Parkin v Australian Capital Territory Schools Authority [2005] ACTSC 3 (28 January 2005)

Last Updated: 31 January 2005

ANDREW ROBERT PARKIN v AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY

[2005] ACTSC 3 (28 January 2005)

NEGLIGENCE - personal injury - claim by pupil against school authority - scope of duty of care - adequacy of supervision

CONTRIBUTORY NEGLIGENCE - personal injury - claim by pupil against school authority - thirteen-year-old boy - applicable standard of care for own safety

DAMAGES - personal injury - thirteen-year-old boy - degloving injury to dorsum of right hand - tendon damage to fingers - distal interphalangeal joints of fingers of dominant hand damaged - fingernail bifidity - no issue of principle

Australian Capital Territory Schools Authority v Raczkowski [2001] ACTSC 61 (unreported, 22 June 2001)

Hadba v Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn [2003] ACTSC 20 (unreported, 4 April 2003)

Regan v Australian Capital Territory Schools Authority [2003] ACTSC 47 (unreported, 13 June 2003)

Hadba v Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn [2003] ACTCA 25 (unreported, 18 December 2003)

State of New South Wales v Lepore [2003] 212 CLR 511

Commonwealth of Australia v Stokes (Gallop J, unreported, 15 November 1996)

Rich v London County Council (1953) 1 WLR 895

Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931 (Wilcox, Spender and Higgins JJ, unreported)

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

Wyong Shire Council v Shirt (1980) 146 CLR 40

Beaumont v Surry County Council (1968) 66 LGR 580

Commonwealth of Australia v Introvigne (1982) 150 CLR 258

State of New South Wales v Finnan [2004] NSWCA 314 (unreported, 10 September 2004)

McHale v Watson (1966) 115 CLR 199

No. SC 157 of 2001

Judge: Master Harper

Supreme Court of the ACT

Date: 28 January 2005

IN THE SUPREME COURT OF THE )

) No. SC 157 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANDREW ROBERT PARKIN

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY

Defendant

ORDER

Judge: Master Harper

Date: 28 January 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $58,500.00.

1. The plaintiff in this action claims damages for an injury to his right hand when he was a schoolboy in Year 8 at Campbell High School. The injury was sustained on 31 August 1993. The plaintiff was born on 27 January 1980, and was thirteen at the date of injury. He is now twenty-four. Though liability is in issue, the defendant admits that at the relevant time it owned, managed and operated the school, and that it was under a duty to take reasonable care of the plaintiff while in attendance at the school. The defendant denies negligence, and pleads contributory negligence against the plaintiff.

2. On the morning of the incident, the plaintiff was one of about twenty students in an industrial design class. The usual teacher, Mr McCrohon, was for some reason absent on the day, and there was a relief teacher, Mr Balic, who took his place. The plaintiff's project was to design and make a pine pencil case. He went to a back room and selected a piece of pinewood which was reasonably close to what he needed. His recollection was that the dimensions were about 23 centimetres by 16 centimetres by 1.5 centimetres. He needed to reduce the thickness of the timber to about 0.5 centimetres. The piece he selected was the thinnest piece of timber he was able to find. He took it to one of a number of work tables in the centre of the classroom, placed it in a vice, took a hand plane and began to plane the wood.

3. After a couple of minutes, following a conversation with a class mate, he took the piece of wood out of the vice and over to a belt sanding machine which he thought would reduce the thickness of the wood much more quickly. The belt sander was one of a number of electrically operated machines around the perimeter of the classroom. It was a combined belt sander and disc sander. When the machine was switched on, both commenced to operate. It was not possible to turn one on or off without the other. The exposed surface of the sanding belt was vertical and moved downwards. At right angles to it was a horizontal metal surface, variously described as a guard, rest, platform or table, which would probably have been at about chest height to a boy of the plaintiff's age. The plaintiff turned the machine on and held his piece of wood lengthways, that is so that its longest edge was vertical, and he pressed the timber against the belt with both hands. After a couple of minutes the piece of wood was too hot for him to continue. He turned the machine off and took his piece of timber back to a table in the centre of the workshop, placed it in a vice, and recommenced hand planeing. After another couple of minutes he took it back to the machine and turned it on again. He placed the surface of the wood against the sander and began pressing it again with both hands in the same way. He said that the machine makes quite a lot of noise. After perhaps half a minute, whilst he was not entirely sure what happened, the wood flew away to the left, hit the side of the guard, and flew to the floor. The plaintiff's right hand went across the belt to the left. Initially he did not realise that he had touched the belt. As soon as he realised, he turned around and saw the relief teacher, Mr Balic, standing perhaps six metres behind him talking to a small group of students. He ran over to Mr Balic and showed him his hand. Mr Balic yelled at one of the other students to turn the machine off, grabbed the plaintiff and ran with him to the front office.

