New South Wales Court of Appeal CITATION : State of New South Wales v Finnan [2004] NSWCA 314 HEARING DATE(S) : 22 July 2004 JUDGMENT DATE : 10 September 2004 JUDGMENT OF : Sheller JA at 1; Santow JA at 2; Ipp JA at 41 DECISION : Verdict for the appellant with costs. CATCHWORDS : LIABILITY - the respondent, while a school student in year 9, significantly injured his knee jumping over an eight foot gap between a railing fence and the ground whilst fleeing from the threat of a 'dead arm' from a fellow student - Whether breach of duty of care of supervising teacher to avert the accident - if breached did it cause relevant accident and consequential damage - Whether a higher percentage for contributory negligence should be substituted for the 15% awarded - Whether the award for future economic loss so excessive as to warrant appellate intervention. Commonwealth of Australia v Introvigne (1982) 150 CLR 258 CASES CITED : Hadba v The Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn, (ACTCA 7 - 2003, 18 December 2003, unreported) Trustees of the Roman Catholic Church, Archbishop of Sydney v Kondrajian [2001] NSWCA 308 PARTIES : STATE OF NEW SOUTH WALES (Appellant) Steven FINNAN (Respondent) FILE NUMBER(S) : CA 41133/03 COUNSEL : P H GREENWOOD, SC/ D S WEINBERGER (Appellant) R S McILWAINE, SC/ E BEILBY (Respondent) SOLICITORS : Hicksons (Appellant) Beilby Poulden Costello (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 10526/01 FILE NUMBER(S) : LOWER COURT Norrish DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41133/03 DC 10526/01 SHELLER JA SANTOW JA IPP JA 10 SEPTEMBER 2004 STATE OF NEW SOUTH WALES v Steven FINNAN Judgment 1 SHELLER JA: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION AND OVERVIEW The respondent, Steven Finnan, was a student of Marsden High School which, through the State of New South Wales, challenges the finding of liability and, insofar as the future economic loss component is concerned, damages awarded to the respondent. The respondent suffered significant injuries to his knee while a school student in year 9. This was instigated by an incident of sky-larking in a water fight during which, threatened by a fellow student during recess with a "dead arm", he sought to escape by jumping over an eight foot gap between a railing fence and the ground and fell on his leg. The trial judge, Norris, DCJ identified these issues: (a) Accepting that the teaching staff owed a duty of care to the respondent, was the extent of that duty such that in the circumstances there was a relevant breach by reason of the teacher supervision being such as to fail to avert the accident, (b) If there were such breach, did it cause the relevant accident and consequential damage. 3 On appeal there is the further issue that if negligence were found, should a higher percentage for contributory negligence be substituted for the 15%, notwithstanding constraints upon appellate intervention. 4 Finally, there is the issue of whether the award for future economic loss of $193,253 so excessive as to warrant appellate intervention. 5 The respondent by Notice of Contention contends that the trial judge could and should have found in favour of the respondent on the basis that, if one teacher could not adequately supervise the morning recess in the school quadrangle where the accident occurred, two or more teachers should have been rostered to do so. It is then contended that the appellant's failure to roster two or more teachers at morning recess in the quadrangle caused or materially contributed to the respondent's injury. 6 The Court declined to permit to be argued a further cross-appeal to the effect that the trial judge erred in failing to find there was no teacher on duty in the canteen during morning recess on the day of the incident, the canteen being the area adjoining the quadrangle. BACKGROUND 7 The facts are substantially not in issue and are as follows: (a) In 1997, the respondent was a student in Year 9 attending Marsden High School, which had 670 students at the time. (b) The School had in place a policy/roster which relevantly provided for a teacher to supervise the canteen area and the quadrangle area. (c) It was agreed that the policy and roster took the form as shown in Exhibit C (Blue, 4-5, T, 4M-R). Under it, there was a teacher (Ms Wright) allocated to supervise the quadrangle area (including toilets) and another teacher the adjoining canteen. The former was the size of about half a football field (Black, 164N-R) where it appeared basketball, netball and handball were played. (d) Most students would normally congregate in and about the quadrangle during recess and lunch breaks. (e) On 13 March 1997, during the morning recess the respondent and his friends met as usual behind the canteen. Some form of water fight took place involving the respondent. A friend of the respondent, Kurt, suddenly approached him and threatened to give him a "dead-arm". (f) The respondent ran away to avoid Kurt, ultimately injuring himself when he leapt a fence