ACT Schools Authority v Raczkowski [2001] ACTSC 61 (22 June 2001)

Last Updated: 29 January 2002

AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY v SHANE DAVID RACZKOWSKI [2001] ACTSC 61 (22 June 2001)

CATCHWORDS

APPEAL - personal injuries case - school student injured when thumb cut by guillotine in metal work class - student "skylarking" at rear of machine - finding of negligence based on absence of any guard on rear of machine, failure to position against wall and failure to provide adequate supervision - contention of contributory negligence rejected by Magistrate - whether findings open - contributory negligence - duty of a child to take care for his own safety - no appealable error demonstrated.

Commonwealth of Australia and Australian Capital Territory Schools Authority v Justin Kenneth Stokes 1996 ACTSC 117

Commonwealth of Australia v Introvigne [1982] HCA 40; (1982) 150 CLR 258

McHale v Watson [1966] HCA 13; (1966) 115 CLR 199

On appeal from the Magistrates Court

No. SCA 83 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 22 June 2001

IN THE SUPREME COURT OF THE )

) No. SCA 83 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY

Appellant

AND: SHANE DAVID RACZKOWSKI

Respondent

ORDER

Judge: Crispin J

Date: 22 June 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal and cross-appeal be dismissed.

1. This is an appeal against a decision of Magistrate Fryar awarding the respondent damages in the sum of $9,562.35 for personal injuries suffered as a consequence of an accident which occurred on 27 June 1995 at Kambah High School.

2. The respondent, who was then 12 years of age, was a student in the Year 7 metalwork class and the day of the accident was apparently the first day upon which the class had used the equipment in the metalwork workshop. Each member of the class had been allocated the task of making a metal pencil case. This task involved using a guillotine to cut sheet metal. The students had earlier been issued with safety sheets and on the day in question Mr Gibbens, the metalwork teacher, gave them instructions as to the use of the guillotine including where to stand, how to use the machine and "what not to do". He also apparently demonstrated how to measure the metal, insert it into the guillotine and use the lever to cut it.

3. The respondent was the first to use the guillotine. His efforts were apparently not altogether successful and he said in his evidence that he had "stuffed up my bit of metal". He then went behind the machine where he began talking to other students and engaging in what was described as "skylarking". When another student, Melanie Gray, commenced to use the machine he tried to make her incorrectly cut the piece of metal she had inserted into the guillotine by moving it from the back of that machine. Unfortunately, as the respondent's hand moved forward she pulled the lever to operate the guillotine and a portion of the fleshy part of his right thumb was amputated.

4. The Magistrate noted at [7] that "skylarking" is not an uncommon pastime for twelve year old boys though she accepted evidence that the class had not been unruly at the time.

5. Mr Gibbens had given evidence that he had not seen the incident as he had his back to the plaintiff at the time. Her Worship found, contrary to his assertion, that he was most probably standing at or near his desk some three metres away from the guillotine assisting another student. Mr Gibbens conceded that the machine had been completely unguarded at the back, that there had been totally free access to the cutting blade from the rear and the machine had not been "backed up" against the wall. He explained that the wall ended about halfway along the machine.

6. In addressing the relevant principles her Worship began by observing that there was no doubt that the appellant, by its servants or agents owed the respondent a duty of care. She then cited at [10] the following passages from the judgment of Gallop J in Commonwealth of Australia and Australian Capital Territory Schools Authority v Justin Kenneth Stokes 1996 ACTSC 117 at [25]- [32] in which his Honour had canvassed a number of the relevant authorities:

A school authority is not an insurer. Its duty in relation to students under its control and supervision is to take reasonable care for their safety, that is, it is one of affirmative action to take reasonable steps to protect them against risks of injury which reasonably ought to be foreseen (Richards v State of Victoria [1969] VR 136 at 138). That test predicates a risk of some injury, not necessarily the very injury sustained by the plaintiff in the way he sustained it, but a risk of some kind to someone as a result of disobedient horseplay or foolhardiness in the absence of adequate supervision (Bills v State of South Australia (1982) 32 SASR 312 at 319).

