Introvigne v Commonwealth of Australia [1980] FCA 129

Federal Court of Australia|1980-09-25|Before: Lockhart JJ

Negligence - Occupier's Liability - liability may arise if damage caused by an unusual danger arising out of activities carried out or permitted by occupier - whether positioning of flagpole in school yard assembly area near elevated platform creates dangerous environment.

Negligence - authority of government school teacher derived from Crown - delegation by Commonwealth of provision and administration of education in A.C.T. to Government of New South Wales does not remove liability for breach of duty owed by teachers - principle respondeat superior applies - duty of care owed by teachers to school children prior to commencement of classes.

Negligence - whether architects in designing flagpole under a duty to take reasonable care to guard against schoolboy abuse.

Practice and Procedure - Appeal Court will allow amendment of pleadings if issue emerged at trial and was litigated - amendment different in form and substance to original pleadings not allowed.

Damages - When appeal court will interfere with trial Judge's assessment of damages.

INTROVIGNE v. THE COMMONWEALTH OF AUSTRALIA AND ORS. NO. G. 5 OF 1977 ,

AUSTRALIAN CAPITAL TERRITORY No. G5 of 1977 DISTRICT REGISTRY

BETWEEN: ROLDANO INTROVIGNE by his- next friend and father TARCISIO INTROVIGNE Appellant AND THE COMMONWEALTH OF AUSTRALIA a Firstnamed Respondent AND: BUNNING AND MADDEN Secondnamed Respondent AND: BUNNING AND MADDEN (a firm) Firstnamed Third Party ORDERS JUDGES MAKING ORDERS: BOWEN C.J., CONNOR AND LOCKHART JJ. WHERE MADE: Ab Canberra DATE OF ORDERS: 2S Ceplamber 1480

THE COURT ORDERS THAT:

The application of the appellant for leave to further amend the statement of claim be refused.

The appeal be allowed against the respondent the Commonwealth of Australia and dismissed against the respondent Bunning and Madden
The order of the Supreme Court of the Australian Capital Territory dismissing the claim by the appellant against the respondent the Commonwealth of Australia be set aside and a verdict be entered in favour of the appellant in a sum to be determined by the

The proceeding be remitted to the Supreme Court for further hearing and determination limited to the question of damages in accordance with the directions of this Court and to the question of costs reserved by the trial Judge.

The respondent the Commonwealth of Australia is to pay the costs o

. The appellant is to pay the costs of the respondent Bunning and

No order be made as to Skyline Constructions Pty. Limited

On 19 February 1971 the appellant, then a schoolboy aged fifteen attending the Woden Valley High School, was skylarking

with some of his friends in the school quadrangle before school was due to commence at its usual time of 8.30 a.m. They seized the halyard attached to a flagpole in the quadrangle, jumped off steps near the flagpole and swung on the halyard in such a way that at times the full weight of a boy's body was suspended by it as he moved through the air.

At a moment when the appellant was not swinging on the halyard, and without warning, the truck, which was fastened to the top of the flagpole, became detatched from its position and fell, striking the plaintiff on the head and severely injuring him.

In describing the flagpole it is sufficient for present purposes to say that it was less than eleven metres or about thirty-five feet high; the truck contained a shaft and pulley through which ran the halyard; the truck was cylindrical in shape and made of a synthetic material known as "particle board" and was encased in copper and, the evidence was that,

together with the halyard, it weighed about seven kilograms or

fifteen pounds. : ' The appellant brought an action for damages against the Commonwealth of Australia, a firm of architects ("the

architects") and a company ("the company") which built and

In 1976, the action came on for hearing before the Supreme Court of the Australian Capital Territory. The learned trial Judge dismissed the appellant's action against all respondents; but held that, if liability had been established against any of them, he would have assessed the appellant's damages at $32,298.90.

