State of New South Wales v Mikhael [2012] NSWCA 338

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Mikhael [2012] NSWCA 338 Hearing dates: 27 August 2012 Decision date: 22 October 2012 Before: Allsop P at [1]; Beazley JA at [2]; Preston CJ of LEC at [116] Decision: (1) Appeal allowed; (2) Set aside the orders of the District Court and in lieu thereof order; (a) judgment for the defendant on the plaintiff's statement of claim; (b) the plaintiff to pay the defendant's costs; (3) The respondent to pay the costs of the appellant on the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - Negligence - Breach of duty of care - School authority - Student assaulted by fellow student - Student with propensity to violence - Foreseeable risk of harm - Failure to take reasonable care of students whilst on school premises during school hours - Failure to inform teachers of details of prior violent incident involving offending student - Civil Liability Act 2002, s 5B.

TORTS - Negligence - Causation - School authority - Student assaulted by fellow student - Omissions - Onus on plaintiff to establish probable course of events - Factual causation dependent on circumstances - School's assessment of prior violent conduct - Teacher's familiarity and assessment of offending student's conduct - Statutory "but for" test - Factual causation not established - Civil Liability Act, s 5D. Legislation Cited: Civil Liability Act 2002 District Court Act 1973 Supreme Court Act 1970 Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420 Commonwealth v Introvigne [1982] HCA 40; 150 CLR 258 CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1 Fox v Percy [2003] HCA 22; 214 CLR 118 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506 Shaw v Thomas [2010] NSWCA 169 Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53 Strong v Woolworths Ltd [2012] HCA 5 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Texts Cited: C Sappideen, P Vines, Fleming's The Law of Torts, 10th ed (2011) Category: Principal judgment Parties: State of New South Wales (Appellant) Anthony Mikhael (Respondent) Representation: Counsel: R J Cheney SC; H Chiu (Appellant) B Dooley SC; G R Graham (Respondent) Solicitors: Moray & Agnew (Appellant) Coode & Corry (Respondent) File Number(s): CA 2008/318838 Publication restriction: No Decision under appeal Jurisdiction: 9101 Citation: M v The State of New South Wales Date of Decision: 2011-08-10 00:00:00 Before: Sorby DCJ File Number(s): DC 2008/4081