_New South Wales v Lepore_

Supreme Court of the ACT|2003-04-04|Before: Gallop J, Connolly J

1. The name of the second defendant be changed from "Australian Capital Territory Health and Community Care Services" to the "Australian Capital Territory".

2. By consent there be judgment for the plaintiff against the second defendant in the sum of $15,000 with costs.

3. There be judgment for the first defendant against the plaintiff with costs.

2. She brings a claim in negligence against the first defendant for its claimed negligence in inadequately supervising the play equipment. She also brought a claim against the second defendant, the Australian Capital Territory, for claimed negligence arising from the initial treatment provided at Canberra Hospital.

3. At the commencement of the hearing Mr Pilkinton, for the second defendant, asked that the name of the second defendant be changed from "Australian Capital Territory Health and Community Care Services" to the "Australian Capital Territory" as the Australian Capital Territory Health and Community Care Services has been abolished. Accordingly I so ordered.

4. The claim against the second defendant was settled by consent on the opening day of the hearing with judgment entered in the plaintiff's favour in the sum of $15,000 plus costs. The matter then proceeded as between the plaintiff and the first defendant. Counsel were agreed that, if liability be established against the school, damages should be assessed in the sum of $105,000, covering general damages, past and future-out-of-pocket expenses and past care. Fortunately the plaintiff has recovered well from this incident, and there will be no long-term difficulties arising from the incident.

5. The mechanism of the accident was that the plaintiff stood on the platform of the flying fox and took hold of the handle on the slide, preparing herself to slide across. As she did this, but before she left the platform she was grabbed by her legs, one leg by a boy, R, and the other by a girl, A. These children were in the same year as the plaintiff, as the school had a policy which was enforced that the year groups had rostered times to use the equipment, so that older children were not in competition with the younger children.

6. The plaintiff says that she struggled to free herself and called out to the children to "stop" and "let go". The girl, A, let go of one leg, but the boy held on. The plaintiff says she continued to struggle and call out, but was pulled off the flying fox, and fell to the ground, striking her face on the platform as she fell.

7. The accident occurred before the plaintiff had actually begun to slide across the flying fox. It was suggested that the flying fox was an inherently dangerous apparatus, and although the evidence established that the defendant no longer provides a flying fox at the school, there was no evidence as to the general usage of flying foxes in primary schools throughout Canberra. The evidence established that immediately after the accident M TR Smith, the Deputy Principal at the school at the time, padlocked the flying fox. He said that this was to "check whether the accident occurred as a result of faulty equipment".

8. The flying fox was eventually replaced by other equipment, which included a set of "monkey bars". Mr Smith said that he received some advice that this flying fox contained a sliding mechanism that was potentially unsafe in that children could trap their fingers in it, but of course this was not the nature of the accident here. This accident occurred as the plaintiff was standing on the platform holding on to the sliding mechanism. Photographs of the monkey bars were also tendered, and it seems to me that the two items of play equipment are of about equal height, in that a child holding on to the flying fox slide handle and a child holding on to the first horizontal bar of the monkey bars would be at about the same height. The nature of this accident was a fall due to other children pulling the plaintiff's legs, and the same type of accident could occur using the monkey bars. I am not satisfied that it follows from the replacement of the flying fox that the equipment was inherently dangerous, and that this alone established liability.

9. The plaintiff's case, it seems to me, must stand or fall on the level of supervision provided by the school at the time. The plaintiff tendered a set of interrogatories administered to and answered by the first defendant, which set out the policy the school adopted in relation to supervision. I am satisfied that during the morning recess period the school rostered four teachers on duty, with two being at the area described as the "top oval with senior children", and two for the "bottom oval, asphalt and tuckshop area with junior children". The play equipment where this accident occurred was regarded as the senior play equipment, being equipment available for the use of Years 3 to 6. Children from kindergarten to Year 2 were regarded as the junior school, and had their own play equipment. The duties of the two teachers in the senior area are further defined, in that one teacher is to monitor the "path, oval and between units" area, and another teacher has responsibility for "toilets, bubblers and fixed equipment".