The appellant appeals from the whole of the judgment of the Supreme Court. The appellant discontinued the appeal

The appellant's case is put on the following bases:- that the Commonwealth is liable as the occupier of the school premises to the appellant as an invitee; that the Commonwealth, as occupier, was in breach of its duty to him as a person on the premises as of right;

that the Commonwealth owed a duty to take care for the

safety of the appellant as a pupil of the school and breached that duty;

that the architects were negligent in and about the planning or design of the flagpole; and

that the Commonwealth is vicariously liable for the negligence of the architects.

The appellant claimed that the Commonwealth was in breach

of its duty as an occupier of premises in relation to the appellant as at least an invitee but also as a person entering as of right. On appeal it was conceded that the duty involved was virtually the same and no point was made of any distinction.

As has been said time and again, the duty of an occupier towards an invitee is to take reasonable care to prevent injury to him from an unusual danger of which the occupier

either knew or ought to: have known (Indermaur v. Dames (1866)1

L.R. (C.P.) 274 at p.288). The expression "unusual danger"

was considered by their Lordships in London Graving Dock Co.

Lad v. Horton [ 1951] A.C. 737. The effect of their

consideration is that "unusual" is objective and means such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand (per- Lord Porter at p.745). The knowledge of the occupier

expressed in "ought to have known" means "would have become

aware if reasonable care had been taken to ascertain whether

the premises were safe" (Burton v. Melbourne Harbour Trust

Commissioners [1954] V.L.R. 353 per Smith J. at p.371). As the learned trial Judge noted in the Court below, this means that even where there is no likelihood of any dangerous

condition arising (so that inspection is not called for) the

significance of any signs of danger which would have been noticed and understood by a reasonably careful man. The above principles and duties of occupiers must also be applied in any case with reasonable regard to the physical and mental powers

which the occupier knew or ought to have known his invitees

possessed. As was said by Lord Atkinson in Cooke v. Midland

Great Western Railway of Ireland [1909] A.C. 229 at p.238,

"The duty the owner of premises owes to the persons to whom he gives permission to enter upon them must

++. be measured, by his knowledge, actual or imputed, of the habits, capacities and propensities of those persons."

Most cases which come under the head of occupier's liability relate to damage caused by structural defects. The

statement in Indermaur v. Dames, supra, was expressed in terms

relating to structural defects, no doubt because that was the

issue raised by the facts. However, there is authority that an unusual danger may be constituted by activities carried out or permitted by the occupier to be carried out on the premises

(see Glasgow Corporation v. Muir [1943]. A.c. 448 per Lord

Wright at pp.462-463 and Lord Romer at p.466; Lords Thankerton, Macmillan and Clauson dealing with the case on the

basis of negligence; Commissioner for Railways v. Quinlan

[1964] A.c. 1054 at p.1075; Commissioner for Railways

(M.S.W.) ov. Hooper (1954) 89 C.L.R. 486 per Taylor J. at

pp.503-504; Dixon C.d., Webb and Kitto J.J. dealing with the

case on the basis of negligence; Lewis v. Sydney Flour Pty.

Limited (1955) 56 S.R. (N.S.W.) 189; Hislop.v. Mooney (1968)

1 N.S.W.R. 559; cf. Commissioner for Railways (N.S.W.) v.

Cardy (1960) 104 C.L.R. 274 per Fullagar J. at p.295; and see

generally Fleming, The Law of Torts, 5th Edn. p.453).

These cases seem to stem from a line of cases where it was considered that invitors owed a duty to invitees who came upon land in pursuance of a contract to view a spectacle e.g. a sporting event, a play or other performance. In Cox v.

