Vandescheur v State of NSW

[1999] NSWCA 212

CITATION:	Vandescheur v State of NSW [1999] NSWCA 212
FILE NUMBER(S):	CA 41006/98
HEARING DATE(S):	23/06/99
JUDGMENT DATE:	1 July 1999
PARTIES :	Jay Vandescheur (by his next friend Michelle Vandescheur) v State of New South Wales
JUDGMENT OF:	Giles JA at 1; Fitzgerald JA at 2; Cole AJA at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	70007/98
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	A W R Fennell (Appellant) G A Laughton (Respondent)
SOLICITORS:	Aubrey Brown Partners (Appellant) I V Knight (Respondent)
CATCHWORDS:	Negligence; duty of care; schoolyard cricket game; teacher's duty to supervise. Per Giles and Fitzgerald JJA: substantial risk associated with the activity; teacher breached duty of care. Per Cole JA: negligence not established.
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA41006/98
DC70007/98

GILES JA
FITZGERALD JA
COLE AJA

Thursday, 1 July 1999

Jay VANDESCHEUR (By his next friend Michelle VANDESCHEUR) v STATE OF NEW SOUTH WALES

JUDGMENT

1   GILES JA: I agree with Fitzgerald JA. 2   FITZGERALD JA: This appeal, by leave granted at the hearing, challenges the dismissal of the appellant’s action for damages for negligence. 3   The appellant was injured when he was 13 in the course of playing schoolyard cricket during recess. 4   The pitch was a concrete path, the wickets were garbage bins and the crease was a drain with a metal grille over it across the path. The gaps and bars in the metal grille were at right angles to the path. The players frequently slid the bat across the grille as they ran towards the crease. The bat was a 60cm (approximately) broken slat from a dilapidated seat, with a sharp, jagged end for a handle. There was an obvious risk of the bottom end of the bat being caught in a gap in the grille, and the jagged handle causing injury to a player, as happened to the appellant who was seriously injured. 5   This activity, which the appellant and his school fellows had engaged in for a couple of weeks, was known to, and approved by, teachers. One teacher was watching the game when the appellant was injured. Neither that teacher nor any other person gave evidence for the respondent, so that it is appropriate to proceed on the basis that their evidence would not have assisted the respondent. 6   It is not disputed that the respondent is vicariously liable for any negligence by a teacher which caused the appellant’s injury or that the teachers owed a duty to the appellant to supervise his activities effectively in accordance with directives 87/239 and 88/120 from the Department of Education and Training and the common law. It is unnecessary for present purposes to decide whether the directives expand the responsibility of teachers for the safety of students. This matter can be decided on the basis that the teachers had a duty to take reasonable care for the safety of the appellant, which required them to take precautions against the foreseeable risk of injury commensurate with the degree of risk. 7   In the circumstances, the issue which is thrown up for decision is whether the teachers should have stopped the appellant and his friends playing the game in the circumstances in which he was injured. 8   The trial judge held that “… the risk of serious injury in the course of playing the game was not far fetched or fanciful and was therefore foreseeable”, but that “… it simply did not occur to any of the teachers that the game constituted a risk of serious injury”. However, his Honour considered that what occurred was “… a freak accident…” and that “… the magnitude of the risk was so slight and the degree of the probability of its occurrence so small that a reasonable man in the position of the supervising teachers would not have acted to prevent the game continuing”. 9   It was not part of the trial judge’s reasoning process that the teachers were not shown to have been aware of the nature of the equipment being used or the condition of the path and grille or any other matter which was material to what occurred, and, correctly in my view, such arguments were not pressed upon this Court by the respondent. I have already referred to the absence of any evidence from any of the teachers. 10   In my view, the trial judge’s critical conclusion that a reasonable person in the position of the supervising teacher would not have acted to prevent the game continuing was incorrect. I am satisfied that there was a substantial risk associated with the activity, and that the teachers breached their duty of care to the appellant when they permitted him to continue. 11   Accordingly, I would allow the appeal, with costs. 