(h) While it appeared that basketball, netball or handball was informally played in the quadrangle area, the School made regular announcements, at least weekly, about not running in the quadrangle (Black, 85N-P), with the respondent and others having been warned previously not to engage in water fights (Black, 85Q-R).
(i) The respondent was running as fast as he possibly could to escape the "dead-arm" (a punch on the arm) from Kurt; (Black, 84Y, 85B evidence of respondent).
(j) The respondent acknowledged that there were usually teachers in the canteen area and in the quadrangle area carrying out supervision (Black, 23E, 74, 86) confirmed by the School Principal, Mr Wann (Black, 125L-Q).
(k) The respondent accepted that it was reasonably possible that he did not see the teacher rostered in the canteen area as he ran through it (Black, 82B-R evidence of respondent) and that it was reasonably possible that he did not see the teacher rostered in the quadrangle (Black, 82P-R evidence of respondent).
(l) The respondent jumped over a railing fence falling on his leg and suffering injury to his right knee, experiencing a drop of about eight feet and conceding that he was aware that he was jumping to a lower level, that it was a dangerous thing to do, that he could hurt himself; he accepted that it was a silly thing to do (Black, 23N-R, 81W-X evidence of respondent).
(m) The respondent did not give any evidence in specific terms as to the duration of the chase in the quadrangle and no finding as such was made, but I would agree with the applicant's submission that a reasonable inference, given the unobstructed distances where he was running as fast as he could, that the duration was of about 15 to 20 seconds.
17 The effect of these facts puts the supervisory task in proper perspective. The question which the trial judge had to determine was whether the plaintiff had satisfied the onus of proof upon him to demonstrate a leadership failure in supervision in Ms Wright. This was in either failing to detect, or in herself being visible to be detected by, a boy running through a crowded area. It was moreover an area in a quadrangle, itself the size of approximately half a football field, crowded if not "packed" with some two to two hundred and fifty boys, all this happening in a duration of 15 to 20 seconds and with manifold possibilities of even a careful supervisor being momentarily occupied with some other incident or temporary distraction.
18 Indeed the trial judge (at Red, 26-27) recognised that the care required was no more than the taking of reasonable steps to protect the plaintiff, a fourteen year old here of immature years, against risk of injury which could reasonably have been foreseen. He correctly stated that the School authority is not absolutely liable for injuries sustained by pupils under supervision and in particular is not liable for "an unfortunate concurrence of circumstances that reasonable precautions could not have prevented"; Trustees of the Roman Catholic Church, Archbishop of Sydney v Kondrajian [2001] NSWCA 308 per Ipp JA. Clearly the nature of the supervision required will depend upon the particular activity to be supervised as well as the level of maturity of the children in question, recognising that, as Mason J said in the Commonwealth of Australia v Introvigne (1982) 150 CLR 258 at 271 "[T]he immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants".
19 In Hadba v The Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn, (ACTCA 7 - 2003, 18 December 2003, unreported), overruling the trial judge, these principles were applied in a case where use of the flying fox by 8 year old children was held by the Court of Appeal to require that "a teacher would be available to provide constant supervision" during its use; per Crispin P at [39]. Here, of course, the activity was not of that kind where the School was actually sanctioning the use of potentially dangerous equipment.
20 It is necessary now to turn to the evidence of Ms Wright, the supervising teacher, to consider whether that evidence justified the conclusion reached by the trial judge that there was a failure of supervision in the circumstances.
21 I start with the basis for concluding that Ms Wright was on playground duty that day. The evidence is that Mr Wann, the School Principal, heard about the respondent's accident shortly before 12 pm on the day it occurred (Black, 128S). Mr Wann consulted with the School's Supervision Policy/Roster to ascertain who was on "quadrangle duty" in order to investigate the matter. He then made contact with that teacher (Black, 128V-Y). Mr Wann identified that teacher as Ms Wright (Black, 129C). Mr Wann spoke to Ms Wright on the day of the accident (Black, 129D). This conversation took place at approximately 1.25 pm that day (Black, 129K-L). According to Mr Wann in this conversation Ms Wright said she was on playground duty that day (Black, 140D-F). She did not however see the incident. It was not suggested to Mr Wann that he observed Ms Wright at the teachers' meeting which may have transpired during recess on the day of the accident (Black, 8T-U).
