Australian Capital Territory Schools Authority v El Sheik

The trial judge's findings 8 It has not proved possible to identify the teacher mentioned by Mr El Sheik and Mr Esposito. The reason may have been that Mr El Sheik did not go to the sick bay, as instructed by his class teacher, Mr Walker. If he had done so, there would presumably have been a contemporaneous note of the incident, and perhaps some investigation. However, the trial judge acquitted the teacher of negligence in respect of the incident. In para 12 of his reasons, his Honour said: "On this evidence I am satisfied on the probabilities that the plaintiff received an injury to his leg in an incident much as he described. The incident probably started in a playful consensual manner. However it developed to the stage where, the plaintiff having indicated his wish that it desist, there was an assault on the part of Tony Esposito. I find further that the teacher on duty in the immediate area became aware of some sort of going on that deserved investigation and that by the time he or she arrived in sufficient proximity to observe the nature of the incident, the fight would have appeared to have ceased. However, as it turned out, it had ceased only temporarily. The plaintiff was not a sufficiently impressive witness and his evidence was not sufficiently precise to convince me that the teacher saw the fight whilst it was in progress. There was nothing specific in my view to put the teacher on notice, that, unless he or she did something further or remained in proximity for a further length of time, a fight was likely to break out once he or she had moved away. In precise terms I do not find established any negligence by way of failure to supervise on behalf of that particular teacher or any other teacher on playground duty for whom the first defendant is vicariously responsible." No challenge is made to this conclusion. 9 After dealing with the position of the unidentified teacher, the primary judge turned his attention to the position of Mr Livermore. He said in paras 13 and 14: "Nor do I find any negligence established against the second defendant. The case against the second defendant as principal of the school is essentially that he failed to ensure that there was staff in sufficient numbers and in sufficient proximity to supervise the activity of students in the grassed area and, in particular, that the provision of only one teacher in that area was an inadequate response by the principal to the need for proper supervision. The case is embellished by an allegation in the particulars furnished with the statement of claim that the area was known to be a place where fights broke out, but that allegation is not sustained on the evidence. I reject the allegation (not made in the particulars) that the second defendant was negligent in not rostering the staff in such a way that there was one teacher supervising for every fifty pupils in the playground during the lunch break. There is no evidence that it was open to the principal to assign to lunch break playground duty more than the number of teachers in fact assigned. The teaching resources available to the principal were obviously not unlimited. The more teachers assigned to duty during the lunch break, the fewer available for classroom and other duties before and after the lunch break". 10 The ratio of one teacher supervisor for every fifty pupils came from a report prepared by a witness called on behalf of the respondent, Dr Wilfred W Ewens. At the time of giving evidence, Dr Ewens was a sports science consultant. Prior to that, between 1990 and 1993, he was an Associate Professor at the University of New South Wales and Head of the University's School of Sport and Leisure Studies at Oatley. He commenced his career as sportsmaster of Penrith High School between 1952 and 1957 and then spent many years as a physical education adviser or physical education teaching lecturer. 11 Dr Ewens' report noted the tendency of teenage students (especially boys in their early teens) "to be reasonably active in their recreational pursuits". He said: "Physically robust organised games and rough 'horse play' symbolise their play activities". Under the heading "Supervisory standards", Dr Ewens referred to the responsibility of school authorities to safeguard the welfare of students. He said: "While there is no specific reference to the ratio of supervisors to students the directives clearly require the Principal to ensure that there are sufficient teachers on duty to effectively supervise the students. It is my considered opinion that given ideal conditions, open, flat, unencumbered playground space and relative passive activity patterns a ratio of 1:50 could be acceptable. However as the situations become more complex ratios should be adjusted accordingly. Where active recreation is involved this ratio should be reduced to average class size proportions." 12 Dr Ewens did not explain the reason to selecting a ratio of 1:50. He did not suggest this ratio was stipulated by any generally accepted standard or derived from research or published data. 13 Mr Livermore gave evidence about a number of matters. He was asked by his counsel whether he considered the arrangements for supervision on the day of the incident to have been adequate or inadequate. He replied "Adequate". That answer was not challenged in cross-examination. Neither did counsel put to him Dr Ewens' suggested ratio of 1:50 or explore the possibility that more supervisors could have been provided than the six supervisors who were on duty, for the whole school, at the time of the incident. It seems that the lack of evidence on this point was the reason why the trial judge held Mr Livermore was not negligent.

