Ramsay v Larsen

[1964] HCA 40

High Court of Australia|1964-07-01|Before: Owen JJ, McTiernan J, Street J

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Court

High Court of Australia

Decision date

1964-07-01

Before

Owen JJ, McTiernan J, Street J

Source

Original judgment source is linked above.

Judgment (56 paragraphs)

[1]

High Court of Australia McTiernan, Kitto, Taylor, Windeyer and Owen JJ. Ramsay v Larsen [1964] HCA 40

[2]

The judgment and order of the Supreme Court under appeal grants a new trial of the action. The appeal has been brought pursuant to leave to appeal granted by the High Court.

[3]

The action arose out of an accident which occurred in the grounds of a school at Peakhurst, Sydney. This is a school which was established and is maintained under the Public Instruction Act of 1880 N.S.W. as amended. Such a school was formerly called a "public school" and by Act No. 51, 1916, is called a "State school". By s. 3 of the Act of 1880 a teacher employed under the Department of Public Instruction (which by Act No. 46, 1957 may be referred to as the Department of Education) is a civil servant of the Crown. The powers of the Governor under s. 3 of the Act of 1880 to appoint remove and control teachers of schools employed under the Department of Public Instruction are, as is provided in s. 53 of the Public Service Act, 1902, to be exercised by the Governor upon the recommendation of the Public Service Board. At the time of the accident the plaintiff, then twelve years old, was a pupil at the abovementioned school. He was in a class the teacher of which was a Mr. McNally. The action is brought by the boy's father as next friend against the nominal defendant appointed under the Claims against the Government and Crown Suits Act, 1912 N.S.W.. Under that Act the Government of New South Wales is liable to be sued in an action of tort, ss. 3 and 4: Farnell v. Bowman [1] . The accident which happened to the plaintiff was that he fell from a limb of a tree in the grounds of the State school at Peakhurst during school hours and sustained injuries to his legs and arms. The plaintiff's declaration in the action alleges: "that before and at the time of the committing of the grievances hereinafter alleged and at all material times the said Government (the Government of New South Wales) by its servants and agents had the care control and management of a certain public school (the State school at Peakhurst) and of the activities which were conducted in the said public school and thereupon the said Government by its servants and agents so negligently carelessly and unskilfully conducted itself in and about the care control and management of the said activities and in and about the failure to provide proper supervision for the activities of schoolchildren in the said school and in and about the failure to restrain the said schoolchildren from engaging in activities which were clearly fraught with danger and in and about the failure to warn the said schoolchildren of the dangers involved in a certain enterprise and in and about the direction of the way in which the said enterprise should be carried out that the plaintiff sustained injury and suffered and will suffer great pain of body and of mind and was for a long time unable to follow his usual occupation and incurred and will incur expense for hospital medical and other treatment and for pharmaceutical supplies and was and will be otherwise greatly damnified". The defendant's pleas to the declaration are: (1) not guilty and (2) a plea in these words: "the defendant as to so much of the plaintiff's declaration as alleges for that before and at the time of the committing of the grievances hereinafter alleged and at all material times the said Government by its servants and agents had the care control and management of a certain public school and of the activities which were conducted in the said public school denies the said allegations and each and every one of them". The plaintiff joined issue on the pleas. The action was tried before Moffitt A.J. and a jury. At the conclusion of the defendant's case his counsel asked the trial judge to direct a verdict for the defendant. The application was based on the decision of the Supreme Court of New South Wales in the case of Hole v. Williams [1] . Cullen C.J. and P. W. Street J. (as he then was) decided in that case that in the absence of any regulations framed under the powers conferred by s. 37 of the Public Instruction Act of 1880 a school teacher employed under the Department of Public Instruction in a public school, "in the exercise of his special functions of imparting instruction and maintaining discipline, acts not as the servant or agent of the Government, but in the exercise of an authority delegated to him by the parents of his pupils". Moffitt A.J. let the case go to the jury and put to them the following questions. (1) Was the school teacher, Mr. McNally, guilty of negligence resulting in the plaintiff falling and being injured? (2) If the answer to (1) is "Yes" was the plaintiff guilty of negligence with regard to his own safety contributing to his falling and being injured? The jury answered "Yes" to both questions. Contributory negligence is under the law of New South Wales a complete defence to an action of negligence for personal injury. Verdict and judgment in the action therefore passed for the nominal defendant, that is for the Government. The evidence given at the trial by the plaintiff and his witnesses differed substantially from that given by Mr. McNally, who called one witness. If the jury had accepted the case made by the plaintiff he was not guilty of contributory negligence, because according to his case the fall was due to his obeying a direction of his teacher. It is a reasonable and probable inference from the jury's answers that they accepted the evidence of Mr. McNally and the witness, Mr. McMillan, the headmaster of the school. As will be seen from Mr. McNally's evidence it was open to the jury to take the view that although his intentions were good he gave an order to the plaintiff when he was standing on a limb of the tree which was imprudent in the circumstances. It was said by Lord Esher in Williams v. Eady [2] " 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" [3] . See also Rich v. London County Council [4] ; Ricketts v. Erith Borough Council [5] ; and Halsbury 3rd ed. vol. 13, p. 623. Moffitt A.J. directed the jury according to this principle. A motion was made to the Full Court of the Supreme Court on behalf of the plaintiff to set aside the verdict and judgment on the ground of insufficient direction on the issue of contributory negligence. Herron C.J. and Ferguson J. upheld the submission for the plaintiff on this point, Nagle J. dissented. The question was also argued whether the decision in Hole v. Williams [1] , which is quoted above, ought to be followed. The learned judges decided that the decision should not now be regarded as good law. In the result a new trial of the action was ordered. As I have already said this Court gave the defendant special leave to appeal from the order or judgment of the Full Court.