4. By this time the plaintiff was in a lot of pain. He first started to feel the pain a few seconds after the injury. He described it as a terrible burning sensation all over the tops of his fingers. There was considerable bleeding. He was provided with some first aid at the front office of the school, and a little later taken by ambulance to Woden Valley Hospital where surgery was carried out by Dr Flood, a registrar in plastic surgery. Dr Flood described the injury as a de-gloving injury to the dorsum of the right hand, affecting the fingers. X-rays were normal. Tendons to the forefingers were repaired and k-wires were inserted. An abrasion to the index finger was debrided and dressed. The ambulance officers had given the plaintiff an intravenous painkiller, probably morphine, which reduced the level of pain, though the plaintiff said that he was in pain the entire time. The plaintiff stayed in hospital for a little over a week. He was discharged with his right arm in plaster and a sling.

5. He returned on a number of occasions to the plastic surgery outpatient clinic, and was readmitted to hospital a month later for removal of the k-wires, a day surgery procedure. Thereafter he continued to be monitored at the outpatient clinic until the end of 1993. Continuing physiotherapy was prescribed, and the plaintiff recalls going on a family holiday to the Gold Coast during the December-January school holidays with his arm still in the sling. The physiotherapy, initially twice a week, and later once a week, continued for several months, after which the plaintiff was given exercises to do at home.

6. He was referred to Dr A C James, an experienced plastic surgeon, in late January 1994. He still had limitation of movement in the distal interphalangeal joints of all four fingers, and distortion of the fingernails. He taught himself to write with his left hand when he returned to school, but found it slow and messy, and had trouble keeping up in the classroom. It was a number of months before he was able to get back to writing with his dominant right hand, and even by the time of the hearing, the plaintiff did not think he was particularly proficient with handwriting. He said that his hand tends to tire easily, and that his handwriting is not as clear as it was before the accident.

7. He was unable to play any sport during the rest of the 1993-1994 summer, though he was able to play soccer in the winter of 1994. He found, and still finds, that when he got back to sports such as softball and cricket, his game was affected by difficulty in gripping both bat and ball.

8. He saw Dr James again in January 1995, when he reported difficulty in picking up fine objects due to loss of mobility in the distal finger joints, though his power had returned to normal. Dr James noted permanent scarring, deviation at some joints, and nail distortion which he described as a significant cosmetic deformity. There was also some loss of function due to distortion and inability to use the nails to pick up very small objects. He thought it likely that the plaintiff would require corrective surgery to straighten the distal joint of the little finger once he finished growing.

9. More recently, the plaintiff has been under the care of Dr D.A.A. Taylor, another Canberra plastic surgeon. Dr Taylor first saw the plaintiff in January 2000. The plaintiff complained of decreasing function in the middle, ring and little fingers of the right hand. There was considerable restriction of movement of the distal joints of all fingers, and the nails of the three other than the index finger were bifid, that is vertically divided in two. Dr Taylor described these as unattractive and likely to catch on clothing. The range of movement was unlikely to improve without surgery. The condition of the nails might well be improved by surgery in the form of revision of the germinal matrix of each of the three affected fingers. For the deviation of the last joints of the ring and little fingers, Dr Taylor thought that considerable improvement could be achieved by a combination of fusion and osteotomy. He thought that it was likely that the plaintiff would end up with painful joints ultimately, and the suggested surgery would avoid this. He thought that the plaintiff would have trouble typing with the right hand, but did not think that his typing skills were likely to be much improved by surgery. Because of the nature of the plaintiff's work, he thought it unlikely that he would develop early arthritis in the damaged joints, and did not think that his career would be affected in any way.

10. Dr Taylor saw the plaintiff again in late September 2004. He recorded that the plaintiff managed his nails by trimming them very carefully, which required a considerable amount of attention. He noted some signs of early arthritis, in the form of cracking in the proximal interphalangeal joints of the fingers of the right hand. On examination, he found a slight irregularity in the right thumbnail, and a scar on the index finger causing an irregular dented nail and slight loss of flexion at the final joint. The nail on the middle finger was badly deformed and the movement of the final joint was considerably restricted. The distal phalanx itself was slightly deviated. There was some pain, but Dr Taylor would not do anything to correct the deviation unless it increased or became significantly painful. If the plaintiff did come to surgery, it would be in the form of a fusion of the distal joint.