The trial judge's finding against the Authority 14 In dealing with the case against the Authority, Miles CJ stated that its duty was "to ensure that reasonable care was taken with respect to the plaintiff's safety during the time that he was subject to the first defendant's supervision". He referred to a number of decided cases. They included Commonwealth of Australia v Introvigne (1982) 150 CLR 258, also a case involving injury to an Australian Capital Territory schoolboy in which there was a claim of inadequate supervision. On that occasion, the claim succeeded. The purpose of these references was to demonstrate that an entity in the position of the Authority was directly under a duty of care to students; its potential liability was not confined to vicarious liability for the negligence of its servants, such as the principal of, or a teacher at, a school under its control. The trial judge's view about this matter is not challenged in this appeal. It seems to me, with respect, undoubtedly correct. 15 Turning to the facts relevant to the liability of the Authority, his Honour summarised Dr Ewens' report. He mentioned Dr Ewens' espousal of a ratio of 1:50, as the minimum adequate standard of supervision. He did not refer to Mr Livermore's evidence that, in his opinion, the level of supervision was adequate. At para 50 of his reasons, the trial judge concluded his discussion of liability by saying: "I find the evidence of Dr Ewens of little assistance. It confirmed that there were ways in which the first defendant might have ensured that reasonable care was taken for the safety of the plaintiff by the provision of proper supervision. Insofar as the defendant failed to ensure that such supervision was provided, it was in breach of its duty. There will be a finding of negligence on the part of the first defendant."

Submissions on the appeal 16 On the hearing of the appeal, counsel for the Authority, Mr P M Donohoe QC and Mr D J C Mossop, criticised the reasoning set out in para 50 of Miles CJ's reasons for judgment. They say that, if Miles CJ intended to convey that he accepted Dr Ewens' view that the level of supervision of the pupils at the time of the incident was inadequate, this is inconsistent with his Honour's finding about the principal; that is, that it had "not been shown that the arrangements made by Mr Livermore for supervision of the pupils were unreasonable in any identifiable way". Counsel accept that the Authority might be liable to the respondent, even if the principal were not; for example, if there was inadequate supervision but this was the fault of the Authority rather than the principal. However, counsel say, this is not what the trial judge found; he said it had not been shown that the "arrangements … for supervision" were unreasonable. If that was the case, say counsel, there was no basis for holding the Authority liable to the respondent. 17 Counsel also submit that his Honour's reasons were inadequate in three respects: "first, they are apparently inconsistent; secondly, they do not identify in what other respect supervision was inadequate and; thirdly, they do not identify the relevant evidence". 18 Finally, counsel point to the evidence about a teacher on duty in the immediate area becoming aware of the incident and moving to stop it. They question the causal relationship between any general inadequacy in the number of supervisors on duty at the time of the incident and the damage sustained by the respondent. Counsel point out that Miles CJ did not address the issue of causation; after the conclusion set out at para 50 of his reasons, he considered and rejected the Authority's defence of contributory negligence and then moved immediately to an assessment of damages. 19 Counsel for the respondent confined their submissions about the liability of both the Authority and Mr Livermore to an analysis of the effect of applying the ratio of 1:50 suggested by Dr Ewens. They make the point that the effect of that suggestion was that at least two supervisors ought to have been stationed in the area where the incident occurred, the "oval area", whereas the evidence established only one teacher was on duty. They say that, "as a matter of commonsense the Principal should have realised that in an area where two different contact sports were being played at the same time, and whilst another group of students were sitting and talking, one supervisory teacher was too little … Whilst his Honour found that there was no evidence that it was open to the principal to assign more teachers to lunch time duties there was equally no evidence that it would have been difficult to do so". 20 In their outline of submissions counsel for the respondent did not address the matter of causation. When asked about this during the course of oral submissions, counsel responded that it was logical to conclude that an increase in the number of teachers in the area would have lessened the possibility of risk-creating behaviour; therefore the injury suffered by the respondent may be regarded as a consequence of the Authority and the principal not providing a greater number of supervisors.

