RAMSAY  V  LARSEN(Abridged)

RAMSAY V LARSEN(Abridged)


HIGH COURT OF AUSTRALIA

[1964] HCA 40


RAMSAY

V

LARSEN

Coram: McTiernan, Kitto, Taylor, Windeyer and Owen JJ.

ORDER

Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

McTiernan J.

The judgment and order of the Supreme Court under appeal grants a new trial of the action. The appeal has been brought pursuant to leave to appeal granted by the High Court.

The action arose out of an accident which occurred in the grounds of a school at Peakhurst, Sydney. This is a school which was established and is maintained under the Public Instruction Act of 1880 N.S.W. as amended. Such a school was formerly called a “public school” and by Act No. 51, 1916, is called a “State school”. By s. 3 of the Act of 1880 a teacher employed under the Department of Public Instruction (which by Act No. 46, 1957 may be referred to as the Department of Education) is a civil servant of the Crown. The powers of the Governor under s. 3 of the Act of 1880 to appoint remove and control teachers of schools employed under the Department of Public Instruction are, as is provided in s. 53 of the Public Service Act, 1902, to be exercised by the Governor upon the recommendation of the Public Service Board. At the time of the accident the plaintiff, then twelve years old, was a pupil at the abovementioned school. He was in a class the teacher of which was a Mr. McNally. The action is brought by the boy’s father as next friend against the nominal defendant appointed under the Claims against the Government and Crown Suits Act, 1912 N.S.W.. Under that Act the Government of New South Wales is liable to be sued in an action of tort, ss. 3 and 4: Farnell v. Bowman [1] . The accident which happened to the plaintiff was that he fell from a limb of a tree in the grounds of the State school at Peakhurst during school hours and sustained injuries to his legs and arms. The plaintiff’s declaration in the action alleges: “that before and at the time of the committing of the grievances hereinafter alleged and at all material times the said Government (the Government of New South Wales) by its servants and agents had the care control and management of a certain public school (the State school at Peakhurst) and of the activities which were conducted in the said public school and thereupon the said Government by its servants and agents so negligently carelessly and unskilfully conducted itself in and about the care control and management of the said activities and in and about the failure to provide proper supervision for the activities of schoolchildren in the said school and in and about the failure to restrain the said schoolchildren from engaging in activities which were clearly fraught with danger and in and about the failure to warn the said schoolchildren of the dangers involved in a certain enterprise and in and about the direction of the way in which the said enterprise should be carried out that the plaintiff sustained injury and suffered and will suffer great pain of body and of mind and was for a long time unable to follow his usual occupation and incurred and will incur expense for hospital medical and other treatment and for pharmaceutical supplies and was and will be otherwise greatly damnified”. The defendant’s pleas to the declaration are: (1) not guilty and (2) a plea in these words: “the defendant as to so much of the plaintiff’s declaration as alleges for that before and at the time of the committing of the grievances hereinafter alleged and at all material times the said Government by its servants and agents had the care control and management of a certain public school and of the activities which were conducted in the said public school denies the said allegations and each and every one of them”. The plaintiff joined issue on the pleas. The action was tried before Moffitt A.J. and a jury. At the conclusion of the defendant’s case his counsel asked the trial judge to direct a verdict for the defendant. The application was based on the decision of the Supreme Court of New South Wales in the case of Hole v. Williams [1] . Cullen C.J. and P. W. Street J. (as he then was) decided in that case that in the absence of any regulations framed under the powers conferred by s. 37 of the Public Instruction Act of 1880 a school teacher employed under the Department of Public Instruction in a public school, “in the exercise of his special functions of imparting instruction and maintaining discipline, acts not as the servant or agent of the Government, but in the exercise of an authority delegated to him by the parents of his pupils”. Moffitt A.J. let the case go to the jury and put to them the following questions. (1) Was the school teacher, Mr. McNally, guilty of negligence resulting in the plaintiff falling and being injured? (2) If the answer to (1) is “Yes” was the plaintiff guilty of negligence with regard to his own safety contributing to his falling and being injured? The jury answered “Yes” to both questions. Contributory negligence is under the law of New South Wales a complete defence to an action of negligence for personal injury. Verdict and judgment in the action therefore passed for the nominal defendant, that is for the Government. The evidence given at the trial by the plaintiff and his witnesses differed substantially from that given by Mr. McNally, who called one witness. If the jury had accepted the case made by the plaintiff he was not guilty of contributory negligence, because according to his case the fall was due to his obeying a direction of his teacher. It is a reasonable and probable inference from the jury’s answers that they accepted the evidence of Mr. McNally and the witness, Mr. McMillan, the headmaster of the school. As will be seen from Mr. McNally’s evidence it was open to the jury to take the view that although his intentions were good he gave an order to the plaintiff when he was standing on a limb of the tree which was imprudent in the circumstances. It was said by Lord Esher in Williams v. Eady [2] ” it was correctly laid down by the learned Judge, that the schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster” [3] . See also Rich v. London County Council [4] ; Ricketts v. Erith Borough Council [5] ; and Halsbury 3rd ed. vol. 13, p. 623. Moffitt A.J. directed the jury according to this principle. A motion was made to the Full Court of the Supreme Court on behalf of the plaintiff to set aside the verdict and judgment on the ground of insufficient direction on the issue of contributory negligence. Herron C.J. and Ferguson J. upheld the submission for the plaintiff on this point, Nagle J. dissented. The question was also argued whether the decision in Hole v. Williams [1] , which is quoted above, ought to be followed. The learned judges decided that the decision should not now be regarded as good law. In the result a new trial of the action was ordered. As I have already said this Court gave the defendant special leave to appeal from the order or judgment of the Full Court.