11. The ring finger also showed deviation of the distal phalanx, with a ridged nail and scarring to the back of the finger. The little finger had a ridged nail and similar scarring, and a deviation of the final joint with restriction of movement. The little finger, he said, gets in the way of the ring finger, causing some clumsiness when typing. There was no pain in any of the joints, but he thought that this might become a problem in the future, and might lead to surgery in the form of isolated fusions of distal joints. He thought that the little finger should be fused immediately to correct the deviation. This would improve the function of the finger, and the plaintiff's hand flexion and typing. The nail beds could also be improved, as Dr Taylor had said previously, by isolating the scarring from the germinal matrices and repairing the nail beds, which would encourage improvement in nail growth, though not to the level of normal nails. The bifidity of the nails had improved between the two occasions when Dr Taylor saw the plaintiff, but he does not think that they will get much better in the future. The plaintiff will always have to trim his nails very carefully to prevent them from snagging on clothing. If anything, the deviation of the distal phalanges of the ring and little fingers will get worse over time. The surgery which Dr Taylor now suggests could be performed as day surgery, and would take the plaintiff away from his work for no more than two weeks. The plaintiff said in his oral evidence that he would definitely have surgery if the little finger became too painful, though he did not say that he intended to have the surgery purely for the purpose of correcting the deviation. He would have surgery to the ring finger also, if it became sufficiently painful.

12. The plaintiff's evidence was that he sees his right hand as ugly, and he is very self-conscious about it, particularly when meeting new people. Over the years, generally when talking to someone, he has hidden his right hand behind his left hand or behind his back. He has learned to compensate for the restrictions imposed on him by the condition of his right hand with typing and other tasks. He does a lot of things with his left hand now which he previously did with his right hand, to the extent that his housemates initially thought that he was left-handed.

13. The plaintiff had commenced in Year 7 at Campbell High School at the beginning of 1992, and in the first half of that year one of his subjects had been woodwork. His teacher had been Mr Krevatin, and the class had made several small projects, mostly from pine. The plaintiff recalled that they had been given instructions about safety issues at the commencement of that course which included keeping long hair bound or tied, not wearing caps inside, one person to a machine at a time, and no skylarking in the vicinity of the machines. The machines, placed around the walls of the workroom, included a bandsaw, a lathe, a jigsaw and a drill press as well as the sanding machine. Mr Krevatin gave the students a demonstration of the correct way to use each machine for their projects. They were taken around in a group to watch these demonstrations.

14. The plaintiff continued woodwork during 1993 with a different teacher, Mr Rogers, for the first two terms. The subject he commenced in the third term of 1993 with Mr McCrohon was industrial design, and included working with other materials such as perspex and metal as well as wood. At the beginning of the term, the plaintiff recalled that Mr McCrohon went through the safety rules with the class.

15. Counsel for the defendant tendered a copy of a Campbell High School assessment report in relation to the plaintiff dated 24 June 1993 and signed by Mr Rogers in respect of the first semester of 1993 for Year 8 wood technology. Mr Rogers's handwritten remarks read:

Andrew has worked reasonably well in this subject, however, he must discipline himself to remain `on task' to produce a greater volume of assessable work. At times he exhibits silly, unsafe behaviour in the workshop which requires intervention. This must cease before a serious accident occurs!

Mr Rogers gave the plaintiff an overall grade of C for the subject. The form made provision for the teacher to tick a box following the words "parent interview requested". Mr Rogers did not tick that box, from which I infer that he did not regard it as necessary to discuss the plaintiff's behaviour with his parents, and took the view that his remarks in the report were adequate for his purpose. The plaintiff did not remember the report but said that it would have been discussed by his parents with him at the time. The remarks were non-specific as to the behaviour causing concern, and Mr Rogers was not called to give evidence. After more than ten years teaching different classes since then, it would perhaps be surprising if he could recall much about the behaviour which gave rise to the remark. Counsel for the defendant puts the report forward as evidence of the plaintiff's propensity at the time to behave irresponsibly. I must also take it as evidence that the defendant, through Mr Rogers, was aware that the plaintiff might behave irresponsibly and in such a way as to create a risk of injury to himself or someone else; that is, the school was on notice that the plaintiff required a greater degree of supervision than might be necessary for other pupils.

16. In cross-examination, the plaintiff agreed that there was a small gap between the horizontal metal guard on the belt sander and the belt itself, something he had observed well before the accident. He agreed that the belt revolved at high speed, and it was obvious to him that the belt would cause significant damage if his hands came into contact with it. He agreed that it had been emphasised in the instructions that the pupils should be sensible when using the machines, and in their vicinity, because they were dangerous.

17. The plaintiff assessed the gap as a little less than five millimetres, and agreed that he was aware of the risk that if the piece of wood was thinned down to a width less than the gap, there was a chance it would go down between the metal rest and the belt. He agreed that he was aware before the accident that there was some risk that in this eventuality, his fingers might be dragged down into the belt. It was put to him that this was what had happened on the day, but he was adamant that this had not occurred, and that at all times the wood was thicker than the gap.