separating the quadrangle from a walkway, which was set lower than the quadrangle. Distance from the top of the fence to the walkway was about 8 feet and thus of some height. The other circumstances of the accident are referred to below, under the heading "First Instance Judgment". (g) A plan, showing the route taken by the respondent is shown in Exhibit A1 (Blue, 2). Photographs in Exhibit B are at Blue, 3. (h) The respondent was then assisted by other students (including Kurt) to the sick bay area, where he was attended to and eventually picked up and taken home. (i) The respondent suffered injury to his right knee, which is claimed to constitute a continuing disability. First Instance Judgment 8 The trial judgment in a careful and detailed summation of the facts, made the following findings of fact on liability: (a) The respondent's version of events is generally accepted (Red, 33M). It is not appropriate to draw a Jones v Dunkel inference from the failure of the plaintiff to call Kurt (Red, 33W-34E); this is not contested on appeal. (b) The respondent was trying to get away from Kurt and also endeavouring to find a teacher whose presence would cause Kurt to desist (Red, 33N). (c) Even though the respondent was running for only a short period of time over a relatively short distance, there was adequate opportunity for any supervising teacher to have intervened with at least some verbal injunction (Red, 33R). The greater period of time during which he was on the move was while he was in the (northern) end of the quadrangle (Red, 36C). (d) The respondent could not go down the stairs because students were sitting on them (Red, 36M). (e) After the injury, the respondent was moved by students without any teacher enquiring as to what had happened (Red, 36R-S). (f) No teacher observed the sequelae of the fall (Red, 36U-V) including Ms Wright. That was a factor which, with the plaintiff's evidence "in conjunction with the various circumstances … inevitably draw the court to the conclusion that there was an inadequacy of supervision" (Red, 36X). (g) While it was not clearly established that Ms Wright (the supervising teacher) was in the playground at the time of the incident (Red, 34F-U), it is assumed that she was in the playground (Red, 34U) she having so represented to the Principal, Mr Greg Wann (Red, 34S). (h) Ms Wright had no specific recollection of anything she was doing during that particular recess (Red, 35F) and there is no contemporaneous record made by Ms Wright (or the School) of what she was doing (Red, 35K) beyond the roster. 9 The trial judge reached the following legal conclusions, of which the second and third are directly challenged on this appeal: (a) Duty of care is not in doubt (Red, 33C). (b) Even if Ms Wright, the supervising teacher, was in the playground at the time of the incident (which was not established clearly), such supervision as she was exercising was inadequate, falling short of reasonable exercise of the duty of care (Red, 34VU-V, 36W-37B). (c) The incident did not happen so quickly that adequate supervision would still not have stopped the incident happening (Red, 35G-H). 10 The following findings on damages were made of which the fourth only, future economic loss, is challenged: (a) General damages (Red, 38C) $ 90,000.00 (b) Past economic loss (Red, 38O) $ 3,693.60 (c) Future medical treatment (Red, 38W, 39E, 39J) $ 46,413.00 (d) Future economic loss (Red 43H) $193,253.00 Future economic loss was calculated conventionally by reference to the depreciation in the capital asset of his earning capacity; injury affected his full employment potential. We commented on the absence of any evidence from the plaintiff as to income earning potential of the various trade groups. He took into account his continued employment at Balmain Leagues Club to the point where he had a broad supervisory if not managerial role (though beyond that he was relatively unlikely to obtain, as an average student, any further formal educational qualifications as would fit him for a chief executive or like role). The calculation was accordingly done by comparing his actual salary to average weekly earnings. His net wage was deducted from his current net average weekly earnings ($749 – $572 = $177) with 3% multiplier (1284.5) over 44 years until age of 65, less 15% for vicissitudes. 11 Against the total damages of $341,043.60, the trial judge deducted 15% for contributory negligence. Notice of Appeal 12 The grounds were as follows: 13 Grounds 1 – 3: Liability (1) The trial judge erred in finding that the teacher's supervision of the playground was inadequate and " fell short of a reasonable exercise of a duty of care "; (2) The trial judge erred in placing the onus on the School to prove what the supervising teacher was doing at a particular time; (3) The trial judge erred in finding that adequate supervision would have stopped the incident occurring (causation). 14 Ground 4: Contributory negligence (4) The trial judge erred in finding that the respondent's responsibility for his injuries was in the circumstances only 15%. 