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(1887) 12 App. Cas. 643.

(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

(1893) 10 T.L.R. 41.

(1893) 10 T.L.R., at p. 42.

[1953] 2 All E.R. 376, at p. 379.

[1943] 2 All E.R. 629, at p. 631.

(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

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The facts were as follows. The plaintiff was a pupil in the sixth class at the school, in which all the subjects were taught by Mr. McNally. On 16th December at about 12.45 while the class was at luncheon recess Mr. McNally, whose duties included the supervision of the playground, had his attention drawn to four boys who had climbed a tree in the schoolyard. One of the boys, whose name was Stone, was sitting on a branch of the tree about fifteen feet from the trunk and about fifteen to twenty feet from the ground. The plaintiff was standing on the same branch but against the trunk and the other two boys were at lower heights.

Mr. McNally said in evidence that he had at once told the boys to get down. According to him Stone then said that the boys were attempting to recover keys that belonged to Stone and that had been caught on a branch above that upon which the plaintiff was standing and Stone was sitting. Mr. McNally apparently stood for a short time observing the attempts of Stone and the plaintiff to dislodge the keys. It appears from his evidence that what the plaintiff had done was to loop a piece of cane over the branch above that upon which he was standing and he was shaking it in such a way that if the keys fell from the higher branch they would fall into the hands of Stone. Finally the cane the plaintiff was using broke and, so Mr. McNally says, the boys were ordered once again to come down, and they did so.

The class then reassembled for the period after lunch and the four boys who had climbed the tree commenced work on basketry and handcraft that was to occupy them for the remainder of the afternoon. It appears that the class for that afternoon was divided, one section being in the school building and the other—the basketry class—to which the plaintiff and the other three boys belonged being on the verandah of the school building.

Some time during the afternoon Mr. McNally says his attention was again drawn to the absence of the same four boys from class and he observed that they had again climbed the tree. He says that their positions in the tree were approximately the same as before. The plaintiff, who was near the trunk, was holding on to a “small dead limb or stick which was sticking out from the trunk”.

He told the boys to get down but then almost immediately afterwards he said he told them to stay there while he attempted to throw a rope over the branch on which the keys were resting. He was unsuccessful in this manoeuvre and he asked the plaintiff if he (the plaintiff) could pass the rope over the branch. The plaintiff said that he could and the rope was passed up to him by the two boys who were at lower levels in the tree. As I understand it, the purpose in passing the rope over the branch was to arrange it in such a manner that both ends could be held from the ground where the branch could be shaken much more vigorously and the keys thus dislodged. After one unsuccessful attempt to place the rope in the required position, the plaintiff was able to pass it over the branch so that both ends reached down to the ground.

It is important to describe precisely what took place in the next few moments. Before the plaintiff was asked by Mr. McNally to take hold of the rope and to pass it over the branch above his head, he was standing close to the trunk of the tree but in a slightly crouched position. The reason for this was that the small dead limb or stick which he was holding was lower than he could reach if he was to stand upright. In order to comply with the request of Mr. McNally he removed his hand from the dead branch and placed it on the trunk of the tree. His other hand was above his head arranging the rope.

Mr. McNally’s evidence as to what subsequently took place was this:

Q. What happened then? A. When the rope reached the ground or the end of the rope he was working reached the ground I said “That is good, Frank, now come down”.