18. It was also put to him that he had been told not to use the belt sander to reduce the thickness of wood in the way he had been using it. He said that he could not remember any specific instruction to that effect. His estimate was that when he went back to the machine for the second time, the wood was probably about a centimetre or less in thickness, so that he still had a fair way to go. He knew that it was thicker than the gap.

19. It was put to the plaintiff that during a class within a period of three weeks before the accident, Mr McCrohon had taken the whole class aside and given them a talk about the appropriate use of the sanding machine. The plaintiff could not remember this happening, though he agreed that he would probably have been at school and could not remember any reason why he would have been away from school. He agreed that he had been aware that the belt on the machine had recently been replaced and was almost brand new and very abrasive.

20. Mr McCrohon gave oral evidence. He is a schoolteacher of more than twenty years experience, with a Bachelor of Education degree and a diploma in teaching. In 1993 he had been teaching industrial arts and design subjects for eleven years. He remembered the plaintiff as a Year 8 student in 1993. He said that his practice, then and since, was to familiarise the students with all of the machines at the beginning of each course, pointing out the safety requirements. This involved walking around the classroom and demonstrating the operation of each of the machines. The issues included eye protection; the need for a `safety zone' so that no one was permitted to be within a metre of the machine other than the user; long hair and loose clothing was required to be restrained. It was his habit to point out that there was a gap between the metal table attached to the belt sander and the belt itself, and that there was a strong chance that if small or thin pieces of wood were applied to the belt, the wood might be forced down the gap with fingers following. He said that it was his practice to tell the pupils never to "thickness" a piece of wood on the belt sander, because of the risk that as it became thinner it would be likely to be driven through the gap with the likelihood of injury to the fingers of the operator. He explained that thicknessing was the word used for reducing the thickness of a piece of wood. He could not recall precisely what he told the pupils about the sanding machine on each occasion, but said that he had had a list with him when he did this.

21. He then said that he had had occasion to give a second round of instructions to the boys in the plaintiff's class about the belt sander, very close to two weeks before the injury. He had noticed students using the machine for an incorrect purpose. At least two students had been using it to "thickness" material. He stopped the class, gathered the boys around the machine and restated the safety instruction. He explained why he had stopped the class. He directed that under no circumstances was anyone allowed to use the machine to reduce the thickness of their material. They were to give the specific thickness requirements to him and he would attend to it on a special purpose-designed machine. This machine was located elsewhere in the school, about a hundred metres away, in a room to which the boys did not have access. From time to time Mr McCrohon had used it to reduce the thickness of material for students.

22. He said that he ensured that all of the class were in attendance around the machine before he started his safety talk. He could not be certain that the plaintiff was present without checking the roll. He said that after the talk, he did not see any of the students again attempting to use the belt sander to "thickness" material. His evidence also was that he had never heard of a student other than the plaintiff suffering any injury whilst using the belt sanding machine, before or since. He described the classroom as rectangular and "about the size of this room" (Number 6 Court in the Supreme Court building). He had no difficulty keeping the students working on the power tools and hand tools within sight, and no difficulty in supervising a class of eighteen to twenty students.

23. His evidence, consistently with that of the plaintiff, was that the sanding belt was brand new and 40 grade, which he explained as a very coarse belt. If he had seen a student holding a piece of timber of the size described by the plaintiff against the belt of the sanding machine, he would have stopped the person from doing it immediately. There was a very high degree of danger that the timber would slip down the gap between the platform and the belt. As a teacher he would be very careful in his supervision of the students while the sanding machine was being used. The degree of supervision would be greater with younger boys (twelve to fourteen) than with older boys of seventeen or eighteen. He agreed that younger boys were more likely to "muck up" in a workshop situation.

24. Mr McCrohon remained as a teacher at Campbell High School until 1997. The sanding belt was removed from the machine within twelve months of the plaintiff's accident, though the machine remained in place, available to be used as a disc sander. He had put in a written report after the accident, and his understanding was that the decision to remove the sanding belt was made by, or following an inspection by, an occupational health and safety committee from the Schools Authority.

25. Mr McCrohon agreed that the noise level of the belt sander was such that when it was switched on and being used in the classroom, it was quite obvious to him as a teacher that the machine was on. He was not in attendance on the day of the plaintiff's injury, and there was a relief teacher in charge. Mr McCrohon knew who he was, but had not told him about the circumstances giving rise to the second safety instruction he had given to the class, or about having given that instruction. He could not remember precisely when the new belt had been installed, but thought that it was very shortly before the accident. He agreed that a new belt was much more dangerous than a worn belt, but said that it was not his normal practice to warn the boys after a new belt was installed.

