Supreme Court Act 1933 ss 37N and 37O

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 followed

Beaumont v Surrey County Council (1968) 66 LGR 580 cited

The Commonwealth of Australia v Introvigne (1982) 150 CLR 258 followed

Clark v Monmouthshire County Council (1954) 52 LGR 246 referred to

Rich v London County Council (1953) 1 WLR 895 mentioned

Romeo v Conservation Commission of the Northern Territory (1997-1998) 192 CLR 431 followed

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 followed

Devries v Australian National Railways Commission (1993) 177 CLR 472 followed

Abalos v Australian Postal Commission [1990] HCA 47; (1990-91) 171 CLR 167 followed

Fox v Percy [2003] HCA 22; (2003) 197 ALR 201 followed

Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] 122 FCR 110 cited

ACT Schools Authority v El Sheik (2000) ATR 81-577 cited

Carmarthenshire County Council v Lewis [1955] UKHL 2; [1955] AC 549 mentioned

Commonwealth of Australia v Stokes (unreported, Supreme Court of the ACT, Gallop J, 15 November 1996) mentioned

Biogen Inc v Medeva plc [1996] UKHL 18; (1996) 36 IPR 438

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 164 ALR 293 cited

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45; (2001) 180 ALR 655 cited

Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1999] FCA 391 cited

Aktiebolaget Hassle v Alphapharm [2000] FCA 1303; (2000) 51 IPR 375 cited

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2003

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FARRAH HADBA by her next friend and father NOUHAD HADBA

AND: THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY'S PRIMARY SCHOOL)

The order number 3 of Connolly J of 4 April 2003, namely, "There be judgment for the first defendant against the plaintiff with costs", be set aside.

Judgment be entered for the appellant against the respondent in the sum of $105,000.

The respondent pay the appellant's costs of the appeal, and of the proceedings before Connolly J.

IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2003

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FARRAH HADBA by her next friend and father NOUHAD HADBA

AND: THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY'S PRIMARY SCHOOL)

1. I have read the reasons of Crispin P and Spender J. I need not repeat the facts and the history of the matter set out by Crispin P. I agree with Crispin P and regrettably disagree with Spender J. I add only the following comments.

2. There was a need, recognised in respect of the younger age group of pupils, to maintain constant supervision of the play equipment area.

3. This was achieved by one teacher being assigned to that duty and another patrolling other less used areas.

4. This did not amount to constant supervision in respect of each item of equipment separately.

5. Rather the presence of a teacher specifically tasked to patrol the play equipment area ensured that those who would act mischievously on that equipment when a teacher was absent would not have that opportunity.

6. There was no need for hindsight, thererfore, to put in place measures to achieve that result. Rather the school had already done so, but applied the system only to the more junior students' area, though the risk was slightly greater given the flying fox, and the relevant areas to be supervised were otherwise indistinguishable as between the junior students and those more senior.

7. In my view, the learned primary judge concluded incorrectly that the plaintiff's case would require separate supervisors for each item of play equipment. Nothing, in that respect, turns on the credibility of any witness. Rather it is a conclusion based on the undisputed evidence as to the layout of the two relevant areas and the system of supervision prescribed for one relevant play area as opposed to the other. It required no change in available resources. The uncontroverted evidence was that all the senior playground could be supervised by one teacher provided he or she was not called away to other areas.

8. It follows that I agree with the learned President that this appeal should be upheld. In that event, the parties are agreed that the quantum of damages should be assessed at $105,000 and judgment entered accordingly. I agree that the respondent should pay

the appellant's costs to date both here and below. I agree that the cross-appeal also fails for the reason given by Crispin P.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2003

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FARRAH HADBA by her next friend and father NOUHAD HADBA

AND: THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY'S PRIMARY SCHOOL)

9. The appellant appeals against a decision of Connolly J made on 4 April 2003 dismissing a claim against the respondent for damages for personal injuries sustained by the appellant when, as an eight year old child, she fell from a flying fox at St Anthony's Primary School at Wanniassa in the Australian Capital Territory. During the morning recess on 25 February 1999, the appellant had been standing on the platform of the flying fox holding on to the triangle bar and had been about to swing forwards to ride it to the other side of the apparatus when two of her peers, a boy and a girl, grabbed each of her legs. She struggled to free herself and on several occasions told them to stop and let her go. The girl complied with her request but the boy maintained his grip even when the appellant continued to shout "stop, let go!". Her hands then slipped off the bar and she fell back onto the platform and then onto the ground. As a result of the accident she sustained injuries to her nose and lips and damaged her teeth. She had successive dental operations to repair the damage to her teeth.

