State of New South Wales v Mikhael  NSWCA 338
Judgment date: 22 October 2012
|Jurisdiction:||New South Wales Court of Appeal1|
- The question whether, in the circumstances, a reasonable person would take particular precautions is to be considered having regard to the factors in s 5B(2) of the Civil Liability Act 2002 (CLA). This requires the court to consider the probability of the harm occurring and the burden of taking precautions.
- Section 5B(2)(c) of the CLA is not confined only to the economic burden of taking a particular precaution, but may involve factors such as time, distance and communication. Privacy concerns are also relevant.
- The question of causation has to be determined having regard to the factual circumstances in which the duty of care was owed and breached. The court has to be satisfied that the precaution or relevant step that ought to have been taken, would, on the balance probabilities, have averted the harm caused.
The plaintiff brought a claim in negligence in relation to injuries he sustained when he was assaulted by a fellow student, identified as "T", at a state high school on 5 December 2008.
T had been involved in a previous assault following a touch football game some 6 weeks prior to the subject assault. T had struck another student from behind and inflicted injuries sufficient to warrant an ambulance to be called. T was suspended for 4 days, underwent 5 days of monitoring, and a further 20 days of restrictions.
On 5 December 2008, the plaintiff and T were undertaking a French class and were involved in a disagreement over a worksheet that required intervention by the teacher. At the conclusion of the class, the plaintiff stayed behind with the teacher and another student as he was apprehensive of further problems with T.
At the teacher's direction, the plaintiff left the classroom and was hit on the left side of his head by T causing a significant injury including brain damage.
The teacher in charge of the class was also the head teacher for welfare and during the course of giving evidence confirmed that, whilst she was aware of the previous assault, she had not received any formal notification from the school regarding T's propensity to violence following minimal provocation.
The District Court
The initial proceedings were heard in the District Court of NSW by Sorby DCJ. The plaintiff alleged that the defendant had breached its duty of care by failing to, amongst other things, adhere to its own procedures and provide teachers with information regarding the previous assault and T's propensity to violence, even if provoked by a minor event.
His Honour held the defendant had breached its duty of care to the plaintiff and had been negligent in failing to take adequate precautions to prevent harm to the plaintiff and he was awarded $318,288 in damages.
The defendant appealed against the finding of negligence.
Court of Appeal
The appeal was brought by the defendant on the grounds that the primary judge had erred in finding the defendant had breached its duty of care to the plaintiff, had failed to undertake any analysis, and made no finding on causation.
Of particular relevance to the issue of causation, the plaintiff contended that the primary judge should have found that the plaintiff's teacher should and would have taken certain steps to ensure the safety of the plaintiff, but for the defendant's breach of duty by failing to provide certain information to the teacher regarding the previous assault.
Beazley JA delivered the unanimous judgment, with Allsop P and Preston CJ of LEC agreeing.
Breach of Duty of Care
Beazley JA confirmed that it was necessary to consider whether the plaintiff established that the defendant breached the duty of care that was owed to him as a student at the school which, the plaintiff contended, was to ensure that reasonable care is taken of them whilst they are on school premises during ordinary school hours: Commonwealth v Introvigne 2 .
Identification of the risk of harm
Beazley JA noted that in determining a breach of duty of care, s 5B of the CLA requires, amongst other things, that the risk of harm be identified.
The defendant argued, and this was not disputed by the plaintiff, that the risk of harm in this matter was the risk that the plaintiff would be assaulted by T shortly after the class was dismissed unless reasonable precautions were taken to prevent that harm. The plaintiff suggested that the reasonable precaution was to have provided teachers with adequate information of the nature and circumstances of the first incident so that they would be aware of T's propensity for violence in response to minor provocation.
Whether the risk is foreseeable – s 5B(1)(a)
With the particular risk of harm identified, Beazley JA then considered s 5B(1)(a) of the CLA which requires a determination as to whether the risk, described above, is foreseeable.
In this regard evidence was led from the school's principal that T had appeared remorseful following the previous assault and had never engaged in this type of violence before. It was the principal's assessment that the previous assault was a "one off" and denied that T was a student that needed to be monitored. Similar evidence was also given by the plaintiff's teacher who noted that she had dealt with T and the plaintiff following their in-class 'tussle' and thereafter nothing had occurred throughout the remainder of the lesson which caused her concern.
However, Beazley JA, having considered the totality of the evidence and the test set out in Wyong Shire Council v Shirt 3 , found that the evidence did establish that there was a foreseeable risk of harm to students should T be provoked. In coming to this conclusion, Beazley JA noted that T had reacted violently only some weeks prior to the subject assault following a low level of provocation. Whilst the principal's assessment was that T would not offend again, this did not answer the question as to reasonable foreseeability as set out in Wyong Shire Council v Shirt, namely:
"... when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful ..."
Accordingly, Beazley JA concluded that in circumstances where T had severely punched the other student in the previous assault following minimal provocation, the risk that he might do it again, and therefore the risk of consequent harm to other students, was "not insignificant"
Reasonable Precautions – s 5B(2)
Having identified the risk of harm and concluding that the risk was "not insignificant", the next question determined by Beazley JA was whether, in the circumstances, a reasonable person would take the precaution of providing teachers involved with T with the information that he had previously acted violently on minimal provocation, having regard to those factors set out in s 5B(2) of the CLA.