Q. Well, what happened? A. I think Frank started to come down. He moved on the branch.

Q. He moved on the branch? A. He moved on the branch.

Q. Was he holding on to the tree or not at this time? A. He had one hand up against the trunk of the tree.

Q. Which way did he move? A. Well, he was facing outwards standing on the branch. He moved to turn in towards the trunk. At least, that is the way it appeared to me and I was standing right underneath where he was.

Q. What happened then? A. Well, I would say that his foot slipped.

Q. What did you see? A. What I saw then was as Frank moved I saw him come off the branch and come straight down at me. He landed, he came down perfectly straight.

Q. He fell on the ground? A. He landed on his feet on the ground right in front of me. In fact I could touch him as he landed and he crumpled over to the right side.

It is undisputed that the tree was a white gum tree, the trunk and limbs of which were smooth. It is also undisputed that there had been some rain and the branches were damp. Mr. McNally’s evidence was that the boy was wearing some type of rubber-soled shoes; he thought they were “gym shoes”. The plaintiff also admits that he knew that climbing trees in the vicinity of the schoolyard was strictly forbidden.

It is argued that upon the evidence given by the defendant, the material parts of which are quoted above, the learned trial judge ought to have directed the jury that they might find against the defendant upon his allegation of contributory negligence. As I understand it, it is put this way. It is apparent that in order to carry out the teacher’s order the plaintiff necessarily had to make some movement. It involved him in releasing his hold on what might be thought to be the relatively safe supporting grip that he had on the dead branch and standing upright so as to be in a position to handle the rope. In doing so he placed his other hand upon the trunk of the tree and thus maintained his position by the pressure of that hand against the trunk.

It was, of course, open to the jury to find upon the defendant’s evidence that the plaintiff had complied with the teacher’s order and that he fell in the act of climbing down from the tree. In that event it was reasonable for them to hold that, although the teacher was guilty of negligence in asking the plaintiff to place the rope over the higher branch, the plaintiff at the time he fell had concluded that operation and that his fall and consequent injury were due to his own negligence in climbing the tree, involving as it did the necessity at some time of having to climb down out of it. But I am of opinion that, upon the evidence given, it was open to the jury to find that the boy’s fall from the tree was caused by the necessity to alter his position on the branch in order to comply with the teacher’s request. After saying that the plaintiff had placed the rope in position, Mr. McNally then said the plaintiff started to come down, but it is quite clear from Mr. McNally’s evidence that at that time the hand by which the plaintiff was supporting himself was still on the trunk of the tree. His first movement after securing the rope is described by Mr. McNally in these words: “Well, he was facing outwards standing on the branch. He moved to turn in towards the trunk. At least, that is the way it appeared to me and I was standing right underneath where he was”. Upon the evidence it was clearly open to the jury to find that the movement back towards the trunk of the tree was no more than a movement to return to the original position the plaintiff had been in before the teacher’s order had been given, that is, to return to the slightly crouched position with his hold upon the dead branch. If the plaintiff had fallen during this manoeuvre then the jury might reasonably find that his fall was due entirely to the negligence of the teacher in giving the order that he did and they could find that the plaintiff was not guilty of contributory negligence.

In my opinion the summing-up was defective in that the jury was not, as I read the summing-up, so directed. I consider that counsel for the defendant did, in substance, ask for such a direction although his request was somewhat obscurely expressed.