10. The appellant subsequently brought proceedings by her father, who acted as her next friend, claiming damages against the respondent for negligence in inadequately supervising the flying fox and damages against another defendant for negligence in the provision of dental treatment. The latter claim was subsequently settled for the sum of $15,000 plus costs. The claim against the respondent proceeded to trial on the issue of liability, though counsel had agreed that, if liability were to be established, damages should be assessed in the sum of $105,000.

11. His Honour ordered that there be judgment for the respondent with costs.

12. There are two appeals; one by the appellant challenging the decision to dismiss her claim and the other by the respondent challenging the decision to order her to pay costs on the usual party and party basis rather than on an indemnity basis.

13. As his Honour observed, there had been no evidence as to the general usage of flying foxes in primary schools throughout Canberra, but the evidence had revealed that immediately after the accident the Deputy Principal of St Anthony's, Mr Smith, padlocked the flying fox from which the appellant had fallen. Mr Smith explained that he had intended to check whether the accident had occurred as a result of faulty equipment. The flying fox was eventually replaced by other play equipment including a set of "monkey bars" after Mr Smith received some advice to the effect that the flying fox included a sliding mechanism that was potentially unsafe because of the risk to children trapping their fingers in it. His Honour noted that the plaintiff's accident had been of a different nature and said that he was not satisfied that the decision to replace the flying fox demonstrated that it had been inherently dangerous or that liability for the accident was thereby established. Hence, the appellant's case was dependent upon the level of supervision provided by the school at the relevant time.

14. Four teachers had been rostered on playground duty during the recess period, with two being deployed to supervise the "junior" children in the bottom oval, asphalt and tuckshop areas and another two being deployed to supervise the top oval where the "senior" children played. The term "junior" applied only to children in kindergarten, years one and two whilst those in years three to six were regarded as "senior" children. The duties of the two teachers allocated to supervise the senior children, whose ranks included the appellant and her eight year old classmates, had been subdivided with one being deployed to supervise children in the areas described as "path, oval and between units" and the other to supervise those in the areas described as "toilets, bubblers and fixed equipment". It was common ground that the latter term referred to the play area where the flying fox was located. His Honour seemed to accept that the description should have been expanded to include a handball area adjacent to the play equipment.

15. A somewhat different approach had been taken in relation to the supervision of the more junior pupils. One of the two teachers on playground duty had been required to "monitor tuckshop, toilets, asphalt and ovals" whilst the other had been required only to "supervise playground equipment".

16. On the morning of the accident the teacher allotted the task of supervising the playground equipment in the senior area was Mrs McNamara. Mrs McNamara said she had understood that she had been 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 at either end of that walkway and the bubblers and the large handball area that's adjacent also to the play equipment". She said she had been patrolling all these areas and explained that she spent most of her time in the playing area but also moved about in order to be able to see the bubblers on both sides of the toilet block, the handball courts and the doors to the toilet area. She acknowledged that in looking at the bubblers and the toilet block she had been obliged to look away from the play equipment. The behaviour of the children using the play equipment that morning had otherwise been appropriate and there had been nothing to put her on notice of the need to pay particular attention to the flying fox.

17. Immediately prior to the accident she turned away from the flying fox and walked towards the Year 6 classroom units and then into an area described as the gap between the toilet block and the adjacent unit. In the course of doing so, she saw some children in the Year 6 classroom units. She tried to attract their attention, asked them what they were doing there and told them to come out. She used quite a loud voice but they apparently did not hear her. She walked towards the door to intervene but, as she approached, two children caught up with her and told her that the plaintiff had had the accident.