15 Ground 5: Quantum (5) The trial judge erred in calculating future economic loss as at $193,253.00, which is excessive. DISPOSITION OF APPEAL 16 The recitation of findings leading to liability on the part of the School, based essentially on lack of supervision, needs to be considered more closely against facts which were either not expressly referred to in the judgment by way of testing those findings, or received little or no emphasis. Those matters are as follows: (a) The area where the accident occurred, namely the quadrangle was approximately half the size of a football field being some 50 metres long and a bit narrower than 60 metres wide; Black, 164N-R evidence of Ms Wright, the supervising teacher. (b) From where the respondent commenced his run, to the canteen, was about 10 metres (Black, 82V evidence of respondent). (c) The canteen was a relatively small and confined area which could not hold 200 students (Black, 90O evidence of respondent). (d) The respondent ran straight through the canteen area where he did not find a teacher and had a clear run (Black, 90E-H, 83E, evidence of respondent); when he ran through the canteen area "there was crowds lining up, so there was like a traffic jam to the left of me" though there were not as many as 100 students there (T, 90Q-S evidence of respondent). (e) The distance from the canteen directly to the stairs where the respondent fell would be more than 10 metres, though with the respondent being not sure how many metres in toto when making his clear run (Black, 82W-83E). (f) During this run, the respondent did look round to see if Kurt was chasing him and impliedly suggested he was (Black, 118R-T evidence of respondent). (g) In a school of 670 students (Black, 125D), according to the Headmaster's figures, it could be inferred from the respondent's answer to the question below that there was some 200-250 students in the quadrangle during recess with lots of children also in the canteen at recess time: "Q. The area which was most often frequented by students at around the time of your accident was the oval, was that correct, perhaps two or three hundred students would spend time in the oval? A. Quadrangle was probably where most of the students would be, then the oval, yeah. Q. And there'd be a lot of kids in the canteen at recess time, wouldn't there, lining up to buy drinks and lunches, etc? A. The students, yeah, definitely. Q. So in other words almost – in other words, you could describe the canteen as being packed during recess? A. Wouldn't call it packed. I'd call it – there was lines, but wouldn't be packed, no. Q. Alright and the quadrangle and the oval were pretty busy. Two or three hundred students in the oval and may be … A. I'd say two, two fifty in each. I mean I don't count. But there were students definitely in both areas." (Black, 69E-N evidence of respondent) (h) While it appeared that basketball, netball or handball was informally played in the quadrangle area, the School made regular announcements, at least weekly, about not running in the quadrangle (Black, 85N-P), with the respondent and others having been warned previously not to engage in water fights (Black, 85Q-R). (i) The respondent was running as fast as he possibly could to escape the "dead-arm" (a punch on the arm) from Kurt; (Black, 84Y, 85B evidence of respondent). (j) The respondent acknowledged that there were usually teachers in the canteen area and in the quadrangle area carrying out supervision (Black, 23E, 74, 86) confirmed by the School Principal, Mr Wann (Black, 125L-Q). (k) The respondent accepted that it was reasonably possible that he did not see the teacher rostered in the canteen area as he ran through it (Black, 82B-R evidence of respondent) and that it was reasonably possible that he did not see the teacher rostered in the quadrangle (Black, 82P-R evidence of respondent). (l) The respondent jumped over a railing fence falling on his leg and suffering injury to his right knee, experiencing a drop of about eight feet and conceding that he was aware that he was jumping to a lower level, that it was a dangerous thing to do, that he could hurt himself; he accepted that it was a silly thing to do (Black, 23N-R, 81W-X evidence of respondent). (m) The respondent did not give any evidence in specific terms as to the duration of the chase in the quadrangle and no finding as such was made, but I would agree with the applicant's submission that a reasonable inference, given the unobstructed distances where he was running as fast as he could, that the duration was of about 15 to 20 seconds. 17 The effect of these facts puts the supervisory task in proper perspective. The question which the trial judge had to determine was whether the plaintiff had satisfied the onus of proof upon him to demonstrate a leadership failure in supervision in Ms Wright. This was in either failing to detect, or in herself being visible to be detected by, a boy running through a crowded area. It was moreover an area in a quadrangle, itself the size of approximately half a football field, crowded if not "packed" with some two to two hundred and fifty boys, all this happening in a duration of 15 to 20 seconds and with manifold possibilities of even a careful supervisor being momentarily occupied with some other incident or temporary distraction. 