NOBREGA v. TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY (NO. 1) [1999] NSWCA 75

New South Wales Court of Appeal CITATION : NOBREGA v. TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY (NO. 1) [1999] NSWCA 75 FILE NUMBER(S) : CA 40531/97 HEARING DATE(S) : 23 March 1999 JUDGMENT DATE : 23 March 1999

PARTIES : Tony Nobrega by his next friend Ludovina Nobrega (Appellant) The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Respondent) JUDGMENT OF : Priestley JA at 36, 41; Powell JA at 1; Sheppard AJA at 37

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7250/95 LOWER COURT JUDICIAL OFFICER : Patten DCJ

COUNSEL : M.J. Joseph SC/I. Asuzi (Appellant) S.A. Woods (Respondent) SOLICITORS : White Barnes (Appellant) Shaw McDonald (Respondent) CATCHWORDS : NEGLIGENCE - Duty of care - School authority and pupil - Accident while on school outing - Non delegable duty - Extent of - Whether breach established; APPEAL - From District Court - When lies - When leave required DECISION : Appeal dismissed; Costs reserved.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40531/97 DC 7250/95

PRIESTLEY JA POWELL JA SHEPPARD AJA

23 March 1999

NOBREGA v. TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY

JUDGMENT 1 POWELL JA: Although listed as an appeal as of right from a judgment delivered by Patten DCJ in the District Court on 25 July 1997, the present matter is one in which the putative appellant's ("the Appellant") right of appeal is, to say the least, doubtful. 2 Patten DCJ's judgment related to a preliminary issue as to liability which had earlier been directed to be tried by Garling DCJ, which issue his Honour decided against the Appellant and, accordingly, directed judgment. 3 The problem which arises is due to the provisions of s.127, 183C of the District Courts Act 1973. 4 So far as is relevant, s. 127(2)(c), which was substituted for the previous sub-section by Schedule 1.5 of the Courts Legislation Further Amendment Act 1997, which came into operation in February 1998 provides: "(2) The following appeals lie only by leave of the Supreme Court ……… (c) an appeal from a final judgment or order other than an appeal (i) that involves a matter at issue amounting to or of the value of $100,000 or more; or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more." (A not dissimilar monetary limit had earlier been inserted by the Courts Legislation Amendment Act 1987.) 5 Section 183C of the Act provides that s.127 as amended by the Courts Legislation Further Amendment Act 1997 applies to judgments and orders given or made before the commencement of Schedule 1.5 to that Act in the same way as it applies to judgments and orders given or made after that commencement. (A similar provision had earlier been made by s.183B in relation to the increased monetary limit introduced by the Courts Legislation Amendment Act 1997.) 6 Accordingly, although his Honour's judgment was delivered prior to the coming into force of s.127 in its present form, the provisions of that section operate retrospectively to embrace it. 7 Part 51 r 8 of the Supreme Court Rules provides that where an appeal to the Court of Appeal is restricted by reference in any Act to a specific amount or value, the appellant shall within the time limited for instituting the appeal file an affidavit stating facts which show that the restriction does not apply. 8 In the present case no such affidavit has been filed, so that it is not apparent on the record before the Court that the Appellant has a right of appeal. However, when the matter was raised during the course of the early stages of the hearing of the appeal, the Court, with the approval of the parties, decided to proceed upon the basis that, if necessary, this hearing be treated as an application for leave to appeal and, if leave be granted, a hearing of the appeal. 9 It seems to me that, the merits of the matter having been fully debated, the most appropriate course to adopt is to proceed upon the basis that, if leave be necessary, it be deemed to have been granted, and to determine the matter on its merits. 10 The Appellant is a young man now approaching his nineteenth year. In March 1994 he was a student in Year 9 at the De La Salle College, Ashfield, of which College the Second Respondent, the Trustees of the Roman Catholic church for the Archdiocese of Sydney (to whom I shall refer to as "the Trustees") is sued as representative. (I would take leave to doubt that the Trustees - a body corporate constituted pursuant to the provisions of the Roman Catholic Church Property Trust 1936 - was properly sued as such representative. Rather, I would have thought that, if - which I doubt - any such body corporate were properly to be sued as such representative, it would have been the Trustees of the De La Salle Brothers which is constituted pursuant to the provisions of the Roman Catholic Church Communities Lands Act 1942 as the trustee of community land for the Brothers of the Christian Schools. However, when the question was raised on the hearing of the appeal, Mr. S.A. Woods, who appeared for the Trustees, inform the Court that he was instructed not to take any point and to seek to have the matter determined on its merits.) 