The general concept is that the degree of supervision needed must be such as to avoid external dangers which might threaten immature children and also prevent them from inflicting injury on each other (Geyer v Downs [1975] 2 NSWLR 835 at 845).

Any alleged breach of the duty of care must be causally related to an injury received if the plaintiff is to succeed. In general, it is necessary to identify the nature of the step which the school authority should have taken but did not and to establish by evidence or inference that, more probably than not, the taking of that step would have prevented or minimised the injury which was in fact received (State of Victoria v Bryar (1970) 44 ALJR 174; Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91 per Murphy and Aikin JJ at 102).

In assessing what steps ought to be taken to afford adequate supervision, due regard must be had to the whole of the relevant circumstances in the school in question. As Geoffrey Lane J commented in Beaumont v Surrey County Council (1968) 66 LGR 580 at 585 one commences with the broad proposition that:

. . .it is a headmaster's duty, bearing in mind the known propensities of boys and indeed girls between the ages of eleven and seventeen or eighteen, to take all reasonable and proper steps to prevent any of the pupils under his care from suffering injury from inanimate objects, from the actions of their fellow pupils or from a combination of the two. That is a high standard.

The authorities indicate, for example, that the nature and degree of supervision required in relation to (say) fifteen year old students will necessarily be different from students of tender years: see, for example, The Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258, but note Richards v State of Victoria (supra) at 139. Ex hypothesi, other relevant known factors must have an important bearing upon this aspect. These will include the known nature and conduct of specific students and their propensities for inappropriate behaviour and general activity patterns within the school population: see Williams v Eady (1893) 10 TLR 41 at 42; Edgecock v Minister for Child Welfare [1971] NSWLR 751 at 758.

What is ultimately involved is a reasonable balancing of ideals. School authorities "must strike some balance between meticulous supervision of children every moment of the time when they are under their care, and the very desirable object of encouraging the sturdy independence of children as they grow up" (Jeffery v London County Council (1954) 52 LGR 521 at 523.

Questions of practicality and degree also necessarily enter into consideration. On the one hand any plan of supervision must be practical in relation to both the staff manpower available and the nature of the campus and how its use may sensibly be prescribed or proscribed: see Carmarthenshire County Council v Lewis [1955] UKHL 2; [1955] AC 549 at 566.

On the other hand, the nature and duration of the conduct leading to the injury of the plaintiff must be examined to ascertain whether any reasonable system of supervision would have been likely to prevent it: see, for example, the type of reasoning applied in Beaumont v Surrey County Council (supra); Clark v Monmouthshire County Council (1954) 52 LGR 246 at 247-248.

7. Her Worship also cited the following passages from the judgment of Mason J in Commonwealth of Australia v Introvigne [1982] HCA 40; (1982) 150 CLR 258 at 269 and 270:

The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability. A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during the hours when the school is open for attendance.

The duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated.

8. Her Worship then stated that the question which must be answered was what steps could the appellant "have taken in this case, but did not, that more probably than not would have prevented or minimised the injury" to the respondent. Strictly speaking, of course, the decisive question was whether the respondent's injury was, in a relevant sense, caused by a breach of the appellant's duty to take reasonable care to protect him from a foreseeable risk of injury. It may well have been necessary for her Worship to inquire as to what steps the appellant could have taken that might have minimised such risk but the resolution of that question was, in my view, only one constituent element in the resolution of the wider question to which I have referred. However, it was not suggested that her Worship had failed to advert to any of the relevant principles and the appellant neither pleaded any ground of appeal nor attempted to argue that posing the question in this manner revealed any failure to understand or apply them.

9. The conclusion that the respondent's injury had been attributable to the negligence of the appellant was explained by her Worship in the following passages at [13]-[14]:

"13. I cannot infer from the evidence before me that the instructions to the class on the operation of the guillotine were deficient in any material respect. However it is common ground that the machine itself was unguarded at the back and placed in such a position that allowed ready access by the students to its rear. Following the incident the machine was moved so that the rear was not readily accessible, obviously a step that was easily taken to minimise the risk of injury to students. Accordingly I find the defendant was negligent in the placing of the machine at the time prior to the incident.

