Watson v Roman Catholic Archbishop of Broome - [2001] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WATSON -v- ROMAN CATHOLIC ARCHBISHOP OF BROOME [2001] WADC 117

CORAM: CHARTERS DCJ

HEARD: 23, 24, 26, 27, 30 APRIL 2001

DELIVERED : 21 MAY 2001

FILE NO/S: CIV 2551 of 1999

BETWEEN: ELEANOR FRANCES WATSON
Plaintiff
AND
ROMAN CATHOLIC ARCHBISHOP OF BROOME
Defendant

Catchwords:

Negligence - Failure to construct a safe pathway - Turns on its own facts

Legislation:

Nil

Result:

Defendant negligent and liable for plaintiff's damage - Plaintiff not contributorily negligent

Representation:

Counsel:

Plaintiff: Mr R R Cywicki
Defendant: Mr M H Zilko

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Pynt McKay

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Cardone v Trustees of the Christian Brothers (1995) 130 ALR 345
Charlesworth v Ramsey [1966] 1 NSWR 65
Crombie v Uniting Church of Australia Property Trust (WA) (1996) 17 WAR 291
Jones v Dunkel (1956) 101 CLR 208
McLachlin v Purchas & Ors, unreported; DCt of WA; Library No D980038; 12 February 1998
McLachlin v Purchas, unreported; FCt SCt of WA; Library No 980749; 21 December 1998
Roman Catholic Archbishop of Perth v Hinchcliffe, unreported; FCt SCt of WA; Library No 980520; 14 September 1998
Stannus v Graham (1994) A Tort Rep 81-293

CHARTERS DCJ: The plaintiff is a 62 year old former teacher having been employed by the defendant at the John Pujanjangka‑Piyirn Catholic School, ("the school") at Mulan, near Lake Gregory and claims damages on account of injuries said to have been suffered by her in the course of her employment with the defendant on 20 November 1996.
Her claim is that at 10.00 am on that day she was walking on a gravel pathway in front of the staff room to go to the adult education block when she tripped over an embedded protruding stone upon the pathway and fell heavily to the ground.
She claims that the defendant was negligent or in breach of the implied term of the contract of service to take all reasonable precautions for her safety in the following respects.
(a)the defendant failed to construct a safe and durable pathway at the premises;
(b)it failed to maintain the pathway adequately or at all;
(c)it failed to adhere to the building plans and specifications for the school providing for construction of the pathway;
(d)it failed to carry out regular inspections and maintenance of the pathway to ensure that it was safe for staff and students to walk upon; and
(e)it allowed the pathway to contain rocks and gravel on the surface.
The plaintiff claims that she requested the defendant to build a durable and safe pathway and the defendant neglected to do so.
I am not required to determine the question of damages and consequently I deal only with the matter of liability.
The defendant does not admit that the plaintiff injured herself as claimed. He says that there were express terms in the contract of employment between the plaintiff and the defendant that the plaintiff would manage the finances of the school and the plaintiff would plan, provide, secure and maintain the school facilities and property.
The school is in a remote area and in the exercise of reasonable care for the safety of staff and students it was both reasonable and necessary for the defendant to rely on the plaintiff as school principal to ensure that the school was reasonably safe.
Reliance is placed by the defendant upon an inspection by one John B Fitzhardinge, an architect in the company of the plaintiff:
"The notes of Mr Fitzhardinge's inspection and discussion with the plaintiff provided to the defendant did not recommend any work on the path on which the plaintiff contends that she fell."
It was reasonable in the circumstances that Fitzhardinge, an independent contractor, reviewed the school in the company of the plaintiff and the defendant has no liability to the plaintiff under the Occupiers Liability Act.
The defendant claims that at all material times the plaintiff was under a duty imposed by s 20 of the Occupational Health Safety & Welfare Act 1984 to ensure her own safety and health at work.
Any injury suffered by the plaintiff was caused or contributed to by her negligence, breach of contract and breach of statutory duty by failing to manage the finances of the school and to plan, provide, secure and maintain the school facilities and property to ensure that the path was safe, failing to make reference to the path when inspecting the school with Fitzhardinge and failing to keep a proper lookout when walking on the path.