18. His Honour was satisfied that the accident had occurred during a period of 20 to 30 seconds when Mrs McNamara was not looking at the playground equipment because her attention had been drawn to the presence of students in the classroom area which was "out of bounds". His Honour found that she had acted appropriately in attending to apparently unsupervised children in a classroom and rejected the suggestions that the behaviour of those children was not inherently dangerous or that she could have adequately attended to them by sending another child to summons them or to inform the other teacher.

19. His Honour observed the act of pulling the appellant's legs had been in breach of school rules. Mrs McNamara had devoted the bulk of her time to supervising the play equipment and had acted appropriately in attending to "other areas of her responsibility". The duty of care imposed on a school authority did not extend to requiring a teacher to be stationed at each item of play equipment solely to monitor the use of that item of equipment.

20. His Honour also rejected the suggestion that one or more additional teachers should have been on playground duty, observing that the system in fact adopted of having four of the twenty teachers on duty each day meant that each teacher would have been required to undertake playground duty only one day per week and that such a system was not unreasonable.

21. In challenging his Honour's finding that a breach of the respondent's duty of care had not been established, Mr Purnell SC argued that the use of the flying fox by young children with little experience in its use gave rise to a foreseeable risk of injury and that the respondent had a duty to take reasonable steps to alleviate that risk. The most obvious means of doing so was by the provision of adequate supervision whilst the apparatus was being used and that clearly required the presence of a teacher in the immediate vicinity. The presence of a teacher was likely to deter potentially dangerous misbehaviour and, in any case, a teacher would be able to intervene if necessary. On the morning in question both the restraining influence which Mrs McNamara might have exercised and her opportunity for close supervision were effectively removed once she left the area containing the play equipment and went to an area where the children could not see her and she could no longer see how the flying fox was being used. Hence, during that period at least, there had been a failure to take reasonable steps to alleviate the foreseeable risk of injury.

22. The nature of the duty of care such as that owed by a schools authority to pupils is sometimes stated in terms which suggest that there is an obligation to do whatever is necessary to prevent any foreseeable risk of any injury. That is incorrect. As Gallop J said in Commonwealth of Australia and Australian Capital Territory Schools Authority v Justin Kenneth Stokes (unreported) 1996 ACTSC 117 at par 25-26 -

A school authority is not an insurer. Its duty in relation to students under its control and supervision is to take reasonable care for their safety, that is, it is one of affirmative action to take reasonable steps to protect them against risks of injury which reasonably ought to be foreseen (Richards v State of Victoria [1969] VR 136 at 138). That test predicates a risk of some injury, not necessarily the very injury actually sustained by the plaintiff in the way he sustained it, but a risk of injury of some kind to someone as a result of disobedient horseplay or foolhardiness in the absence of adequate supervision (Bills v State of South Australia (1982) 32 SASR 312 at 319). The general concept is that the degree of supervision needed must be such as to avoid external dangers which might threaten immature children and also prevent them from inflicting injury on each other (Geyer v Downs [1975] 2 NSWLR 835 at 845).

23. Despite what is sometimes suggested, an allegation of a breach of a relevant duty must not be judged by reference to some standard of perceived perfection and it is not sufficient for a plaintiff to demonstrate that some avoidable of injury may be discerned with the benefit of hindsight and, perhaps, time for reflection that was not available to those whose conduct is called into question. In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Kirby J said at 480 -

Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be "balanced out" before a breach of the duty of care may be found . . . It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness.

24. The general principles governing liability for negligence were succinctly stated by the High Court of Australia in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 47-48 -

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved the risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception that the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard response to be ascribed to the reasonable man placed in the defendant's position.

25. Whilst, this formulation referred to the "conduct" of a reasonable person in the defendant's position, the same principles obviously apply to cases in which the breach of the relevant duty of care is said to have been a failure to take reasonable steps to alleviate a foreseeable risk of injury. In determining what the hypothetical, reasonable person would have done in response to a foreseeable risk of injury, one must obviously consider all of the prevailing circumstances including, when relevant, the ages of children in need of protection and the fact that only the schools authority to whom their care had been entrusted would have been in a position to provide it. Hence, in Stokes, Gallop J cited with approval the observations of Geoffrey Lane J in Beaumont v Surrey County Council (1968) 66 LGR 580 at 585 that -

. . . it is a headmaster's duty, bearing in mind the known propensities of boys and indeed girls between the [relevant] ages, to take all reasonable and proper steps to prevent any of the pupils under his care from suffering injury from inanimate objects, from the actions of their fellow pupils, or from a combination of the two. That is a high standard.

