KADY v THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR

Court of Appeal (NSW)|1997-02-03|Before: Winneke CJ, Sheller JA

"I am therefore of the opinion that the Plaintiff has failed to discharge the onus that he bears in convincing me that there has been a breach of the duty owed by the Defendant to the Plaintiff. I reject the evidence of the Plaintiff as to his version of how he was injured and that he was not given proper instructions. I accept the evidence of the Defendant that Mr Wolff and Mr Caruso, who was in particular close to the high jump being performed by the Plaintiff, were supervising the jumpers. I accept that the Plaintiff had been given instruction on the high jump and that there were adequate materials being used to avoid the risk of injury to the Plaintiff. There will accordingly, be a verdict for the Defendant."

The appellant's evidence was that the event was under the supervision of Mr Caruso and Mr Wolff, which supervision consisted of one teacher standing near the bar with a clipboard, ticking off the jumpers as they went. There was no teacher assisting with catching.

In case he should be wrong in finding a verdict for the defendant, his Honour assessed damages in the sum of $30,000.

GROUNDS OF APPEAL

The appellant appealed against the verdict and also against the assessment of damages. In his amended notice of appeal he set out twenty-eight grounds which, in so far as they dealt with liability, were directed for the most part to alleged errors in findings of fact. In addition the appellant, though out of time, filed

WADY v THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THS ARCHDIOCESE OF SYDNEY (Sheller JA)

substantial written submissions wherein his Honour's findings were challenged both on the facts and on credit. Sensibly, in his oral submissions, Mr Elliott, who appeared for the appellant, confined himself to two issues, namely whether accepting the respondent's evidence, as his Honour did, the respondent provided adequate training and supervision for the safe conduct of a high jump contest, and whether the respondent provided appropriate or adequate equipment. In particular, counsel claimed that the participants in the school carnival were not matched to suitable sports, other more suitable equipment could have been purchased or borrowed from the athletics club which stored its gear on the ground, and that the duty to instruct and supervise was higher in the present case because participation in the carnival was compulsory.

"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."

TRAINING AND SUPERVISION

The trial Judge said that the thrust of the appellant's evidence was that the instruction given by the respondent did not meet the standard that the expert evidence of Mr Connor suggested was necessary for the Fosbury Flop or even the Scissors method of high jump. The respondent called Mr Firth, Mr Caruso and Mr Wolff, who were teachers at the school, to give evidence. Mr David Wood, who was a sports coach and had been involved with the New South Wales Department of Education in sporting events, gave expert evidence on behalf of the respondent. The trial Judge accepted the respondent's evidence that adequate and sufficient instructions were given to the appellant as to how to do the high jump and land safely. He rejected the appellant's evidence where it conflicted with the evidence of the respondent's witnesses to the effect that he was not given proper instructions. His Honour observed that the appellant admitted that he had jumped in the high jump the preceding year, and that he had attended the physical education classes and others where high jumping was part of the curriculum. His Honour said:

"He would have me believe that he sought to execute the manoeuvre known as Fosbury Flop without the preliminary instruction of walking up to and then through a small jump, graduating to higher levels of the bar, before ultimately attempting the manoeuvre known as the Fosbury Flop. I prefer the explanation of Mr Caruso that the Plaintiff injured himself when he went through the bar and fell causing the bar to come between his arm and the matting below him."

Both Mr Wolff and Mr Firth gave evidence of instructions given to students in Year 7 about the high jump. Mr Wolff did not teach the high jump in 1983.

Mr Wolff said he always taught the Scissors method. Mr Firth described the instruction he gave to students in Year 7. Mr Elliott, the appellant's counsel, challenged the adequacy of this instruction by referring us to school records, which included the appellant's name and indicated that he had achieved a stated height in the high jump, and to a Year 7 and Year 8 PE programme, the first of

4 UNREPORTED JUDGMENTS

which referred to "High jump - scissors/straddle". and the second of which referred to "High jump - straddle/flop". We were then taken to part of the terms of a coaching manual, said to be that of the Australian Track and Field Coaches Association, dealing with the high jump, which included an outline of procedure of what was described as "only one of several different approaches which have been described for the teaching of the flop." Counsel submitted that there was no evidence to suggest that teaching in what was called the preliminary double foot take-off drills was given. Neither Mr Wolff nor Mr Firth were cross examined about these teaching procedures.