[24]

In my opinion the decision in Hole v. Williams [1] is not right in so far as it lays down that the Government is not liable to be sued by a pupil at a State school for the negligence of its teacher in the course of teaching and maintaining discipline. It seems that the basis of this decision is that a State school teacher, although a servant of the Crown, teaches his class and maintains discipline in the exercise of a duty created independently of the Crown; not a duty cast upon the teacher by a statutory provision but arising from the delegation by the parents of their own duties to their children in respect of education and discipline while the children are at school or in the care of the teacher. For my part I think that nothing ought to be said which would derogate from so salutary a principle as that a school or a teacher exercises a quasi-parental authority over the pupils while they are at school or in the care of the teacher. Indeed the standard of care owed under common law by a teacher to his pupil is, as shown above, derived from the idea that the school and the teacher are as regards the pupils in loco parentis. However, in my view, a teacher employed by the Department of Education in a State school is in loco parentis only in virtue of his appointment by the Crown as a teacher. The question of the responsibility of the Crown for any civil wrong which the teacher may commit against a pupil depends upon the statutes under which the Government establishes and maintains schools and appoints and controls the headmasters and teachers working in them. First, it is necessary to refer to s. 6 of the Public Schools Act of 1866. This Act was repealed by the Public Instruction Act of 1880. But by s. 1 the powers and authorities vested by s. 6 of the former Act in the Council of Education were transferred to the Department of Public Instruction. As stated above this Department may be referred to as the Department of Education. The Department is administered by a Minister of the Crown. It is clear from the provisions of the Act of 1880 that the Government is authorized to provide public education by establishing and maintaining schools and training and appointing teachers to carry on as servants of the Crown and on behalf of the Department of Education the work of teaching the pupils sent by their parents to these schools. The Minister of Education or the member of the Executive Council acting in his place is in his official capacity the principal in carrying on the work of teaching in which the teachers of State schools are engaged. The appellant relied on the case of Fowles v. Eastern and Australian Steamship Co. Ltd. [1] . The Privy Council decided in that case that although the licensed pilot was a civil servant the Government of Queensland was not his principal in the piloting of the ship. However, their Lordships added: "If they had thought the Government were directed to carry on the business of pilotage, they would have held them responsible for negligence in that business" [2] . This observation of the Privy Council applies in the present case to establish the liability of the Government of New South Wales for the tort of a teacher of a State school committed in the course of his employment; for the Public Instruction Act of 1880 authorizes the Government to provide public education and it carries on this work by civil servants employed under the Department of Education.

[41]