In my opinion the decision in Hole v. Williams [1] is not right in so far as it lays down that the Government is not liable to be sued by a pupil at a State school for the negligence of its teacher in the course of teaching and maintaining discipline. It seems that the basis of this decision is that a State school teacher, although a servant of the Crown, teaches his class and maintains discipline in the exercise of a duty created independently of the Crown; not a duty cast upon the teacher by a statutory provision but arising from the delegation by the parents of their own duties to their children in respect of education and discipline while the children are at school or in the care of the teacher. For my part I think that nothing ought to be said which would derogate from so salutary a principle as that a school or a teacher exercises a quasi-parental authority over the pupils while they are at school or in the care of the teacher. Indeed the standard of care owed under common law by a teacher to his pupil is, as shown above, derived from the idea that the school and the teacher are as regards the pupils in loco parentis. However, in my view, a teacher employed by the Department of Education in a State school is in loco parentis only in virtue of his appointment by the Crown as a teacher. The question of the responsibility of the Crown for any civil wrong which the teacher may commit against a pupil depends upon the statutes under which the Government establishes and maintains schools and appoints and controls the headmasters and teachers working in them. First, it is necessary to refer to s. 6 of the Public Schools Act of 1866. This Act was repealed by the Public Instruction Act of 1880. But by s. 1 the powers and authorities vested by s. 6 of the former Act in the Council of Education were transferred to the Department of Public Instruction. As stated above this Department may be referred to as the Department of Education. The Department is administered by a Minister of the Crown. It is clear from the provisions of the Act of 1880 that the Government is authorized to provide public education by establishing and maintaining schools and training and appointing teachers to carry on as servants of the Crown and on behalf of the Department of Education the work of teaching the pupils sent by their parents to these schools. The Minister of Education or the member of the Executive Council acting in his place is in his official capacity the principal in carrying on the work of teaching in which the teachers of State schools are engaged. The appellant relied on the case of Fowles v. Eastern and Australian Steamship Co. Ltd. [1] . The Privy Council decided in that case that although the licensed pilot was a civil servant the Government of Queensland was not his principal in the piloting of the ship. However, their Lordships added: “If they had thought the Government were directed to carry on the business of pilotage, they would have held them responsible for negligence in that business” [2] . This observation of the Privy Council applies in the present case to establish the liability of the Government of New South Wales for the tort of a teacher of a State school committed in the course of his employment; for the Public Instruction Act of 1880 authorizes the Government to provide public education and it carries on this work by civil servants employed under the Department of Education.

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(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

[1916] 2 A.C. 556.

[1916] 2 A.C., at p. 563.

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The appeal should be dismissed.

Kitto J.

The respondent, a boy of twelve and a pupil at a State school in New South Wales, fell out of a tree in the school grounds and was injured. Attributing his injury to negligence on the part of a teacher at the school, he sued the appellant as a nominal defendant on behalf of the State Government for damages.

The action was tried in the Supreme Court before a judge and jury. Specific findings of negligence on the part of the teacher and of contributory negligence on the part of the plaintiff were made by the jury, and on those findings a verdict for the defendant was necessarily returned. The Full Supreme Court by a majority ordered a new trial, holding that the judge had misdirected the jury as to contributory negligence. The defendant appeals to this Court, contending that there was no misdirection and that in any event the Government of New South Wales is not in law responsible for a teacher’s negligence in relation to a pupil.

The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances. It is indisputable that in general a schoolmaster owes his pupil a duty of that order. I see no reason to doubt that in New South Wales, where the Claims against the Government and Crown Suits Act, 1912 subjects the Government to the same liability in tort as if it were a subject, the duty is to be considered as owed by the Government to every pupil in a State school. If, for example, a pupil in such a school suffers harm through a failure by the Government to provide reasonable supervision of “rash little boys who stay alive by luck and Heaven’s favour in this world of tears”, the Government is clearly to be held liable in damages as for a breach of duty owed to the pupil. That is not this case. The teacher was at hand, and there is nothing to suggest that he was not suitable for the task of looking after the pupils in his charge. But the plaintiff’s case is that the Government, having its teacher present and able to intervene while the plaintiff engaged in a dangerous activity, owed him a duty, which the teacher might have performed for it but failed to perform, to exercise a quasi-parental authority to put a stop to the dangerous activity. On that basis the plaintiff seeks damages against the Government as for a tort which it committed by its servant.

It is, I think, clear from the provisions of ss. 53, 54, 55, 56 and 65 of the Public Service Act, 1902-1955 N.S.W. that, as Street J. said in Hole v. Williams [1] , a public school teacher in New South Wales is a civil servant of the Crown and under the control of the Public Service Board for the same purposes and to the same extent as persons in the other branches of the public service. Whether or not it is accurate to describe the relationship between the teacher and the Crown as one of master and servant in the sense in which the common law uses the expression, the Government, as I have said, is answerable in law for the conduct of the teacher if a subject would be liable for similar conduct in similar circumstances by a teacher who was the subject’s servant. Teaching involves the constant exercise of specialized skills and personal discretions, but nevertheless a teacher in a school is normally a servant of the school authority that employs him, and the principle respondeat superior makes the school authority liable in tort for any act or omission of his in his employment which would be a tort if done by the authority itself. Specific authority for this proposition may be found in the passage in the judgment of MacKinnon L.J. in Wardell v. Kent County Council [1] , which this Court approved in Zuijs v. Wirth Brothers Pty. Ltd. [2] .

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(1910) 10 S.R. (N.S.W.) 638, at pp. 656, 657.

[1938] 3 All E.R. 473, at p. 481.

(1955) 93 C.L.R. 561, at p. 570.

