Geyer v Downs [1977] HCA 64

High Court of Australia Stephen, Mason, Jacobs, Murphy and Aickin JJ. Geyer v Downs [1977] HCA 64

ORDER Appeal allowed with costs. Order of the Court of Appeal of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeal to that court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1977, Dec. 9 Stephen J.

I have had the advantage of reading the joint judgment of my brothers Murphy and Aickin and agree with their conclusion that this appeal should be allowed.

The facts appear in that joint judgment. The appeal turns upon whether, when the plaintiff was injured in the school playground at about 8.50 a.m. one morning, the respondent then owed to her that duty of care owed by master to pupil which was certainly owed to her during the ordinary school hours and the nature of which has been described in Richards v. Victoria [1] , a description subsequently adopted by this Court in Victoria v. Bryar [2] .

1. [1969] V.R. 136. 2. (1970) 44 A.L.J.R. 174.

If that duty of care was owed at that time on the morning in question it was clearly enough open to the jury to conclude that the defendant was in breach of it and that that breach was a cause of the plaintiff's injuries. The plaintiff, a little girl of eight, was accidentally struck on the head by a softball bat held by another little girl behind whom she was passing on her way to her classroom. The other little girl was one of a number playing softball in the very small and relatively crowded playground of the school where no supervision was being exercised by any teacher and the confined nature of which was said by the defendant headmaster to require, in the interests of safety, that ball games should only be played under the supervision of a teacher. It was open to the jury both to regard as dangerous this situation in which young children on the way to classrooms passed in close proximity to other young children wielding bats and also to attribute the existence of this situation to the want of any supervision of the children's activities in the playground. The departmental instruction headed "Playground Supervision", as well as the testimony of the defendant, provided evidence that the need to supervise children in the playground was well recognized, as was the danger involved in children playing ball games in the playground without supervision. There was also evidence from which the jury might conclude that the respondent was aware that large numbers of children habitually played in the playground at this time of the morning.