Coulson [1916] 2 K.B. 177 the Court said an invitor was responsible if he failed to exercise reasonable care in supervising incidents in a play which were intrinsically dangerous unless carefully performed. It seems this responsibility does not extend to dangers inherent in a particular spectacle which an ordinary spectator can foresee

(Hall v. Brooklands Auto Racing Club [1933] 1 K.B. 205). 'his

background would suggest that liability under this aspect of occupier's liability relates to both structural defects and activities carried out on the premises. The occupier is liable, not on the basis of vicarious liability for others, but because he used or gave permission for the use of his

premises and failed to guard the invitee from unusual dangers

to which he knew or ought to have known the invitee would be

The duty arises with the occupier/invitee relationship

but breach is based on reasonable foresight. As a guide to

foreseeability, Lord Wright (at p.463) in Glasgow Corporation

v. Muir (supra) distinguished between "things intrinsically

dangerous or dangerous per se and other things which are not dangerous in the absence of negligence". In that case the carrying by two persons of a 16 inch x 15 inch tea urn with a fitting lid about half full of scalding water through a narrow passage in which were congregated a number of children was held not to constitute an unusual danger that the occupier could have foreseen would injure her invitees: it was -not intrinsically dangerous like a lion or a tiger (per Lord Wright at p.464). Presumably, Lord Wright considered a gun in the category with lions and tigers as he relied on Cox v. Coulson, supra, although in that case Swinfen Eady L.J. (at p.182) considered that the play scene involving firearms if "properly per formed and without negligence, would be free from danger".

On the other hand, the New South Wales Court of Appeal in

Hislop v. Mooney, supra, found that there was an unusual

danger created "by permitting someone to work above the heads of those drinking at the bar with no further protection

against the dropping or falling of tools or materials than a

sheet of thin glass" (per Sugerman J.A. at p.564). It was considered that it was a "common experience for injury or even death to be caused by things falling from above, whether the cause of the fall be carelessness or accident" (p.564). Thus, it would appear that any activity conducted at a height off the ground contains foreseeable inherent dangers, despite the fact that injury could only be caused by carelessness or accident.

We turn to the claim in the present case. It is set forth in paragraph 3 of the appellant's statement of claim

"There was in the quadrangle of the said school a flagpole on the top of which was a heavy object known as a truck. The said truck was at .a considerable height from the ground and insecurely attached to the top of the flagpole so that vibration of or bumping

against the flagpole could dislodge the said truck and cause it to fall from its said considerable height to the ground. Because of these facts the

flagpole and the truk comprised an unusual danger of which the plaintiff (appellant) was unaware."

The learned trial Judge considered occupier's liability only in relation to structural defects because he considered that the pleading was directed only toward this possibility. It did not allege that the unusual danger was constituted by

any particular activities on the premises. His Honour found

expressly that the fall of the truck was "caused by the weight

of one or more boys, either stationary or in motion, being applied to the halyard, and that the fall would not have occurred had it not been for the application of such weight". Therefore, the allegation that the truck was insecurely fastened so that it would not resist bumping against or vibration of the flagpole was not established. His Honour went further and said that even if he was wrong in finding no unusual danger he could find no evidence that the occupier ought to have known about it in the sense expounded in Burton

On appeal it was not argued that his Honour's findings as to liability in the above sense were wrong; but rather that it was open on the appeal to press for consideration of the wider aspect of occupier's liability with respect to activities causing an unusual danger. Even though his Honour considered that activity-caused unusual danger. had not been alleged or argued, Counsel for the appellant submitted that it was open on the pleadings and that all relevant evidence had been before the Court below even though it may have been argued in a different context. He admitted that the pleadings would have to be read with an open mind and some mental agility but if the worst came to the worst he proposed an amendment. It was submitted that this was a case where the

appeal court could look at the matter afresh and put the

appellant's cause of action into the facts proved at the trial, there being no question (so it was argued) that, if the particular basis had been advanced at the trial, any different result would have occurred by way of the introduction of evidence by any party. -

The unusual danger thus put to the appeal court was a composite one consisting of the positioning and construction ef the flagpole which permitted the truck to be dislodged by activities constituting improper use of the halyard which was foreseeable as arising from the permission the occupier gave for the use of the premises.

Before deciding whether it is open to the appellant to argue or amend his pleadings in this way, it is convenient to examine this cause of action and any chance of success.