11 In what seems to be a common enough practice for students at the College, in March 1994 there was a school outing for the students in Year 9 to a property near Appin known as the Cataract Scout Park, of which property the First Respondent, the Australian Boy Scouts Association of New South Wales (to which I shall refer as "the Association"), appears to have been the owner. The Scout Park appears to have been an activity area in which various forms of activity could be carried out and to which, at various times during the year, schools or groups of school students and others would repair for some day or two of activities. 12 The Year 9 group, of which the Appellant was part, went to the Scout Park on 28 March 1994, that being the beginning of the week before Easter. Within the Scout Park there were then - and may still be - various types of activity areas, of which one was apparently known as the water activity area. The Year 9 group which, at the time, comprised about 110 to 120 pupils would seem to have been divided into two main groups; one group of about sixty going to an area other than the water activity area and the other group, of which the Appellant formed part, going to the water activity area. The group overnighted in tents and, on the following morning, proceeded to take part in the various activities in the area. For that purpose, they appear to have been divided into smaller groups of about fifteen to twenty pupils. 13 The various activities within the water activity area appear to have included what has been described as a water slide and also rafting, the latter activity taking part about fifty metres or a little further away from the water slide, and in what appears to be a dam which was dammed by a wall on which the water slide was set up. 14 The wall in question appears to have been built of either concrete or stone - the photograph, Exhibit A, which we have seen would tend to indicate that it was probably concrete rather than stone. The wall was described by the Appellant as having a slope of forty to forty five degrees - the photograph suggests to me that it is probably the smaller, rather than the greater, angle which is more likely correct. 15 The slide was a strip of rubber or a like substance, about a metre wide, in some way fixed to the top of the dam wall and proceeding at least to, if not below, the water level. To one side there was a fixed rope which was used by those who had slid down the wall as a means of regaining the top of the wall. To one side of the slide and a distance below the top of the dam wall was fitted a hose which projected water across the face of the strip so as to make it slippery. 16 It is said by the Appellant that the length of the slide was about four metres from the top of the wall to the water level in the dam. If the angle of the dam were about forty degrees and the length of the slide were about four metres, then a rough calculation suggests that the height of the dam wall above the water was about eight feet. 17 As I say, the group of which the Appellant was part, was about fifteen students. They seemed to have approached the water slide area at about 11.15, in company with two school teachers, a Mr. Sharpley and a Mr. Cole. Before proceeding onto the dam wall and taking part in or using the slide, the students appear all to have been fitted with lifejackets. They do not appear to have been given any detailed explanation of the manner in which they should use the slide, although all seem to have appreciated that they should keep their centre of gravity low as all appear to have adopted one or other of three methods; either sliding seated, sliding kneeling or sliding in a crouching position. 18 As best as one can judge it, the students formed a queue which proceeded across the top of the dam wall to the top of the slide and then proceeded down the slide. Although neither Mr. Sharpley or Mr. Cole was positioned at the head of the queue, it is said that Mr. Cole was a short distance away supervising the queue and at the relevant time Mr. Sharpley was in the queue itself and one or two places back from the Appellant. 19 It would seem that the activity of using the slide proceeded for a time without apparent problem. Certain it is that the Appellant said that, prior to the time when he sustained the injuries in respect of which he was to seek to recover damages, he had used the slide about five or six times. 20 At the relevant time, so the Appellant said, he proceeded to the head of the queue and was in the process of getting ready to slide down into the water once more. Quite what happened is a little difficult to discern, as there have been varying descriptions of what occurred. The probability is that, having decided that he would, as he seems to have done on previous occasions, slide down seated, the Appellant was in the process of crouching down so as to adopt the seated position and then project himself down the slide - he said that, while in the process of so doing, one of his feet slipped and he fell forward onto the slide and down into the water. 