St Mary Star of the Sea College v Watt [2001] NSWCA 280

New South Wales Court of Appeal

CITATION : St Mary Star of the Sea College v Watt [2001] NSWCA 280 FILE NUMBER(S) : CA 40601/00 HEARING DATE(S) : 17 August 2001 JUDGMENT DATE : 29 August 2001

PARTIES : St Mary Star of the Sea College Limited (Appellant) Navana Jade Watt (Respondent) JUDGMENT OF : Stein JA at 1; Ipp AJA at 2; Studdert J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 7750/98 FILE NUMBER(S) : LOWER COURT Dent DCJ JUDICIAL OFFICER :

COUNSEL : D. Kennedy SC/J. Keesing (Appellant) M.J. Slattery QC/R. Parsons (Respondent) SOLICITORS : Makinson & d'Apice (Appellant) Maurice May & Co. (Respondent) CATCHWORDS : Negligence - school student injured in gymnastic activity - whether breach of duty by teacher - whether breach causative of harm - assessment by trial judge of credibility of plaintiff and witnesses called by defendant - observations of trial judge on demeanour - position of appellate court. CASES CITED: Devries v Australian National Railways Commission (1992-93) 177 CLR 472 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40601/00 STEIN JA IPP AJA STUDDERT J

Wednesday 29 August 2001

ST MARY STAR OF THE SEA COLLEGE LIMITED v NAVANA JADE WATT

JUDGMENT

1 STEIN JA: I agree with Studdert J. 2 IPP AJA: I agree with Studdert J. 3 STUDDERT J: The respondent to this appeal, Navana Jade Watt, brought proceedings in the District Court against the appellant, St Mary Star of the Sea College Limited, claiming damages for negligence. The action was successful and resulted in a judgment in her favour in the sum of $182,378.15. In its appeal to this Court, the appellant seeks orders that the judgment be set aside and that judgment be entered in its favour. Consequential relief as to costs is also claimed. 4 The respondent was a pupil at St Mary Star of the Sea College at Wollongong and sustained injury during a gymnastic class in which she was participating on 26 June 1992. The respondent, who was then fourteen years of age, was one of eighteen students in the class. Some members of the class were doing exercises on the bar, others on the floor, and others on the vault. All these students, including the respondent, were under the supervision of a trainee teacher, Mr Kunkler. 5 The respondent was one of those engaged in the vaulting activity and the equipment provided for the exercise included a form of springboard described as a "beat" board, a vaulting horse and a landing mat or mats. There was no dispute that the respondent was injured whilst engaged in a vaulting exercise. However, there was a very live issue at the trial as to the precise circumstances in which the injuries were sustained. 6 It was Mr Kunkler's responsibility to supervise the students using the vaulting horse and in so doing to act as a "spotter". The spotter's task was to stand by the landing mat when a student performed a jump and if need be render assistance to the student if the jump went amiss and it was perceived harm could occur in the landing stage of the exercise. 7 The respondent's evidence was that at the time she sustained her injuries Mr Kunkler was not standing in the correct spotter's position immediately by the landing mat, but a few metres distant, having been talking to another pupil. According to the respondent, her jump did go amiss, she lost control of her movements and in consequence did not land on her feet on the landing mat as she should have done. Rather, according to the respondent, she landed on her upper back (T15-16): "Q. So when you came to the occasion when you ran up and attempted to perform a vault and suffered an injury, can tell the court, please, at the commencement of your run up did you know where Mr Kunkler was? Could you see him?