26. The High Court of Australia also considered the duty of schools authorities, observing in The Commonwealth of Australia v Introvigne (1982) 150 CLR 258 at 269 and 270, per Mason J that -

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. . . . . . . the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty of the performance of which cannot be delegated.

The immaturity and inexperience of 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.

28. The scope of the duty may not always be easily determined. A schools authority will have responsibility for students of differing ages, temperaments, propensities and needs. As Gallop J pointed in Stokes at [30], some balance must be struck between meticulous supervision and the object of encouraging sturdy independence. Furthermore, any plan for supervision must be practical having regard to the staff available, the nature of the school grounds and the manner in which its use may be governed (see also Carmathenshire County Council v Lewis [1955] UKHL 2; [1955] AC 549 at 566). However, in considering what level of supervision may be appropriate, a school authority may not rely wholly upon a blithe assumption that its pupils will adhere to the school rules. As Mason J said in Introvigne at 266, it is - "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".

29. In the present case, the accident apparently occurred before the appellant had actually left the platform to travel to the opposite side of the apparatus but there was, nonetheless, a foreseeable risk of injury. The triangle bar would obviously have been less stable than a fixed bar and the appellant had taken hold of the bar with the intention of swinging forward to go across to the other side of the apparatus. Furthermore, it is not the precise injury or mechanism of injury that must be foreseen. As previously mentioned, it is sufficient for a plaintiff to demonstrate that there was a foreseeable risk of injury of some kind and that a reasonable person would have sought to alleviate it by the provision of adequate supervision.

30. Whilst, as his Honour properly pointed out, 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 SC, who appeared on her behalf, argued only that there should have been a teacher assigned to the senior play area where the flying fox and other equipment made available to children in Years 3 to 6 was located. The other teacher assigned to supervise the senior students during recess should have been left to ensure the safety of children in other areas such as the toilets or, if that proved to be beyond the capacity of a single teacher, then a further teacher should have been assigned.

31. It may be noted that the system actually adopted for supervising the junior pupils involved an arrangement of the kind suggested. The sole responsibility of one of the two teachers was to supervise the children in the junior play equipment area, whilst the other was responsible for supervising those in the other areas available to them. There was no apparent impediment to the adoption of a similar system for the more senior pupils. Yet the system in fact adopted required the teacher responsible for supervising children in the senior play equipment area to go to other areas including the toilets. It was this requirement that caused Mrs McNamara to leave the immediate vicinity of the play equipment and go to an area where she could not see what the children were doing and they could no longer see her.

32. The school had approximately 540 pupils and, since those in four of the seven grades were regarded as "senior" pupils, it seems likely that Mrs McNamara and one other teacher had been required to supervise about 300 children. Mrs McNamara volunteered the statement that most of them were in the play area and did not seem to demur from the suggestion that 95% of them were congregated in that area. It was not suggested that this involved an abnormal or unexpected distribution. It was, of course, in this area that the play equipment was located and in which children could have been expected to have been climbing and, perhaps, competing with each other for access to popular items of equipment.

33. It was also the area that contained the flying fox. Whilst Mr Smith resisted the suggestion that the machine was inherently dangerous, the fact that a child using it dangled over ground from a triangle moving from one side of the apparatus to the other obviously involved some additional measure of risk than that involved in equipment such as monkey bars which have no moving parts. Mr Smith was obviously conscious that there was some measure of additional risk because he conceded that there had been accidents where children had fallen off and the school had instituted a rule that only children in Years 3 to 6 could use the equipment. When asked what was the reason for that rule he explained - "Because of the height and the nature of the equipment I suppose in that you know we wanted to make sure that the children had been skilled up to a certain level before they were using that equipment". Furthermore, both Mr Thiele, who was the plaintiff's teacher, and Mrs McNamara had taken their classes out to the flying fox and given specific instructions as to its safe use.