18 Indeed the trial judge (at Red, 26-27) recognised that the care required was no more than the taking of reasonable steps to protect the plaintiff, a fourteen year old here of immature years, against risk of injury which could reasonably have been foreseen. He correctly stated that the School authority is not absolutely liable for injuries sustained by pupils under supervision and in particular is not liable for "an unfortunate concurrence of circumstances that reasonable precautions could not have prevented"; Trustees of the Roman Catholic Church, Archbishop of Sydney v Kondrajian [2001] NSWCA 308 per Ipp JA. Clearly the nature of the supervision required will depend upon the particular activity to be supervised as well as the level of maturity of the children in question, recognising that, as Mason J said in the Commonwealth of Australia v Introvigne (1982) 150 CLR 258 at 271 "[T]he immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants". 19 In Hadba v The Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn, (ACTCA 7 – 2003, 18 December 2003, unreported), overruling the trial judge, these principles were applied in a case where use of the flying fox by 8 year old children was held by the Court of Appeal to require that "a teacher would be available to provide constant supervision" during its use; per Crispin P at [39]. Here, of course, the activity was not of that kind where the School was actually sanctioning the use of potentially dangerous equipment. 20 It is necessary now to turn to the evidence of Ms Wright, the supervising teacher, to consider whether that evidence justified the conclusion reached by the trial judge that there was a failure of supervision in the circumstances. 21 I start with the basis for concluding that Ms Wright was on playground duty that day. The evidence is that Mr Wann, the School Principal, heard about the respondent's accident shortly before 12 pm on the day it occurred (Black, 128S). Mr Wann consulted with the School's Supervision Policy/Roster to ascertain who was on "quadrangle duty" in order to investigate the matter. He then made contact with that teacher (Black, 128V-Y). Mr Wann identified that teacher as Ms Wright (Black, 129C). Mr Wann spoke to Ms Wright on the day of the accident (Black, 129D). This conversation took place at approximately 1.25 pm that day (Black, 129K-L). According to Mr Wann in this conversation Ms Wright said she was on playground duty that day (Black, 140D-F). She did not however see the incident. It was not suggested to Mr Wann that he observed Ms Wright at the teachers' meeting which may have transpired during recess on the day of the accident (Black, 8T-U). 22 The trial judge observed that conversation "does not necessarily establish that Ms Wright was actually on duty, simply that she asserted that she had been on duty when confronted by Mr Wann, who was enquiring as to how a student became injured …"; Red, 34. The trial judge goes on to state that "I do not believe I could go so far as to conclude that Ms Wright responded untruthfully to the Principal's enquiry. That was not put to her. But I have concerns in the absence of any direct recollection from Ms Wright, that in reality her representation to Mr Wann after the event, and the knowledge that someone had been injured, is enough to establish her presence in the playground"; T, 34. 23 The trial judge then concludes that "I do not believe the matter need be concluded on that issue. Assuming that she was in the playground (although that fact is by no means clearly established) I'm satisfied that such supervision as she was exercising was inadequate or fell short of reasonable exercise of a duty of care"; T, 34. 24 I consider, contrary to the reservations expressed by the trial judge, that an inference should have been drawn that Ms Wright was present in the playground, based on her being shown on the roster and the reported conversation she had with Mr Wann. After all the trial judge accepted Mr Wann and Ms Wright as truthful witnesses (Red, 34H). The only basis for casting doubt upon what amounted to an admission on Ms Wright's part was her lack of recollection, one way or the other, when the matter came to be tested some time later from these events. In the end, nothing turns on this as the trial judge proceeded, notwithstanding his doubts and reservations, on the basis that Ms Wright was in a supervisory role in the playground or quadrangle, there having been nothing put to her to the contrary in cross-examination. 25 Ms Wright said she did not teach or have any interaction with the respondent (Black, 162N-O). She taught English to newly arrived students from overseas (Black, 140H). Ms Wright said she followed the supervision policy/roster (Black, 162R). 