Findings of fact

As part of the plaintiff's case the plaintiff herself gave evidence and called on her behalf Graeme Campbell, Dennis Frederick Kickett, Andrew Hugh Christopher Christie, John Chalwell, Gladys Chalwell and Alistair Alphonsus Peacock.
The plaintiff and her witnesses gave their evidence satisfactorily and in a convincing manner and I accept their evidence generally.
The plaintiff completed her teacher's certificate course from Claremont Teachers College in 1957 and thereafter was employed at various schools. She was a part‑time lecturer in education and employed by the Education Department of Western Australia as an education officer to assist school development programmes until in late 1994 she applied for the position of principal at the school. In November 1994 the plaintiff was trained for the duties of principal at the Catholic Education Office in Leederville where she was instructed concerning general ethos of the Catholic education and in December 1994 went to the school. She took over from the former principal, Sister Anne Priestley, who briefed her concerning her duties and financial working - a briefing which occupied the space of some three hours.
When the plaintiff commenced living at the school premises the school comprised in broad terms a primary school, a pre‑primary school and secondary school. The primary and pre‑primary school area was made up of older buildings which were constructed in the 1980's. The secondary school was comprised of newer buildings constructed in the 1990's.
There were formal concrete walkways of a verandah nature between some of the buildings but there was no formal pathway between the primary/pre‑primary school and the secondary school - the pathway where the plaintiff suffered her injury.
There were seven members of the staff including the plaintiff and some 40 to 60 students.
During the normal day of the running of the school there was constant traffic between the pre‑primary/primary and the secondary school and some of the members of the staff would travel that pathway seven or eight times in the day.
The school is in a remote area of the north west of this State.
The plaintiff was a dedicated and experienced teacher who was regarded by the defendant as one who made an obvious commitment to the professional development of staff in school hours, she facilitated teachers' professional development during out of school time, she kept in regular contact with the regional office consultants seeking their ongoing support to assist teachers and consulting with them during visits to the school and her sense of responsibility for staff is said to have been evident in the time given and the measures undertaken to ensure that staff feel secure and supported. She is described as a person who had paid special attention to the needs of graduates and provided a real nurture to them. She understood the difficulties teachers faced at Mulan especially those imposed by the cultural challenges of that desert community, the isolation and the separation from family and friends. Students benefited from the plaintiff's strong pastoral sense through a strong affirmation and practical support. Teachers spoke with pride about the appearance of the school which was constantly improving and being maintained and this I understand to have been attributed to the plaintiff's efforts. It was also said that the security and maintenance of the school had been given a high priority by the plaintiff, often at the expense of her own plans. In a review (exhibit D) prepared on 19 September 1996 on behalf of the Catholic Education Commission of WA, signed by Sister Veronica Ryan and another, it was said that the plaintiff had achieved some outstanding successes and was to be congratulated.
During the wet season in the north west the rainfall is very heavy and damages the land surface. Rain in the wet weather starts about October or November of each year and continues until about March of the following year.
The school is situated in a depression with the result that during the rainy season water washes rocks from higher surrounding areas and during the drier season there is a degree of erosion by wind. As a result once the flood water has receded stones and pebbles would be exposed upon the surface.
Much of the terrain in the north west is rocky and uneven. There had been some levelling work carried out upon the school grounds but there was always the prospect of stones embedded in the ground appearing on the surface.
The distance between the primary/pre‑primary school (also called the administration block) and the secondary school (containing the adult education centre) is about 30m and the informal pathway runs in a north west/south east direction. To the north east there is a concrete and bitumen surface basketball court and to the south west there are toilets. These are shown upon the plan exhibit F. From the administration block proceeding towards the pathway is a covered concrete verandah and within metres of the verandah is a gnarled tree.
The pathway was never constructed as such. It came into being by use as a walkway from the administration block to the secondary school.
The plaintiff spoke to Sister Veronica Ryan, then chief executive officer for the Catholic Education Office, about the need for a pathway and asked for her assistance: nothing eventuated. The latter said she was not in a position to do anything about it.
On 20 November 1996 at 10.00 am the plaintiff was walking with Mr Peacock, a prospective adult education officer from the plaintiff's office in the administration block, towards the adult education centre. She wore jogging shoes and socks and upon descending from the concrete verandah she walked at a casual pace with Mr Peacock on her right. Some four to five metres from her office and in the area of the gnarled tree her left foot struck an object causing her to lose her footing and fall forward to the ground. She tripped on a stone. As she fell she struck her left knee and right wrist and fell spreadeagled on the ground.
She was assisted back to her office by Mr Peacock. The latter said that although much of the ground was under grass this was not the case in the area of the gnarled tree where the ground was unpredictable.
The plaintiff had a degree of control of the school funds in the sense that within her budget she was entitled to make some expenditures. In the mid‑year budget review of 1995 she pointed out that amongst matters which needed to be addressed was the construction from the staff room (in the administration block) to the secondary school of "a simple path/verandah type protection". She added "much of the labour will be voluntary but money is needed for cement/steel/roofing cost $9,000".
This expenditure was not authorised by the defendant and consequently a formal concrete path of the kind she recommended was not constructed.
Mr Kickett worked mainly with Aboriginal communities in management positions and as a community coordinator at Mulan Aboriginal Community.
He visited the school on an average of two to three times each week and recalled the arrival of the plaintiff in the middle of December 1994. He described the plaintiff as one who listened to him and did what she could - "she was not afraid of work and did a lot of repairs around the school". Mr Andrew Christie, the coordinator of adult education at the school, was concerned, amongst other things, with safety within the community and Mr Kickett said that Mr Christie was seeking funding to upgrade the paths within the school for there were hardly any paths. There were no or no adequate paths linking building to building.