14. Further, although I do not necessarily find the supervision by the teacher in question deficient, the issue with regard to the defendant is whether there was an adequate system of supervision in place. In my view, given the inherently dangerous nature of the machine in question, it was incumbent on the defendant to ensure close supervision of the operation of the machine. For example, a teacher's assistant could have been employed solely for that purpose. Had the defendant such a system of supervision in place, more probably than not the plaintiff's injury could have been prevented."

10. Mr Walker, who appeared for the appellant, challenged these findings.

11. First, whilst conceding that it had been common ground that the machine had been unguarded at the back and placed in a position that allowed ready access to the rear, he submitted that the appellant had not been guilty of negligence in failing to take any of the precautions suggested. Prior to commencement of the class in question the students had been given safety sheets and Mr Gibbens had explained how the machine worked before permitting them to use it. There was no finding that the instructions which he had given them concerning the operation of the guillotine had been deficient. The respondent had already used the machine and must have been well aware that in doing so he needed to watch where he put his fingers. Mr Walker argued that the accident had occurred only because the respondent had attempted to knock the sheet of metal inserted into the guillotine by Ms Gray so that she would cut it incorrectly. In these circumstances, he submitted, the accident should be regarded as wholly attributable to the respondent's own irresponsible behaviour.

12. Volenti non fit injuria had not been pleaded and it was not suggested that the claim should have been dismissed on this basis. Accordingly, it is necessary to examine her Worship's findings with a view to determining whether they were reasonably open to her on the evidence.

13. Mr Walker submitted that the Magistrate had "held the appellant liable for two, perhaps three reasons": the guillotine had been placed in a position which allowed ready access to the rear, there should have been close supervision of the machine whilst in use and, perhaps, the absence of any guard on the back of the machine. He submitted that her Worship's conclusions in relation to these matters were erroneous.

14. It was common ground that the back of the machine was not wholly against the wall. As I have mentioned, Mr Gibbens explained that the wall ended about half way along the machine. He added "it was an L shape, and the machine was half covered by the wall let's say". He said that it could not have been put wholly against the wall. Whilst the machine was located within an enclosed workshop, there was no actual evidence that it could have been moved to another place or any evidence as to available space from which such an inference might have been drawn. The evidence did not reveal the dimensions or configuration of the workroom, or the other machinery and equipment which it contained and the feasibility of relocating any such equipment to provide wall space for the guillotine was not canvassed. Mr Walker argued that the box at the rear of the machine which collected off cuts of metal would have prevented it from being located against a wall. He also relied upon Mr Gibbens' evidence that the machine could not have been located "hard up against" a wall because that would have defeated its purpose. He had explained that in that event it would have been possible to cut only very small pieces of metal because there would have been no space for anything protruding from the rear of the machine.

15. It is, of course, incumbent upon a plaintiff who alleges that a defendant was negligent in failing to take a particular precaution to demonstrate that the precaution was available and that the defendant's failure to take it amounted to a breach of its duty to exercise reasonable care to protect the plaintiff from the risk of foreseeable injury. The nature and extent of the evidence which must be adduced in order to establish these matters will, of course, vary from case to case. In the present case the Magistrate found at [13] that after the incident "the machine was moved so that the rear was not readily accessible". Mr Walker submitted that this finding was unsupported by the evidence and that no inference to that effect could safely be drawn because there had been unchallenged evidence from Mr Gibbens to the effect that the school had been redesigned and the metalwork room had been completely changed. However, I am by no means certain that in using the phrase "so that", her Worship was intending to express a finding that the machine had been moved in order to prevent access to the rear. Her Worship was, I think, simply alluding to the following evidence which had been elicited from Mr Gibbens in cross-examination:

So now it's up against a wall? - - -

Yes, it is.

So the students can't get access to it? - - -

No they can't.