26 She gave evidence that Mr Wann asked her if she saw the incident on the day it occurred and she said she did not (Black, 163Q-R). 27 Based on her reflection of the conversation with Mr Wann, Ms Wright gave evidence that she believed she was in the quadrangle on "the day" (Black, 164C). Ms Wright said it was her practice to stop students from running in the quadrangle when on occasion she would observe it taking place (Black, 164D). She added that she never left the area she was rostered to supervise (Black, 167R). She said it was her practice to walk around the quadrangle (Black, 171H-K). 28 The candour with which Ms Wright answered the questions asked of her told strongly in favour of the veracity of her answers. Thus she would readily concede difficulties as when she was asked "If a student had injured himself and was lying on the ground just to the right of the stairs from the quadrangle to that lower level crying with – and then with other students helping him up if you were on duty in the quadrangle that's something that you would observe isn't it? A. One would assume so but I didn't." (Black, 168T-W) 29 That answer and the fact that she did not in fact observe the respondent lying injured or the other sequelae of the fall was strongly relied upon by the trial judge as supporting his conclusion that there had been a negligent failure of supervision, in the following passage: "The fact that Ms Wright particularly, nor any other teacher for that matter, failed to observe the sequelae of the fall supports the conclusions available from the Plaintiff's evidence, that he did not see a teacher to intervene and no teacher intervened to stop the Plaintiff and Kurt running. At the very least, in conjunction with the Plaintiff's evidence, the various circumstances outlined above inevitably draw the Court to the conclusion that there was an inadequacy of supervision, if not an absence of supervision, which materially contributed to the circumstances of the Plaintiff's injury"; Red 36U-37C. 30 But the trial judge makes no reference to the following question and answer to which I have made earlier reference, and which explains why she would not necessarily observe such sequelae: "Q. If you were on duty in the recess, during the recess in the quadrangle would you be able – is there any – could you see a boy being assisted in the manner I've described? A. I don't think so. Q. Well why wouldn't you be able to see the boy being assisted away from the point near the – near to the steps? A. Because that's on a lower level from the quadrangle and I was walking around, well my habit was to walk around the quadrangle, if I were at the opposite end of the quadrangle I – it's not – it's not easy to see the lower level unless you actually walk down there." (Black, 171F-K) 31 Thus contrary to the trial judge's emphasis on this matter, based as it was on the content of the answer, not demeanour, I would not consider that read with the above passage, it strengthens the conclusion of a failure in due care by way of supervision. 32 Nor do I consider that too much can be made of the following question and answer, given the subsequent answers to which I will make reference: "Q. Well if you were on duty in the playground it is something that you could see is it two 14 year old boys running--- A. One should be-- Q. --that route through the quadrangle? A. If someone was running through the quadrangle and I was on duty in the quadrangle I would expect to be able to see that." (Black, 170P-S) 33 The further questions and answers made it clear that given the fact that she moved around the quadrangle she could well have had her back to the events in question and not seen them, given that it was her practice to actively supervise walking around, being right around the quadrangle itself half the size of a football field. "Q. Would you agree that if you were to properly supervise the quadrangle you'd have to be in a position, you should be in a position where you're able to see activity throughout the whole of the quadrangle? A. Well if I may answer that by the nature of it being a quadrangle that any direction I'm looking in I have my back to some point of the quadrangle. Q. Yes I understand that-- HIS HONOUR: Q. Well could you stand up one end of the quadrangle and just look straight down it and see everybody that was within the quadrangle, is that physically possible? A. That's physically possible. Q. The way the prison guards stand on the top of the walls of prisons and have a – not that I'm suggesting you get on the – it's a prison and you get on the top of the wall but they obviously position themselves in a position where they don't have to move, they can watch everything happening at the one time as best they can from the one position. I mean is it physically possible at that quadrangle to stand at one end of it and have a full view of the quadrangle and its students, not necessarily every student