Van Donselaar v Central Coast Grammar School Ltd

[2004] HCATrans 274

[2004] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S531 of 2003

B e t w e e n -

ANTHONY GEURT STUART VAN DONSELAAR

Applicant

and

CENTRAL COAST GRAMMAR SCHOOL LTD

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 AUGUST 2004, AT 10.25 AM

Copyright in the High Court of Australia

MR R.E. WILLIAMS, QC:   If the Court pleases, I appear for the applicant.  (instructed by David J.H. Hooper) 

MR P.R. GARLING, SC:   If the Court pleases, I appear with my learned friends, MR R.A. CAVANAGH and MS K.C. MORGAN, for the respondent.  (instructed by Thompson Cooper Lawyers) 

GUMMOW J:   Yes, Mr Williams.

MR WILLIAMS:   Your Honours, at the outset I would concede there is no novel point.  I want to make some submissions about why the matter is special.  Whether or not it be correct, intermediate courts have concluded that there has been a shift in the decisions of this Court towards an added emphasis on personal responsibility for one’s conduct, at least in the context of personal injury cases.

That is said to be illustrated by cases concerning pedestrians, sporting and recreational participants, swimmers, divers and drinkers, and acknowledged in numerous decisions in the New South Wales Court of Appeal, for instance, the latest of which are Wyong Shire Council v Vairy and Waverley Municipal Council v Swain, in which this shift is variously described as “the winds of change” or “the turning of the tide”.

KIRBY J:   You can no doubt throw in other metaphors, too, but this at a high level of abstraction.  We are dealing with this particular case.

MR WILLIAMS:   Yes, we are, your Honours.

KIRBY J:   It always has to come back, as the Court has said, and repeatedly of late, to issues of reasonableness.  I mean, that is the essence of negligence.  Here you have a school boy who was on crutches and he slips in the rain.  His teachers had offered him help to carry his books; he declined.  Now he says, “Well, they should have put a railing on the steps and I would have hopped up the steps”, which is an enormous effort, eight steps.  It does not seem to be error.  The primary judge found against you.  The Court of Appeal unanimously found against you.  It just does not seem to be the sort of matter that would engage this Court.

MR WILLIAMS:   Going from the philosophy to this particular case, what happened here was that the decision was arrived at not with the consideration – and I refer to the first instance process – not to a consideration of the content of the duty of care or to the defendant’s response to the risk at hand, but by placing the onus entirely on the applicant, that is, in holding that all that was reasonably necessary for the respondent to do was to leave it to the applicant to decide for himself if he needed assistance.

KIRBY J:   Well, he is a Year 12 student, and the teacher did go out of the way.  When I think back at Fort Street, I doubt if my masters would have gone out of the way in such a situation to say, “Well, look, we will get Bloggs to carry your books”.  At this school they did.  Times have changed.  Negligence has made schools more careful; Introvigne taught that lesson.  That was done and this lad of Year 12 grade said, “No, I prefer to manage”, and then he slips in the rain on a slippery step.  That does not seem to be ‑ ‑ ‑

MR WILLIAMS:   Your Honours, can I say two things about that.  First of all, this school is not Fort Street.

KIRBY J:   There are no other schools than Fort Street – except, perhaps, Sydney Grammar.

MR WILLIAMS:   Yes.  Both those schools, as I far as I recollect, are situated on a flat surface.

GUMMOW J:   No.

MR WILLIAMS:   They are certainly not situated on the side of a hill, and that is not a flourish, your Honours.  This school was in fact situated on the side of a hill and is constructed on five levels, as I recollect it, each level connected by a series of steps open to the elements.

KIRBY J:   Yes, I have seen the photographs.

MR WILLIAMS:   The vice in responding to what was a clearly foreseeable risk of injury and a risk of a serious injury, having a chap on crutches attempting to negotiate these steps, was that he would not know whether he needed assistance until he was in his situation, that is, on the crutches and in the cast, in the then situation which occurred six days into the school term when the heavy rain – when it used to rain in Sydney and we had the heavy downpour all morning.  The pattern that had been arranged for him on a day to day basis was that he was going up and down these various levels – his own system – with a pack on his back and his textbooks.  After, I think, a science lesson had finished, mid‑morning, in the heavy rain, he is left by himself at the bottom level with his crutches, attempting to get to the top level to change over his books to go to his next course.

Now, it is right or wrong, but the response of the school presented with a Year 12 student who obviously is going to be enthusiastic at the beginning of the school year – to say to that student, by way of response to what he was presenting to them, “Let us know if you need any assistance”, was a response that was fraught with danger.

GUMMOW J:   What are the errors in the judgment of Justice Beazley in the New South Wales Court of Appeal at paragraphs 25 and following?

MR WILLIAMS:   The Court of Appeal did not grapple with the point which we advance and advance in this Court, and that is that special leave ought be granted in order to correct the over‑exuberance to run with this new tide of personal responsibility at the expense of what we say are the principles that ought govern the decision.  The Court of Appeal determined the matter in two ways.  First, it determined that the applicant had managed his first six days at school and that that was a relevant feature, to which we say, well, so what?  The first six days of school he enjoyed in apparently dry and steady conditions. 

Second, the Court of Appeal said that the heavy rain would not have increased the risk of injury.  We have to say that that must be plainly wrong.  That, again, is either right or wrong, but that is the manner in which the Court of Appeal dealt with it.  So nothing turns on the first finding because it does not go to the point that we are advancing, that is, that he may have been able to get by traversing the stairs in dry conditions, but once you have heavy rain, producing not just the hazard that heavy rain would produce on outdoor concrete steps, but, in addition, having regard to the canopy of trees that were overhanging the stairway, producing debris on the stairs as well, the fact that he managed six days is neither here nor there.  He was not managing six days in those conditions.