16. In any event, her Worship does not seem to have approached the matter on the basis that the change in position was, of itself, evidence of negligence. The real significance of the observation seems to lie in the fact that, notwithstanding any difficulties occasioned by the position of the box and/or the need to have lengthy pieces of metal protrude from the rear, the machine had subsequently been placed against a wall and that step had effectively prevented students from gaining access to the rear. Mr Walker submitted this evidence could not have been correct given the other statements which Mr Gibbens had made. However, her Worship was plainly entitled to accept it.

17. Once it was established that access to the rear of the machine had been prevented in this manner it was, in my view, open to her Worship to conclude that the plaintiff could have been protected from the risk of injury had the appellant adopted that precaution earlier. It is true that there was no evidence of the size, shape or contents of the workshop but, in my opinion, it was open to the Magistrate to be satisfied on the balance of probabilities that such a step could have been taken, given evidence as to the size and shape of the machine, the fact that it was located in a metalwork "room" and the absence of evidence as to any impediment to such a course.

18. Mr Walker also submitted that the Magistrate erred in making any finding against the appellant based upon the absence of a guard on the rear of the guillotine. He pointed out that Mr Gibbens had suggested that the machine photographed at Tuggeranong College had been a different model. He argued that there had been no evidence as to the availability of a guard for the machine used by the respondent at the relevant time. He also submitted that there had been no basis upon which the Magistrate could have safely concluded that such a guard would have prevented the accident and, in support of this submission, adverted to Mr Gibbens' evidence that "You could put your hands underneath it I would think".

19. I am unable to accept these submissions. It is true, of course, that there is no direct evidence as to the availability of a guard at the relevant time. However, as the photograph of the machine at Tuggeranong College amply demonstrates, all that was required was a relatively flat piece of steel welded or bolted onto the back of the machine and appropriately braced so that it would remain in a horizontal position extending from the rear of the machine and at a level just above the aperture through which metals and perhaps other materials passed for cutting. In my view, it was open to the Magistrate to be satisfied that the provision of such a guard was a rudimentary precaution that could easily have been undertaken by the appellant. I am satisfied that it was also open to the Magistrate to conclude that such a precaution would probably have prevented the accident. It may be true, as Mr Walker suggested, that such a guard could not have prevented the respondent from inserting his fingers into the area under the blade had he chosen to do so. However, there is no evidence that he deliberately placed his fingers in such a position. On the contrary, the evidence established that he had intended to move the metal being cut by Ms Gray and it appears that his thumb came to be under the blade by accident. Mr Lunney, who appeared for the respondent, also pointed out that his client had given evidence without objection, that the metal plates at the back of the machine photographed at Tuggeranong College "would prevent a person putting their hand in from the rear of the machine" and that they "have the effect of denying access to the back of the operating blade". Having considered all of the relevant evidence I am satisfied that her Worship was entitled to conclude that such an accident would probably have been prevented had there been an adequate guard.

20. Furthermore, even if her Worship had been wrong about these matters and the appellant had been unable to alleviate the risk of injury either by placing the guillotine against the wall or by fitting an appropriate guard, it was certainly open to the appellant to ensure that students using it were adequately supervised. The need for adequate supervision should have been obvious to anyone responsible for the care of 12 year old children using potentially dangerous equipment for the first time.

21. Mr Walker submitted that her Worship should not have found that there had been inadequate supervision merely because Mr Gibbens had been attending to the needs of another student at the time of the accident and that it had been unreasonable to suggest that it may have been incumbent upon the appellant to have a teacher's aide stationed at the machine. I do not agree. It was not suggested that any other dangerous machine was being used at the time the respondent was injured and there was no apparent reason for Mr Gibbens not to stand beside the guillotine and directly supervise each student's use of it. If, for some undisclosed reason, he had been unable to do so, then it would have been appropriate, in my view, for the appellant to have stationed some other person, such as a teacher's aide, beside the machine to ensure that the children using it would not be subjected to unnecessary risk of injury.