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In Hole v. Williams [3] , however, the Full Supreme Court decided that the Government is not to be held liable under the Claims against the Government and Crown Suits Act for a breach by a teacher of his duty of care for the safety of the pupils in his charge. The reason, in essence, was that such a breach is committed within the scope, not of the authority which the teacher derives from the Crown, but of an authority which he derived by direct delegation from the parents of the pupils. Thus the case was decided by analogy to such cases as Tobin v. The Queen [4] and Enever v. The King [5] .

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(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

(1864) C.B. (N.S.) 310, at p. 351 [ 143 E.R. 1148, at pp. 1163, 1164].

(1906) 3 C.L.R. 969.

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Hole v. Williams [3] was a case in which a pupil had been hurt as a result of carelessness on the part of a teacher in the course of giving or preparing to give instruction. The judgments of the three members of the Court assert that in performing the whole function of imparting instruction and maintaining discipline a teacher exercises an authority committed to him personally by the parents, that in so doing he is not under the control of the Government though the Government has appointed him to be the repository of the authority, and that for that reason the principle respondeat superior cannot apply.

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(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

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The doctrine of a delegation of authority by the parent has often been stated as the ground upon which the principle rests that reasonable chastisement of a child by his schoolmaster is justified in law. It necessarily asserts a delegation to the particular person who relies upon the principle as making his action lawful. But the duty to take care of a pupil is not normally the personal duty of the teacher alone. In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a Government or a corporation or an individual, that the school authority undertakes not only to employ proper staff but to give the child reasonable care. The particular teacher who performs the tasks of care and tuition in a State school therefore performs them as a civil servant of the Crown and not on his own account only. It may be suggested, with the support of such cases as Hansen v. Cole [1] and Murdock v. Richards [2] , that a schoolmaster’s power of reasonable chastisement exists, at least under a system of compulsory education, not by virtue of a delegation by the parent at all, but by virtue of the nature of the relationship of schoolmaster and pupil and the necessity inherent in that relationship of maintaining order in and about the school. But even so, there is no ground for concluding that in the work of teaching and taking care of the pupils in a State school a teacher is acting otherwise than in a capacity which, if the Government were a subject, would be that of a servant acting for his master.

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(1890) 9 N.Z.L.R. 272.

[1954] 1 D.L.R. 766, at p. 769.

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No doubt the Supreme Court in Hole v. Williams [3] was influenced by the consideration that the schoolmaster’s duty of care towards his pupils is a correlative of his power of control, and that that power rests ultimately upon his personal right to inflict punishment. But it does not follow from the personal nature of that right that a failure by him to exercise control in the interests of the safety of his pupil in the course of his employment is not to be treated, by force of the Act, as a failure by the Government to perform through its servant the duty of care which it owed the pupil. The Court took as an analogy the position of a hospital authority, and found support for its conclusion in Hillyer v. Governors of St. Bartholomew’s Hospital [4] . The analogy, however, works against the conclusion when the more recent decisions in hospital cases are considered. The duty of reasonable care and skill which a surgeon undoubtedly owes to a patient upon whom he operates in the hospital is a personal duty. Nevertheless, where the surgeon is in law the servant of the hospital authority it is a duty which he undertakes to perform in the service of the hospital, and for his breach of it the governing body of the hospital is liable. It is only when the surgeon is not a servant, when for instance he is brought in for the occasion as a specialist carrying on his profession on his own account, that the hospital is not responsible under the principle respondeat superior. See especially Cassidy v. Ministry of Health [5] .

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(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

[1909] 2 K.B. 820.

[1951] 2 K.B. 343.

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There is ample authority in England for the conclusion that a school authority is liable in damages for a failure on the part of a member of its staff to take due care of a pupil. The cases of Crisp v. Thomas [6] ; Smith v. Martin [7] ; Ricketts v. Erith Borough Council [1] and Carmarthenshire County Council v. Lewis [2] may be mentioned. In my opinion Hole v. Williams [3] is out of line with these cases and should be overruled.

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(1890) 63 L.T. 756, at p. 757.

[1911] 2 K.B. 775.

[1943] 2 All E.R. 629.

[1955] A.C. 549.

