New South Wales Court of Appeal CITATION : VAN DONSELAAR v CENTRAL COAST GRAMMAR SCHOOL LTD [2003] NSWCA 241 HEARING DATE(S) : 15/08/03 JUDGMENT DATE : 8 September 2003 JUDGMENT OF : Beazley JA at 1; Santow JA at 30; Tobias JA at 31 DECISION : Appeal dismissed with costs. CATCHWORDS : Personal injury - injury at school - Negligence - breach of duty - duty of care - magnitude of risk CASES CITED : Wyong Shire Council v. Shirt (1980) 146 CLR 40 Northern Sandblasting Pty. Limited v. Harris (1997) 188 CLR 313 PARTIES : Anthony Geurt Stuart Van Donselaar (Appellant) Central Coast Grammar School Ltd. (Respondent) FILE NUMBER(S) : CA 40874/02 COUNSEL : R.E. Williams QC/G.J.L. Scragg (Appellant) R.A. Cavanagh SOLICITORS : David J. H. Hooper (Appellant) Thompson Cooper Lawyers (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC818/00 FILE NUMBER(S) : LOWER COURT Black DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40874/02 DC 818/00 BEAZLEY JA SANTOW JA TOBIAS JA 8 September 2003 VAN DONSELAAR v CENTRAL COAST GRAMMAR SCHOOL LTD FACTS The appellant brought proceedings against the respondent School, claiming damages as a result of injuries sustained by him when, as a student at the School, he fell down a flight of steps. The appellant had sustained an injury, prior to the subject accident, as a result of which his foot and lower leg were in a cast and he used crutches to move around. The respondent's premises were on sloping land, and to move around between classes the appellant was required to utilise a number of flights of stairs. Prior to the accident the respondent had offered assistance in moving the appellant around the school or with carrying his books, and had informed the appellant that he could do his schoolwork from the library and made follow-up inquiries of him. The appellant refused any assistance. The trial judge found that the respondent had not breached its duty of care to the appellant. On appeal the appellant challenged this finding. HELD per Beazley JA (Santow and Tobias JJA agreeing) (i) The magnitude of the risk of the appellant falling was not sufficient to require the respondent to take steps beyond those already taken in offering assistance to the appellant: Wyong Shire Council v Shirt (1980) 146 CLR 40. The appellant, whilst still a youth, must be taken at his age to be capable of making an appropriate decision as to whether he could move around the school on his crutches without assistance. (ii) The appellant had not established that a failure to provide a handrail was negligent. ORDERS Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40874/02 DC 818/00 Beazley JA Santow JA Tobias JA 8 September 2003 VAN DONSELAAR v. CENTRAL COAST GRAMMAR SCHOOL LTD. Judgment 1 BEAZLEY JA: The appellant brought proceedings against Central Coast Grammar School Ltd (the School) claiming damages as a result of injuries sustained by him on 12 February 1997 when, whilst a student at the School, he fell down a flight of steps and sustained injury. The proceedings were heard by his Honour Black DCJ who, on 6 September 2002 entered a verdict in favour of the School. The appellant appeals against that verdict. 2 The plaintiff was born on 8 April 1980 and was 16 years and 10 months at the time of the accident. He had been a student at the School since 1994 and, at the time of the accident, had just commenced Year 12, which was his Higher School Certificate year. 3 The School was built on a sloping block of land and the campus was divided into two sections by a public road. The smaller section of the campus thus divided off included a designated "Year 12 area". There were no classrooms as such on that part of the campus, which was relatively flat. 4 The classroom blocks were located on the other side of the road, as were the school's playing fields (the lower campus). This section of the campus sloped quite significantly and there were five sets of stairs from the top portion down to the lower area. The science block, to which I shall refer shortly, was located at the lower end. 5 The classroom blocks were built in a terraced formation with flights of stairs leading down to each level. The flight of stairs upon which the appellant fell comprised 18 steps, divided between the 9th and 10th step by a landing. The steps were otherwise continuous. Except for a flight of stairs at the lowest level, it seems that all flights of stairs were the same. There was little direct evidence of the construction of the stairs, although it was clearly apparent from photographs that three to four students could walk abreast up or down the stairs. The stairs were uncovered. On each side of the flight of stairs there was a brick wall. There was, however, no handrail, either on the brick wall or in the centre of the flight of stairs. The absence of a handrail is to be contrasted with the steps at the lowest level which were built in a semi-circular shape leading down to what was described as the "Resource Centre". There were handrails located on this set of stairs, which appeared to have far fewer than 18 steps. The science block, where the appellant had attended for the lesson immediately prior to the accident, is located adjacent to the Resource Centre. There was a ramp which skirted the outer boundary of the classrooms. It was unpaved in part and did not feature as a relevant circumstance in the case. 6 The accident occurred 6 to 7 days after