The law of occupier's liability has been amended in England by statute and recommendations have also been made in New South Wales and South Australia to eliminate anomalous distinctions between occupier's liability and liability in negligence generally. However, as yet we are tied to the

common law as it has evolved. As the law of negligence has

matured, special relationships giving rise to a general duty of care have multiplied with new sets of circumstances before

the courts. However, the particular law relating to occupiers

was re-emphasised in Commissioner for Railways (New South

Wales) v. Quinlan [1964] A.c. 1054. As a result, in the area

of liability for injury caused by activities of the occupier or a third party on the occupier's land, there has arisen in the case law evidence of a demarcation problem. In some cases

involving activities, the matter has been determined under the

Donoghue v. Stevenson principles (Slater v. Clay Cross Co.

[1956] 2 Q.B. 264; Commissioner of Railways (New South Wales)

v. MacDermott [1967] 1 A.C. 169) and in others, both general

negligence and occupier's liability have been applied (Glascow

Corporation v. Muir supra; Hislop v. Mooney supra). In Lewis

v. Sydney Flour Pty. Ltd. [1956] S.R. (N.S.W.) 189, the Full

Court refused to consider any negligence principles other than

The difference in the cases can be explained by a passage

in the judgment cf Gibbs J. in Public Transport Commission

(N.S.W.) v. Perry (1977) 137 C.L.R. 107. His Honour (at pp.

"The special rules which the common law has evolved to govern the liability of an occupier of premises to a person who sustains injury while on those premises Go not in every case state exhaustively the nature of the occupier's duty to the person who has come on to his premises. The relationship between the parties may be such as to give rise to a duty upon the occupier to take reasonable care for the safety of the other person. If the relationship between the parties imposes upon the occupier this general duty of care, wnich may be higher than that which he owes in his capacity as occupier, the fact that he is an occupier does not relieve him of the higher duty."

The important point is that occupier's duties are not the same as duties imposed on neighbours under Donoghue v. Stevenson, though they may co-exist. This is obvious in cases involving licencees and trespassers; but in cases involving invitees the distinction has often been blurred (see Glasgow

Corporation v. Muir, supra). In the context of this aspect of

the case, the task is not simply to find an occupier/invitee relationship and tack on a general duty of care. Similarly, although we are moving into another aspect of the present case in attempting to expound the law, one does not grasp the occupier/invitee relationship as the one to which a general - duty of care is applicable. One must first ask whether there is a special relationship to which a general duty of care attaches. In some "activity" cases there is a very fine line of distinction to be drawn to ascertain whether the only relationship is that of occupier/fentrant or whether the

pursuit of the occupier or the permission he gives raises a general duty of care towards the appellant: more of that

We return to the question of occupier's liability. The

Commonwealth can only be liable if damage to the appellant was caused by an unusual danger arising out of activities carried

out or permitted by it, which danger the Commonwealth could

foresee and against which it took inadequate protective or

supervisory steps, so that damage resulted. There was some question as to the relevant activity permitted by the occupier; but there was no doubt that the occupier permitted the carrying on of a school with all that that entailed in terms of children using the playground for play and general congregation. The unusual danger alleged in argument seems to come down to the positioning and structure of a flagpole so that it did not cater for mischievous interference of school boys playing daily in its vicinity and led to the dislodging of the top of it in play. It was unusual presumably because this invitee would not expect a structure available in the play area to fall to pieces, especially during the short time in which he and his fellows played with it. Counsel for the respondent, although maintaining that this unusual danger was a matter for evidence, which in the context of the case at first instance had not been called, did contend that the appellant invitee was not an innocent bystander but had used the flagpole in a way it was not meant to be used and could therefore expect that his and others' abuse, might lead to breakage and possible injury. Despite the fact that the invitee here was fifteen years old, we are not convinced that the danger was not an unusual one in relation to him. The reasonable fifteen year old's conception of a flagpole

probably goes no further than the halyards and pole and

certainly would not have encompassed the actual truck as being a readily detachable part of the pole.

