STATE OF NEW SOUTH WALES v JONES [1996] NSWCA 490

STATE OF NEW SOUTH WALES v JONES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, SHELLER and BEAZLEY JJA 21 May 1996, 6 June 1996

[1996] NSWCA 490

PERSONAL INJURY — student injured while at school — time of injury — whether Department of Education owed duty of care — admissibility of written statement — s14B(3) Evidence Act 1898 — discretion of trial judge in accepting evidence — Devries v Australian National Railways Commission (1993) 177 CLR 472

On 8 September 1988 the respondent, a student at Oak Flats High School, was injured when another student, Aaron Baker, flicked a pen which struck him in the right eye. The incident occurred in the early afternoon while the students were in the main assembly hall of the school. The respondent sued the appellant pursuant to the Crown Proceedings Act 1988.

On 15 October 1992, Judge Madgwick QC gave judgment in the respondent's favour. On the critical issue of time of injury, his Honour decided that the incident had occurred during formal teaching hours and not during the school lunch break. His Honour found that the State had a duty of care to the plaintiff at the time of the accident. Had the injury occurred during a recognised break his Honour would have found for the appellant, because he was of the view that appropriate playground supervision would not have been likely to avoid the accident.

The appellant appealed against this decision on two bases: firstly, that his Honour erred in refusing to admit into evidence a written statement made by Mr Baker pursuant to s14B(3) of the Evidence Act 1898, to the effect that the incident had occurred at 12.20 during the lunch break, despite the fact the witness was called; and secondly, that in describing the balance of the evidence his Honour misdirected himself by accepting the evidence of three students that the incident had occurred after the lunch break had ended, so that he came to a conclusion different from that to which he should have.