Section 5B(2)(a) requires the court to consider the probability of the harm occurring. It was the evidence of the principal and the plaintiff's teacher that there was a very low likelihood that T would re-offend. However, as noted by Beazley JA, if T did re-offend it was likely, given the seriousness of the previous assault, that the seriousness of the harm would not be insignificant (s 5B(2)(b)).
Section 5B(2)(c) refers to the burden of taking precautions. Beazley JA confirmed that considerations may extend not only to economic concerns but also to factors such as time, distance or communication and the circumstances of each matter must be taken into account.
In the present case, the principal gave evidence relating to privacy concerns, however, conceded that in the circumstances it would have been prudent for teachers to have been told that T had anger management problems. The evidence which had been given by the plaintiff's teacher and the principal indicated that it was important for any teacher involved with T to know that the previous assault had occurred with little provocation and this information was necessary for the purposes of managing the welfare of the students.
Accordingly, Beazley JA concluded that in circumstances where there was a foreseeable risk of harm, the school had failed to take the precaution that both the principal and the plaintiff's teacher (who was coincidentally the head of welfare at the school) considered appropriate in order to take reasonable care for the safety of the students. As such, her Honour found the defendant had breached the duty of care it owed to the plaintiff.
Causation – s 5D
In the District Court decision, his Honour did not appear to give consideration to causation other then to state that the plaintiff's teacher could have separated the desks had she been aware of the circumstances of the first incident.
Beazley JA confirmed that in order to establish causation the plaintiff had to demonstrate that the defendant's negligence in failing to provide its teacher with the full details of the earlier assault, including the minor provocation that had caused it, was a necessary condition of the occurrence of the harm. In other words, the plaintiff was required to establish what his teacher would have done that would have prevented the harm had she been provided with information regarding the earlier assault.
In particular, s 5D(1)(a) required a determination of the probable course of events had the plaintiff's teacher been informed of T's propensity to a violent response if minimally provoked. The onus was on the plaintiff to establish this probable course of events.
In this respect, the plaintiff contended that, armed with the knowledge of the earlier assault, the plaintiff's teacher would have ensured the safety of the plaintiff by:
- leaving the classroom to check whether T was in the near vicinity, in which case she would have been able to observe T and diffuse the situation;
- escorting the plaintiff to a position of safety;
- separating the students following their 'tussle' in the classroom, and counselling T to ensure that his anger and aggression had fully abated and he did not pose a risk to fellow students;
- enquiring whether the plaintiff had any fears for his safety, and thereafter taking the above steps.
The plaintiff accepted that if all that had happened in the classroom was a minor disturbance, then there would be no causal link between the school's omission to inform his teacher of the previous assault and the subject assault. However, the plaintiff contended that there had been an angry exchange with swearing and therefore submitted that the teacher would have realised that T had once again become very angry. Had she known that T could be "set off" and that his reaction could be out of proportion to the incident, she would have done something about it.
In dealing with the above submissions Beazley JA noted that, amongst other things:
- the plaintiff's teacher was experienced and her responsibilities included the position of head of welfare. She was also familiar with T and his general behaviour, and it was noted that T was ordinarily a student who applied himself to his work, was well-behaved, and was generally compliant with directions and instructions. Having dealt with the classroom 'tussle', she made a professional assessment that the incident was over and that there were no ongoing anger management issues with T;
- the principal's assessment was also that T had been an exemplary student up to the time of the first incident and it was her opinion that he would not re-offend;
- the evidence did not suggest that, but for the failure to separate T and the plaintiff, the assault would not have occurred;
- even if the plaintiff's teacher had counselled T following the classroom tussle, the most that could be said is that the outcome might have been different as the plaintiff may have assured the teacher that he was not angry, when in fact he was quietly seething and intent on doing harm to the plaintiff; and
- the plaintiff did not express his fear to the teacher.
In weighing the evidence before her, Beazley JA noted that, in the absence of any other evidence on causation, the plaintiff's teacher was the appropriate person to give evidence as to the hypothetical circumstance with which the plaintiff's case was required to deal. It was imperative for the plaintiff to ascertain from the teacher what she should and would have done had she been provided with the necessary information.
In this particular matter, the plaintiff's teacher was not asked about her actions and neither was the principal examined on the essential matters going to causation.
In the absence of such evidence, Beazley JA, noting that the court is not entitled to speculate as to what the teacher's evidence may have been, therefore concluded that the plaintiff did not establish factual causation. The defendant was therefore successful in its appeal.
Beazley JA noted that had factual causation been established then the plaintiff would have been successful.
This matter serves to confirm the importance of careful examination of witnesses, particularly with regard to issues relating to causation. As Beazley JA noted, the plaintiff's teacher was not asked what she would and should have done had she been provided with sufficient information regarding T's propensity to violence.
The common law test of breach of duty enacted in statutory form by s 5B of the CLA is to be assessed prospectively.
Although s 5B(1)(a) requires a determination as to whether the risk is foreseeable, the common law test stated in Wyong Council v Shirt 4 remains the touchstone for the determination of foreseeability.
As explained by the High Court in Adeels Palace Pty Ltd v Moubarak 5 , the suggestion of a possible outcome should some alternate course have been taken does not satisfy the "but for" test. "But for" causation, enacted in statutory form by s 5D(1)(a) of the CLA requires the court to be satisfied that some step, if taken, would, on the balance of probabilities, have averted the harm suffered by a plaintiff.
1 Allsop P, Beazley JA and Preston CJ of LEC
2  HCA 40
3  HCA 12
5  HCA 49
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