The Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman and ANOR S155/1996 [1997] HCATrans 80 (14 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S155 of 1996

B e t w e e n -

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF BATHURST

Applicant

and

WILLIAM KOFFMAN

First Respondent

TREVOR WILLIAM HAINES

Second Respondent

Application for special leave to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 1997, AT 10.12 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If it please the Court, I appear with my learned friend, MR D.G.T. NOCK, SC, for the applicant. (instructed by Makinson & d'Apice)

MR L. KING, SC: May it please the Court, I appear for the first respondent. (instructed by Kenny Spring)

MR J.P. GUIHOT: I appear for the second respondent, may it please the Court. (instructed by H.K. Roberts, Crown Solicitor for the State of New South Wales)

TOOHEY J: Mr Bennett.

MR BENNETT: Your Honours, no case we have been able to find has previously held that a schoolmaster owes a duty of care outside the school grounds and after school hours in circumstances other than school-related activities in which children are taking part.

This case did not merely extend the duty for the first time to the area just outside the school grounds which, perhaps, in extreme cases, one could understand. This case extended it to a pupil a significant way along his journey home. A 12-year-old pupil, in his last days at primary school, who was 350 yards from the school, catching a bus, and where the breach of duty is the failure to supervise and thereby protect him from students of another school. That, we submit, takes the duty of schoolmaster and pupil far beyond where it has ever gone before.

It is also inconsistent with a Tasmanian decision, which we have given your Honours a copy of, so that we bring ourselves within section 35A(a)(ii) of the Judiciary Act as a case where a decision of this Court "is required to resolve differences of opinion between different courts".

McHUGH J: It is only a question of fact, is it not, Mr Bennett? There is no doubt that the school owes the pupil a duty of care. The only question is was there a breach of the duty in the special circumstances of this particular case?

MR BENNETT: We submit there was no duty, your Honour.

McHUGH J: There is a duty. The duty exists. Teachers do have a duty to supervise pupils. You cannot argue against that. Your argument has to be there was no breach of duty on this particular occasion because it occurred well outside the school.

MR BENNETT: Your Honour, our submission is that the duty does not extend beyond school hours and premises, periods of school supervision and possibly a very limited ancillary extension to an area immediately outside the school immediately after school hours.

McHUGH J: Take a case like Carmarthenshire v Lewis, where a toddler, a young child, runs out onto the road. Why should it make any difference if it happens at one minute to nine or one minute past nine?

MR BENNETT: Your Honour, firstly it is a case involving a toddler where there is a duty until the child is handed over. It is a slightly different situation to a child who is permitted by his parents and the school to travel alone. One could ask the obvious question, what if the child is on the bus halfway home? What if he is immediately outside his home? Suppose this child had lived 350 yards from the school or 250 yards from the school and this incident had occurred outside his home, it could not be suggested there was a duty of care there. It could not be suggested there was a duty of care in his home at midnight. We submit what has been done is to take Justice Stephens comment about the relationship between teacher and pupil and to misinterpret that - use the word "relationship" in a different sense and apply that to the existence of a duty of care. We would submit there is simply no duty outside those parameters.

McHUGH J: Let me give you another illustration. Supposing the school is aware that pupils are being bashed as they walk 300 or 400 metres to catch a bus. Would you say that there was no duty on the part of the school to give them a warning about the dangers that they may be bashed after they leave school and before they pick up their bus 300 or 400 metres away?

MR BENNETT: Your Honour, we would say there was no duty of care as a schoolmaster to do that. There may be a special duty of care arising from the neighbour principle in that situation but it is not, we would submit, the schoolmaster's duty. Your Honour, even if, contrary to my submission, there is a duty, the question whether the duty arose in this case is more than a question of fact. The facts in this case are not complicated. The only matters said to give rise to the duty are, first, that the school must have known or ought to have known that about five of several hundred pupils caught a bus at this other bus stop outside the other school and, secondly, that there was a teacher who sometimes took a bus from that bus stop when he did not go home by car. They were the only special matters. There was no suggestion that the school knew or ought to have known of any particular danger, of any previous incidents, of anything like that.

So, it is not a case of the type your Honour refers to. The breach of duty here is not a failure to warn of a danger, it is a failure to supervise. In other words, what is held is that this school owes a duty of care to supervise a 12-year-old boy who is old enough to be in secondary school at that stage, of course, and within a few days of secondary school, but who walks 350 yards from the school to a place outside another school and catches a bus there - - -

GAUDRON J: Outside a high school.

MR BENNETT: Outside a high school.

GAUDRON J: Yes, where there are going to be, by common sense, older children.

MR BENNETT: Yes.

GAUDRON J: Much older than he is.

MR BENNETT: Yes.

GAUDRON J: Bigger than he is.

MR BENNETT: Yes.

GAUDRON J: And not of the Catholic persuasion.

MR BENNETT: Yes.