In Glasgow Corporation v. Muir, supra, the occupier's

foresight of the danger was said to depend on whether the permitted activity was inherently dangerous although this at first sight may be difficult to reconcile with the fact that the danger must be unusual to the invitee. In Hislop v. Mooney it was considered that in an activity conducted above ground level there were foreseeable dangers even though they may be the result of negligence. In this case, we have the permitted activity as a necessary part of running a school, of high school children playing and congregating in and around buildings and structures. Can this be said to be "inherently dangerous" in the above senses? Can we call upon "common experience" as Sugerman J.A. (at p.564) did in Hislop's Case and say that even high school children play with tempting accessible objects and in these circumstances the occupier should have foreseen that some such accident as the kind that eccurred would occur? Moreover, should not this class of

activity case have the same standards of foresight as were

used in Burton v. Melbourne Harbour Trust Commissioners,

supra? This would mean that even in situations where the occupier had no reason to suspect a danger, he should be aware

of and appreciate as a reasonable man would, any signs of

danger. In this case it was submitted that there was sufficient evidence of occasions on which objects other than the flag had been hoisted up the flag pole to indicate that the occupier should have been aware of likely abuse which could lead to stress on the pole and possible breakage and injury.

On balance, however, we are of the opinion that the occupier could not have foreseen the unusual danger alleged. We cannot see that the activity was "inherently dangerous" in the sense illustrated by the case law because the occupier did not authorise playing on the flagpole. Evidence on the positioning of the flagpole in the assembly area adjacent to an elevated platform ideally suited for a launching pad does not necessarily lead to the conclusion that the school yard was a dangerous environment or a magnet for mischief makers. Indeed, such an exposed position in an area where many congregate may be a disincentive for mischief. Even if the standard of foresight requires that occupiers keep an appreciative eye out for danger signals, there is no evidence that anyone had ever swung on the flag pole halyard before. Further, if the occupier, through his agents, was aware that

objects other than the flag had previously been hoisted by the pupils they were the type of objects,, a pair of knickers, a

school bag, a garbage tin 1id, a garbage tin, that would be

unlikely to cause damaging stress on the truck but would be more likely to fall themselves. Foreseeability of the danger is more specific than in general negligence cases.

It is obvious from the above analysis that several evidentiary gaps emerge. Evidence relating to "unusual danger" was sparse, the actual activity alleged was very broad and foreseeability was only aired at the trial in relation to the general duty of care of school teachers. Even if this aspect of occupier's liability was open on the pleadings, it was not particularised. We do not believe it is possible to say that the respondent has encountered this case before.

For this reason it would be unjust in any case to decide this matter against the respondent or indeed to allow any amendment of the pleadings. An appeal court will only allow an amendment of pleadings in relation to an issue if it emerged at the trial and has been litigated. The court is then only formalising the actuality of the case being made.

As Jacobs J. said in Malony v. Commissioner for Railways

(1978) 18 A.L.R. 147 at p.151 the principle is that a respondent should not be able to disregard an issue which is clearly raised and argued at the trial, just because it is not

in the pleadings. But this does not mean that an appeal court of its own motion should seek out a case for the appellant if

The statement of claim was amended five times by the appellant, twice during the trial before the Supreme Court . The trial lasted some eight days. It is now more than nine years since the accident occurred. It was not until the last

day of the hearing of the appeal that the appellant sought

The proposed amendment is in the following terms: -

"3A Alternatively, the unusual danger was constituted

by the presence in the school quadrangle near steps,

of a flagpole having upon it a heavy truck capable of

serious harm should the pole and/or its attachments

It is not merely a restatement in different language of the allegation as to the unusual danger in paragraph 3 of the statement of claim. It is different in both form and substance. In our opinion it would be unjust to the respondents to permit the amendment at this stage.

Accordingly, the application for leave to amend is refused.

Negligence - Alleged breach of duty of teaching staff

We turn to the question whether the activities pursued or permitted by the occupier gave rise to a general duty of care towards the appellant.

The appellant asserts that the Commonwealth is responsible

for negligent acts or omissions of the teaching staff at the

Woden Valley High School which are said to have caused the injuries to the appellant. ,

It is plain from the pleadings and the conduct of the trial before the Supreme Court that the claim was, as the learned trial Judge said, "confined to breaches of duty by members of the teaching staff of the school".