We say simply in respect of the causation point that it must be wrong to hold that in these circumstances these conditions would not have contributed to the plaintiff slipping and falling, given the manner in which he was required to get up the stairs.  Your Honours, it comes back to this.  As your Honour Justice Kirby put to me, I have to make the case special, and the case is special for this reason, that it has clearly been governed by this so‑called shift or changing of the tide or whatever the phrase is.

KIRBY J:   I understand that submission, and I myself have been moved occasionally to say that cases have been reversed where plaintiffs have succeeded, but here you have failed at trial and in what appear to be rather unpromising factual circumstances.  So if one is looking, as it were – and I understand the point you are putting – for a case where the so‑called shift can be considered frontally by the Court, this is not a very promising factual foundation.

MR WILLIAMS:   The point is, it may not be a shift.  What the intermediate courts are referring to as a shift, a turning of the tide, a changing of the wind or whatever, in this Court may in fact be no more than a product of this Court’s emphasis on the reasonableness of the defendant’s response to a foreseeable risk of injury.  I have in mind Tame.

KIRBY J:   There are many, many cases and the commentator Professor Luntz has written about the fact that the Court has gone back again and revisited Lord Atkin’s statements and looked at what it is all supposed to be about:  reasonable care, breach of the duty of reasonable care.

GUMMOW J:   And it has done it not only, as it is said, pejoratively, to encourage self‑reliance, but it has done it to get rid of the encrustations of Buckle and the encrustations of the nervous shock cases, too.  It cuts both ways, if you get back to basic principle.

MR WILLIAMS:   I appreciate that.  I have to be troubled by what his Honour Justice Kirby puts to me, that this is not a promising case, because it is essential to this leave application that it is a promising case ‑ ‑ ‑

KIRBY J:   You learn, as you sit here in special leaves, you have to keep an eye out for the case that tenders an important question.  You have a rather unpromising circumstance, especially just in the factual circumstance that the teachers were vigilant and offered that they would get somebody to do the carrying of the books and that was declined.  He is a Year 12 student.

MR WILLIAMS:   I appreciate that.

KIRBY J:   In the old days, he would have been at university.

MR WILLIAMS:   Almost.  I think he was just 17, but yes.

KIRBY J:   Yes.

MR WILLIAMS:   I say no more than this about what your Honour puts to me.  The response really was, “Ask us if you need any assistance”.  Then he enters into this particular school with its peculiar structure, in terms of the levels and what have you, which has to require a great deal of going up and down the stairs.  The applicant could not have known that he required assistance until he was placed in the situation that occurred on the day of the accident.

KIRBY J:   Can I just ask you this.  You raise Introvigne’s Case and that is the non‑delegable duty of care.  That is only relevant to establishing that a duty of care exists, which is not in dispute in this case.

MR WILLIAMS:   Yes, I accept that.  It is not in dispute.

KIRBY J:   So it does not take it anywhere.

MR WILLIAMS:   It does not take the argument here anywhere, no.

KIRBY J:   That is what I thought.

MR WILLIAMS:   The matter would only be regarded as warranting special leave if your Honours accepted the submission that the court, particularly the court at first instance – because I have to say the Court of Appeal really does not touch on the point, though we argued it ‑ ‑ ‑

KIRBY J:   Exactly.  That is the problem, you see.  The case to deal with this so‑called “change in the wind”, “turn of the tide” and so on is a case where the plaintiff has won and a Court of Appeal has said, “Well, we are going to take this away because we understand the High Court has changed its tide”.  That is not this case, I am afraid.

MR WILLIAMS:   This case, your Honours, is an illustration of a court overreacting to the so‑called change ‑ ‑ ‑

KIRBY J:   I know you say that.  Your best point, it seemed to me when I read it, was the lack of the handrail, because many schools have handrails because there are little boys as well as big boys, and little girls as well as big girls.  But the problem in this case, peculiarly, was that your client was on crutches, and therefore the handrail, of its nature – the reality, the likelihood, the intuition is, he would not have hopped up and held the handrail, he would have gone up with his crutches.  So I do not think the handrail is causally relevant.

MR WILLIAMS:   I do not want to say anything about that, but I do want to say this, that the prospect of a student, whether he be 12 or 17 years of age, at the bottom level of this school, in his condition and in the then conditions prevailing, being required to negotiate himself up to the top level, having been tendered the following assistance by the school, “Yell out if you need assistance”, is an extreme example of a court failing to adhere to the correct principles and approach to the questions of duty and breach and overreacting to the correct or otherwise perception that there has been some sort of change in the tide and overemphasis on personal responsibility.  Those are the matters that I can put to your Honours.

GUMMOW J:   Thank you, Mr Williams.  We do not need to hear you, Mr Garling. 

The applicant sued his school for negligence.  The primary judge in the New South Wales District Court, Judge Black, dismissed the action.  The New South Wales Court of Appeal unanimously dismissed an appeal to that court. 

The case substantially is concerned with its particular facts.  We are not convinced that any error of law has been shown in the reasons of the Court of Appeal, nor are we convinced that there would be reasonable prospects of success were we to grant special leave.  To the extent that any general issue has been raised in Mr Williams’ submissions, that must await a more promising factual foundation. 

Accordingly, special leave is refused and refused with costs. 

AT 10.51 AM THE MATTER WAS CONCLUDED