10. On the morning of the accident the teacher on duty with responsibility to supervise the fixed playground equipment available for the use of Year 3 children was Mrs Pauline McNamara. Mrs McNamara gave evidence. She is an experienced teacher who, after her training, taught for seven years in Victoria before coming to the Australian Capital Territory. She had some years away from the workforce with her family, and had returned to teaching in 1997 at St Anthony's Primary School, Wanniassa. She said that she was unaware of any other serious accident involving the flying fox, and there was no evidence that there had been another incident involving children being pulled from the flying fox.

11. She gave evidence, which had also been given by Mr Smith, who is now the Principal, that there was a strong policy at St Anthony's known as the "hands off rule", which emphasised to the children that during playground play they were not to touch other students. The plaintiff also gave evidence that she was aware of this rule, and that it was enforced. She agreed that if children were touching other children during play they were told to stop. It seems to me that it must be common ground that the school had in place a policy which would have prevented this accident, which, I am satisfied, occurred because the other children grabbed and pulled the plaintiff, in clear breach of the school rules. The issue is whether the school is responsible for this breach.

12. Mrs McNamara described her duties as being 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 either ends of that walkway and the bubblers and the large handball area that's adjacent also to the play equipment" (T 97). This understanding of her duties is, it seems to me, consistent with that set out in the policy contained in the interrogatories. Charts of the school were tendered in both the plaintiff's and the first defendant's case, and these were of assistance, together with the photographs tendered by the plaintiff.

13. She said that on the day she was patrolling the area, being mostly in the play area, but also moving about in order to be able to sight the bubblers on both sides of the toilet block, the handball courts and the doors to the toilet area. She acknowledged that when she had to look at the bubblers and the toilet blocks she was looking away from the play equipment. She says that the behaviour of the children using the play equipment that morning was entirely appropriate, and there was nothing to put her on notice to pay particular attention to the flying fox that morning. She said that her pattern of moving about and supervising was irregular, but that most of her time was spent in the handball and play equipment area. At times it was necessary to turn her back on the flying fox. She says that as she took a look at the toilet block she saw children in the Year 6 classroom units at a door which is marked W in exhibit 1.

14. I am satisfied that the policy at the school, appropriately, is that children are not to be in the classroom units unattended during breaks. The reasons for this are obvious, as the classroom units may have all manner of potential hazards for unsupervised students, ranging from sharp objects to mains electric power. Mrs McNamara says that she tried to attract their attention by saying, in a loud voice something like "What are you doing there? Please come out" but there was no response (T 101). She says that she moved towards the classroom unit, and while she was moving towards the unit she heard two students coming towards her saying that the plaintiff had had an accident. Her evidence was that from the time she left a point in the playground where she could still see the flying fox to the point where she was summonsed by the other students would have been a period of "probably no more than 20 seconds" (T 101).

15. Mrs McNamara was cross-examined on this point, but maintained that the process was very quick, acknowledging that 30 seconds would be the outside limit of the time. It was put to her that there were some inconsistencies between different versions of what happened on that day, particularly as to whether she had got as far as the classroom block or was walking on her way to the block. It seems to me that nothing really turns on this, and I was satisfied that Mrs McNamara was giving her evidence in a truthful way. I am satisfied that the accident occurred during a very short period of between 20 and 30 seconds when she was not looking at the playground equipment because her attention was drawn to the presence of students in the out of bounds classroom area.

16. The claimed negligence in this case is the action of Mrs McNamara turning her back on the flying fox in order to look at other areas of her area of responsibility. It seems to me that any criticism here must be a criticism of the system of supervision rather than Mrs McNamara herself, because I am satisfied on all the evidence that she carried out her responsibilities appropriately. She was responsible for supervision of an area of the school that included, but was not limited to, the playground equipment, and although she says that she spent most of her time in the playground and handball court area, she did, as she was expected to, turn her back from time to time in order to supervise her other areas of responsibility.

