MIZZI v HAINES [1996] NSWCA 367

MIZZI v HAINES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and COLE JA 18, 19 June, 18 July 1996

[1996] NSWCA 367 NEGLIGENCE-teacher's duty to pupil — no breach shown — question of fact.

Handley JA. The judgment of Cole JA sets out the relevant facts and there is no need for me to repeat them. The result of this appeal turns on the following finding by the trial judge:

Having regard to the relatively mature age of the Plaintiff and the fact that there were several safe means of him carrying out Ms Jardine's direction I am not persuaded on the probabilities that it was reasonably foreseeable that the plaintiff would propel himself outwards and upwards from the shelf in a way which would bring his head into contact with the fan.

The plaintiff's original case at the trial was that Miss Jardine had told him to jump down from the shelf. This case failed because the trial judge accepted Miss Jardine's evidence that she had not given any such instruction,but had merely told the plaintiff to get down. The claim that the plaintiffs jump and the manner of it was reasonably foreseeable represented a fall-back case for the plaintiff.

The shelf on which the plaintiff was sitting when he received the instruction to get down was about 2/3 metre in width and about | metre below the ceiling. Seated where he was the appellant was approximately level with the rotating fan, the blade at its nearest point being something over 1 metre away from his face. The duty of care owed by the State and the teacher to the plaintiff which was endorsed in Geyer v Downs (1977) 138 CLR 91 at 102 was not 'to insure against injury, but to take reasonable care to prevent it, (and) required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi (the teacher) should have reasonably foreseen'.