On the evidence the jury might think that the precise point of time at which the plaintiff fell occurred as he turned to regain his former position against the trunk, or at least before he had quite regained that position. If so, the teacher's negligence in allowing him to deal as he did with the problem of the rope was plainly a cause of his injury; and the plaintiff's own folly in undertaking the feat would be no answer to his claim, for the teacher's negligence consisted in a failure to take reasonable care to protect him against that very kind of folly which is apt to be exhibited when a boy's adventurous spirit is unchecked by a more mature judgment than he himself possesses: cf. Halsbury's Laws of England, 3rd ed., vol 28, par. 14, p. 17. Moreover, there was no evidence that the plaintiff added to the dangers of the exercise by any failure to take reasonable care of himself in performing it. But the learned trial judge directed the jury, in effect, that if they thought it was negligent of the plaintiff to be and remain up the tree, and that that negligence and the teacher's negligence when he found him there each contributed to the accident, it would be open to them to find contributory negligence on the part of the plaintiff. It would have been correct, I think, to tell them (assuming there was anything in the evidence to support it) that if they thought the plaintiff fell after having safely regained the position in which he was when the teacher intervened they might find either that the plaintiff's negligence in climbing the tree was the sole cause of his injury or (on the footing that his efforts in dealing with the rope had tired him or so exerted him that he was less able to cope with the difficulties of the descent than otherwise he would have been) that his negligence was a contributory cause of his injury, and that in either event the defendant was entitled to a verdict. But the direction that was actually given went much further than that. It virtually ensured a verdict for the defendant whatever was the point of time at which the plaintiff fell, provided that the jury accepted as a fact that the plaintiff climbed the tree in disobedience of orders. They should have been told that even if he did climb the tree in disobedience of orders the verdict should be in his favour if the jury found that he fell before getting back to the position he was in when the teacher made the suggestion about the rope. It is not correct, I think, to say with the learned dissenting member of the Full Court that the jury might consider it a splitting of hairs to treat the plaintiff's negligence in climbing the tree as not to some extent responsible for his misfortune. There was a clear distinction to be observed between what the boy did in spite of the teacher's original instructions and what he did in compliance with the teacher's suggestion about the rope. The case, in my opinion, was not one in which, as his Honour thought, the plaintiff's negligence might properly be regarded as "so mixed up with the state of things brought about by the teacher's negligence that it was a contributory cause of his injuries" [1] . The direction as to contributory negligence cannot be supported.

[44]

There is no dispute in the case that the respondent sustained the injuries of which he complains when he slipped and fell from a bough of a tree in the playground of the school in question. At the time when he fell, or a moment before, he was engaged in a manoeuvre in an endeavour to recover a bunch of keys which another schoolboy had thrown into the tree earlier in the day. The master who is alleged to have been negligent was standing beneath the tree. He had asked the respondent if he thought he could pass a rope over a bough of the tree higher than the one upon which the respondent was standing. The respondent thought he could and the rope was passed to him and on the third attempt he managed to get one end of the rope over the higher bough. The master then asked the respondent if he thought he could take hold of the loose end of the rope and work it down to the ground. The respondent then essayed this task and pulled the loose end of the rope down to the ground. Immediately thereafter he moved on the bough and slipped and fell to the ground. Before the rope was passed to him he had been standing on the bough near the trunk of the tree and he was holding on to a dead branch. But in order to pass the rope over the higher bough and work the loose end down to the ground he released his hold on the dead branch and stood facing out from the trunk with one hand resting on the trunk. When he had worked the rope down to the ground he moved to turn in towards the trunk and his feet appeared to slip and thereupon he fell. These facts were not in dispute. What is in dispute are the circumstances in which the respondent climbed the tree in the first place. According to the respondent he and another schoolboy climbed the tree in the presence of and at the request of the master in question. This is denied by the master who said that during the lunch hour he found four boys in the tree which, he said, was out of bounds to them, that he called upon them to come down and warned them of the danger to which they were exposing themselves. A little later in the afternoon, having been told something, he went out again to the vicinity of the tree and found that four boys, including the respondent, had climbed the tree and were endeavouring to recover the keys. He spoke to them and reminded them that he had instructed them not to climb the tree and told them that they had better get down. But almost immediately he told them to remain there until he passed a rope up and the manoeuvre then continued in the manner already set out.

[45]