Conclusions on the appeal 21 The trial judge's liability finding against the Authority is expressed in elliptic language. His Honour commenced para 50 of his reasons by saying that he found the evidence of Dr Ewens "of little assistance". Yet he went on to base his finding on that evidence. Presumably, therefore, the first sentence must be understood as meaning that Dr Ewens' evidence was of some assistance, although perhaps to a limited degree. This is consistent with the following sentence in which his Honour observed that the evidence "confirms that there were ways in which the first defendant might have ensured that reasonable care was taken for the safety of the plaintiff by the provision of proper supervision". In saying that, Miles CJ must have been referring to adoption of a 1:50 ratio; that was the only suggestion made by Dr Ewens in respect of "provision of proper supervision", as distinct from comment on the reaction to the incident of the teacher who observed it. Miles CJ did not say why he was prepared to adopt the 1:50 ratio. Nor did he discuss the view of Mr Livermore that the level of supervision was adequate. Mr Livermore had relevant qualifications at least matching those of Dr Ewens. At the time of giving evidence he was a lecturer in education and education management at the University of Western Sydney. From 1965 to 1995 he was actively engaged in school teaching in the Australian Capital Territory, apart from five years between 1979 and 1984 when he was Principal Education Officer for the Authority, concerned with curriculum development for the Territory. Mr Livermore must have had considerable experience, probably exceeding that of Dr Ewens, in pupil management, including during recreation periods. Of course, Mr Livermore was a defendant. Any opinion expressed by him would need to be considered with that in mind. However, Miles CJ seems to have been prepared to accept Mr Livermore in relation to other matters. So it is surprising there was no discussion in his Honour's reasons about his view that the level of supervision was adequate. 22 However, it seems to me unnecessary to form an opinion as to whether his Honour erred in accepting Dr Ewens' 1:50 ratio. In my view there was a fatal defect in the respondent's case: the respondent failed to establish a causal connection between the alleged breach of duty - the failure to provide supervisors in a ratio of 1:50 to pupils - and the injury suffered by him. Under some circumstances it might be possible to establish a causal connection between a failure to provide adequate supervision and an injury. Introvigne was such a case. Closer to home, it might have been different if Mr El Sheik had been injured in an incident that went on for a significant period of time, the injury occurring after the time by which the incident should have been stopped, if proper supervision had been provided; or if the injury was sustained from a cause that could have been foreseen and prevented by reasonable supervision. Similarly, the ratio of supervisors might be important if the level of supervision was so low that, during an incident, no supervisor was on duty in the relevant area, or the nearest supervisor was too far away, or so distracted by other duties, as to be unable to respond quickly to the incident. The ratio might have been relevant in the present case if it were shown that the manner in which the teacher dealt with Mr Esposito's conduct was affected by the burden placed on her as sole supervisor in the oval area. But none of these things was shown. 23 The evidence establishes that Mr Esposito kicked Mr El Sheik both before and after the intervention of the teacher. The evidence does not disclose the length of time that elapsed between the commencement of the kicking and the teacher's intervention. But the time must have been quite short. After receiving one or more kicks that were painful, Mr El Sheik asked Mr Esposito to desist. When he failed to do so, Mr El Sheik - who was apparently the bigger boy - put Mr Esposito down hard on the ground. Apparently the teacher arrived about that time. She cannot have been very far away when the incident commenced. If there was a second teacher on duty in the oval area, common sense and common practice would have had that teacher in a different part of the oval area; so it is most unlikely that the presence of a second teacher would have reduced the response time to the incident. 24 In relation to the kicking that occurred after the teacher's intervention, it must be remembered that the teacher formed the opinion that the incident was finished and there was no need for her to do more. That opinion turned out to be unduly optimistic, but Miles CJ held that the teacher acted reasonably in treating the incident as finished and moving away. The subsequent kicking occurred suddenly and was brief. On this occasion Mr El Sheik seems to have acted very promptly and decisively. It is difficult to see that this brief skirmish would have been affected by the presence of a second supervisor in the oval area. 25 In considering the relevance of having a second supervisor in the oval area, it must be remembered that this incident occurred in an everyday situation. There was no special event or crisis. It was just another lunch break at Melba Technology High School. As Dr Ewens said, rough "horse play" symbolises the play activities of teenagers, especially younger males. It would require an army of supervisors to prevent any incident that might give rise to a physical injury; an injury might be sustained from something as quick, simple and common as one pupil pushing or tripping up another. It is not uncommon for boys to aim kicks or blows at their fellows, without meaning to cause substantial pain or any injury. Unless an educational authority was prepared to impose a degree of regimentation that would be likely to provoke adverse community reaction, it would be impossible for it to prevent such incidents occurring. An educational authority can, and should, prevent rough "horse play" incidents going on for a significant time or escalating into a level of violence that is likely, under normal circumstances, to constitute a danger to life or limb; but it seems to me that is all it can do. 26 Usually, no substantial injury results from incidents such as those I have mentioned. In the present case, tragically, there was substantial injury. But that occurred not because of the nature of the incident but because Mr El Sheik suffered a rare condition of which the school authorities were unaware. If negligence be shown, a defendant must take a plaintiff as he or she is; it is no answer to say that the plaintiff has suffered a degree of injury exceeding what would be suffered by a normal person without the special vulnerability. However, in assessing the question whether a defendant has been guilty of negligence, the fact that the defendant was unaware of the special condition is of considerable importance. A defendant must exercise reasonable care, having regard to the information actually or constructively known to the defendant. It follows that, in the present case, the question of breach of duty must be evaluated on the same basis as if Mr El Sheik did not suffer a special vulnerability. Although I accept that an educational authority has a duty to take reasonable steps to protect students from significantly violent behaviour, or from prolonged unwelcome physical attention, I do not think it can realistically be said that the duty extends to protecting an apparently normal 15 year old boy from receiving, over a short period of time, playfight kicks from his friend, even painful playfight kicks. 27 Mr El Sheik received an injury in this incident that has turned out to be very serious. It can give no pleasure to any judge to join in an order taking from him an award of damages that would have provided substantial assistance to him and members of his family in coping with this disability. However, he is entitled to damages, and the Authority is liable to pay damages, only if it can be established that his injuries were sustained as a result of a breach by the Authority of its duty of care to him. That is not shown.

