El-Sheik v Australian Capital Territory Schools Authority & Anor C18/2000 [2001] HCATrans 428 (14 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Registry No C18 of 2000

B e t w e e n -

ROMEL EL-SHEIK

Applicant

and

AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY

First Respondent

RAYMOND LIVERMORE

Second Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 SEPTEMBER 2001, AT 2.16 PM

Copyright in the High Court of Australia

MR B.J. SALMON, QC: May it please the Court, I appear with my learned friend, MR B. HULL, for the applicant. (instructed by Wood Fussell Solicitors)

MR P.M. DONOHOE, QC: May it please the Court, I appear with my learned friend, MR D.J.C. MOSSOP, for the respondent. (instructed by ACT Government Solicitor)

GAUDRON J: Yes, Mr Salmon.

MR SALMON: Your Honours, the applicant's injuries which turned out to be so tragically severe were occasioned by the acts of a fellow school pupil. The acts were both criminal and negligent. It was accepted both by the trial judge and the Federal Court that the Schools Authority had a duty to ensure that reasonable care was taken for the applicant's safety. In other words, Introvigne's Case applied.

GAUDRON J: The question is, "What is the content of that duty?", is it not?

MR SALMON: It is, and the trial judge was criticised on the basis that he did not expressly deal with the causation issue. Could I say, firstly, that it is implicit in his findings that he held that had there been at least one more supervisor in the relevant area - which is identified in the evidence as the oval area - it is likely that the plaintiff's injuries would have been avoided. It is not only implicit from paragraph 50 of his - - -

GAUDRON J: Is there an evidentiary foundation for it? There was a teacher who came to the altercation, stopped it, and then went away. You have to go further, do you not, and say, "If there had been another teacher there, or another supervisor there, he or she would have stayed there thereafter"?

MR SALMON: That is, with respect, not necessarily the way it has to be analysed, as a factual situation. The evidence was that this whole area, which was an area in which, there was some evidence - where rough-and-tumble occurred. It was not the library or the sewing room. The practice had been to only have one teacher. Now, the fact that there was some evidence that a teacher arrived at one point does not necessarily mean that had the practice - in the circumstances that there was only one teacher, does not mean that had there been a practice of having greater supervision, this fight should have occurred or continued. There is more to it, if I could respectfully put, than just the fact that a teacher was near this at one stage.

If there is more supervision, if there had been a practice of more supervision, then it goes without saying, in our submission, the likelihood of injury is reduced. In fact, it is halved, at least, one would think, because there is opportunity for two people to look after the area. I mean, one of the reasons why the teacher may not have stayed is because she had such a big area to cover that she did not have time to do what she perhaps should have done in relation to this one. That is just as good an inference to draw from the facts as an inference that you did not need another teacher. His Honour did, in fact, consider the need to connect the injury with the lack of supervision. If one looks at his judgment in at least two places, earlier than the paragraph in which he ultimately made the finding, he considered that very point or, at least, he touched on that very point.

If I could take your Honours to page 16 of the application book. He dealt with a case of Warren v Haines. This is at page 16, paragraph 36 of his judgment, line 16. He deals there with the judgment of Justice Carruthers at first instance but, in fact, it went on appeal and by majority the decision of his Honour was upheld. The part that I really wanted to refer to is where his Honour says, right at the end:

Carruthers J considered that the necessary causal link between the injury and the failure to supervise (by the taking of reasonable steps of supervising and controlling the bully) had been established.

So he was very conscious, in our submission, of the need to connect the complaint by the plaintiff with the injury that was suffered. He deals with the same issue again when he refers to a case which went the other way. On the next page he deals with a case of Gaetani v Trustees of the Christian Brothers, and he says:

the plaintiff had failed to establish a causal link between the plaintiff's injury and the alleged negligence, namely failing to provide closer supervision by the teacher.

Now, what happened in the Federal Court, in our respectful submission, was this, that Mr Justice Wilcox, who gave the principal judgment, looked at the facts again for himself as, on one view, he was entitled to do, and then, if I may respectfully suggest, added some features. For one thing, he said that the incident took a very short time. It depends, of course, what one means by "a very short time", but it extended over quite a reasonable period. So had there been even only one further supervisor, there was every prospect of it being stopped. It did not have to be stopped by actual presence. It might never have started, of course, or, at least, not gone for anything like the length it did, had the students known that they were being properly supervised.