26. Oral evidence was also given by Mr Michael Balic, the relief teacher on the day. He graduated as a teacher in 1990, but had not worked as a teacher in technical subjects prior to 1993, and during that year had worked in those areas only as a relief teacher. He had given his contact details to a few schools in Canberra, who would telephone if they needed him. He taught all manner of subjects as a relief teacher, for example English and mathematics. He had been to Campbell High School as a relief teacher previously during 1993, though he could not recall precise dates.

27. On the day of the plaintiff's injury, the students were engaged in a variety of practical tasks. By way of supervision, Mr Balic walked around the class making sure they were doing what they were supposed to be doing. He had some familiarity with the woodworking tools in the room, including the belt sanding machine, and he had been given some instruction about its use, for example not to use pieces of wood below a minimum size on it, and not to press too hard. He recalled that the boys of that age were not permitted to use the bandsaw in the room. Shown a piece of pinewood agreed to be about the size of the piece the plaintiff started with on the day, he was asked whether he would have been concerned if he had seen a student holding such a piece of wood upright against the belt of the sanding machine. He answered, a little tentatively, that he would have thought it was an unusual thing to do, and would have suggested that the pupil not do it.

28. He did not see the accident though he became aware of it almost immediately. Until that point, he could not recall having seen anything about the behaviour of the plaintiff or any of the students which caused him any concern. He agreed that his memory of the event was hazy. After giving a verbal report at the school on the day of the injury, he had not been asked to recall the events again for more than ten years. He was pretty sure that he had taken some classes in technical subjects at Campbell High School prior to the day, and he had been given basic safety instruction by technical studies teachers. He had not had much experience in relation to the machines. He agreed that the sanding machine was quite noisy. He was unaware that the belt was new and very coarse, and was unfamiliar with the grade numbering system for sanding belts. He did not remember having being warned that Year 8 boys had been using the sanding machine inappropriately earlier in the term. It was possible that he had not used the belt sanding machine himself until after the accident.

29. A classmate of the plaintiff, James Brewis, was called in the defendant's case. He was present at the time of the injury and wrote out a short statement for the school the following day. The statement was as follows:

On the 31/8/93 Andrew Parkin was using the belt sander trying to sand down a bit of wood to 5 mm but the gap between the rest and the belt was more than 5 mm apart. The wood fell down the gap and his fingers went down too. He lost quite a bit of skin off the top of his knuckles and the ends of his fingers and then blood went everywhere. He was suffering from shock. The teacher didn't know what to do because he was scared. A lot of kids were also suffering from a little shock. The teacher and Andrew ran out of the room to the front office. It looked like he lost a lot of blood.

30. By the time of the hearing, Mr Brewis, not surprisingly, had little detailed recollection of the incident. He recalled that he was standing second or third in line waiting to use the belt sanding machine after the plaintiff, although he could not remember who else was in the queue. He remembered that the plaintiff's piece of wood was a relatively small one. He remembered Mr McCrohon talking to the class about workshop safety after the accident. It was put to him in cross-examination that the piece of timber went off to the plaintiff's left rather than down the gap. This did not accord with his recollection. He recalled that it seemed to have gone down between the belt and the guard. His recollection was that the gap was greater than five millimetres.

31. The plaintiff tendered a brief report by Mr N J Iverson, a carpenter and joiner with a certificate as a clerk of works and a qualified building foreman. Mr Iverson has been in the building industry for fifty-two years, and has spent about twenty years in a workshop situation using woodworking material. He is now a teacher's assistant at a Canberra school, where he has worked for more than seven years in the woodwork and technology department. He also teaches part-time carpentry courses at a technical college.

32. He was asked to express an opinion about the pitfalls of sanding a piece of timber with the dimensions earlier referred to. His answer was that the piece of timber would have to be supported on the sanding table on its fifteen millimetre edge, and as it was reduced down to five millimetres in thickness, there would be a serious danger of it being carried down the gap between the table edge and the moving belt with a strong chance of fingers being caught there also. He was next asked what were the proper instructions and/or supervision to give to a fourteen year old boy with regard to the use of such a machine. His answer was that the material being sanded should be laid flat on the worktable with fingers well away from the moving belt and that the timber being sanded be large enough not to roll over or fall between the table and the belt.

33. The defendant tendered the school roll for the plaintiff's class for 1993. Term three commenced on 12 July 1993. The plaintiff was away sick on two days, Monday 2 August and Friday 6 August. Otherwise, according to the roll, he was at school every day until the injury, after which he was absent until Monday 25 October 1993. Thereafter he attended school for the rest of the year with the exception of three days off sick.

34. The relevance of the roll is that there were two days early in August 1993 when the plaintiff was not as school, and it may have been on one of those days that Mr McCrohon gave his second set of instructions to the class about safety. Having regard to the fact that the plaintiff gives evidence, which I accept, that he has no recollection of this second safety instruction session, and that Mr McCrohon cannot remember whether the plaintiff was there or not, I cannot be satisfied on the balance of probabilities that the plaintiff was present when the session took place.

