  At the bottom of that page, the last question:

And was there some system that was in force in practice as to how a teacher observed and supervised that designated area?---Sure.  There was – there’s an area obviously where – where the senior toilets are and it was common practice for us to – if you’re on duty to pop your head around the – onto the walkway and make sure that there was no – there were no children playing in or around the toilets, because obviously being a tiled area in the toilets, it can become slippery with children using ‑ ‑ ‑

McHUGH J:   But is that not the weakness in the system?  Does not the evidence at 84, 85 show that under the system that existed here it was necessary for the supervisor to turn her back on the children that she was supervising in the equipment area, and for a period of time, even be out of their sight and that is the very moment when children will play up.

MR JACKSON:   Well, your Honour, the ‑ ‑ ‑

McHUGH J:   It is like the presence of the policemen.  You do not have pickpockets when a policeman is standing there.  The moment the policeman is gone, they are in business.

MR JACKSON:   I do not know about that, your Honour, with respect.  Sometimes it is the very time people think they are safe, in a patrolled area, and what happens whilst they are watching the police and the horses or whatever it is go by, someone is lifting something from the pocket.  What your Honour is putting to me really involves that you have to have a system where this is observed every moment, every moment of the time.

McHUGH J:   No, what you have to have is a system whereby the children are not supervised in the sense that the teacher has her or his back to the pupils for a period of time and goes out of sight.  That is the very moment mischievous children will strike.

MR JACKSON:   Your Honour, one can say that mischievous children will strike whenever a teacher is not present.  It does not follow that for every moment of the day that a child is at school, a teacher has to be watching a child.  Otherwise, that is when one moves from negligence to being the insurer.  If it did, your Honour, the children would not have room to play for their minder is besides them almost, one would think, with respect.  There would be just teachers everywhere.  The costs of schools would go up enormously.  Your Honours, could I just say ‑ ‑ ‑

McHUGH J:   It would not be up here.  I mean, if you double the teachers here so they could see what was going on, teachers are working or on duty two days out of five, it does not strike me as unreasonable.

MR JACKSON:   Your Honour, could I just say in relation to it, the primary judge did have the advantage of seeing Mr Smith give evidence about what the system was, and he was an experienced teacher who expressed a view that the system was one that had worked well for quite a number of years.  Could I just say, your Honour, just for how long a teacher would unsighted.  You will see that referred to at the bottom of page 84 at about line 30.  It is a passage that goes through to the top of page 85 and your Honours will see that it was while she was just going to look at the toilets, that that was the time at which she saw someone out of bounds, and when someone is out of bounds that means they are in an unsupervised position, and so in the brief time that it took her to call out and say, in effect, “Get out of there.  What are you children doing there?” whatever, that is when the accident occurred.

Your Honours will also see, if I could just go back to page 41 for a moment, a passage commencing about line 20 through to about line 40, Mr Smith’s view of what the tasks involved.  One of your Honours asked about what was required to be done in relation to the supervision of the toilets, and your Honours will see that dealt with in the evidence of Mrs McNamara at page 91, a passage commencing about line 17, which goes through to page 92, at the bottom of that page. 

Could I say two other things, your Honours.  The first is this, that a teacher who was patrolling, if I could put it that way, a particular area might well see, outside that area, someone out of bounds.  If the teacher sees someone out of bounds, surely the teacher, for that period, that moment, should or at least might well take the action of saying to the child, “You must come within bounds or get out of where you are”.  In doing that it is almost essential, one would think, that the teacher’s attention would be diverted for a short time to that.  It surely cannot be negligent, in our submission, for there to be a requirement for there not to be another teacher to cover that situation or for it to be negligent for the teacher to take that action.

GLEESON CJ:   Well, in this case, Mrs McNamara had to go and attend to the injured respondent.  She thereby took her attention off all the other children.  I do not think anybody suggests that that involved negligence.

MR JACKSON:   No, your Honour.  Your Honours, the other thing is that if the other accident, as it was described, referred to at page 58 at the bottom of the page, does not appear to have been any more than that someone using the equipment somehow fell off.  It does not seem to have been an incident other than something of that kind.  Your Honours, those are our submissions.

MR WALKER:   Your Honours, with my friend’s consent, I neglected to give one reference in the answers I was giving Justice Heydon, page 61, line 35 to page 62, line 10 concerning even without an accident Mr Smith’s position.

HEYDON J:   Page62, line 10?

MR WALKER:   Foot of 61 over to the top of 62.  I intended but neglected to give that as a reference to your Honour.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.15 am tomorrow morning.

AT 12.10 PM THE MATTER WAS ADJOURNED