Disposition 28 In my opinion, the judgment entered in favour of the respondent by Miles CJ must be set aside. In lieu thereof it should be ordered that judgment with costs be entered in favour of the Authority. Having regard to the outcome of the appeal in relation to liability, the respondent's cross appeal should be dismissed. The respondent should be ordered to pay the costs of the appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A71 OF 1999

BETWEEN: AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY

REASONS FOR JUDGMENT 29 SPENDER J: I have had the benefit of reading in draft form the reasons for judgment of Wilcox J. I respectfully agree with them and with the orders he proposes. Since I am disagreeing with the conclusion of the learned primary judge, I wish to make some further observations of my own. 30 Whilst it appears that some judges of the High Court consider that some judges of the Full Court of the Federal Court, at least arguably, allow an appeal merely because they have a different view of the facts than the trial judge and not because they think that view was wrong (see the transcript of the application for special leave in Minister for Immigration and Multicultural Affairs v Jia Le Geng P34/1999 (14 April 2000) [and further, in that case, that it is impermissible for an appellate judge to give effect to a view that when a Minister of the Crown speaks directly on a matter for his judgment he means what he says and says what he means], it seems necessary for me to affirm that the appellate jurisdiction conferred on the Full Court of the Federal Court to hear and determine appeals from judgments of the Federal Court constituted by a single judge, or appeals from judgments of the Supreme Court of a Territory, is as set out in Petreski v Cargill (1987) 18 FCR 68, where the Full Court, (Sheppard, Kelly and Neaves JJ) said at 77: "Appeals to this Court are not by way of rehearing, but are in the nature of appeals stricto sensu: see Duralla Pty Ltd v Plant (1984) 2 FCR 342 per Smithers J (at 349-353), Northrop J (at 360-365) and Beaumont J (at 366-367). A consideration of a number of authorities referred to by their Honours reveals the difference between the two classes of appeal." 31 Further, in Minister for Immigration v Hamsher (1992) 35 FCR 359, Beaumont and Lee JJ said, at 368/9: "The material upon which his Honour made his findings consisted of documents, affidavits and uncontested oral testimony. This Court is as well placed as his Honour to draw inferences from that material. (See Warren v Coombes (1979) 142 CLR 531.) Section 27 of the Federal Court of Australia Act 1976 (Cth) provides as follows: "In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken on affidavit, by oral examination before the Court or a Judge or otherwise in accordance with section 46." However, the hearing of an appeal in this Court is neither a trial de novo nor a trial of the case afresh on the record (Duralla Pty Ltd v Plant (1984) 2 FCR 342) and the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (supra) (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319)." 32 In this case, there was no finding of a causal link between the alleged breach of duty - the failure to provide supervisors in a ratio of one teacher to fifty pupils - and the suffering of damage by the respondent, which is an essential element of a successful claim for damages. Moreover, as Wilcox J demonstrates, the evidence indicates that the supervisor on duty was alerted to the disturbance, took steps in connection with it, and, on the findings of the learned primary judge, had no notice of the need for anything more and was not negligent. In the light of those findings it is quite impossible to infer the essential causal connection between any breach and damage. 33 That conclusion is sufficient to dispose of the appeal. I would go further and conclude that on the findings of the learned primary judge, there was no basis for holding the Authority liable to the respondent. 