35. Ms Margaret Hay has a diploma in occupational health and safety and a graduate diploma in ergonomics. She has worked since 1992 with ACT WorkCover. As an OH&S inspector, Ms Hay prepared a report in September 1995 for the Occupational Health and Safety Council following an inspection of Campbell High School. The inspection was triggered by correspondence received from the plaintiff's solicitors in November 1994 rather than being a response to the incident itself. Ms Hay conducted the inspection on 1 December 1994. She was shown around by Mr Rogers, the teacher previously mentioned. She identified numerous unsafe work practices, procedures and machinery, including lack of emergency stop switches, unguarded and inadequately guarded machinery, insufficient space between machines, lack of awareness of noise levels, lack of clear demarcation between walkways and work areas, some machinery being placed near exists, and, specifically with respect to the sanding machine, that it consisted of two machines powered by the same motor, with no control switch to turn one off while the other was being used. Finally, she reported that no assessment had been carried out to ascertain the necessary ratio of teachers to students for a level of supervision necessary to maintain a healthy and safe environment for students. It appears that both the school and the defendant reacted without much sense of urgency to notices issued by WorkCover, but by the time of Ms Hay's report, all of the notices had been complied with, except for the one requiring an assessment of the student-staff ratio.

36. It does not appear to me that any of the specific shortcomings identified by Ms Hay contributed to the plaintiff's injury except perhaps for the question of the staff-student ratio. Certainly the exposed portion of the sanding belt was unguarded, but it is inherent in the functioning of the machine that that portion be exposed to the operator. I was a little surprised that no one suggested that the risk of injury might have been reduced by the operator wearing gloves of appropriate thickness when using the sander with the fingers close to the belt; but this is not something which the plaintiff alleges should have been provided or required by the defendant. As to the staff-student ratio, Ms Hay, who gave oral evidence, was unaware whether any risk assessment was ever carried out in accordance with her recommendation, and could express no opinion as to what might have been a satisfactory ratio.

37. The principles applicable to a claim by a pupil against a school authority have been set out in a number of relatively recent decisions of this Court at first instance, including Australian Capital Territory Schools Authority v Raczkowski [2001] ACTSC 61 per Crispin J (unreported, 22 June 2001); Hadba v Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn [2003] ACTSC 20 per Connolly J (unreported, 4 April 2003); and Regan v Australian Capital Territory Schools Authority [2003] ACTSC 47 per Connolly J (unreported, 13 June 2003). The principles were summarised in the judgment of Crispin P in the majority decision of the Court of Appeal in Hadba v Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn [2003] ACTCA 25 (unreported, 18 December 2003). The Court of Appeal by majority overturned the decision of Connolly J on the factual question of adequacy of supervision, but did not take issue with his Honour's summary of the applicable principles.

38. The basis of the duty of care was described in the following terms by McHugh J in State of New South Wales v Lepore [2003] 212 CLR 511 at para 136:

In my opinion a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil.

39. In a decision of Gallop J sitting as a judge of this Court, Commonwealth of Australia v Stokes (unreported, 15 November 1996), his Honour in reversing a magistrate's finding of negligence, made the following observations:

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 actually sustained by the plaintiff in the way he sustained it, but a risk of injury 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).

At the commencement of his reasons Gallop J cited with approval the observation of Hodson LJ in Rich v London County Council (1953) 1 WLR 895 at 903 that:

One can supervise as much as one likes, but one will not stop a boy being mischievous when one's back is turned. That, of course, is the moment he chooses for being mischievous.

40. In Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931, the Federal Court of Australia, constituted by Wilcox, Spender and Higgins JJ, upheld an appeal from a judge of this Court who had found the appellant liable for injuries sustained by a student in a playground fight. The appellant's negligence was said to flow from inadequate supervision. On that issue, and on the facts of that case, Wilcox J, with whom Spender and Higgins JJ agreed, said at para 25:

. . . it would require an army of supervisors to prevent any incident that might give rise to a physical injury; an injury might be sustained from something as quick, simple and common as one pupil pushing or tripping up another. It is not uncommon for boys to aim kicks or blows at their fellows, without meaning to cause substantial pain or any injury. Unless an educational authority was prepared to impose a degree of regimentation that would be likely to provoke adverse community reaction, it would be impossible for it to prevent such incidents occurring. An educational authority can, and should, prevent rough `horseplay' incidents going on for a significant time or escalating into a level of violence that is likely, under normal circumstances, to constitute a danger to life or limb: but it seems to me that is all it can do.

41. To return to Stokes and to quote Gallop J further:

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" (Jeffrey v London County Council (1954) 52 LGR 521 at 523.

Questions of practicality and degree must 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] AC 549 at 566.