It is now established as the law of Australia that a government school teacher, in performing his duties, is exercising authority derived by him from the Crown in respect of obligations assumed by the Crown. The doctrine that a government school teacher derives his authority, not from the Crown, but by direct delegation from the parents of the pupils, which was the basis of the decision of the Full Court

of the Supreme Court of New South Wales in Hole v. Williams

(1910) 10 S.R. (N.S.W.) 638, was rejected by the High Court in

That the basis of the authority of the government school teacher is derived from the Crown and not by delegation from the parents of the pupil was clearly expressed by Ferguson J. in the following passage from his reasons for judgment in

Ramsay v. Larsen (1963) 80 W.N.(N.S.W.) at pp. 1634-1635, his

Nonour being a member of the Full Court of the Supreme Court

of New South Wales from whose decision the appeal was brought

"Pupils of the prescribed school age attending public. schools have, during school hours, been compulsorily removed, by the authority of the Crown, from the protection and control of their parents. In view of- that compulsion, by the establishment of public schools for the reception of such pupils, and the provision of teachers to impart instruction and maintain discipline, the Crown must be regarded as having taken over, in respect of the pupils those obligations of which their parents have been deprived, including the obligation to take reasonable care for their safety - an obligation which is to be measured by that care which a careful father would take of his own children. It does not seem to me to be right to say, as was said in Hole v. Williams (1910) 10 S.R. (N.S.W.) 638, that a teacher in maintaining discipline and imparting instruction, is exercising an authority delegated to him by the parents of a pupil and unless there is evidence of an express or implied delegation I would not think that compulsion provided that evidence. However that may be, I prefer the view that a public school teacher in the exercise of his functions as such is exercising an authority delegated to him by the Crown in respect of obligations assumed by the Crown.

At common law where a person has assumed a legal duty towards another he cannot escape liability for a breach of that duty by delegating its performance to somebody else. I therefore think that the maxim of

respondeat supericr applies to the circumstances of the present case."

This passage was approved in the High Court by Taylor J.,

with whose reasons for judgment Windeyer and Owen JJ. agreed,

The Crown is liable in tort for the teacher's acts or omissions in the course of his employment which would be a tort 1f they were the acts or omissions of the school

authority itself. The principle respondeat superior applies:

Ramsay v. Larsen (supra); State of Victoria v. Bryar (1970)

44 A.L.J.R. 174; Geyer v. Downs (1977) 138 C.L.R. 91.

The position may be different in the case of non-government schools or, as they are sometimes called in Australia, independent or private schools. In their case there may be delegation by the parents of the pupil of parental authority to the school council, trustees or other governing body of the school. The delegation would arise from the contract between the parents and the school authority and may be express or implied.

The nature and scope of the duty owed by a school teacher

to his pupils has been variously defined. In Geyer v. Downs

(supra) it was expressed thus by Murphy and Aickin JJ., with

whose reasons for judgment Mason and Jacobs JJ. concurred, at

"The classic formulation of the duty owed by a schoolmaster to a pupil is that of Lord Esher in Williams v. Eady (1893) 10 T.L.R. 41, at p. 42: ",..it was correctly laid down by the learned Judge, that the schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster'. This was restated by Kitto J. in Ramsay v. Larsen (1964) 111 C.L.R. 16, at p. 27 where he said: 'The breach of. duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances' and that passage was relied upon in the judgment of Hutley J. A. in the Court of Appeal in this case 1975 2 N.S.W.L.R., at p. 841.

This formulation is, however, somewhat unreal in the

case of a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a.- class of thirty or more children. What may be a

useful guide applicable to a village or a small. country school cannot be of direct assistance in the case of a large city or suburban school with some hundreds of children attending it. The nature of the duty is more appropriately stated in Victoria v. Bryar (1970) 44 A.L.J.R. 174 where this Court agreed in the description of the duty owed by a teacher to each of his pupils formulated by Winneke C.J. in Richards v. Victoria 1969 V.R. 136, at pp. 138, 140-141. It is not necessary to set out again the passages thus approved, but the result may be

summarized in the following passage 1969 V.R., at p. 141:

'The duty of care owed by' (the teacher) 'required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to' (the pupil). 'This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi' (the teacher) 'should reasonably have foreseen'.