the commencement of the school year. Shortly prior to the recommencement of school, the appellant had, on 26 January 1997, injured his right foot, as a result of which his foot and lower leg were placed in a fibreglass cast. He used wooden crutches which had rubber casings on the end. 7 The accident occurred after the appellant's first class of the day, which was a double period conducted in the science block. It had been raining when the appellant arrived at school and it was still raining at the conclusion of the class. The appellant described the rain at that stage as being "very very heavy". The appellant described the steps as having leaves and debris on them, washed down from the rain, as well as "pools of water" having formed on the steps. He described the steps as having "a lot" of rainwater on them "more than you'd expect to see on some steps". The appellant said that he ascended the steps by having his crutches on one step and then hopping to the next step with the crutches taking the full weight of his body as he moved up. 8 The appellant said that he was the last one to leave the science classroom as he had waited to see if the rain would ease off. After waiting some time however, and the rain not having eased, he set off to go to his next class, which was in A block at the very top of the lower campus. The appellant had negotiated the flight of stairs reaching the second or third top step when his right crutch slipped away from him and he fell down the full length of the stairway. He said that by the time of the fall he was soaked. 9 When the appellant commenced the school year, his House Master, Mr. Boesenberg, spoke to him, inquired how he was and said to him "If you need help to get to class we can arrange that". The appellant told him that he "should be able to get to class". Mr. Boesenberg also advised the appellant that the School could "get someone to carry your books". The appellant again refused the offer, stating "No, I'll be okay". The appellant informed Mr. Boesenberg that he wanted to attend classes. Mr. Boesenberg also gave evidence that he told the appellant that he could do his school work in the library, saving him the necessity of moving from class to class but that he accepted the appellant's choice that he wished to attend the individual classes for his subjects. The appellant gave evidence that for the purpose of attending his various classes, he would pack the books required for that class into a small backpack which he then wore on his back whilst he moved about the school. On the day of the accident he had two textbooks and a folder in the backpack. 10 It was accepted by the School that the appellant, being on crutches, had a disability. It said that the appellant was treated in accordance with the School's policy in respect of students with a disability, that is by offering assistance and checking to see if the student was managing. Mr. Boesenberg said the appellant was offered the assistance, which I have referred to, and that he checked up on him every couple of days to see "that he was able to get on with his studies". It is common ground that the appellant did not complain or seek any assistance or seek to take up the offers of assistance which had been made. 11 Prior to returning to school at the commencement of term, the appellant's mother had contacted Mr. Boesenberg and advised him of the appellant's injury. There was a dispute as to the content of the conversation which was had on this occasion. The appellant's mother asserted that Mr. Boesenberg informed her that the School would give the appellant every assistance, would arrange for work to be brought to him in a classroom and would also arrange for people to carry his books. The trial judge rejected the appellant's mother's evidence in respect of this conversation and accepted Mr. Boesenberg's evidence to which I have referred. 12 Mrs. Burke also gave evidence on behalf of the School. She was the School's Bursar and had been a member of staff for over 15 years. She gave evidence of the cleaning system at the School. His Honour found that system to be adequate. She also said that during her time at the School she had never heard of any complaint about the state of the stairs. His Honour accepted this evidence. Mr. Boesenberg gave similar evidence and also said that no problems had ever arisen with students on crutches at the school. 13 There were two expert reports before the trial judge, both adduced in the appellant's case. One was by Mr. Jerry Tyrrell who has over 27 years experience in the building and architectural industry including qualifications relating to occupational health and safety. He said that the design and construction of the steps was unsatisfactory in three respects: 1. "The non-slip particles forming part of the top surface of the stair treads did not form a permanent non slip surface." 2. "No non-slip nosing was present" and 3. "No handrails were fitted to this flight of stairs" 14 Mr. Tyrrell reported that there was isolated damage to the [sand cement topping] "mostly commonly at the nosing". He observed, however, that there appeared "to be no damage at the area where the accident is alleged to have occurred". 