New South Wales Court of Appeal CITATION : Graham v State of New South Wales [2001] NSWCA 248 FILE NUMBER(S) : CA 40075/00 HEARING DATE(S) : 20/07/01 JUDGMENT DATE : 20 July 2001 Belinda Lee Graham PARTIES : v The State of New South Wales JUDGMENT OF : Mason P at 6; Meagher JA at 1; Giles JA at 10 LOWER COURT JURISDICTION : District Court LOWER COURT 777/99 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER : COUNSEL : A: J Young / J Rowe R: G Graddock SOLICITORS : A: Beston Macken McManis R: Crown Solicitor's Office CATCHWORDS : Tort - negligence - where respondent failed to provide transport to and from school for physically disadvantaged child - where child hit by car on way home from school - whether duty existed - whether breached - appeal dismissed. CASES CITED: Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) ATR 81-399 DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40075/00 MASON P MEAGHER JA GILES JA Friday, July 20 2001 BELINDA GRAHAM v THE STATE OF NEW SOUTH WALES JUDGMENT 1 MEAGHER JA: The Appellant/Plaintiff, Miss Graham is a young lady in her mid-twenties who suffered severe injuries when she was crossing Carlisle Avenue, Dharruk, on 22 February 1988 when she was hit by a motor vehicle. She was then aged twelve years, having been born on 19 June 1975. She was returning from school, that is Mount Druitt High School, which she had attended for about three weeks. She was then in Year Seven. Up till this time she had been in a number of schools; Ashfield Infants School, Hebersham Infants School, Whalan Public School. She was a disadvantaged child, suffering from impaired eyesight and bad balance, the latter condition being possibly related to the former. 2 Her mother, with whom she resided, lived about one kilometre from the school. To walk to and from school involved crossing Carlisle Street, the only heavily trafficked street between her home and the school. Normally on her way to school her mother would walk her to Carlisle Street and then allowed her to walk the rest of the way unaccompanied. On her way home her mother usually met her at Carlisle Street and walked her home. 3 On the day of the accident her mother was apparently running late, or perhaps the plaintiff was arriving early, and she tried to cross Carlisle Street without assistance. It was at this point that the accident occurred. She sued the defendant, the State of New South Wales, because of the school's failure to transport her either by bus or by taxi to her home. There was no doubt that the school knew of her afflictions, that it knew it was dangerous for her to walk across Carlisle Street, that it knew that an accident might well occur unless she was greatly helped to get home. It knew that at her previous schools she went home on a school bus. It knew that Miss Graham's mother had requested transport to be made available for her on the way home. The school knew that the mother's request had been supported by a doctor. Nevertheless, for reasons of its own, the respondent discontinued the school bus towards the beginning of 1988 and had notified Miss Graham's mother accordingly. 4 In these circumstances Patten DCJ, whilst having the greatest of sympathy for the plaintiff, was of the view that her case against the State had to fail. It would be impossible not to share his Honour's sympathy. I find it also impossible to see that his Honour was incorrect, and in my view this appeal must fail. 5 This is so, in my opinion, because the common law in general imposes no prima facie duty to prevent another person from loss or injury. There are exceptions to that principle but none of them is relevant here. This is probably another way of saying in situations like the present there is no proximity between the plaintiff and the defendant. No doubt the school had a duty to take reasonable steps to protect the child whilst it was at school, and this it apparently did. There may also have been a duty to inform Miss Graham's parents that neither taxi nor bus was running, and this it certainly did. There is no duty, in my opinion, to go further to take precautions to escort a pupil like Miss Graham to her home. Except in exceptional circumstances the master/pupil relationship ceases to exist at the school boundary. For these reasons, in my view, the appeal should be dismissed with costs. 6 MASON P: I agree. 7 Counsel for the appellant took us to passages in Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) ATR 81-399. The judgments indicate that the content of the duty which a school authority owes to a pupil may be affected by the particular circumstances of the pupil or of the vicinity of the school. There will be some situations where the duty extends beyond the school gate, at least so far as enlivening some obligation to give a particular warning to parents or sometimes to effect some added supervision. 8 In my view this case falls very clearly on the wrong side of the line as far as the appellant is concerned. The fact that she was twelve, in high school, that the school made plain to her and her parents that the request for transport to and from school was declined, and the general arrangements that were in place for the appellant to walk to and from school all indicate that, whatever the scope of the duty, it was not breached in the present case. 9 The appellant sought to gain some comfort from the fact that, following the accident, there was an arrangement made for transport for this particular pupil. I think the fact of the event occurring afterwards shows that transport could have been provided, that in itself is a self-evident proposition. It doesn't really do anything, on the facts of this case, to assist the plaintiff in showing that the considered decision not to make available this added form of protection was one which was unreasonable in the circumstances. I agree with the orders proposed. 10 GILES JA: I agree with both judgments. In short, the State as educational authority owed a duty of care to the appellant as pupil, and the question was, in the particular circumstances of a twelve year-old girl with the disabilities from which the appellant suffered and with the history of the schooling recounted by Meagher JA, whether the content of the duty was such that the State was required to provide bus or taxi transport from the school to the appellant's home in order to protect her from harm when crossing Carlisle Avenue. In my opinion it was not, and the duty was sufficiently discharged by making known to the appellant's mother that such transport would not be provided so that the appellant's mother could herself take such steps as were considered appropriate to see the appellant across Carlisle Avenue, as she generally did but on this occasion for whatever reason, was unable to do. I agree with the orders proposed. 11 MASON P: The appeal is dismissed with costs. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.