42. As Crispin P explained in Hadba at para 23, breach of duty is not to be judged by reference to a standard of perceived perfection. It is not enough for a plaintiff to show that there was some action which could have been taken which would have avoided injury, where that course of action is identified with the benefit of hindsight and time for reflection not available to those for whom the defendant is said to be liable. His Honour quoted a passage from the judgment of Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 480 as follows:

Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be `balanced out' before a breach of the duty of care may be found. It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness.

43. Crispin P then quoted the familiar passage from the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved the risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard response to be ascribed to the reasonable man placed in the defendant's position.

44. As Crispin P pointed out in Hadba at para 25, the same principles apply to cases in which the breach of duty of care is said to have been a failure to take reasonable steps to prevent injury in the face of a foreseeable risk.

45. Gallop J in Stokes cited with approval a passage from the judgment of Lane J in Beaumont v Surry County Council (1968) 66 LGR 580 at 585 in the following terms:

. . . it is a headmaster's duty, bearing in mind the known propensities of boys and indeed girls between the [relevant] ages, 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.

46. A similar point was made by Mason J in Commonwealth of Australia v Introvigne (1982) 150 CLR 258 at 269-271:

A school authority owes to its pupils a duty to ensure that reasonable care is taken of them whilst they are on the school premises during 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. . . . The immaturity and inexperience of pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.

47. Crispin P, having cited these authorities in Hadba, went on to say at para 28 that in considering the appropriate level of supervision, a school authority could not rely on an assumption that pupils would adhere to the school rules. It was notorious that on occasions school pupils would engage in activity involving some risk of personal injury.

48. Hadba, like Introvigne and El Sheik, was a case about playground supervision. One can discern in the playground cases a tendency to impose upon a school authority a somewhat lesser duty to supervise than is applicable in a woodwork or metalwork class involving dangerous machinery. Another recent example of that approach can be seen in the decision of the New South Wales Court of Appeal in State of New South Wales v Finnan [2004] NSWCA 314 (unreported, 10 September 2004) in which the Court allowed an appeal where the plaintiff had run a short distance to escape a physical threat by another pupil, leapt a fence and fallen on the other side. There was a teacher supervising in the playground but she did not see the incident. The playground was half the size of a football field. There were some two hundred to two hundred and fifty boys to be supervised. The incident probably occupied no more than twenty seconds.

49. Raczkowski, on the other hand, was a case involving a twelve year old injured by a guillotining machine whilst skylarking during a metalwork class. Crispin J dismissed an appeal from a magistrate which had found the school authority liable and the child not guilty of contributory negligence. Crispin P found that the need for adequate supervision should have been obvious to anyone responsible for the care of twelve-year-old children using potentially dangerous equipment, and noted that on the evidence there was no apparent reason for the teacher not to supervise directly each student's use of the machine. If this had not been possible for some reason, then in his Honour's view it would have been appropriate for the appellant to have stationed some other person, such as a teacher's aide, beside the machine to ensure that children using it would not be subjected to avoidable risk of injury.

50. In the present case, at the time of the incident a relief teacher with minimal experience in woodworking machinery had been given responsibility for a class of about twenty year eight pupils aged about thirteen. He had not been informed that there had been recent incidents involving some of the boys using the belt sanding machine in a way regarded by the permanent teacher as inappropriate and dangerous. He was unaware that a previous teacher about two months earlier had reported in relation to the plaintiff, one of the pupils in the class, that at times he exhibited silly, unsafe behaviour in the workshop, requiring intervention and perhaps likely to lead to a serious accident.

51. There were a number of woodworking machines around the walls of the classroom, and it appears that the system was such that the pupils were at liberty to go to a machine, turn it on and commence to use it without supervision. In the case of the belt sanding machine, it was a very dangerous piece of equipment, the more so because within the last few days it had been equipped with a new and highly abrasive belt. The duty of a school authority to prevent injury to a thirteen-year-old pupil is very much higher than the duty of an employer to prevent injury to an employed tradesman, for example, in the use of a machine. The school, through Mr McCrohon, recognised how dangerous the belt sanding machine was. It seems to me inappropriate to have allowed the class to proceed under the control of a relatively inexperienced generalist relief teacher, expected to supervise about twenty pupils, any one of whom might choose to use any machine around the perimeter of the classroom. Mr McCrohon, an experienced teacher, gave evidence that he would have heard the noise of the machine being turned on. I am satisfied that if Mr McCrohon had been there, he would have seen what the plaintiff was proposing to do and would have stopped him immediately, with the result that the plaintiff would not have been injured. Whilst Mr McCrohon had never experienced a pupil suffering an injury whilst using a belt sanding machine, or even heard of any such injury to a pupil, there is no doubt that he was aware of the dangers involved and the importance of the safety issues.