One only has to look, in our submission, at the likelihood. Where this special relationship exists, as explained in Introvigne and in many other cases since it has been decided, the real issue, I suppose, is reasonableness.

McHUGH J: That is right, but that is your problem on a special leave application, is it not? Because you have seven grounds of appeal and, so far as I can see, they all, or almost all of them, seek to reagitate factual issues.

MR SALMON: With respect, we submit that where the Federal Court erred was that it did not really apply the special relationship test at all. What it did, in our submission, was to just say, "All right, there is someone else we have to look at", and then apply some sort of - they really only were applying vicarious liability-type tests. They did not take into account the special duty which is involved in Introvigne. One could say, almost, that where the special duty is raised, and where injury occurs, and it is in the Schools Authority-pupil situation, the next factor that has to be looked at is whether the incident arose in the ordinary circumstances in which a school is conducted.

The matter is really agitated in a case which has not yet been reported, of Lepore, which we provided to the Court in our authorities yesterday. That is where the President of the Court of Appeal deals with this matter at great length. That is another case in which special leave has apparently been applied for - the application has not come on. In that case, the learned President of the Court of Appeal deals with this matter that I was just talking about at paragraph 57 on page 14 of the judgment. There, he says:

Tort law also aims to improve safety by the deterrent effect of imposition of liability. However, deterrence has little work to do in the context of intentional wrongs that are not in any way part of the system of the defendant's enterprise or which are unconnected with serving the defendant's real or perceived interests -

And then he goes on, having made some references:

Nevertheless, imposition of liability may encourage greater protection of particularly vulnerable plaintiffs.

McHUGH J: The learned judge who gave the leading judgment was well aware of the non-delegable nature of the duty. He specifically referred to Introvigne's Case and the trial judge's view about the matter and said it was undoubtedly correct.

MR SALMON: On the law.

McHUGH J: Yes, I know, but you seem to be saying that, as a matter of fact, he got it wrong.

MR SALMON: What we are seeking to put is that, because it was a special relationship case, the considerations were different from where the duty is the ordinary duty of negligence of an individual.

McHUGH J: What do you mean by a "special relationship" case? Who has introduced this diversion into the law of negligence?

MR SALMON: Of course, there has been a lot of criticism of Introvigne, and, I think, even Kondis, and others - I appreciate that. This is why we say that this Court should grant leave, because if one looks at Lepore, as well as our case, one sees the difficulty that, we submit, some of those dealing with school incidents have in applying Introvigne. But Introvigne, in the decision of his Honour Justice Mason, as he then was, refers to what he called the non-delegable duty or a special duty.

McHUGH J: Yes, but there is nothing unusual about that. The employer-employee duty is a non-delegable duty.

MR SALMON: Yes, and one of the - - -

McHUGH J: So the department owes a duty of care, and that is it. They cannot delegate it by saying, "Look, I asked some teachers to look after these children". Their duty is to ensure that reasonable care is taken.

MR SALMON: Well, that is so, but when one then applies that to the facts of any individual case, where there has been injury in circumstances which are not outside the enterprise and there is an allegation - this applies equally, I would submit, in cases where warning signs are required or cases of master-servant, where supervision of other servants is applied. The plaintiff in such a case, of course, cannot prove a fact, as is pointed out in the Malec v Hutton situation; by definition it has not happened. So what a plaintiff is doing is to provide material from which a proper inference can be drawn.

Now, his Honour the trial judge, in our submission, clearly drew the inference that - and he examined the evidence about the number of children; he examined the evidence about the behaviour of the children in this area; and he ultimately reached the conclusion that additional supervision would be likely to have avoided the risk. What other test could there be? That was eminently open on the facts of the case.

Now, if that was the correct approach, then your Honour can say that the Federal Court then dealt with a facts matter, but what we submit is that the Federal Court really did not understand that, in the circumstances of this sort of case, the injury and the other circumstances were, so long as there was some material to show that there were reasonable steps available - and that was provided in our case by an expert whom the trial judge was not particularly impressed with, but, as he said, "This is enough".