Mr Christie was given the health and safety responsibility by Sister Priestley when the latter was principal of the school and this continued under the plaintiff. He had no formal qualifications in relation to health and safety.
The area between the administration block and the secondary school buildings was described by Mr Christie as uneven ground containing stones both loose and embedded in the ground and debris. This was nothing unusual given the terrain in the Kimberley region but on occasions he tripped when walking between the two blocks - falling because of the uneven surface.
This was a high use area and in his view a formal footpath should have been constructed for safe walking. He discussed the matter with Sister Priestley and pointed out that this was desirable because of the uneven surface and because this area carried a lot of traffic.
Mr Christie also spoke of the need for a footpath with Ronald Dullard in 1995 during the latter's visit to the school - the latter was in charge of planning and building at the Catholic Education Office. Mr Dullard suggested the matter be put in the budget as a capital expense. Mr Dullard has forgotten the conversation - he kept no diary and acknowledged that possibly Mr Christie did speak about the need for a footpath. There was no formal occupational health and safety officer.
The school grounds were constructed without any provision for rainwater drainage. There was no basic provision for footpaths, drainage between the administration block and the adult education centre. The plaintiff had spoken to him of the need for a concrete pathway between the administration block and the secondary school section.
Mr Chalwell, was a teacher in manual arts and English, and also concerned with the occupational health and safety of the school. He had undergone a number of courses and received a certificate in occupational health and safety in Esperance and carried out a general study of the safety and health aspects of the school. He confirmed that the access way between the administration block and the adult education centre contained embedded stones and loose boulders and pebbles and he marked out with star pickets a boundary between the administration block and the adult education centre for human traffic. He carried out preliminary work for a raised concrete path with provision for drainage underneath but the plaintiff had told him that head office had declined funding for the pathway.
In the wet season the area between the two buildings would be flooded and Mrs Gladys Chalwell described how she would wear garbage bags on her legs to cross the flood water to protect her footwear and clothes. She regarded a concrete footpath as a safer means of traffic from the two sections.
A number of witnesses were called on behalf of the defendant to prove that the pathway was free of danger and no injury could reasonably have been foreseeable. I do not accept those views.
Sister Broad, a regional co‑ordinator, had visited the school and gave evidence for the defendant sincerely but in an uncertain and tentative manner. I could not confidently rely upon her evidence.
Mr Vernon Stanford, a teacher at the school, spoke of the path being very smooth - he had levelled the ground with a tractor and it was compacted. I find he did not level the area of the gnarled tree where the plaintiff fell. He supported the plaintiff's evidence that she wanted a designated pathway and wanted the defendant to pay for it.
Mr Matthew Edwards, a former teacher at the school, acknowledged that flooding would cause hollows and movement of stones and rocks. His wife, also a teacher at the school, agreed that the path was made up of hollows, stones and rocks - it was uneven and it would be sensible and desirable, in a safety sense, to have a concrete pathway.
Sister Janet Lowe agreed that the pathway was uneven.
The evidence called on behalf of the defendant does not persuade me to take the view that I cannot rely upon the evidence of the plaintiff and her witnesses.
Sister Ryan, formerly regional officer for the Catholic Education Office in Broome and now a consultant to that office, was a signatory to the plaintiff's review (exhibit D). My impression is she sought to distance herself from some of the complimentary remarks about the plaintiff and indeed was critical of the plaintiff's introduction of improvements as not having been authorised by the building section at the Perth Catholic Education Office. This criticism was not brought to the plaintiff's attention. Sister Ryan seems now reluctant to accept that the plaintiff had been outstanding in improving the facilities of the school.
The defence, in part, is that the plaintiff was responsible for safety at the school and was entitled to spend moneys on such matters as the concreting of a path. The plaintiff would not require approval from the Catholic Education Office for such works - that was not a "capital work".
Sister Ryan, as I have observed, is now critical of some works initiated by the plaintiff.
Sister Ryan went on to say, in relation to the cement construction of a path 35 to 40 metres long, that approval could have been received "if it was stressed that it was a matter of necessity and particularly if there were sufficient funds in the budget". This attitude is inconsistent with the plaintiff having authority to spend moneys upon such a project and is not inconsistent with the plaintiff's evidence that the matter was raised with Sister Ryan but that nothing was done.
Mr Roger Walsh, an accountant and teacher, is the co‑ordinator of the School Resources Team of the Planning and Resources Section of the Catholic Education Office. This team approves the annual budget of each of the "group funded" schools such as the school. In his evidence‑in‑chief Mr Walsh said that the plaintiff could have used reserves of funds available to the school, as she wished. He did not recall, when he visited the school, mention of the path or any request for upgrading or maintaining that or any other path.
There were 156 schools controlled by the Catholic Education Office.
Safety of the school premises, Mr Walsh said, is initially the responsibility of the principal. There is, in the organisation, no safety officer - "but safety matters are referred to a particular section".
He did not know what safety audits were carried out.
The school is provided with a certain amount of income and the principal was obliged to manage the school finances in accordance with the budget.
Capital works require approval.
He added "… a concrete path, if it wasn't a substantive capital works, she would be able to do of her own volition … It would depend on what the cost was". When asked what the cost threshold was Mr Walsh replied "There's no written authority but anything over about $10,000, a principal would normally ask for approval for, if it was capital works and not maintenance".
There is no formal or specific policy.
Mr Walsh gave no written response to the plaintiff's request, in her mid‑year budget review, for funds for a path. He said he "would have taken that to be part of her maintenance budget, not a capital item". I find he did not respond in any manner, despite his suggestion that he often responded over the telephone.
It is notable that, whilst Mr Walsh said the concreting of the path was not a capital item, the construction of a fence would be.
I find that the plaintiff sought approval for the construction of a concrete or cement pathway, of a verandah type, that she acted appropriately in doing so as it was at least arguable that this was a capital work, and no authorisation was given.

