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'. Mr King's admirable arguments in support of the appeal have not persuaded me that this finding is wrong. In fact I believe that it was correct. The appeal should be dismissed with costs. Sheller JA. I have had the benefit of reading the judgment prepared by Cole JA and agree with the orders his Honour proposes and the reasons he has given for those orders. The issue at trial on the facts found was whether the teacher, Ms Jardine, aware of the location of the fan, was in breach of her duty of care to the plaintiff by directing him to get down from the shelf above the blackboard without at the same time ensuring that he did so safely. During her cross examination she said: My memory tells me I said something in the words of "to get down carefully", but I don't remember the words exactly. I would not have said: "Jump down", it was too far for him to jump. Judge Patten accepted this evidence. Contrary to Ms Jardine's direction, the appellant jumped outwards and upwards from the shelf in a way which brought his head into contact with the fan. Had he complied with Ms Jardine's direction, 2 UNREPORTED JUDGMENTS he could have climbed down by using the ledge at the foot of the blackboard as a foothold or by using a window for a similar purpose or he could have dropped straight down from his position on the ledge with ample room to do so safely. Ms Jardine gave no consent to the appellant to climb to the top of the blackboard and gave her direction as soon as she was aware where he was. I agree that the respondents were not shown to be negligent. Cole JA. The appellant Donald Joseph Mizzi was a child in year 6, aged almost 12, when he jumped from the top of a blackboard cupboard in a school room, striking his head on a rotating ceiling fan and suffered injuries. That occurred on 11 December 1985 whilst he was a pupil at Dawson Public School, Mount Druitt. He sued the State of New South Wales through a nominal defendant, and a teacher, Kerry Jardine in negligence alleging breach of a duty of care. In a judgment delivered on 29 July 1994 Patten DCJ found that there existed a duty of care owed by the school and its teachers to the appellant, but that that duty had not been breached. The circumstances in which the appellant suffered his injuries were as follows. The appellant's class teacher in 1985 was a Mr Scott. On the second last day of term teachers and pupils were engaged in cleaning and reorganising school rooms. The appellant and other students in Mr Scott's class were transporting equipment from one classroom to another working in groups of two and going backwards and forwards between two classrooms from which and to which equipment was being carried. Without permission, the appellant left that task and went into Miss Jardin's classroom. She had given permission for two of her pupils to climb onto the top of a cupboard adjacent to the blackboard to clean it. They were friends of the appellant. The appellant climbed up onto a ledge using as a step a small shelf being a receptacle for blackboard dusters and chalk at the foot of the blackboard, and from there to the top of the cupboard. He was then noticed by Miss Jardine. Patten DCJ accepted that she asked him 'to climb down' and accepted her recollection that she said words to the effect 'get down carefully', in a teacher type tone. He further accepted that Miss Jardine did not tell the appellant to jump down. The trial judge accepted her evidence that: He put his feet up towards the top of the blackboard, he puts his hands on the edge of the blackboard and he propelled himself forward ... jumping outward and hit the fan. He would not have hit the fan if he had climbed down the way he got up, had climbed down by using the window as a ledge, or by dropping straight down from his position on the ledge 'there being ample room for him to do this safely'. The trial judge found that the injury suffered by the appellant arose because 'either to show off or for some other reason (he) elected to propel himself outward so that his head struck the fan'. The account of the accident accepted by the trial judge was quite different to that advanced by the appellant. He contended he was entitled to be on top of the ledge above the blackboard, and that Miss Jardine had told him to 'jump down after he unsuccessfully tried to climb down'!. According to him he was told twice to jump down and he first refused. According to the appellant he jumped down "where she said and I hit the fan'. The appellant's evidence was rejected where it conflicted with that of Miss Jardine. 1. Appeal Book, p.53L-P. URJ MIZZI v HAINES (Cole JA) 3 Miss Jardine gave evidence that she knew the fan was 'a danger to somebody on top of the blackboard'2, as it obviously was if they leapt out into it. Equally clearly it was not a danger to anyone who ascended the blackboard in the manner described or dropped down from the top of the blackboard without springing out into the fan. The trial judge was not persuaded 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'. I agree. Accordingly there was no breach of duty in not turning off the fan before directing the appellant to descent, particularly in the circumstances where the appellant jumped immediately he was told to descend which instruction was given as soon as Miss Jardine saw him. I regard the submission on appeal that the respondents were guilty of negligence in 'failing to provide the appellant a safe means of access and egress to and from the blackboard', as untenable in circumstances where he had climbed onto the blackboard without permission and without the knowledge of the teacher just a few seconds before she saw him and directed him to get down. Equally untenable is the proposition that because the appellant was known to be 'mischievous' it was negligent not to 'ensure (his) safety'. The trial judge found that the supervision exercised both by Mr Scott and Miss Jardine was reasonable. In my opinion the appeal should be dismissed with costs. Orders accordingly. Counsel for the appellant: L King SC/P L Formosa Solicitors for the appellant: Napier Keen and Gilchrist Counsel for the respondent: M J Slattery QC/M Walsh Solicitors for the respondent: State Crown Solicitors 2. Appeal Book, p.275P-Q.