34 The elliptic language of the learned primary judge's finding of liability against the appellant Authority must be based on a view that the failure to adopt a 1:50 ratio of supervisors to pupils amounted to a failure to provide proper supervision. That is, his Honour seems to have accepted the ratio of 1:50 selected by the witness Dr Ewens, which ratio does not seem to have been supported by any generally accepted standard or based either on published information or real-life experience, although in his discussion of opinion evidence, his Honour said: "…the evidence of Dr Ewens does not assist the Court to understand any of the issues in the case. Dr Ewens simply expresses a view on a subject on which he has had a great deal of experience. His view carries weight but cannot be conclusive as a matter of law. If it were entirely uncontradicted, it may be that the Court should act on it, but it is positively contradicted by the evidence of the second defendant and, although it is no longer the law that an expert is not permitted to offer an opinion on an issue which is ultimately for the decision of the Court, the expression of that opinion may be of little assistance to the Court on that ultimate issue." 35 That observation, and the later finding that "the evidence of Dr Ewens [is] of little assistance" are starkly inconsistent with the conclusion of liability against the Authority, which is based wholly and solely on Dr Ewens' opinion. 36 In the passage set out above, the learned primary judge referred to the view of the second defendant, Mr Livermore, that the level of supervision was adequate. Mr Livermore was not cross-examined about this opinion. Most importantly, however, the trial judge expressly found that he was not negligent: "In my view it has not been shown that the arrangements made by Mr Livermore for supervision of the pupils at the time and at the place of the plaintiff's injury were unreasonable in any identifiable way." 37 This finding follows those his Honour made that: "I reject the allegation …that the second defendant [Mr Livermore] was negligent in not rostering the staff in such a way that there was one teacher supervising for every fifty pupils in the playground during the lunch break. There is no evidence that it was open to the principal to assign to lunch break playground duty more than the number of teachers in fact assigned." 38 Nor, I interpolate, was there any evidence to suggest that it was not open to the principal to assign to lunch break playground duty more than the number of teachers in fact assigned. 39 Having regard to the basis on which the primary judge rejected the claim of negligence against the principal, there was, in my respectful submission, no basis for holding the Authority liable to the respondent.

I certify that paragraphs numbered 29 to 39 are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate: Dated: 11 July 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A71 of 1999 DISTRICT REGISTRY ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY Appellant AND: EL SHEIK Respondent ROMEL EL SHEIK Cross Applicant AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY First Cross Respondent RAYMOND LIVERMORE Second Cross Respondent JUDGES: WILCOX, SPENDER and HIGGINS JJ DATE: 11 JULY 2000 PLACE: CANBERRA REASONS FOR JUDGEMENT 40 HIGGINS J: I have had the advantage of reading the reasons for decision of Wilcox J. I agree with his Honour's conclusion that the causal relationship between the breach by the Authority of its duty to provide adequate resources for supervision of pupils in the relevant area is unproven. 41 I, therefore, concur in the orders his Honour proposes with the same regret and reluctance as his Honour expresses. I certify that paragraphs numbered 40 and 41 are a true copy of the Reasons for Judgment herein of the Honourable Justice Higgins.

Associate: Dated: 11 July 2000 Counsel for the Appellant: Mr P M Donohoe QC & Mr D J C Mossop Solicitor for the Appellant: ACT Government Solicitor Counsel for the Respondent: Mr B J Salmon QC & Mr B Hull Solicitor for the Respondent: Wood Fussell Counsel for the Cross Appellant: Mr B J Salmon QC & Mr B Hull Solicitor for the Cross Appellant: Wood Fussell Counsel for the First Cross Respondent: Mr P M Donohoe QC & Mr D J C Mossop Solicitor for the First Cross Respondent: ACT Government Solicitor No appearance by the Second Respondent Date of Hearing: 16 May 2000 Date of Judgment: 11 July 2000