at any given moment but a clear view of the entire area? A. Possibly but we actively supervise by walking around so that we walked right around the quadrangle, that was our practise. McILWAINE: Q. But if, but there was nothing preventing you from positioning yourself within the quadrangle where you would be able to observe, where you could observe the activities of all the students there? A. Well my practise was in fact to walk up the side of the quadrangle and to stop and to-- HIS HONOUR: Q. You pointed at Exhibit A1, when you said the side which side are you referring to? A. The side that has the red line on it within the quadrangle my habit was to walk up there to the top and then look down for some time and then walk around. But we had to walk right around because there were children placed all around the quadrangle." (Black, 171V-172Q) [emphasis added] 34 Then there is the following question and answer: "McILWAINE: Q. If I asked you to assume that two Year 9 boys ran along that route of the blue line at recess when you say you were on duty supervising that area can you explain how it is that you would not have been able, could not see that happen? A. I can't explain no." (Black, 173X-174C) 35 This question and frank answer followed on her earlier answers. It was perfectly understandable that she could not explain, as she had no recollection in the first place of being on duty and supervising. She had earlier said, as must be so, that her capacity to observe the relevant activity depended on where she was placed. This last question, hypothetical as it was to someone with no recollection, made no mention of where she was to be assumed to be located. It suffered also from the intrinsic ambiguity of the expression "supervising that area". That could mean either the immediate area where the activity occurred or the whole area. Which, was never clarified. Summing Up 36 Summing up, in what is intrinsically a matter of inference in which the salient facts are not themselves in dispute, I could not accept the respondent as having satisfied the onus of proof; that is, in demonstrating a failure to take reasonable care by way of supervision in the fleeting moments in which these events took place. It is not demonstrated by establishing that Ms Wright did not detect the boy running in the 20 seconds or so she had to do so, when he was moving as fast as he could in an area which was the size of the half a football field and where there was some two hundred to two-fifty boys. Walking round as her practice, some would undoubtedly not be in her field of vision, occupying her attention. I have already said why I do not consider an inference of neglectful inattention could be supported by her failing to see the sequelae of the accident, occurring as they did at a lower level below the playground. The supposed concessions or admissions relied upon by Ms Wright were not such as to justify the inference which the trial judge drew. They simply represented proper candour from someone who could not, after the lapse of time, recall the circumstances of her supervision that day nor could reasonably be expected to have done so, given that there was nothing she saw that was untoward. Conclusion 37 I do not consider that the respondent satisfied the onus of proof of establishing a breach of a duty of care on the part of the School and in particular that there was such a failure in terms of supervision. In those circumstances the appeal should succeed. Contributory Negligence 38 The question of contributory negligence does not arise given my conclusion that there is no liability on the part of the School. However, were contributory negligence to arise, taking a proper account of all the circumstances including the respondent's appreciation that what he did was dangerous and was to avert merely the temporary inconvenience of a "dead-arm", and given also the circumstances of the School's supervision, the attribution of so little as 15% responsibility to the respondent is so clearly inadequate as to justify the exceptional course of appellate intervention. If it were necessary to do so, I would attribute not less than 85% responsibility to the respondent. Damages 39 Given that I have concluded that there is no liability on the School's part, it is not strictly necessary to consider the question of damages. However, I should state briefly that I am not persuaded that, were liability established, the amount awarded for future economic loss was outside the proper bounds of the trial judge's discretion. OVERALL CONCLUSION 40 I consider that the appeal should succeed and propose the following orders: (1) Verdict for the appellant. (2) Respondent to pay the appellant's costs of this appeal and the costs of the hearing in the court below. (3) If eligible, the respondent to have a certificate under the Suitor's Fund Act. 41 IPP JA: I agree with Santow JA. ********* Last Modified: 09/13/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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