GAUDRON J: Well, I well remember when I was growing up when the public school kids bashed up the Catholic school kids and we waited in turn to bash up the kids from the mission station. It is a fact of life. Kids from different schools bash up kids from other schools, particularly in country towns.

MR BENNETT: Yes. Your Honour, may I just say two things. First - - -

GAUDRON J: Particularly bigger ones, if they have got half a chance.

MR BENNETT: Your Honour, first the sectarian aspect was not one of the aspects of negligence or duty relied on in this case. Secondly, that is a matter which, in my respectful submission, was very much less of a factor today or even in the 1980s than it was before that.

TOOHEY J: Mr Bennett, I think there is a great deal of force in what you say but it does not really make it a special leave point, does it? I mean, what would the Court say if special leave were granted and let us say the appeal was upheld? Would the Court be saying anything more than in the circumstances of this case there was no duty of care owed to the plaintiff?

MR BENNETT: No, your Honour. It would be saying that there is no duty of supervision once the child has left the school or perhaps the area immediately adjacent to the school.

TOOHEY J: It could not say because there may well be circumstances such as threats to children in the area. One can imagine a whole range of situations where there would be a duty of care.

MR BENNETT: Your Honour, then there might be a duty to warn, a duty to - - -

TOOHEY J: No, there may be a duty to do more than that.

McHUGH J: To escort the children.

TOOHEY J: There may be a duty to accompany the children to the bus. I am not saying there is a duty but it just points up the difficulty of converting this into a special leave case.

MR BENNETT: Your Honour, there is a distinction between a duty to warn or perhaps to forbid, on the one hand, and a duty to supervise on the other. It is a decision which has enormous ramifications for schools in Australia if they are responsible, with a duty of supervision, where a child leaves the area of the immediate school and may be exposed to a possible danger. With respect to the question Justice Gaudron has asked me, in my respectful submission, the mere fact that there is another school, even a State school as opposed to a Catholic school, does not of itself, today, create that sort of risk.

Now, in my respectful submission, the finding here goes so far beyond what has hitherto been regarded as a duty of care, because there is not even a case saying that there is a duty of this sort immediately outside the school grounds. There is not even a case that goes that far, although one - - -

TOOHEY J: What, after the children leave the school and board a bus outside the school?

MR BENNETT: Yes, there is no case going that far, your Honour.

TOOHEY J: There may not be but I am not sure what that - - -

MR BENNETT: No, I concede the possibility that the duty goes that far. The cases are all either school grounds or the children being taken to a sportsground somewhere else by the school or on an excursion or something of that sort, but this case just goes so much further. In my respectful submission, it is inconsistent with the Tasmanian case. Now, I know one can compare cases on the facts and come to different results. The Tasmanian case was a nine-year-old child; it was 120 yards, and the court said there was simply no duty because of the distance the child had gone.

The other aspect is this, that, in my respectful submission, there is a misunderstanding of what Justice Stephen said in Geyer's Case because when his Honour talked about the relationship of master and pupil, in my respectful submission, the relationship may exist 24 hours a day but that does not mean there is a duty 24 hours a day. So, one merely has to look at the extent of it. In my respectful submission, that is a misinterpretation of his Honour's decision and one, again, which requires this Court to correct it.

There is no suggestion this Court will need to go into any facts beyond the way I have described them because they are the only additional matters relied on. Neither, really, can take it further. The fact that there is a master who sometimes catches the bus there cannot create a duty if none otherwise exists. It goes to the reasonableness of the matter, perhaps, but no more. The fact that the school must have or ought to have known that five pupils went to the other bus stop is a negative factor which, we would submit, cannot, again, impose a duty where otherwise none exists.

TOOHEY J: But if we do not go into the facts, it could only be on the footing that once the child leaves the school, the duty of care ceases to exist.

MR BENNETT: The positive duty of supervision ceases to exist.

TOOHEY J: Well, the duty of care. That would exclude, on your argument, supervision, warning, a whole range of steps that might be taken.

MR BENNETT: Warning, of course, may occur within the school grounds. The breach of a duty to warn, perhaps, is something that occurs during the day.

TOOHEY J: Maybe, but that only points up that this is a factual dispute. The judgment might be on the outer edge, as it were, but where is the error of principle?

MR BENNETT: The error of principle is in holding that a duty of supervision can extend beyond the school grounds and hours and the area, perhaps, immediately adjacent, immediately after or before. That is, we submit, an error of principle. It is something that no case has yet decided. There is a very strong and, we would submit, convincing dissent by Justice Mahoney in this case which, we would submit, correctly lays down the principles.

TOOHEY J: If the judgment had gone the other way, it might have been a very difficult case for the plaintiff to mount by way of special leave.

MR BENNETT: The other matter, of course, is once one has a difference between different States, the way the Judiciary Act is worded, one does not need to establish public importance or general application in the same way because difference between courts is an alternative to that requirement in the section.