34. In my opinion, there was an obvious need to maintain constant supervision and I can see no reason why the practice adopted in relation to the play area for the junior pupils could not have been followed. Whilst it is true that the junior pupils were even younger, the appellant and, no doubt, her class mates were only eight years old and the accident occurred during the first month of the first year during which they had been permitted to use the flying fox.

35. During the hearing of the appeal Mr Gregg, who appeared for the respondent, seemed to suggest that Mrs McNamara had been obliged to leave the playground area because she had seen the children in the classroom and had been obliged to attend what she perceived to be a potentially dangerous situation. The evidence does not support such a proposition. Mrs McNamara was asked in evidence whether something had happened to cause her to walk towards the Year 6 unit and replied, "No, I just knew I had to do it, that was part of my job and that's why I went there". Similarly, when asked why she walked through the gap occasioned by the toilet block in the adjacent unit she explained, "because it was part of my job and I thought I must go around there and just see that - that was expected of me . . .". It was only when she walked into that area with the intention of checking the behaviour in the toilets that she observed children in the Year 6 classroom. Consequently, it seems clear that she left the play area not in response to some unexpected emergency but in fulfilment of the requirements imposed upon her by the system adopted by the respondent.

36. Mr Gregg also stressed the fact that there had been only 20 to 30 seconds during which she had not been in a position in which she was able to observe the play area. Whilst that may be true, she had clearly walked some distance from the equipment before reaching the point where she could no longer see the area and, even if she had occasionally looked behind her, would have had her back turned for much of the time involved. Indeed, it appears that it was during that 20 to 30 second interval that other children were able to catch up with her and tell her that the appellant had already had an accident. Hence, it is by no means clear that the accident occurred when she was actually around the corner and proceeding towards the Year 6 classroom rather than during the time she was walking away from the play area with the intention of inspecting the toilets. In any event, the accident obviously occurred whilst she was away from the play area and the duration of her absence would appear to be of little importance.

37. Whilst I accept that the deployment of an additional teacher would have prevented the school from maintaining the convenient policy of requiring each teacher to do playground duty only one day per week, considerations of that nature cannot excuse a failure to provide the level of supervision reasonably required by the prevailing circumstances. It would plainly be inappropriate to leave children at a small country school unsupervised for most of the week because there were only one or two teachers and each wished to restrict his or her playground duty to one day per week. In any event, it was not shown that the other teacher assigned to supervise the more senior pupils during recess could not have been redeployed to cover areas such as the toilets which were some distance from the play area.

38. Whilst the system adopted by the school might otherwise have been adequate, I have ultimately concluded that the use of the flying fox by eight year old pupils who were relatively unfamiliar with the apparatus required constant supervision and that teachers such as Mrs McNamara should have been stationed in the play area at all times when the apparatus was in use. If that proved impracticable for reasons that do not appear from the evidence, then the apparatus should have been padlocked to prevent its use when such supervision was not available. As it was, she was required to leave the area and, as a consequence, her restraining influence was effectively removed and she was unable to either see or quickly respond to the situation of potential danger to the appellant that emerged during her absence.

39. Hence, whilst I agree with the learned trial judge's conclusion that Mrs McNamara acted reasonably and appropriately, I am unable to agree that the appellant had failed to establish any breach of the relevant duty of care. In my opinion, the failure to modify the system of playground duty so that a teacher would be available to provide constant supervision during the use of the flying fox did involve a breach of the respondent's duty of care to the appellant.

40. That leaves only the issue of causation. A plaintiff must also demonstrate that, having regard to the nature and duration of the conduct leading to the injury, a reasonable system of supervision would have been likely to prevent it (see, for example, the reasoning applied in Clark v Monmouthshire County Council (1954) 52 LGR 246; Beaumont v Surrey County Council (supra). However, in the present case, that issue may be readily resolved. There was clearly no misconduct in relation to the use of the flying fox whilst Mrs McNamara was present and it seems unlikely that either of the children who grabbed the appellant's legs would have done so had she remained. Furthermore, even if both had been undeterred by her presence, she would have been in a position to have seen what was happening and to have responded to the appellant's loud and repeated cries for them to let her go. I have no doubt that the accident would not have occurred.

