“Accident on Flying Fox – no breach of duty”: Trustees of the Roman Catholic Church for the Diocese of Canberra & Goulburn -v- Farrah Hadba by her next friend and father Nouhad Hadba [2005]

Author: Nicholas Gordon

Judgement Date: 15th June, 2005

Citation: Roman Catholic Church for the Diocese of Canberra & Goulburn -v- Farrah Hadba by her next friend and father Nouhad Hadba

Jurisdiction: High Court[1]

In Brief

  • This case involved a six year old girl who fell from a flying fox in a school playground.
  • The High Court reversed the decision of the Supreme Court of the ACT and found that the appellants, who conducted the primary school, had not acted negligently.

Background Circumstances

  • The appellant conducts a primary school in the ACT.  On 25 February 1999 the school had about 540 pupils over seven years of which the “junior school” comprised Kindergarten, Years 1 and 2, and the “senior school” comprised Years 3 to 6.  The respondent was in Year 3 and aged 8 years at the time of the accident.
  • On 25 February 1999 the junior school was playing at the “bottom oval, asphalt and tuck shop area”.  Each area was supervised by two teachers and on this day Mrs Pauline McNamara was supervising the fixed equipment, large handball area and eating area adjacent to it, the walkway adjacent to the eating area, the toilets at either end of the walk-way, and the bubblers.  She was a capable teacher of considerable experience.
  • Amongst the items of fixed equipment was a “flying fox”.  The school had devised a “hands off rule”, requiring that the children not touch each other during play in the playground.  During the morning recess on 25 February 1999, the respondent ascended one platform on the flying fox and took hold of the triangle, ready to ride across to the other platform.  Two children, in breach of the school’s hands-off rule, each grabbed one of the respondent’s legs.  One of the children failed to desist holding the respondent’s legs and the respondent was pulled off the flying fox and her face struck the platform as she fell to the ground.  Her injuries were not the result of any defect in the flying fox.
  • The events leading to the accident were not observed and prevented by Mrs McNamara as, having satisfied herself that the children had been behaving appropriately on the flying fox, she had looked away to survey the bubblers and the toilet block, and had attempted to call out to children in the Year 6 classroom units as they were not allowed to be in there.

Supreme Court of the ACT Decision

The majority of the Supreme Court of the ACT had overturned the original trial Judge’s decision in favour of the appellant, and had found that “there was an obvious need to maintain constant supervision” of the equipment and that the appellant had failed to do so.

High Court Decision

  • The majority of the High Court held that in view of the “hands off rule”, and the fact that the accident was not the result of the use of the flying fox, nor of any inadequacy in instruction of the pupils in its use, the respondent’s whole case rested upon the proposition that Mrs McNamara’s sole duty should have been to supervise the play equipment area only.  
  • In this regard, the majority held that “it was incumbent upon the respondent to demonstrate that there was some system of supervision which was an alternative to that which the school was using at the time of the accident, which was free of the risk of which the respondent complains and which was available – not in a general or theoretical way, but in a practical sense”.  
  • The majority held that the respondent had not demonstrated this and noted “it cannot be concluded that if the system in place in the junior area had been in place in the senior area, the risk of injury would have been reduced or avoided”.
  • The majority further held that “it must be remembered that there was no evidence of any serious accident on the flying fox in the past, there was no evidence of pupils having pulled each other from the flying fox in the past, and there was a well known and enforced school policy against this.  The magnitude of the risk of injury was not high, and nor was the degree of probability of its occurrence.”
  • The majority stated 

“In short, the conclusion of the majority of the Court of Appeal, maintained by the plaintiff in this Court, that ‘there was an obvious need to maintain constant supervision’ of the equipment which included the flying fox was incorrect unless the plaintiff demonstrated that it was reasonable for this to be done using two teachers for the senior area, or for it to be done using a greater number of teachers.  This the plaintiff did not do.”

  • The majority also found force in Spender J’s dissenting opinion that the majority decision “is a requirement of unrealistic and impractical perfection.  It is borne of hindsight.  It offends the standard of reasonableness.  It amounts to the imposition of the responsibility of an insurer”.
  • Turning to causation, the majority found that “it is unlikely that a teacher, even a teacher watching the equipment uninterruptedly, would have been able to prevent the plaintiff’s fall once the other two children had grabbed her legs.  It was suggested in argument that children will only behave mischievously if they think that no adult is watching.  The scope for juvenile mischief is, however, greater than that”.
  • In dissent, McHugh J found that the system in place for supervising the toilets, bubblers and fixed equipment area had an inherent defect that gave rise to a risk of injury to young children in the equipment area.  He found that “it was a risk that would have been foreseen and avoided if the school had exercised reasonable care.  The defect in the system arose from the necessity for the supervising teacher to make periodic patrols to other parts of the top oval area.”
  • McHugh J placed great emphasis on the evidence of Mrs McNamara that the supervising teacher not only had to turn his or her back on the playground equipment area but also had to look at “all of those areas that necessarily cause you not to be able to see the play equipment.”
  • Clearly these factors were weighed up by the majority who, however, found that it was not reasonable in the circumstances for the appellant to arrange for constant supervision of all areas which would have been impractical for a school of that size, bearing in mind that teachers are required to take breaks and must place some faith in the children in their care.
  • Accordingly the appeal was allowed with costs.

Implications

  • This case is another example where Appellate courts are raising the bar for plaintiffs to succeed in establishing a breach of duty of care, particularly in the absence of any evidence of previous similar accidents.
  • In relation to questions of breach of duty of care, the High Court has reinforced the principles in Wyong Shire Council v Shirt [1980] 146 CLR 40 that in determining whether there has been a reasonable response to a foreseeable risk, factors such as the magnitude of the risk and the probability of its occurrence must be considered.
  • Whilst not being determinative in this case, the High Court also reinforced the difficulties many plaintiffs face in proving causation, especially in cases such as this one where there was no evidence that even if the teacher had been watching the play equipment without interruptions, the accident would have been avoided.

[1]     Gleeson CJ, Hayne, Callinan, Heydon JJ, McHugh J (dissenting)