GAUDRON J: Also, the facts are different. Here was a small group of children going to a place where there was a larger group of children from a different school. Now, it would not matter whether there was sectarian issues, there were differences; they were being put into a situation in which they were likely to be a minority in a situation which they could not control.

MR BENNETT: Your Honour, in my respectful submission, that fact on its own is insufficient and certainly insufficient today. This was, in fact, quite an unusual accident and it was one where the child - I do not want to talk about contributory negligence and so on, that is not relevant, but he climbed a tree which was outside the other school. That was seen as provocative. He came down and climbed another tree and then had sticks and stones thrown at him. It is not quite the normal situation of the child peacefully waiting for the bus and being beset by large bullies.

TOOHEY J: If this Court was simply a court of further review, you would be on fairly strong grounds but that is not the situation.

MR BENNETT: The fact that one has to determine a duty or a breach of a duty in a factual situation is not necessarily a reason why the issue is not important. If one accepts that the issue is of importance generally to schools to know - if one imagines a lawyer advising a school; the school says, "I've read this decision. Do we have a duty to supervise our children for hundreds of yards down the street to other bus stops?" In my respectful submission, if the answer to that question is, "No", as it is or should be, then this Court should interfere with this decision. The jump of that 350 yards to another school is a jump of principle, we would respectfully submit, rather than a mere jump of degree.

I also remind your Honours that at page 38 of the application book Justice Mahoney made the specific comment that this appeal has a general importance, and we would submit that it clearly does. It is a classic issue of general importance to all schools. If one is going to decide an issue of that nature, the mere fact that it depends on facts is not, we would submit, a reason why it is not important or why this Court should not determine it. May it please the Court.

TOOHEY J: We need not trouble you, Mr King and Mr Guihot.

The judgments of the majority in the Court of Appeal contain no error of principle. There is no other basis for a grant of special leave to appeal. Accordingly, the application must be refused.

MR KING: The question of costs, I understand, your Honour?

TOOHEY J: It is a matter for you.

MR KING: I ask for costs.

MR GUIHOT: I seek costs as well, your Honour.

MR BENNETT: In my submission there should be only one order for costs or an order only in favour of the second respondent, for two reasons. The interests are identical. There is no doubt that had leave been granted and the appeal succeeded, the second respondent would have been liable for the whole of the verdict. The second respondent is the government, so there is no doubt about it being paid and, therefore, the first respondent has no interest at all in this appeal, except a very technical one. That technical interest is, in any event, identical with that of the second respondent. That was pointed out to both parties and, in my respectful submission, they should have either appeared by one counsel or the first respondent should have submitted and there should not be two sets of costs.

TOOHEY J: Do you want to say anything about that, Mr King and Mr Guihot?

MR KING: Your Honour, what I want to say about it really appears in our statement of argument. Orders were sought against us and one thing that my learned friend's comments overlook, although I concede there is a certain amount of substance in them, is that if special leave had been granted and the appeal had gone on and he had succeeded, as to the very matter of costs we would have been left to our luck, as it were, as to whether we could get a Bullock order. This point was not taken in the Court of Appeal where exactly the same situation prevailed. So when we are in the situation of being at risk, in my submission we are entitled to be here and we ought to have our costs.

TOOHEY J: Mr Guihot?

MR GUIHOT: Your Honour, we seek costs and I support my learned friend, Mr King, in so far as there was a risk of the second respondent ultimately wearing the Bullock order. There was separate relief sought against each respondent, each respondent has appeared. Those are the matters, your Honours.

TOOHEY J: Mr Bennett, if there were an order for one set of costs, what do the respondents do about that or do you say that is just a matter for them?

MR BENNETT: If there were one set of costs, it would simply be a matter of, I suppose - it could be done in a number of ways. It could be done by the more expensive way of taxing both and dividing it by 50 per cent or it could be done in the more practical way of saying costs are to be taxed on the basis that only one set of costs is allowed - - -

TOOHEY J: In respect of both respondents?

MR BENNETT: Yes. And I suppose if they are both taxed, the average of the two figures is what is paid or it is divided in proportion. That is a detail which, in my respectful submission, should not really concern the Court in relation to it.

GAUDRON J: They are, of course, simply represented by one counsel each.

MR BENNETT: I am not suggesting there has been extravagance, your Honour. We just suggest that it is - - -

GAUDRON J: No, but I am just suggesting that the respondents may already have taken steps to minimise the costs.

MR KING: That is not so, your Honour. We have got this terrible notice that my learned friend made such a play of yesterday.

TOOHEY J: I thought Justice Gaudron was suggesting something in your favour.

MR BENNETT: It was referred to in our outline which was some time ago.

TOOHEY J: Very well. The application is refused with costs.

AT 10.32 AM THE MATTER WAS CONCLUDED