HAINES v WATT BY HIS NEXT FRIEND WILLIAM JOHN WATT and ORS [1991] NSWCA 137

HAINES v WATT BY HIS NEXT FRIEND WILLIAM JOHN WATT and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MEAGHER JJA 29 August 1991, 29 August 1991 [1991] NSWCA 137

PERSONAL INJURY, EVIDENCE Schoolboy's hand is injured by bus door. Trial judge finds that injury was foreseeable and defendant was negligent. Evidence from teacher that he warned students excluded by trial judge. HELD (per curiam). Excluded evidence was admissible as it was relevant to issues of contributory negligence and breach of duty.

Meagher JA This matter concerns an accident which took place on 24 November 1986 when the plaintiff, Master Watt, who was then a twelve year old schoolboy, was engaged on a school excursion from Ballina High School, which he attended, to Nimbin. The reason why the group of which he was a member went from Ballina was because he was part of an intermediate band which was going to be recorded at Nimbin. He was conveyed from Nimbin in one of two buses, along with a large number of his fellow students. On that bus there was a teacher in the employment of the Department of Education, Mr McCoy. The bus arrived at Nimbin for the purpose of recording the school band as I have said and the bus was owned by a company called B Blanch Pty Ltd and driven by one of their employees, a Mr Ibbotsen. The bus duly arrived and parked. The rear door of the bus was opened in order to enable the school students' musical instruments to be removed from it. Some of them were immediately removed and some were left for an interval of time. At the time of the accident there appeared to have been eighty students, forty of them were inside the recording rooms, forty of them were playing outside waiting for their turn to record the intermediate band. Whilst they were waiting the schoolboys played handball and in the course of so playing the ball with which they were playing lodged between the body of the bus and the door, which was then in its open position. The plaintiff endeavoured to retrieve the ball, he put weight on the door, the door was sprung and it came down and struck his hand causing him considerable injury. At the time, Mr McCoy was absent, having gone into the recording room.