15 The second expert report was that of Dr. Jennifer McMahon, whose report was directed at giving expert evidence on the duty of care owed by schools to students. Her expertise to give the evidence was not challenged. Dr. McMahon expressed the opinion that the offering of assistance by Mr. Boesenberg was not sufficient to take "reasonable measures to protect the student against injury". She also considered the particular conditions on the day of the accident would have increased the magnitude of risk which already existed, given that the appellant was on crutches. She said those two factors increased the degree of probability of an accident occurring. In her opinion "[a] reasonable person would see that, regardless of stair grip, the rain would have increased the plaintiff's discomfort which, not only would act as a distraction from the concentration needed to mount the stairs on crutches with his school books in a satchel on his back, but would also be likely to cause the plaintiff to hurry". Later in her report she considered that the particular conditions operating on the day of the accident would indicate that the appellant was at "a very high risk" of having an accident. In her opinion, an appropriate response to the appellant's disability and his reliance on crutches "would have been to minimise the need for the plaintiff to use the stairs in any weather. This could have been achieved by allowing the student to work on individually set exercises, projects or research based activity in the library as much as possible". Findings of trial Judge 16 The trial judge accepted that the appellant was offered assistance from the school should he require it, including the freedom to stay in one location if he so chose as well as being offered assistance to carry his books if he required it. His Honour noted that there was no evidence as to why the appellant's right crutch slipped. His Honour observed that even though the appellant gave general evidence as to the existence of leaves and debris and water on the steps, he did not give any evidence that that was the condition of the step upon which he slipped. 17 His Honour rejected that any of the matters referred to by Mr. Tyrrell, as constituting an unsatisfactory state of design and construction, was causative of the accident. On this aspect of the case his Honour concluded: "In the result I am not satisfied that there was anything structurally wrong with the steps whether by way of the way in which they were made or maintained which gave rise or contributed to the [appellant's] accident. Although on the day in question some vegetable matter may have been washed onto the steps by the rain, there is no evidence to justify my finding that such debris caused or contributed to the plaintiff's accident. Nor is there any evidence to justify my finding that the nature or structure of the steps was such that pools of water presented a hazard to persons such as the plaintiff." 18 His Honour then dealt with the evidence of Dr. McMahon. He rejected each of her three suggestions as to the reasonable steps that the School should have taken to avoid the risk of injury to the appellant. Only one of these is relevant to the appeal, as his Honour's finding that the appellant's carrying his books did not cause or contribute to the accident is not challenged. His Honour recorded the other recommendation put forward by Dr. McMahon in these terms: "She said: 'If a student has to rely on two crutches he should not have had to use the steps in any weather, either by being put in a separate work environment such as the library …". 19 His Honour found that "to be unreasonable and impractical in the circumstances, although the situation might have been otherwise had such specific request be made …" which his Honour found had not. Issues on the Appeal 20 Senior counsel for the appellant submitted that the trial judge erred in three essential respects in failing to find that the School breached its duty of care to the appellant. First, he submitted that the plaintiff ought not to have been permitted to go to class where he had to negotiate steps. 21 Secondly, it was submitted that the duty on the School, in light of the "special" circumstances which prevailed, was to ensure that the appellant had assistance both with carrying his books, and possibly having a person accompany him so as to provide assistance in some manner which was not specified, and perhaps also to be available to assist him should he fall. The special circumstances identified by senior counsel were that the appellant was at the commencement of the beginning of his Higher School Certificate year, enthusiastic to attend his classes in circumstances where he had recently injured his foot and was wearing a cast and was on crutches. In that condition, he was required to negotiate steep flights of steps, which on the day of the accident was particularly arduous given the inclemency of the weather. 22 The third attack was that there should have been handrails located either down the middle of the flight of stairs or on the wall on either side. Had there been such a handrail, as there was in the case of the lower steps, the appellant, according to the submission, would have been able to negotiate the stairs with a greater degree of safety by holding his crutches under one arm and using the handrail to hop up the steps. 