(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

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It is not necessary to say very much about the other ground of appeal. The tree, as I have said, was on the school premises. It was a tall tree, one of its lower limbs being fifteen feet or so from the ground. The teacher was alive to the danger that a boy of twelve, unless restrained, might climb the tree and fall from it. According to his evidence—and I shall discuss the matter as if the jury had had before it only so much of the evidence as was most favourable to the defendant—he told the plaintiff not to climb the tree, but while his back was turned the boy disobeyed him and climbed to the limb to which I have referred. He stood on it, close to the trunk, holding on to a dead branch. If he had fallen before the teacher had had time to do anything further, or if the teacher, finding where he was, had at once ordered him down and he had fallen in the course of descending, there would have been no case of negligence on the part of the teacher. But there was in the tree a bunch of keys, caught on a higher branch, and the teacher decided to take advantage of the plaintiff’s presence in the tree by getting him to pass a rope over the higher branch so that it might be shaken and the keys dislodged. The plaintiff got the rope over the higher branch, but the end he threw over did not come down far enough, and the teacher asked him whether he thought he could work it down to the ground. To do so he had to turn outwards from the trunk, release his hold upon the dead branch, and support himself with one hand against the trunk while he used the other hand to deal with the rope. This obviously entailed increased danger of falling, and it was open to the jury to think that the teacher, by allowing not to say suggesting that the danger be incurred, failed to take the care which a reasonable parent in like circumstances would have taken for the plaintiff’s safety. The plaintiff undertook the task and succeeded in it; but then he fell.

On the evidence the jury might think that the precise point of time at which the plaintiff fell occurred as he turned to regain his former position against the trunk, or at least before he had quite regained that position. If so, the teacher’s negligence in allowing him to deal as he did with the problem of the rope was plainly a cause of his injury; and the plaintiff’s own folly in undertaking the feat would be no answer to his claim, for the teacher’s negligence consisted in a failure to take reasonable care to protect him against that very kind of folly which is apt to be exhibited when a boy’s adventurous spirit is unchecked by a more mature judgment than he himself possesses: cf. Halsbury’s Laws of England, 3rd ed., vol 28, par. 14, p. 17. Moreover, there was no evidence that the plaintiff added to the dangers of the exercise by any failure to take reasonable care of himself in performing it. But the learned trial judge directed the jury, in effect, that if they thought it was negligent of the plaintiff to be and remain up the tree, and that that negligence and the teacher’s negligence when he found him there each contributed to the accident, it would be open to them to find contributory negligence on the part of the plaintiff. It would have been correct, I think, to tell them (assuming there was anything in the evidence to support it) that if they thought the plaintiff fell after having safely regained the position in which he was when the teacher intervened they might find either that the plaintiff’s negligence in climbing the tree was the sole cause of his injury or (on the footing that his efforts in dealing with the rope had tired him or so exerted him that he was less able to cope with the difficulties of the descent than otherwise he would have been) that his negligence was a contributory cause of his injury, and that in either event the defendant was entitled to a verdict. But the direction that was actually given went much further than that. It virtually ensured a verdict for the defendant whatever was the point of time at which the plaintiff fell, provided that the jury accepted as a fact that the plaintiff climbed the tree in disobedience of orders. They should have been told that even if he did climb the tree in disobedience of orders the verdict should be in his favour if the jury found that he fell before getting back to the position he was in when the teacher made the suggestion about the rope. It is not correct, I think, to say with the learned dissenting member of the Full Court that the jury might consider it a splitting of hairs to treat the plaintiff’s negligence in climbing the tree as not to some extent responsible for his misfortune. There was a clear distinction to be observed between what the boy did in spite of the teacher’s original instructions and what he did in compliance with the teacher’s suggestion about the rope. The case, in my opinion, was not one in which, as his Honour thought, the plaintiff’s negligence might properly be regarded as “so mixed up with the state of things brought about by the teacher’s negligence that it was a contributory cause of his injuries” [1] . The direction as to contributory negligence cannot be supported.

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(1963) 80 W.N. (N.S.W.), at p. 1638.

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For the foregoing reasons I am of opinion that the Full Court was right in ordering a new trial, and that the appeal should be dismissed.

Taylor J.

This is an appeal from an order of the Full Court which, by majority, directed a new trial of an action in which the present respondent by his next friend claimed damages in respect of personal injuries which he sustained when he fell from a tree in the playground of Peakhurst Public School. The claim was made against the Government of the State of New South Wales and the defendant in the action—the present appellant—is a nominal defendant appointed pursuant to the Claims against the Government and Crown Suits Act, 1912. The claim was so made because it was alleged that the respondent’s injuries had resulted from the negligence of a master at the school and it was contended that the Crown is vicariously liable for such negligence. The validity of this contention is the substantial question for decision on the appeal but a question also arises concerning the adequacy of the directions given by the learned trial judge on the issue of contributory negligence and it is convenient to deal with this point first.