12   The trial judge did not assess damages but, with the co-operation of the parties, this Court is in a position to do so. 13   Out of pocket expenses were agreed at $20,672.91, and it was agreed that, if the appellant succeeds on liability, he should be awarded $5000 on his “Griffith v Kerkemeyer” claim and between $40,000 and $50,000 for general damages. Neither party suggested that it would be inappropriate for the Court to choose the mid-point between the latter two figures. 14   Accordingly, I would assess the appellant’s damages at $70,672.91. 15   In summary, the appeal should be allowed with costs, the judgment below set aside, and a judgment for the appellant against the respondent for damages of $70,672.91 substituted. The respondent should pay the appellant’s costs of the trial. 16   COLE AJA: For more than a century, perhaps more than two, it has been part of the Australian ethos that children, adolescents and young men, have played cricket. It has been played in backyards, on public streets and footpaths, in playgrounds, and in paddocks. It has been played using a variety of implements for bat and ball and on a variety of surfaces, smooth, rough, even and uneven. The classic image of youths setting up a neighbourhood game of cricket is of two garbage bins being set up as wickets, a piece of a paling fence being used as a bat, and an old tennis ball replacing the harder ball. This image can be seen today throughout Australia on beaches, in parks, on streets, schoolyards and backyards. 17   Whilst engaged in such a game with five or six of his friends in a schoolyard, Jay Vandescheur (“the appellant”), who was thirteen years of age on 14 December 1995, was injured. He and his friends had set up two garbage bins as wickets. The surface on which they played was a concreted schoolyard which had a standard drainage gutter covered by a metal grate of the type normally used. That grate had slots to allow water to enter the drain. The garbage bin at the bowler's end was placed behind this grate, it thus operating as the crease. The batsman hit from the other garbage bin and, as is customary, ran with his bat outstretched towards the bowler's crease, being the grate. The appellant and his friends did not have a bat. They had asked a teacher for a cricket bat and equipment to permit them to play on the school oval before school, during recess and lunchtime. That request had been refused, apparently for sufficient reason, some two or three weeks before the accident. Undeterred, the boys set up their makeshift pitch in an area near to the staffroom and in a position where members of the staff could and did observe their game in the intervening two to three weeks. Not having a bat, the boys pulled a slat from a broken bench at the end of the schoolyard and used that as a bat. The slat they used was about sixty centimetres in length but its other dimensions are not known. At the end of the period of play before school, during recess or during the lunch hour, the bat was normally put in the garbage bin until its next use. From time to time the bat was not there on their return, it presumably having been disposed of with rubbish from the bin. In that circumstance, they would return to the abandoned bench and pull off another slat. Whilst the dimensions of the slat are not known, it was accepted on the appeal, and it would seem obvious, that the width of the slat used as a bat was such that it could not, when grounded by a running batsman on its width plane, go down between the slots in the drainage grate, nor could it when grounded otherwise than in a vertical plane. However, on 4 December 1995, as the appellant ran towards the bowler's end, he grounded his bat, apparently in a vertical plane and it stuck between two slots in the drainage cover. The end of the slat bat was described as jagged. The appellant tripped and the jagged edge of the slat bat pierced his calf causing injury. It is not known whether the bat being used on 4 December was one which had previously been used or was new that day. As the accident happened in the luncheon recess, it seems likely that the bat had been used at least in the period preceding school and during recess on that day, as well as during the luncheon break prior to the accident. 18   There is no doubt that the activity of the six or so boys playing cricket in this fashion had been observed by various teachers - at least one had applauded aspects of their skill. There is equally no doubt that there were teachers in the playground supervising, and at least one teacher watching, the game, if not at the time of injury, then shortly prior to it. 19   The appellant sued the State of New South Wales being the provider of the school attended by him. The negligence alleged was:

(a) failure to supervise or properly supervise;
(b) failure to discipline or properly discipline;
(c) permitting the students to play cricket in an area not suited for such a game;
(d) permitting the students to play cricket with the use of a wooden chair leg as a cricket bat when it was not safe to do so; and
(e) permitting the students to play cricket in an area where there was risk of injury.

20   The case was fought on the basis that a wooden slat from a bench, rather than a chair leg, was and had at all times been used as the bat. 21   Patten DCJ dismissed the claim. His Honour found that the risk of serious injury in playing such a game was foreseeable, not being far fetched or fanciful. However, he also held that:

“The magnitude of the risk was so slight and the degree of probability of its occurrence so small that a reasonable man in the position of the supervising teachers would not have acted to prevent the game continuing. This was, I believe, a freak accident which occurred during the course of a game which was not intrinsically dangerous. The boys playing it were about thirteen years old and no doubt the teachers who watched them thought that what they were doing represented a reasonable and safe outlet for their energies. It was, I think, appropriate for them to take that view. That being so, in my opinion, the plaintiff has failed to prove a breach by the defendant of its duty of care towards him.”

22   The appellant contests that finding of absence of negligence on the part of the State, the school and its teachers. 23   There was no contest regarding the facts. The evidence on liability comprises the evidence of the appellant, brief statements from two fellow players and photographs. No evidence was called on liability by the respondent. This Court is thus in a position equal to that of the trial Judge to determine liability, there being no question of credit of any witness affecting liability. 24   The standard of the duty of care was also not in dispute. Both parties accepted that the duty of care was that enunciated by Mason J in The Commonwealth of Australia v Introvigne (1982) 150 CLR 258. His Honour there said:

"The decision of this Court in Wyong Shire Council v Shirt establishes that a risk of injury is foreseeable, so long as it is not far fetched or fanciful, notwithstanding that it is more probable than not that it will not occur. 150 CLR at 267
…
A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance. 150 CLR at 269
…
It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated. 150 CLR at 270 "

25   In the same judgment, Mason J noted that it was:

“notorious that school pupils in large numbers, if left to their own devices in a recreation area, will on occasions engage in activities involving some risk of personal injury” 150 CLR at 266

and later:

“the immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants” 150 CLR at 271

26   It is to be observed, in passing, that this injury did not occur whilst a large number of school pupils were left to their own devices in a recreation area, nor were the pupils engaged in any mischief. They were six thirteen year old boys playing a traditional game of cricket, as they had for the preceding two or three weeks, using implements which they obviously regarded as appropriate and safe, as necessarily did the teachers, unless it is to be assumed that the teachers regarded either the bat implement, or the site of the pitch, or a combination of both, as unsafe but disregarded that view. To my mind, no such inference should be drawn adverse to the teachers. Having regard to the evidence that the activity of the boys, being outside the staffroom, was observed over a period of weeks by a number of teachers, it can only be assumed that they, as did the boys, regarded the activity as safe both as to the area where it was being played and the equipment being used. 27   Apart from the common law duty of care enunciated by Mason J, there were Education Department instructions making clear that the school and its teachers owed a duty of care to the children to provide effective supervision of their activities so as, acting reasonably, to protect them as best they could from injury. 28   The issue is whether it was negligent of the teachers to permit six thirteen year old boys to play cricket in the fashion, at the place and with the equipment I have described. 29   In addressing this question, it is, in my view, of critical importance that little is known regarding the bat being used. Its dimensions are unknown. It is not known whether the bat in fact being used which caused injury was a slat which had been used for a considerable time and which, in its original condition before use, would not have fitted into the slot in the drainage cover but which, through wear, reduced in thickness so that it would, if grounded in a perpendicular fashion and on an opening on the slot in the drainage cover, slip into it. It is not known if it was a slat used for the first time that day. It is thus not known whether the end carried by the appellant as batsman, and described as jagged, was the end of a bat which had been in use for some weeks and, perhaps, ought to have been observed by the teachers, or whether it was being used for the first time and not the subject of observation over some weeks. I have difficulty with the concept that reasonable care of students requires a teacher to inspect daily the end of slat being used by thirteen year old boys as a cricket bat to determine if it is jagged at one end or of such dimension that, when grounded on one particular angle on a particular spot, being a slot in a drainage cover, it would stick in that slot. Risk of injury from such an event as occurred may be foreseeable within the meaning of foreseeability enunciated in Wyong Shire Council v Shirt, as explained by Mason J in the passage I have quoted, notwithstanding the extreme improbability of such an injury occurring. However, there remains the question of what constitutes an appropriate response, having regard to the duty of care imposed upon those providing school facilities, to such an improbable, yet foreseeable, risk of injury. 30   The available response was in essence twofold. One was to permit the game to continue as it had without incident for some weeks. The other was to prohibit the game of cricket being played where it was as it was. It was not alleged as a head of negligence the failure of the teachers or school to permit the appellant and his friends to play cricket on the oval, a reason for that position having been given and not challenged. To prohibit the boys from playing cricket as they had been for some weeks would, to my mind, have been an officious, unnecessary and unreasonable act. The fact that an injury occurred does not deny the reasonableness of permitting the boys to continue playing as they had been for some weeks. Whilst there may have been a foreseeable risk within the definition in Shirt, there was no real likelihood of injury; this sort of activity is carried on in a multitude of places throughout Australia each day without incident. It had been carried on on this site with the same equipment for some weeks without incident. Permitting thirteen year old boys to play cricket with a knock-up bat and ball on a knock-up pitch is a usual Australian activity and, as the trial Judge found, represented a “reasonable and safe outlet for their energies”. 31   In my view, negligence was not established. I am of the opinion that the appeal should be dismissed with costs.

* * * * * * * * * *