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. In these circumstances the plaintiff sued the personal appellant representing the Department of Education, the bus driver, the owner of the bus and the Government Insurance Officer, the insurer of the bus. His Honour held that there should be judgment in favour of the plaintiff against the present appellant on the ground of negligence and lack of supervision, but found for the other three defendants against the plaintiff. It is worth bearing in mind that it is not entirely easy to understand the consistency of his Honour's views in this regard. The essential reason why his Honour found that the plaintiff had to succeed against the present appellant was because injury was foreseeable, whereas against the other three defendants his Honour found that no injury was foreseeable because instructions had been given to the students not to play near the bus. This involves a finding that what was foreseeable by one of the defendants was not foreseeable by the others and it is 2 UNREPORTED JUDGMENTS a finding with which I have some difficulty. However, it is a difficulty which is not really relevant in the present cases because there is no appeal by the plaintiff against the judgments in favour of the defendants against whom he failed. The crucial fact which arises for consideration in the present appeal really derive from the exclusion of evidence by his Honour. At the trial the present appellant endeavoured to lead evidence from Mr McCoy that after the bus had parked the children were playing but before they entered the recording room he had given them a warning. We do not know precisely what warning he was supposed to have given them because he was not permitted to pursue the matter, but from the context it would appear that he gave them a warning not to play near the open door of the bus. The reason why his Honour took this view appears in the transcript. Mr McCoy was asked in effect, did he give any instructions to the students (at 29 transcript): "Q. Did you return to the bus area and give some instructions to the children including the group in which the plaintiff was in? A. Yes, I did. Q. When you gave those instructions to the children, where were they? Were they inside the bus or outside? A. The students by that stage had left the bus and were proceeding to unload the instruments. Q. Did you address the students including Master Watt and say something to them - " That question was not answered because his Honour intervened saying this: "HIS HONOUR: Students generally is not good enough, as far as I am concerned. If he directed a conversation to the plaintiff personally, that is another matter. But what he said to the students is hearsay and is irrelevant to these proceedings. He has to tell me he spoke to this man." It later emerged that Mr McCoy was unable to say that the plaintiff was one of the student to whom he addressed his instructions. Because he was unable to do so he was not given the opportunity of informing his Honour of the instructions he had given the students generally. The appellant contends this evidence was admissible and that his Honour fell into error rejecting it. I agree. Clearly the evidence would have been inadmissible if it went only to contributory negligence and there was no evidence instructions were given to the plaintiff, because the plaintiff could hardly have been held to be careless in disregarding instructions he never heard. However contributory negligence is not the only issue to which the evidence would have gone. The evidence in my opinion was relevant on the issue of breach of duty whether the plaintiff was one of the members of the group addressed or not. The question of whether or not a defendant has committed a breach of his duty to take care necessarily involves the consideration of what steps he in fact took and whether those steps were in all the circumstances reasonable. I do not suggest that the evidence in question, the nature of which I do not know, was or could have been vital. We are not concerned with its weight. Its weight was a matter for his Honour. The weight of the evidence would depend on a number of factors such as what exact words Mr McCoy used, whether all or only some of the students were present at the time, whether Mr McCoy believed that all students were present and if he did so believe whether he had reasonable grounds for that belief and what if any other alternatives were open to him. The evidence, WARNES v WATT BY HIS NEXT FRIEND WILLIAM JOHN WATT and ORS (Meagher JAB depending on exactly what it was, might have been of great value or might have been of little value. We cannot determine that. On one possibility it could have been of some considerable value. If his Honour is correct in his view that the existence of instructions destroyed the possibility of a successful verdict against the owner and driver of the bus it is difficult to see why an appropriate set of instructions to the children would not have resulted in a verdict in favour of the present appellant. But that is mere speculation, and the exact importance of instructions is a matter which we cannot determine. His Honour said that the evidence was excluded on the ground of hearsay. I must confess I am quite unable to understand what his Honour meant by that observation because on no view does it seem to me that any question of hearsay is involved. The question then arises as to what is the consequence of the improper rejection of this evidence. In my view it does lead to a material injustice and requires us to take the melancholy course of ordering a new trial, a course which we are traditionally reluctant to take. Counsel for the first respondent, who was the plaintiff below, has suggested to us that this