That construction was desirable, for safety and convenience and bearing in mind the terrain and the considerable traffic along that pathway it was foreseeable that someone could be injured by tripping and falling over uneven and stony ground.
The defendant was in breach of his duty of care to his staff and others using that path, in failing to make it as safe as was reasonably possible.
I reject the suggestion that a concrete path would have been unsafe as having a slippery surface in wet weather. No engineering evidence of this was called and it would not be unreasonable to expect that a non‑slip surface should be used.
There has been evidence given by the plaintiff of recent rain which may have unearthed the protruding stone. Other evidence was given that insignificant rain fell in relatively close districts in November. I accept the plaintiff's evidence despite that of the Department of Meteorology as the latter did not record rainfall at Mulan. That evidence does not, however, bear upon my judgment that the path was potentially a risk to those walking along it and a protruding stone resulted in the plaintiff's injury.
The risk is particularly evident when one has regard to the pre‑occupation of a busy principal involved in her daily work, travelling frequently between the buildings.
The absence of any earlier recorded injury does not absolve the defendant from ensuring that much used pathways should be safe.
I reject the submission that the plaintiff, being responsible for the safety of the school grounds, should bear part of the blame for her injury. There was no effective and professional safety review of the school. The plaintiff was not qualified in an engineering or safety role. The plaintiff did what she could reasonably do to have a formal path constructed.
Some links between buildings have been rendered safe by concrete pathways. Certainly this pathway could and should have been made safe in such a manner.

Conclusion

The defendant failed to exercise reasonable care for the safety of the plaintiff and is liable in damages for the injury suffered by her.
The plaintiff did not contribute by negligence on her part, to her injury.