52. I recognise the pitfalls of wisdom after the event with the benefit of hindsight. I also acknowledge that the injury which befell the plaintiff was a very unusual one, and that a class like the plaintiff's industrial design class might well have been conducted under the supervision of an inexperienced relief teacher on any number of occasions without incident. However, I am satisfied that the risk of the injury suffered by the plaintiff was foreseeable, and indeed was foreseen by Mr McCrohon. To permit the class to go ahead in Mr McCrohon's absence under the control of an inexperienced relief teacher rather than an experienced woodwork or technical teacher (there were others on the staff at the school) was an inadequate response to the risk. I am satisfied that the defendant committed a breach of its duty of care to the plaintiff, and that that breach was the cause of his injury.

53. The contributory negligence pleaded against the plaintiff is said to consist in his failing to abide by oral instructions about the safe use of the sander, and failing to take sufficient care for his own safety in circumstances where he knew or ought to have known of the dangers inherent in working with the sander. I am satisfied that the plaintiff had been informed on more than one occasion of the danger of using the belt sanding machine on thin pieces of timber because of the danger of the timber being dragged down through the gap between the belt and the metal platform or guard. As I said previously, I am not satisfied that the plaintiff was present when Mr McCrohon reinforced this message two or three weeks before the incident, but I am satisfied that he was aware of and understood the risk. The appropriate standard of care is that of a thirteen-year-old child: see McHale v Watson (1966) 115 CLR 199, where a twelve-year-old boy was found not negligent although he had thrown a sharp piece of metal at a post and injured a young girl standing nearby, described as a very foolish act. The plaintiff in Raczkowski was found not contributorily negligent at first instance, and this finding was upheld by Crispin J on appeal. The plaintiff in that case was twelve years old and was using the metalwork machine for the first time. The plaintiff in the present case was a little older and had some eighteen months experience with the machine. It seems to me that he should be regarded as having had some degree of responsibility for his injury, and I assess that degree at ten percent.

54. The plaintiff is in my view entitled to a substantial award of general damages for pain and suffering and loss of amenities. The injury was initially an extremely painful one, and must have amounted to a very frightening experience for a boy of thirteen. The hand was and remains disfigured and deformed. Some have described it as ugly. The plaintiff regarded it as very unattractive and was extremely embarrassed by it, and remains so. It must have been a source of enormous embarrassment to him during his teenage years. He is naturally right-handed, and has had had to teach himself to use his left hand for a variety of tasks. His work involves the use of computers, which he also used extensively as a student. He has had to adopt a modified style of typing with his right hand.

55. He still needs to devote considerable care to the cutting and filing of the fingernails of the right hand, to avoid them catching on fabric. There is concern that he may develop arthritis in some of the finger joints in later years. Indeed, there are already early signs that arthritis may be developing. If his fingers become more painful, he has the option of surgery which would straighten the deviated joints of the fingers and might improve nail quality and growth. Regardless of the outcome of the surgery, his nails will never be normal. The effect of the surgery would be to fuse the affected joints, depriving the plaintiff of any movement at those joints where he retains restricted movement thus far. An indirect effect of the injuries is that the plaintiff puts more pressure on the second joints of the affected fingers, that is the proximal interphalangeal joints, increasing the risk that over the years these joints will be predisposed to the development of arthritis.

56. In my view an appropriate sum to compensate the plaintiff for the injuries by way of general damages is $55,000.00. I apportion $30,000.00 to the past, and allow $7,500.00 by way of interest on that past component.

57. There is no claim for past or future loss of earning capacity. No past treatment expenses have been proved. There is a claim for future expenses in relation to surgery. It seems to me quite likely that the plaintiff will at some time in the future be influenced by increasing pain in the joints to undergo the surgery which has been recommended. I am unable to say how far into the future this might be. The evidence is that the present cost of the proposed surgery on the four fingers would be about $5,000.00. It appears that there would be little if any saving if fewer than four fingers were operated upon during the same theatre session. Allowing for the various imponderables, it seems to me that a proper figure for future expenses is $2,500.00.

58. The damages will accordingly be calculated as follows:

General damages $55,000.00

Interest thereon $7,500.00

Future treatment expenses $2,500.00

Total $65,000.00

59. The total appears to me an appropriate sum to compensate the plaintiff for the impact of the injury upon him.

60. The total must be reduced by ten percent to take account of the plaintiff's contributory negligence. There will be judgement for the plaintiff in the sum of $58,500.00. I shall hear the parties in relation to costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 28 January 2005

Counsel for the plaintiff: Mr R J Mildren

Solicitor for the plaintiff: Meyer Clapham

Counsel for the defendant: Mr J Pappas

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 18, 19 October 2004

Date of judgment: 28 January 2005