Ramsay v Larsen [1964] HCA 40

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

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 29 McTiernan J.

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.

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.