22 The trial judge observed that conversation "does not necessarily establish that Ms Wright was actually on duty, simply that she asserted that she had been on duty when confronted by Mr Wann, who was enquiring as to how a student became injured …"; Red, 34. The trial judge goes on to state that
"I do not believe I could go so far as to conclude that Ms Wright responded untruthfully to the Principal's enquiry. That was not put to her. But I have concerns in the absence of any direct recollection from Ms Wright, that in reality her representation to Mr Wann after the event, and the knowledge that someone had been injured, is enough to establish her presence in the playground"; T, 34.
23 The trial judge then concludes that
"I do not believe the matter need be concluded on that issue. Assuming that she was in the playground (although that fact is by no means clearly established) I'm satisfied that such supervision as she was exercising was inadequate or fell short of reasonable exercise of a duty of care"; T, 34.
24 I consider, contrary to the reservations expressed by the trial judge, that an inference should have been drawn that Ms Wright was present in the playground, based on her being shown on the roster and the reported conversation she had with Mr Wann. After all the trial judge accepted Mr Wann and Ms Wright as truthful witnesses (Red, 34H). The only basis for casting doubt upon what amounted to an admission on Ms Wright's part was her lack of recollection, one way or the other, when the matter came to be tested some time later from these events. In the end, nothing turns on this as the trial judge proceeded, notwithstanding his doubts and reservations, on the basis that Ms Wright was in a supervisory role in the playground or quadrangle, there having been nothing put to her to the contrary in cross-examination.
25 Ms Wright said she did not teach or have any interaction with the respondent (Black, 162N-O). She taught English to newly arrived students from overseas (Black, 140H). Ms Wright said she followed the supervision policy/roster (Black, 162R).
26 She gave evidence that Mr Wann asked her if she saw the incident on the day it occurred and she said she did not (Black, 163Q-R).
27 Based on her reflection of the conversation with Mr Wann, Ms Wright gave evidence that she believed she was in the quadrangle on "the day" (Black, 164C). Ms Wright said it was her practice to stop students from running in the quadrangle when on occasion she would observe it taking place (Black, 164D). She added that she never left the area she was rostered to supervise (Black, 167R). She said it was her practice to walk around the quadrangle (Black, 171H-K).
28 The candour with which Ms Wright answered the questions asked of her told strongly in favour of the veracity of her answers. Thus she would readily concede difficulties as when she was asked
"If a student had injured himself and was lying on the ground just to the right of the stairs from the quadrangle to that lower level crying with - and then with other students helping him up if you were on duty in the quadrangle that's something that you would observe isn't it?
A. One would assume so but I didn't." (Black, 168T-W)
29 That answer and the fact that she did not in fact observe the respondent lying injured or the other sequelae of the fall was strongly relied upon by the trial judge as supporting his conclusion that there had been a negligent failure of supervision, in the following passage:
"The fact that Ms Wright particularly, nor any other teacher for that matter, failed to observe the sequelae of the fall supports the conclusions available from the Plaintiff's evidence, that he did not see a teacher to intervene and no teacher intervened to stop the Plaintiff and Kurt running. At the very least, in conjunction with the Plaintiff's evidence, the various circumstances outlined above inevitably draw the Court to the conclusion that there was an inadequacy of supervision, if not an absence of supervision, which materially contributed to the circumstances of the Plaintiff's injury"; Red 36U-37C.
30 But the trial judge makes no reference to the following question and answer to which I have made earlier reference, and which explains why she would not necessarily observe such sequelae:
"Q. If you were on duty in the recess, during the recess in the quadrangle would you be able - is there any - could you see a boy being assisted in the manner I've described?
A. I don't think so.