22. I do not accept that these elementary precautions were rendered unnecessary because the children had been given "safety sheets" on some earlier occasion and the operation of the machine had been explained to them prior to its use. The safety sheets were not tendered in evidence and there was no evidence as to what they contained. The evidence did not even explain whether they contained any warnings about the dangers posed by guillotines. It is true that her Worship found that Mr Gibbens' explanation of the operation of the machine had been adequate. However, he did not claim that he had warned the students of the risk of injury if they approached the machine from the rear and there was no other evidence as to that effect.

23. For these reasons, I do not accept that her Worship fell into error in finding that the appellant had breached its duty of car to the respondent. On the contrary, I think that such a finding was inevitable.

24. The issue of contributory negligence is a little more difficult. The respondent admitted to having attempted to move the piece of metal which Ms Gray was attempting to cut and doing so in order to make her cut it in the wrong place. However, misbehaviour and contributory negligence are not synonymous concepts. A finding of contributory negligence can be justified only if there is evidence that a plaintiff has failed to take reasonable care for his or her own safety and that failure can properly be regarded as a contributory cause of the accident. However silly it may have been for the respondent to have attempted to ruin Ms Gray's work by pushing the end of the metal she was attempting to cut, the mere fact that he attempted to do so did not, of itself, expose him to a foreseeable risk of harm. Normal use of the guillotine involves the metal being guided through the machine by hand. Whilst that is normally done from the front of the machine there is no reason to suppose that a person would be exposed to danger merely by touching the other end of the metal as it emerged from the rear of the machine or even attempting to manipulate it from that position. What exposed the respondent to danger was the manner in which he moved his arm as he apparently attempting to knock the end of the piece of metal. In doing so his thumb strayed into the danger area underneath the blade. If a tradesperson or some other person who might reasonably been supposed to have been aware of the danger had behaved in such a manner, one might readily conclude that he or she had been guilty of contributory negligence. However, there was no evidence that the respondent was aware of the risk of being injured in this manner and, having regard to his age and the fact that he had not used the machine before, there was no reason for her Worship to assume such awareness. It was certainly not suggested to the respondent in cross-examination that he knew of any risk that he might be injured by permitting his hand to come under the blade from the rear of the machine. In the absence of any basis for finding that the respondent was aware of the danger it would obviously have been difficult for her Worship to have found that he had failed to take reasonable care for his own safety by acting as he did.

25. Furthermore, the standard of care that may be expected of a child is not that of an adult but of a child. In McHale v Watson [1966] HCA 13; (1966) 115 CLR 199 the High Court of Australia dismissed an appeal against a finding that a 12 year old boy who had thrown a sharpened piece of metal at a post and injured a young girl standing nearby had not been negligent "in the legal sense" though it was acknowledged that it was "a very foolish act": per Menzies J at 218. In doing so their Honours held that the trial judge had rightly taken the boy's age into account. The circumstances of the present case were different but her Worship was, in my view, entitled to approach the issue of contributory negligence in a similar manner and to accept that whilst the behaviour of this 12 year old boy may also have been foolish it had not been negligent in the sense that he should be held partially responsible for his own injury.

26. Whilst Mr Walker's criticisms of the respondent's behaviour were not entirely without foundation, I have ultimately concluded that it was open to the Magistrate to find that contributory negligence had not been established.

27. Finally, the respondent cross-appealed against the perceived inadequacy of the damages. Mr Lunney argued that the sum of $8,000 was insufficient to compensate him for the pain and suffering associated with his injury and the admittedly minor but long term disability suffered as a consequence. I have considered the relevant evidence and inspected the respondent's thumb but am not persuaded that the amount awarded was so low as to fall outside the range reasonably available to the Magistrate or that her Worship's discretion otherwise miscarried.

28. For these reasons, both the appeal and the cross-appeal will be dismissed.

29. I will hear counsel as to costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 22 June 2001

Counsel for the appellant: Mr P Walker

Solicitor for the appellant: ACT Government Solicitor

Counsel for the respondent: Mr G Lunney

Solicitor for the respondent: Higgins Solicitors

Date of hearing: 31 May 2001

Date of judgment: 22 June 2001