17. When she saw unsupervised children in a classroom she acted appropriately and responsibly in attending to this issue. In his written submissions Mr Purnell, for the plaintiff, sets out a number of steps that he says should have been taken by a teacher who noticed children in a classroom "carrying out any behaviour which was not inherently dangerous". It seems to me that there is no evidence at all as to what the children were doing in the classroom, but it does not follow from this that it could be said that children in such a position unsupervised were doing something "not inherently dangerous". Unsupervised children in a classroom, which would in all probability have sharp items and electrical items in it are, it seems to me, a situation that a responsible and experienced teacher must immediately recognise as at least a potentially dangerous position, requiring the exercise of supervision.

18. It was said that Mrs McNamara could have spoken to these children. Her evidence is that she did, but they did not seem to hear her. She says she spoke in a loud voice. She demonstrated in court the way she would have spoken, and it was a voice of an experienced senior teacher. It was then suggested that she could have told another child to go and tell the children to come out of the classroom. This conduct, it seems to me, would be the very conduct that could give rise to a claim for damages if a child was sent into what turned out to be a dangerous situation - if, to take an example, the children in the classroom had created a fire hazard or an electrical hazard. A teacher, it seems to me, should not be expected to send another child to a potentially hazardous situation in order to fulfil the duty of care imposed on the teacher.

19. It was then suggested that she could have asked another teacher to go to the Year 6 block. But there is no evidence that there was another teacher close by in her area of supervision, and this course of action would have involved her leaving her supervisory area in order to find a colleague, or finding a suitably responsible child to go with a message for another teacher. Either course of action, it seems to me, would necessarily involve some considerable time, and would again potentially be the subject of criticism if the children in the classroom had exposed themselves to danger.

20. There is no doubt that a school authority owes to its pupils a personal duty to ensure that reasonable care is taken for their safety. The position was recently restated in New South Wales v Lepore [2003] HCA 4 where McHugh J said at [136]:

In my opinion a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil.

21. But the duty is of course to exercise reasonable care. If Mrs McNamara was not looking at the flying fox because she was having a cup of tea, or engaging in some private conversation or looking absently away, her conduct would be seen to fall short of the standard of care required. But the evidence is that she was attending to what, I am satisfied, was a potential hazard which had come to her attention while she was undertaking her duty to patrol an area of the school.

22. The real cause of this accident, on the evidence before me, was the conduct of the other two students, contrary to the well understood school rules, in grabbing hold of the plaintiff and pulling her legs when she was standing preparing for a ride on the flying fox.

23. In Commonwealth of Australia v Stokes (unreported, 15 November 1996, Supreme Court of the ACT) Gallop J was considering an appeal from a finding by a Magistrate that the school authority had been negligent in failing to adequately supervise a game of ping-pong at a Canberra school. His Honour found that there had been no failure of supervision, and said:

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).

24. At the commencement of his reasons Gallop J cited the observation from Hodson LJ in Rich v London County Council (1953) 1 WLR 895 at 903 that:

One can supervise as much as one likes, but one will not stop a boy being mischievous when one's back is turned. That, of course, is the moment he chooses for being mischievous.

25. In Stokes' case it seems the injury occurred more by accident as a bat flew from a child's hand, but the quote is particularly apposite in this case, where it is clear that the accident occurred as a direct consequence of the breach of the school rules by the two children who had grabbed the plaintiff by the legs. Unfortunately this occurred when Mrs McNamara's back was turned to attend to her other responsibilities.

26. In Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931, Wilcox, Spender and Higgins JJ were considering an appeal from a decision of a judge of this Court finding liability where a student was injured as a consequence of what was described as "a play fight that got serious." He sustained a very serious injury in what Wilcox J described as a "brief skirmish". The Court rejected the submission that the school was negligent in having inadequate supervision on the day of the incident. In rejecting this conclusion Wilcox J, with whom Spender and Higgins JJ agreed, said at [25]:

... 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.