There is no dispute in the case that the respondent sustained the injuries of which he complains when he slipped and fell from a bough of a tree in the playground of the school in question. At the time when he fell, or a moment before, he was engaged in a manoeuvre in an endeavour to recover a bunch of keys which another schoolboy had thrown into the tree earlier in the day. The master who is alleged to have been negligent was standing beneath the tree. He had asked the respondent if he thought he could pass a rope over a bough of the tree higher than the one upon which the respondent was standing. The respondent thought he could and the rope was passed to him and on the third attempt he managed to get one end of the rope over the higher bough. The master then asked the respondent if he thought he could take hold of the loose end of the rope and work it down to the ground. The respondent then essayed this task and pulled the loose end of the rope down to the ground. Immediately thereafter he moved on the bough and slipped and fell to the ground. Before the rope was passed to him he had been standing on the bough near the trunk of the tree and he was holding on to a dead branch. But in order to pass the rope over the higher bough and work the loose end down to the ground he released his hold on the dead branch and stood facing out from the trunk with one hand resting on the trunk. When he had worked the rope down to the ground he moved to turn in towards the trunk and his feet appeared to slip and thereupon he fell. These facts were not in dispute. What is in dispute are the circumstances in which the respondent climbed the tree in the first place. According to the respondent he and another schoolboy climbed the tree in the presence of and at the request of the master in question. This is denied by the master who said that during the lunch hour he found four boys in the tree which, he said, was out of bounds to them, that he called upon them to come down and warned them of the danger to which they were exposing themselves. A little later in the afternoon, having been told something, he went out again to the vicinity of the tree and found that four boys, including the respondent, had climbed the tree and were endeavouring to recover the keys. He spoke to them and reminded them that he had instructed them not to climb the tree and told them that they had better get down. But almost immediately he told them to remain there until he passed a rope up and the manoeuvre then continued in the manner already set out.

In the course of his summing-up the learned trial judge directed the jury, without objection, that in the event of their accepting the version of the facts deposed to by the respondent no question of contributory negligence would arise for their consideration. On the other hand, he said, “if you should accept the schoolmaster’s version and still find that he was guilty of negligence on his own version or part of his own version then it would be open to you in the circumstances I will indicate to consider the question of contributory negligence”. Thereupon his Honour proceeded: “You see if the position were that the boy, contrary to instructions, and in fact after he had been told to get down on the first occasion, climbed this tree, having been told it was dangerous and there was reason for him to see it was dangerous; and having been told to get down, and knowing the school rule not to climb it in any event, if he went up without authority on that second occasion and he, being up there without authority, and then being up there the master permitted him to stay so that he started off doing something wrong, something you jurors found he knew he ought to know was dangerous, having regard to his age, and you then went on and found the master himself was negligent in letting this operation continue; and if you then found that the boy then slipped and fell from the tree in such circumstances that it was negligent of him to have been up the tree and to remain up the tree, and it was negligent of the master to let him continue up the tree, and directed him up the tree; and if you found that the boy’s falling was due to the combined negligence—that each contributed to the accident—then it would be open to you to find contributory negligence on the part of the boy”. In the result the jury found in answer to express questions that the master had been negligent and that the respondent had been guilty of contributory negligence. But prior to this finding counsel for the respondent sought a modification of the charge to the jury on the issue of contributory negligence. In effect, he asked the learned trial judge to instruct the jury that if they found that the respondent slipped and fell whilst he was “actually returning from the operation” which the master had instructed him to carry out, there could be no question of contributory negligence. It will be observed that the summing-up left it open to the jury to conclude that the fact that the respondent had climbed the tree on his own initiative constituted a cause of his injuries and left them free to reach this conclusion in spite of the fact that at the time when he slipped he was doing something necessarily incidental to the carrying out of the master’s instructions. In my view, this was an erroneous direction for whether the respondent had climbed the tree in the first place on his own initiative or not it would not be possible to justify a finding of contributory negligence if the fact was that at the time when he slipped and fell he was carrying out the master’s instructions or doing something necessarily incidental to carrying them out. I am, therefore, of the opinion that his Honour’s direction on this issue was too wide and I agree with the majority of the Full Court that, subject to the matters remaining for discussion, there should be a new trial of the action.