21 Although, because of the way in which the hearing before Patten DCJ proceeded, there was no detailed examination of the Appellant's injuries, it would seem that as he fell, he fell onto his face and damaged his teeth, as a result of which, while he was still young, he had to wear a plate and when he has achieved maturity, some form of corrective dental surgery will be called for - this seems to have been the reason why the question of liability was tried as a preliminary issue. 22 In 1995 the Appellant's proceedings were commenced with the filing of an Ordinary Statement of Claim in the District Court, seeking to recover from the Association and from the Trustees damages for the injuries which he claimed were sustained as the result of his negligence. 23 Since it would appear that the Appellant has either abandoned his claim against the Association, or has compromised it, it is not necessary to record the details of negligence upon which the Appellant relied in respect of his claim against the Association. 24 In respect of the Trustees, the particulars of negligence asserted included: - (a) failing to supervise or properly supervise the Appellant; ……… (e) failing to have regard to the lack of handholds, grips or supports for use by the Appellant; (f) failing to position or put in place an adult male person of sufficient size and strength to seat the Appellant properly on the slide; (g) failing to warn the Appellant of the risk of injury; ……… (i) failing to provide the Appellant with a helmet, mouthguard or some other similar safety device to prevent or minimise injury. 25 On the hearing before Patten DCJ evidence was given by the Appellant, a school friend, Mr. Sukkar, an Mr. Nuinka, a ranger employed by the Association, a Mr. Hannaford, another officer of the Association and finally Mr. Sharpley, Mr. Cole being unavailable because of ill health. 26 Although the case which appeared at one stage to be run on behalf of both the Appellant and one or other of the Respondents suggested that the boys involved in the activity in question were rather boisterous and were skylarking, Mr. Sharpley's evidence, which evidence was to the contrary, was that the boys were well organised and behaved in an orderly fashion. That evidence was accepted by his Honour. 27 In the result, when Patten DCJ came to consider the matter, he dealt with it in the following way (AB 95 et seq): "The duty of the school towards its pupils has been the subject of much authority including Ramsay v. Larsen 111 CLR 16, Geyer v. Downs and Another 138 CLR 91, and The Commonwealth of Australia v. Introvigne 150 CLR 258. I think it is clear that those cases that a school has a nondelegable duty to ensure that reasonable care is taken of pupils attending the school and in my view by extension when attending a school activity such as the camp at which the subject accident occurred." (From that observation nobody appears today to dissent.) His Honour then continued: "The possibility that a person using the water slide might slip as the Plaintiff did was I think foreseeable in terms of Wyong Shire Council v. Shirt 146 CLR 40. However, as Mason J point out in that case, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. As it seems to me, in this case the factors to be considered include the Plaintiff's age, the size of the group of which he was a member, the extent and effectiveness of the supervision provided, the inherent degree of danger of the activity in which he was involved, whether he was adequately warned of such danger and whether it would have been reasonable to provide additional safety measures such as a handrailing." (With that observation again I think no-one today disagrees.) His Honour then continued. "In the result, I have concluded that no breach of duty was established by either Defendant. In my view, the degree of supervision provided by both Defendants was adequate, having regard to the relatively small size of the group and the ages of the boys within it. The supervision on the evidence was effective in that, as I find, there was no skylarking and the boys in an orderly fashion were taking turns to use the slide. The slide itself was not in my view dangerous if used in an orderly fashion by boys under supervision and in my opinion was an entirely appropriate activity for early teenagers. Although apparently no particular warning or instruction was given as to the use of the water slide, the Plaintiff agreed that he was aware in effect that his centre of gravity should be low to the ground and indeed was seeking to achieve that position when his foot slipped from under him. The presence of handrail may have reduced the risk of injury but in the circumstances I am not persuaded that it would have been reasonable for such a rail to be provided. There was no evidence as to the practicality thereof and in my opinion the risk of an accident such as that which befell the Plaintiff was extremely remote. Nor do I think it would have been reasonable for either Defendant to have been required to provide mouthguards or helmets. In my opinion, on the evidence the Plaintiff's fall was an unfortunate accident not attributable to the fault of either Defendants." 