The appellant's expert, Mr Connor, gave the following evidence:

"Q. So you'd consider three to four hours of training on safety techniques to be the minimum requirement? A. I can't put a minimum on that, it depends on the attention span of the youngsters and them but I'd say some kids you can tell them in ten minutes and they know what to do and they obey the orders and some children you have to work on them for a lot younger [sic - longer].

Q. And do you think the sort of training that was put to Mr Kady in his cross-examination was an appropriate level of training to permit him to go and do Fosbury flops at the athletics carnival onto that mat? A. To do Fosbury flop, yes, but not onto that mat."

This evidence was material to the appellant's case that he was injured in attempting to perform the Fosbury Flop. In the context of the present case none of it helped the appellant. His Honour was not satisfied that the appellant was injured while attempting to jump using the Fosbury Flop technique. He simply ran through the bar and fell. This conclusion was open to his Honour on the evidence of Mr Caruso. In the circumstances there is no basis upon which his Honour's conclusion as to the level of instruction can be successfully challenged.

The appellant complained that the trial Judge failed to deal with the issue of inadequate supervision. The judgment makes no express mention of it.

However, there is nothing in the evidence to support a case that any want of supervision contributed in any way to the appellant's accident. In my opinion, the appellant failed to make a case of causative negligence on this ground.

EQUIPMENT

The mat being used for the high jump was, according to Mr Wood's evidence, a standard crash mat twelve inches thick, which he considered to be safe. Mr Connor's evidence in chief was as follows:

"T would not allow a young athlete to do the Fosbury flop on that mat, I would allow them to do the scissors on that mat but not the Fosbury flop....

Q. You heard it put to Mr Kady on two occasions I think that he'd received five classes of athletics instruction during his PE lessons at the start of 1983 and in the week during the course of which high jumping would have been covered and during another period of a couple of weeks leading up to the athletics carnival he would have received some more instruction which high jumping would have been covered. Do you consider that that's sufficient training to permit a school boy to attempt to do Fosbury flops onto that mat?

A. Not onto that mat no."

The appellant's case was that there were better, thicker mats available, which some years later the school started to use. But there was no evidence to suggest that the mat in use was unsafe for the type of high jump his Honour found the appellant was undertaking.

WADY v THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY (Beazley JA)

Finally, the appellant claimed that a bar circular, not triangular, in cross-section should have been in use. Mr Wood did not regard it as more desirable from a safety point of view to use a circular bar. The appellant relied upon a ruling made, apparently in 1983, by the International Amateur Athletic Federation that the cross-bar should be of wood, metal or other suitable material circular in cross-section. In cross examination Mr Connor gave the following evidence:

"Q. I suggest to you that given the rule that you've referred to in your report of the International Athletics Federation and given this demarcation between I April of 1983 and | April of 1985, that it would not have been at all unreasonable for a high school here in New South Wales to be conducting a high jump competition as a part of a school carnival using a triangular bar?

A. That could be the case.

Q. You'd agree with that, you'd have to wouldn't you?

A. Yes indeed."

The demarcation referred to is found in a note to the rule in the following terms:

"The new rule excluding the triangular cross-bar shall come into force on Ist April 1983 for meetings under r12, paral (a) to paral (f) and for all other meetings on Ist April 1985."

The evidence was that if this rule applied to school carnivals, it did not come into force for such carnivals until I April 1985. In my opinion, the appellant failed to establish that the triangular bar provided was inappropriate or inadequate, or that by providing it the respondent failed to take reasonable steps to protect the appellant against risks of injury.

NOTICE OF CONTENTION

It is unnecessary to deal with the matter the respondent sought to raise by notice of contention

CONCLUSION

In my opinion the appeal should be dismissed with costs.

Cole JA I agree with Sheller JA. Beazley JA I agree with Sheller JA.

Appeal dismissed with costs.

Counsel for the Appellant: DW Elliott Solicitors for the Appellant: Malouf Solicitors Counsel for the Respondent: GB Evans

Solicitors for the Respondent: Makinson & D'Apice

At a glance

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Judgment (6 paragraphs)

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Cases Cited (2)

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