In the course of his summing-up the learned trial judge directed the jury, without objection, that in the event of their accepting the version of the facts deposed to by the respondent no question of contributory negligence would arise for their consideration. On the other hand, he said, "if you should accept the schoolmaster's version and still find that he was guilty of negligence on his own version or part of his own version then it would be open to you in the circumstances I will indicate to consider the question of contributory negligence". Thereupon his Honour proceeded: "You see if the position were that the boy, contrary to instructions, and in fact after he had been told to get down on the first occasion, climbed this tree, having been told it was dangerous and there was reason for him to see it was dangerous; and having been told to get down, and knowing the school rule not to climb it in any event, if he went up without authority on that second occasion and he, being up there without authority, and then being up there the master permitted him to stay so that he started off doing something wrong, something you jurors found he knew he ought to know was dangerous, having regard to his age, and you then went on and found the master himself was negligent in letting this operation continue; and if you then found that the boy then slipped and fell from the tree in such circumstances that it was negligent of him to have been up the tree and to remain up the tree, and it was negligent of the master to let him continue up the tree, and directed him up the tree; and if you found that the boy's falling was due to the combined negligence - that each contributed to the accident - then it would be open to you to find contributory negligence on the part of the boy". In the result the jury found in answer to express questions that the master had been negligent and that the respondent had been guilty of contributory negligence. But prior to this finding counsel for the respondent sought a modification of the charge to the jury on the issue of contributory negligence. In effect, he asked the learned trial judge to instruct the jury that if they found that the respondent slipped and fell whilst he was "actually returning from the operation" which the master had instructed him to carry out, there could be no question of contributory negligence. It will be observed that the summing-up left it open to the jury to conclude that the fact that the respondent had climbed the tree on his own initiative constituted a cause of his injuries and left them free to reach this conclusion in spite of the fact that at the time when he slipped he was doing something necessarily incidental to the carrying out of the master's instructions. In my view, this was an erroneous direction for whether the respondent had climbed the tree in the first place on his own initiative or not it would not be possible to justify a finding of contributory negligence if the fact was that at the time when he slipped and fell he was carrying out the master's instructions or doing something necessarily incidental to carrying them out. I am, therefore, of the opinion that his Honour's direction on this issue was too wide and I agree with the majority of the Full Court that, subject to the matters remaining for discussion, there should be a new trial of the action.

[46]

The claim that the Crown is not vicariously liable for the negligence of the master rests upon the decision in Hole v. Williams [1] . In that case the Full Court of the Supreme Court decided that the Crown was not responsible for the negligent acts of a master at a public school which had resulted in injury to a pupil at the school. As I understand the case the basis of the decision, so far as it is relevant to the present case, was that the negligent act complained of was performed by the master in the exercise of an independent discretion vested in him as a schoolmaster or, alternatively, in the exercise of an authority delegated to him by the parents of the injured boy. The first proposition was thought to proceed by way of analogy from the decision in Hillyer v. Governors of St. Bartholomew's Hospital [2] and the second rested upon cases tending to show that "a parent, when he places his child with a schoolmaster, delegates to him all his own authority, so far as it is necessary for the welfare of the child": Fitzgerald v. Northcote [1] ; Cleary v. Booth [2] ; Mansell v. Griffin [3] . These cases were concerned with a right of a master to chastise a pupil as also was the later case of R. v. Newport (Salop) Justices; Ex parte Wright [4] and I have some difficulty in seeing how they were relevant to a consideration of the problem which arose in Hole v. Williams [5] . However, neither in the Supreme Court nor in this Court did counsel for the present appellant seek to support the decision in that case on the principles enunciated in Hillyer's Case [6] . No doubt it was thought, and rightly thought, that the subsequent decisions in Cassidy v. Ministry of Health [7] ; Gold v. Essex County Council [8] and Roe v. Minister of Health [9] made such a task impossible. Nevertheless, it was asserted on the strength of such cases as Enever v. The King [10] and Baume v. The Commonwealth [11] that the duties of a schoolmaster are of such a special character as to involve the exercise of independent authority in their performance in such a way as to make the maxim respondeat superior inapplicable. Additionally what I have called the second proposition upon which Hole v. Williams [5] rested was relied upon by the appellant.

[48]