McHUGH J: Well, the trial judge said he did not find the witness's evidence of much assistance was the term he used, I think.

MR SALMON: No, but then he went on, that it confirmed the lack of supervision.

McHUGH J: Yes.

GAUDRON J: But there was supervision, at least, at some point. That is the difficulty you have to deal with. This is not a case where there was no supervision. There was, in fact, supervision and there was supervision which was brought to bear in relation to this incident. Now, had there been another supervisor, one would think the other supervisor would have been at the other side of the oval and this one on this side. You have to prove there is some deficiency in the actual supervision that occurred, I should have thought, by reason of the lack of adequate numbers of supervisors, before you can make your case. That is what has been put against you at page 45.

McHUGH J: And at 46 where Justice Wilcox thought:

it is most unlikely that the presence of a second teacher would have reduced the response time to the incident.

Now, that seems to me just a question of fact. One cannot - - -

MR SALMON: Well, speculation, with due respect.

McHUGH J: Well, no, but you carry the onus of proving on the probabilities that the provision of a second teacher would have eliminated the risk.

MR SALMON: Well, I accept that, yes.

McHUGH J: Yes.

MR SALMON: But it is dealt with by his Honour Judge Wilcox on the basis that the fact that a teacher was there meant that they could not do more, but the whole notion of the way in which the plaintiff put his case was that, as a matter of prudence and reasonableness, where their numbers were between 80 and 100 - and there was no issue about that - there needed to be two teachers.

Now, if that evidence, which ultimately was, one must assume, accepted by the trial judge, albeit that he did not think it was really necessary to call an expert to say that in one sense, but that was there, and so it was in a general sense, because one cannot speculate more than on the basis that if, as a matter of practice, two teachers are better than one and if, in this particular instance, the existence of a second teacher would have meant that, firstly, the incident might never have broken out. The children would know that they are under much more observation than they had been before.

Secondly, one does not know whether the teacher that was there was so busy that she - it has been identified as a female - one does not know for sure whether had she had some more assistance she would have been able to do it - stay there longer because someone else was looking after it. There are so many issues. The real issue is, generally speaking, if it is a case where there was inadequate supervision, then the likelihood is that this would not have happened. That is what his Honour found. Now, his Honour Justice Wilcox did not agree with that, but he did not seem to - in our submission, there was just no basis for him to apply that - - -

McHUGH J: But they had to re-examine the matter for themselves and Justice Wilcox said the matter might have been different if the incident had gone on for a significant period of time or if the injury was sustained from a cause which should have been foreseen and prevented by reasonable supervision and, similarly, the ratio of supervisors might have been important if they were so low that no supervisor was on duty in the relevant area, but none of those things occurred and all you have is a disagreement between the Full Court and the trial judge concerning whether or not the provision of another teacher, on the grass or on duty, would have eliminated the risk of injury. You carry the onus of proof on that and the Full Court was not satisfied you discharged it. It is a sad case, but it does not seem to me at the moment it is a special leave case, Mr Salmon.

MR SALMON: Well, I can only put it on the basis that if one looks at Lepore and the various cases where Introvigne has been considered, there is a difficulty in applying it and it is difficult to see how the special relationship applies, except that there is, as it were, another potential defendant if there is not a duty to do more than merely say there is some - - -

McHUGH J: Well, one clear case where it applies is where there are no supervisors at all or the ratio is so low that a supervisor cannot really carry out his or her duties properly, but it is not this case.

MR SALMON: Well, your Honours, I notice the time has expired. I have put everything that I can put.

GAUDRON J: Yes, thank you, Mr Salmon. We do not need to hear you, Mr Donohoe.

This application raises only questions as to breach of the duty of care admittedly owed by the respondent to the applicant in this case and the question of causation. It gives rise to no question of general principle suitable to attract the grant of special leave. Moreover, the decision of the Full Federal Court is not attended with sufficient doubt to justify the grant of leave. Accordingly, special leave is refused with costs.

AT 2.37 PM THE MATTER WAS CONCLUDED