23 The appellant submitted that in accordance with the well established principles stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, the question to be asked was: "what was the reasonable response required of the School to the identified risk". The question of what constituted "reasonable steps" he submitted, depended upon "all the circumstances": see Northern Sandblasting Pty. Limited v Harris (1997) 188 CLR 313. Senior Counsel submitted that the trial judge seemed to have been deflected from the proper application of Wyong Shire Council v Shirt in his efforts, in the early part of the judgment, to determine whom he should accept as between the appellant's mother and Mr. Boesenberg. 24 Because of the emphasis placed upon the question of the required reasonable response, it is convenient to cite the well known passage in Wyong Shire Council v Shirt. Mason J said at 47: "In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of person including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." Conclusions 25 The determination of the first and second issues on the appeal involve a consideration of whether the School's response in offering to provide assistance to the appellant should he wish it, both by enabling him to study in the library and/or providing him with assistance to carry his books, was a sufficient response. As Mason J said in the passage from Wyong Shire Council v Shirt cited above, that requires a determination of the magnitude of the risk. The respondent School, through its witness Mrs. Burke, accepted that there was a risk in going up the steps on crutches in the rain. However, there was no evidence that the steps themselves were slippery at all, whatever the state of the weather. Nor was there any evidence that there was any debris or leaves on the step upon which the appellant slipped that increased the risk to the appellant. His Honour rejected any suggestion that the appellant carrying his books in a backpack contributed to the accident. 26 What then was the magnitude of the risk? This was not specifically articulated by the trial judge but it would seem as a matter of commonsense that, given the circumstances to which I have referred and the evidence as to the construction of the steps, the risk of the appellant falling was a real one, although not of a high magnitude. There is no doubt that it would have taken some effort to climb the steps using crutches, whether it was raining or dry. There is also no doubt that the appellant would have been extremely uncomfortable on the day of the accident given the heavy rain. However, that of itself would not have increased the risk of injury. In those circumstances, there was nothing which required the School to take steps beyond those already taken, that is, of offering assistance to the appellant. The appellant, whilst still a youth, must be taken at his age to be capable of making an appropriate decision as to whether he could move around the School, including negotiating the steps, on his crutches. He had done so for six days knowing that the offer of help was available. He had declined that help on more than one occasion, insisting that he was managing. There was nothing to indicate to the School that the position was otherwise. Likewise on this day, there was nothing to indicate to the School that he was not managing or would not be able to manage. He was keen to attend classes and, no doubt to him, confining him to the library was not a viable option. In my opinion, this challenge of the appellant makes to his Honour's decision has not been made out. 27 I should state that there was a dispute between the parties as to whether the first challenge to his Honour's decision, that his Honour should have found that the appellant ought not to have been permitted to move between classrooms which required him to negotiate stairs, had been run at trial. The position was never completely clarified although there is an indication in his Honour's consideration of the evidence of Dr. McMahon that that case had been made at trial. I say this because His Honour misstated the evidence of Dr. McMahon but did so in a way which put the case of the appellant at its highest and in the manner pressed upon the Court. Dr. McMahon's report was qualified in that she said that the appellant should have been allowed to work in one location "as much as possible". Even assuming that the case had been put in that way, for the reasons which I have already given, I do not consider that it has been made out. 28 The third challenge to the trial judge's verdict was that the School was negligent in failing to have handrails on the flight of stairs, either on the side or up the middle. Whilst Mr. Tyrrell described the absence of a handrail as an inadequacy in the design and construction of the stairs there was no evidence that hopping up the stairs without the appellant using his crutches but leaving them tucked under his arm, would have been a safer way of ascending them. Commonsense indicates that it would have been a difficult task to hop up 18 steps. Although the appellant said this was his preferred method on the steps where there was a handrail, there were only about a half dozen steps in the flight of stairs where the handrail was located. In my opinion, the appellant has not established any basis upon which the Court could conclude that a failure to provide a handrail was negligent. 29 Accordingly, I would dismiss the appeal with costs. 30 SANTOW JA: I agree with Beazley JA. 31 TOBIAS JA: I agree with Beazley JA. ********** Last Modified: 09/15/2003 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.