By the Public Schools Act of 1866 a Council of Education was established and invested with authority to establish and maintain public schools and it was given extensive powers in relation to education. In particular, s. 6 of the Act provided that the Council should be entrusted with the expenditure of all sums of money appropriated by Parliament for elementary instruction and should have authority to establish and maintain public schools and to frame regulations for defining the course of secular instruction, the training examination and classification of teachers, the examination of scholars, the discipline to be enforced and observed, and all other matters necessary to be done in carrying out the provisions of the Act. This statutory provision was subject to the proviso that the Council should in all matters be subject to the like control by the Governor and Executive Council as any other department of the Public Service. All regulations framed by the Council were, unless disallowed by the express resolution of both Houses, to have the force of law. This Act was repealed by the Public Instruction Act of 1880 and the Council of Education created by the earlier Act was dissolved. However all the powers and authorities theretofore exercised by the Council were transferred to the Minister of Public Instruction or the member of the Executive Council acting on his behalf. By s. 3 of the later Act it was provided that all persons employed under the Department of Public Instruction should be appointed and removed by the Governor and all inspectors and teachers of schools and all officers acting therewith so appointed should be civil servants of the Crown. Pursuant to s. 5 all schools theretofore established and maintained by the Council of Education as public schools were declared to be public schools under the provisions of the Act. After the expiration of three months from the passing of this Act it became obligatory upon the parents or guardians of all children between the ages of six and fourteen years to cause such children to attend school for a period of not less than seventy days in each half year unless just cause of exemption, as defined, could be shown (s. 20). This latter provision was repealed by the Public Instruction (Amendment) Act, 1916 but the repealed provision was replaced by provisions which required the parent or guardian of any child between the ages of seven and fourteen to cause him to attend regularly a State or certified school. These provisions have since been amended and the present requirement in the Public Instruction (Amendment) Act, 1916-1956 is that a parent or guardian of any child between the age of six years and the school-leaving age shall cause him to attend regularly a State or certified school or a school subsidized under the provisions of the principal Act or the regulations thereunder. The school leaving age is defined by s. 2A of the Act. Teachers in public schools are now under the control of the Public Service Board by virtue of the provisions of s. 53 of the Public Service Act, 1902. This section provides that any power of appointment, dismissal or control of officers conferred upon the Minister, or upon the Minister with the approval of the Governor, or conferred upon the Governor alone under the provisions of the Public Instruction Act of 1880, shall be exercised by the Governor upon the recommendation of the Board, in accordance with the provisions of the Act, and not otherwise, and all officers or persons employed under the provisions of that Act shall be deemed to be under the control of the Board for the same purposes and to the same extent as the other branches of the Public Service to which the Act applies.

[49]

It will be seen from a perusal of these statutory provisions that a master in a public school stands in the same relationship to the Crown as any other servant of the Crown who derives his authority from the Crown and who is subject to its control in the course of his employment. But it is claimed upon the authority of the cases earlier referred to that the authority of such a master is, at least in some part, derived, not from the Crown, but from the parents of each child subject to his charge. In my view this notion is completely inconsistent with the statutory provisions the substance of which has been set out. It is not difficult to see how the notion may have developed in earlier times. No doubt an express or implied delegation of parental authority occurred when a child was committed to the care of a tutor. Likewise a delegation of parental authority might well be taken to have occurred when the care and education of a child was voluntarily entrusted to an established school. In such cases the delegation, if not express, would be implied from the contractual relationship between the parent or guardian, on the one hand, and the tutor or the board of management of the school, or other governing authority, on the other hand. But I can see no ground, in the circumstances of the present case, for any implication that any part of their parental rights in relation to the respondent were delegated by his parents when, in compliance with their statutory obligation, and under pain of the penalties prescribed by the legislation, they caused him to attend at a State school where he became subject to the care and authority of masters who, in turn, were subject in all matters to the control of the Crown. But even if grounds existed for thinking that there had been some delegation of parental authority to the Crown it would, I think, be impossible to hold that there was a delegation by the parents of the respondent to any and every master who, from time to time, might have charge of him at the school. The authority of the master must, even on that view, be regarded as having been acquired from the Crown and exercisable in the course of his employment. Ferguson J. in the Full Court dealt with both aspects of this point in the following passage with which I respectfully agree: "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 [1] , 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 schoolteacher 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 superior applies to the circumstances of the present case" [2] .

[52]

The appellant, however, maintains that the maxim respondeat superior has no application for the additional reason that the duties of a schoolmaster are of such a character as necessarily to involve the exercise of independent authority in their performance. As already appears it is sought to support this proposition by cases such as Enever v. The King [4] and Baume v. The Commonwealth [5] but there is no analogy between those cases and the present case. That there is no such analogy, so far as the firstmentioned case is concerned, is made abundantly clear by the reasons in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) [6] where it is pointed out that the authority of a police constable, as the holder of a public office, "is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract" [7] . The secondmentioned case, Baume v. The Commonwealth [1] , was a case where it was sought to make the Commonwealth liable for the action of a Collector of Customs in performing a quasi-judicial duty required by the Customs Act to be performed by him personally in the performance of which he was required to exercise independent judgment on a question of fact. At the most it may be said that the nature of the occupation of a master at a public school is such that much must be left to his discretion in the performance of his duties. This is so, however, in the case of a great many occupations but it does not mean that the maxim respondeat superior is inapplicable. As was said in Zuijs v. Wirth Brothers Pty. Ltd. [2] : "The terms of the often repeated statement of Bramwell L.J. are: "A servant is a person subject to the command of his master as to the manner in which he shall do his work": Yewens v. Noakes [3] . The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters" [4] . In my view the submissions made on this aspect of the appeal should be rejected and, accordingly, I am in agreement with the majority of the Full Court that there should be a new trial.