view should not be taken because, as he put it, there are two possible heads of negligence, one, failure to instruct and, two, failure to supervise and whatever be the position about instruction there was ample evidence about a failure to supervise. In my respectful opinion it is not quite as clear as that because the question of what instructions were given is an integral part of the supervision. It is difficult I would have thought, for example, to answer one way or another the question whether Mr McCoy was negligent in going inside the recording hall unless one knows what instructions he gave the students before he went into the recording hall. So for those reasons I am unable to accept the view that the rejection of the evidence is without relevance. For those reasons, as I have said, I am of the view that there should be a retrial generally on the issue of negligence between the plaintiff and the present appellant. The present appellant has asked for a wider order to be made. The present appellant below had issued a third party notice in which he alleged fault in the bus driver and consequently in the owner of the bus and insurer of the bus. He wishes to agitate those matters by seeking indemnity from the insurer on the retrial. In this regard he relies heavily on what is said to be a conflict of evidence as to the position of the door at the time of the accident, that conflict of evidence being as to whether it was fully open or only half open, and if the latter be correct that that fact evidences negligence in the bus driver. There are two reasons why I think the appellant's submissions in this regard should not be accepted. The first is that the issue of whether the door was fully open or half open is one which was raised on appeal but did not seem to assume any significance in the trial itself. The other reason is the more substantial reason, that no issue of contribution or indemnity by the appellant can demonstrate that the insurer is a tortfeasor who is or would if sued be liable. The plain fact is the insurer has been sued and found not liable. In those circumstances it would be futile to extend the ambit of the new trial to cover the allegations which the appellant wishes to pursue against the insurer. For these reasons I would propose that the appeal be allowed, that his Honour's verdict and judgment at first instance be set aside, that a new trial be ordered as between the appellant and the first respondent only and it be a general new trial and, in my view, we should hear argument as to costs. 4 UNREPORTED JUDGMENTS Samuels JA I agree. I think that by rejecting this evidence the learned judge deprived himself of material which was most relevant to his determination of whether or not the Department of Education by the agency of Mr McCoy had failed properly to discharge its duty to supervise these twelve year old boys. It is not an answer, in my view, to a case of wrongful rejection of evidence to say that there was other evidence in the case upon which the judgment can stand, unless it is possible to go as far as to conclude that the result must have been the same whether or not the evidence in contest had been admitted. In the present case I cannot arrive at that conclusion. If the evidence had been received the judge might very well have regarded it as making up any deficit in the surveillance exercised by Mr McCoy. On the other hand he might have felt it did little to support the department's case. The important thing is that the defendant was deprived of the opportunity of having that testimony at the trial and there was as a result, a miscarriage. In my opinion the requirements of Pt51 R16 are clearly satisfied. So far as the issue between the appellant and the Government Insurance Office is concerned, I agree with what Meagher JA has said. On the merits I would not accede to the appellant's argument about the conflict regarding the position of the door of the bus. There is a not inconsiderable technical problem presented by the fact that the judgments in favour of the remaining defendants which passed at the trial stand in the absence of any appeal against them. I would, therefore, agree with the orders proposed; and we will hear counsel on costs in a moment. Priestley JA I also agree. (Counsel addressed on costs) SAMUELS JA: The orders of the court are these: 1. The appeal is allowed. 2. The judgment below against the first respondent Cameron John Watt is set aside. 3. The judgments in favour of the second, third and fourth respondents are affirmed. 4. A new trial on the issues of both liability and damages is ordered between the appellant, Trevor William Haines, and the first respondent, Cameron John Watt. 5. The first respondent must pay the appellant's costs of the appeal and will have a certificate under the Suitors' Fund Act if qualified. 6. The appellant must pay the second respondent's costs of the appeal. 7. There will be no order for the costs of the appeal of the third and fourth respondents. Appeal allowed. Judgment below against first respondent set aside. Judgments in favour of second, third and fourth respondents affirmed. New trial on issues of both liability and damages ordered between appellant and first respondent. 5. First respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified. 6. Appellant to pay second respondent's costs of appeal. 7. No order for costs of appeal of third and fourth respondents. Counsel for the Appellant: PA JOHNSON, Instructed by: HK ROBERTS (CROWN SOLICITOR) RYN WARNES v WATT BY HIS NEXT FRIEND WILLIAM JOHN WATT and ORS (Priestley JAB Counsel for 1st Respondent: FCURRAN, Instructed by: BAKER MANNERS AND HART Counsel for 2nd, 3rd, 4th Respondents: G PETTY, Instructed by: S MILLS (for 5 the GOVERNMENT INSURANCE OFFICE OF NSW)