28 A number of grounds of appeal were taken by Mr. M.J. Joseph SC who appears today with Mr. I. Asuzi for the Appellant. In reality however they seem to me to come down to two: first, that, far from his Honour being correct in saying that the slide was not dangerous, his Honour ought to have concluded that there was a real risk of danger to anyone using the slide; and second, that, having regard to what was put as the apparent and significant risk of danger, the Trustees ought to have taken steps to protect the pupils against that danger. 29 A number of steps were suggested but in the long run the one which was most strongly pressed was that one or other of the teachers ought to have been posted at the head of the queue in order to assist pupils, or to steady pupils, when taking their place on the slide. 30 Mr. Joseph has, I think, said all that could possibly be said on behalf of the Appellant and, in his usual way, has said it with considerable vigour and persistence. However, I am not persuaded that his Honour fell into error when he formed the conclusion that the slide was not inherently dangerous if used in the fashion in which it was. 31 True it is that one cannot rely entirely on the fact that, until the Appellant's unfortunate accident, there, on that very day, had been repeated use of the slide without untoward accident, but it is a factor which one may bear in mind in determining whether or not an apparent risk of injury is really a significant one and one which called for some remedial action. 32 Apart from the suggestion that a master should have been posted at the head of the queue to deal with the pupils in the way I have indicated, there really was no other evidence of action that could possibly have been taken by the Trustees, given that it was not the owner of occupier of the site, unless, having formed the view that the activity was a dangerous one, Mr. Sharpley and Mr. Cole should have declined to permit the students to use the slide. 33 I do not think they were required to take the latter step and, so far as the positioning of a teacher at the head of the queue is concerned, I do not feel that that is a matter which is so transparently clear that it would have prevented an injury that I would be prepared to say that, as it was not taken, there was a breach of duty on the part of the Trustees. 34 In the end, I share the conclusion which Patten DCJ reached, obviously with a degree of regret on his part, that this was an unfortunate accident and not attributable to the fault of either of the Respondents and in particular not attributable to the fault of the Trustees. 35 I propose that the appeal be dismissed with costs. 36 PRIESTLEY JA: I agree. In my opinion, the supervision by the teachers in the circumstances revealed by the evidence in this case was reasonable. In my opinion, the Second Respondent was not in breach of its duty of care to the Appellant. What happened to the Appellant was, as has been said, an accident rather than the result of anybody's negligence. 37 SHEPPARD AJA: I am of the same opinion. I must say that during the argument which has taken place my mind fluctuated on the various questions which we have had to consider but if one takes the view that the risk was greater than his Honour thought, and that thought should have been given to some method of lessening it or avoiding it, I would have thought that one would have needed some evidence from an appropriate person who could have expressed an opinion on the safety or otherwise of the activity which was being indulged in, and upon what steps might reasonably have been taken to avoid the consequences of injury. There is no evidence of that kind which has been led and in those circumstances I think the result might be as has been proposed. 38 I would also say that even if one did take the view that it would have been prudent for there to be a master at the head of the queue to steady boys as they got set for the slide, it is not clear to me that that action alone would necessarily have avoided the accident which regrettably occurred. 39 In the circumstances, I agree that the appeal should be dismissed. 40 (Both Mr. Joseph and Mr. Woods made application for a special order as to costs. Discussion ensued, during the course of which letters containing offers of compromise were tendered. Following that discussion, Priestley JA concluded.) 41 PRIESTLEY JA: … We do not intend to dispose of this argument today because it has raised matters which although technical may be somewhat more difficult than those involved in the substantial appeal. What we would ask counsel to do would be for the Appellant's counsel to put in a written submission on what the proper costs order ought to be, bearing in mind the argument we've already had, by Thursday morning, 10 o'clock, and the counsel for the second respondent put in an answering submission by Friday afternoon, 4.15. 42 We will dismiss the appeal, we make that order firm today and we will reserve the question of costs until we have considered the written submissions. ******