41. I would allow the appellant's appeal, set aside the verdict in favour of the defendant and, in lieu thereof, order that judgment be entered for the appellant in the sum of $105,000 plus costs.

42. It follows, of course, that I would dismiss the respondent's appeal against the decision not to require the appellant to pay costs on an indemnity basis. However, even if I had taken a different view of the primary appeal, I would have had no doubt that the respondent's appeal should have been dismissed. In my view, it was completely without merit. A claim cannot be said to have been unreasonably pursued merely because a confident defendant asserted that it was untenable and invited the plaintiff to discontinue it.

43. I would also order the respondent to pay the costs of both appeals.

I certify that the preceding paragraphs numbered nine (9) to forty-three (43) are a true copy of the Reasons for Judgment herein of his Honour , Justice Crispin.

IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2003

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FARRAH HADBA by her next friend and father NOUHAD HADBA

AND: THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY'S PRIMARY SCHOOL)

44. I have had the opportunity of reading the reasons for judgment of Crispin P in draft form. Regrettably, I am in profound disagreement with his Honour's conclusion that Connolly J made appealable error in finding that the plaintiff had not established that the school authority was in breach of its duty to a child committed to its care.

45. It is only human to feel sympathy for a child injured as a result of an incident in a playground of a school. It is also very easy to be wise after the event, and conclude that if the child had been under constant supervision the accident would not have occurred.

46. Yet, in my respectful opinion, it is wrong to conclude that the undoubted duty on a school to take reasonable care to prevent injury to children in its care requires that, because there is some risk of injury in the absence of constant supervision, the duty on the school extends to the necessity to provide constant supervision. In my respectful opinion, there is simply no basis for an appellate judge to, as Crispin P does in par 30 of his Honour's reasons, conclude that "the use of the flying fox by eight-year old pupils ... required constant supervision", with the consequence that the trial judge who rejected such a requirement had committed appellable error.

47. Even if a teacher had been assigned to supervise only the playground area and no other area, (as Crispin P concludes was a requirement of the duty that was on the school authority), the plain fact is that even under such a system, the flying fox equipment and the children playing on it would not be under constant supervision: even if the area of the "senior" playground was the subject of supervision by a teacher exclusively concerned with such area, such supervision would not mean that children in the vicinity of this particular piece of equipment would be constantly monitored.

48. Further, when a trial judge properly directing himself to the law to be applied concludes, as a matter of assessment and judgment, that the level of supervision that the school provided was reasonable in all the circumstances, with the consequence that negligence by the school authority has not been proved, it is wrong for an appellate court to overrule that finding by, in effect, substituting its own conclusion as to the content of the school's duty to a child at the school.

49. The fact of the matter is that the flying fox equipment had really nothing to do with this case. It was the occasion of the plaintiff's injury, not the cause of it. The plaintiff child was injured because a fellow student hanging onto her legs caused her to fall onto the platform and then onto the ground.

50. Students can be injured as a consequence of the actions of other students anywhere in the school grounds. Farrah Hadba could have been injured as a result of skylarking by a fellow student in the area of the "bubblers" or in any area that was not at the time of the incident within the view and control of a supervising teacher. Simply put, we do not live in a perfect world. It is not possible that, during a recess, every student at every part of the school grounds can be under constant supervision.

51. Hodgson LJ observed in Rich v London County Council (1953) 1 WLR 895 at 903:

You can supervise as much as you like, but you will not stop a boy being mischievous when your back is turned. That, of course, is the moment that they choose for being mischievous.

52. The supervision of the more senior children, which included Farrah, involved two teachers supervising the top oval where the "senior children" played. Farah was injured at about 11.20 am on 25 February 1999. The General Procedures then in force provided, in respect of playground duties as follows:

PLAYGROUND Note: When 2 teachers are rostered together for a period of duty they should negotiate responsibilities so that each area is covered as specified. Duty Teachers have a legal and moral obligation to be punctual and vigilant. ... RECESS DUTY 11.00-11.25

First bell-11.20 am Four teachers rostered. Two for top oval with senior children

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