27. I am satisfied on the evidence in this case that the school had in place an appropriate policy, which it appropriately enforced to prevent horseplay by way of the "hands off" policy. The two students who grabbed the plaintiff by the legs were clearly in breach of this policy, but this action occurred in a very short period of time, and there was no evidence that similar behaviour had ever been observed or reported at the school. There is no evidence that the students involved had any particular discipline problems or tendency to engage in dangerous conduct. A momentary breach of school rules occurred at a time when the teacher on duty was facing away from the play equipment and moving towards another part of the school to properly exercise her duty of care. The accident may have happened when Mrs McNamara had in fact moved such a distance towards the Year 6 block that she could no longer have seen the play equipment.

28. Whether or not this is the case, it was part of her responsibility to patrol other areas which were not in a line of sight of the playground. If her conduct breaches the appropriate duty of care, it would seem to me that it would follow that the duty of care would require the school to ensure that at least one teacher at all times was observing with full attention any student on the play equipment. This, it seems to me, is to impose too high a duty of care.

What is ultimately involved is a reasonable balancing of ideals. School authorities "must strike some balance between meticulous supervision of children every moment of the time when they are under their care, and the very desirable object of encouraging the sturdy independence of children as they grow up" (Jeffrey v London County Council (1954) 52 LGR 521 at 523).

Questions of practicality and degree must also necessarily enter into consideration. On the one hand any plan of supervision must be practical in relation to both the staff manpower available and the nature of the campus and how its use may sensibly be prescribed or proscribed: see Carmarthenshire County Council v Lewis [1955] UKHL 2; [1955] AC 549 at 566.

30. The evidence is that there were at any given recess period four teachers on duty. The evidence of Mr Smith was that there were about 20 teachers at the school. In his written submissions Mr Purnell said:

Of the 16 (approximately) not on supervision duty some were simply drinking tea and coffee and having social intercourse. There is no evidence that from this pool of teachers other teachers could not be rostered to ensure that at no time would the playground area be unsupervised. Clearly then there were teachers available to be rostered to ensure that where 95% of the students were was supervised at all times.

31. In response to this submission Mr Gregg made the point that this meant that at any one time one fifth (that is to say 4 out of 20) of the teachers were on duty. This would mean that each teacher would have to do one recess and one lunch period of duty during a normal five day week. A school could not function if every teacher had to be on duty every moment of the day. Teachers clearly need to have a break like any other employee, and it seems to me that a system that requires teachers to work through for one recess period and one lunch period in each week is not unreasonable. Mr Purnell's submission would require, it seems to me, either teachers to work with no breaks, or additional staff to be engaged for playground duty.

32. I am not satisfied that the school can be held responsible for the breach of the school rules by the two children who unfortunately grabbed the plaintiff and pulled her from the flying fox. The accident occurred in clear breach of the school rules, at a playground that had otherwise been trouble free, and when the teacher whose area of responsibility for supervision included, but was not limited to, the playground was in another area which came under her supervision. I am satisfied that Mrs McNamara devoted the bulk of her time supervising the play equipment, but that she acted appropriately in attending to other areas of her responsibility. I am not satisfied that the duty of care the law imposes on a school authority extends to requiring a teacher to be stationed at each item of play equipment solely to monitor the use of that item of equipment. This accident occurred due to the action of the two students pulling the plaintiff from the platform of the flying fox, and not from any failure or fault in the design of the flying fox. Such an accident could occur on any form of climbing play equipment. The evidence of both Mr Smith and Mrs McNamara was that it is important for the overall development of children and in particular their gross motor skills, that they have access to active play including this type of equipment. The duty of care claimed by the plaintiff in this case would have to extend to a duty to station one teacher with sole responsibility for observing any child on any form of climbing equipment. This, it seems to me, is quite unreasonable and would impose too high a burden on schools and school authorities, and goes close to the proposition rejected by the Full Court of the Federal Court in ACT Schools Authority v El Sheik that it "would require an army of supervisors to prevent any incident that might give rise to a physical injury".

33. I find that there has been no breach of duty of care by the defendant, and accordingly there should be judgment for the first defendant, with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the first defendant: Corrs Chambers Westgarth

Solicitor for the second defendant: ACT Government Solicitor's Office

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Judgment (45 paragraphs)

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Cases Cited (1)