This Court, however, went on to point out that it is of course necessary that the breach of duty of care must be causally related to the injury received. An examination of the many cases on this topic which have been reported both in Australia and in England shows that plaintiffs have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question, notwithstanding that no supervision at all was attempted in the particular case."

In the present case the accident happened a few minutes before the time when school was due to commence at 8.30 a.m. There were some nine hundred pupils attending the school, both

boys and girls. Many of them were walking and playing outside |

the school buildings. The Acting Principal arrived at school

at 8.10 a.m. and called a meeting of the staff for 8.20 a.m.

to inform them that the Principal had died in the early hours of that morning and to mention the funeral arrangements. The meeting lasted a few minutes only namely, until about 8.25 a.m., during which time the accident appears to have happened. The practice was for a bell and hooter to sound at 8.25 a.m. so that the pupils could assemble preparatory to going to their classrooms at 8.30 a.m. Neither had sounded when the Acting Principal heard of the injury.

Before calling the staff meeting the Acting Principal had detailed one member of the staff to be absent from the meeting and to be present in the school grounds to maintain supervision over the activities of the pupils in the grounds. This supervision was normally exercised by the staff generally without any roster or specific detailing of individuals; and the number of staff in fact exercising supervision in the

grounds at such time was normally between five and twenty. The appellant's case is that the teaching staff, including the Principal and Acting Principal, were negligent in various

First, it was submitted that there should have been a rule that the flagpole and its attachments were not to be touched

er used without the express authority of a teacher. That is,

they were to be out of bounds. There was no such rule. - The Acting Principal gave evidence that there was no rule in force at the school relating to the use of flagpoles. He said that if a teacher were to see a boy swinging on the halyard it would be appropriate to stop him from doing so, to prevent the risks of injury both to the boy and the flagpole.

In our opinion there should have been a rule that the pole was not to be used unless with the express authority of a teacher. €ome nine hundred pupils attended the school. The pole was about thirty five feet high with a truck on its top. A flagpole standing in school grounds close to a flight of steps would present an inducment to mischievous boys to swing on its halyard which was in easy reach, and to use the steps as a launching pad to propel themselves into mid air, and thus suspend their whole body weight upon the halyard; and that a load would thus be placed on the truck and the pole.

There is no evidence that the flagpole had been used before for the same purpose that it was used on the morning of the accident; but there is a fair degree of evidence that it had been misused in various ways for some time previously, at least since the latter part of 1970. Boys, on more than one occasion, had hauled up to the top of the pole, objects such as school cases, knickers, a garbage can lid and a garbage can

itself. Pranks were played on other boys, usually big boys

bullying small boys, by threatening to haul them up_ the halyard by their ties.

Although there is no evidence that any of the teaching staff knew that these pranks had been played, it was reasonably foreseeable in any event that the flagpole more likely than not, would be used in this way.

Second, it was submitted that there was inadequate and improper supervision of the pupils in the school grounds during the period before commencement of lessons. It was not suggested that the teachers owed no duty of supervision merely because teaching of lessons had not commenced that morning. Indeed, usually supervision was exercised by members of the

staff at this time. Although each case depends on its own

facts, Geyer v. Downs (supra) is authority for the proposition that the duty of care owed by teachers to pupils may extend

during the period before the commencement of classroom

The teaching staff, including the Principal and Acting Principal, owed a duty of care to the pupils to take reasonable care of them. There should have been provision for proper supervision of the pupils in the school grounds during the period preceding the commencement of instruction (in this case, a period of less than half an hour beforehand). Indeed,

At a glance

Court

Decision date

Before

Source

Judgment (431 paragraphs)