The claim that the Crown is not vicariously liable for the negligence of the master rests upon the decision in Hole v. Williams [1] . In that case the Full Court of the Supreme Court decided that the Crown was not responsible for the negligent acts of a master at a public school which had resulted in injury to a pupil at the school. As I understand the case the basis of the decision, so far as it is relevant to the present case, was that the negligent act complained of was performed by the master in the exercise of an independent discretion vested in him as a schoolmaster or, alternatively, in the exercise of an authority delegated to him by the parents of the injured boy. The first proposition was thought to proceed by way of analogy from the decision in Hillyer v. Governors of St. Bartholomew’s Hospital [2] and the second rested upon cases tending to show that “a parent, when he places his child with a schoolmaster, delegates to him all his own authority, so far as it is necessary for the welfare of the child”: Fitzgerald v. Northcote [1] ; Cleary v. Booth [2] ; Mansell v. Griffin [3] . These cases were concerned with a right of a master to chastise a pupil as also was the later case of R. v. Newport (Salop) Justices; Ex parte Wright [4] and I have some difficulty in seeing how they were relevant to a consideration of the problem which arose in Hole v. Williams [5] . However, neither in the Supreme Court nor in this Court did counsel for the present appellant seek to support the decision in that case on the principles enunciated in Hillyer’s Case [6] . No doubt it was thought, and rightly thought, that the subsequent decisions in Cassidy v. Ministry of Health [7] ; Gold v. Essex County Council [8] and Roe v. Minister of Health [9] made such a task impossible. Nevertheless, it was asserted on the strength of such cases as Enever v. The King [10] and Baume v. The Commonwealth [11] that the duties of a schoolmaster are of such a special character as to involve the exercise of independent authority in their performance in such a way as to make the maxim respondeat superior inapplicable. Additionally what I have called the second proposition upon which Hole v. Williams [5] rested was relied upon by the appellant.

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(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

[1909] 2 K.B. 820.

(1865) 4 F. & F. 656, at p. 689; [ 176 E.R. 734, at p. 749].

[1893] 1 Q.B. 465.

[1908] 1 K.B. 160, 947.

[1929] 2 K.B. 416.

(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

[1909] 2 K.B. 820.

[1951] 2 K.B. 343.

[1942] 2 K.B. 293.

[1954] 2 Q.B. 66.

(1906) 3 C.L.R. 969.

(1906) 4 C.L.R. 97.

(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

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By the Public Schools Act of 1866 a Council of Education was established and invested with authority to establish and maintain public schools and it was given extensive powers in relation to education. In particular, s. 6 of the Act provided that the Council should be entrusted with the expenditure of all sums of money appropriated by Parliament for elementary instruction and should have authority to establish and maintain public schools and to frame regulations for defining the course of secular instruction, the training examination and classification of teachers, the examination of scholars, the discipline to be enforced and observed, and all other matters necessary to be done in carrying out the provisions of the Act. This statutory provision was subject to the proviso that the Council should in all matters be subject to the like control by the Governor and Executive Council as any other department of the Public Service. All regulations framed by the Council were, unless disallowed by the express resolution of both Houses, to have the force of law. This Act was repealed by the Public Instruction Act of 1880 and the Council of Education created by the earlier Act was dissolved. However all the powers and authorities theretofore exercised by the Council were transferred to the Minister of Public Instruction or the member of the Executive Council acting on his behalf. By s. 3 of the later Act it was provided that all persons employed under the Department of Public Instruction should be appointed and removed by the Governor and all inspectors and teachers of schools and all officers acting therewith so appointed should be civil servants of the Crown. Pursuant to s. 5 all schools theretofore established and maintained by the Council of Education as public schools were declared to be public schools under the provisions of the Act. After the expiration of three months from the passing of this Act it became obligatory upon the parents or guardians of all children between the ages of six and fourteen years to cause such children to attend school for a period of not less than seventy days in each half year unless just cause of exemption, as defined, could be shown (s. 20). This latter provision was repealed by the Public Instruction (Amendment) Act, 1916 but the repealed provision was replaced by provisions which required the parent or guardian of any child between the ages of seven and fourteen to cause him to attend regularly a State or certified school. These provisions have since been amended and the present requirement in the Public Instruction (Amendment) Act, 1916-1956 is that a parent or guardian of any child between the age of six years and the school-leaving age shall cause him to attend regularly a State or certified school or a school subsidized under the provisions of the principal Act or the regulations thereunder. The school leaving age is defined by s. 2A of the Act. Teachers in public schools are now under the control of the Public Service Board by virtue of the provisions of s. 53 of the Public Service Act, 1902. This section provides that any power of appointment, dismissal or control of officers conferred upon the Minister, or upon the Minister with the approval of the Governor, or conferred upon the Governor alone under the provisions of the Public Instruction Act of 1880, shall be exercised by the Governor upon the recommendation of the Board, in accordance with the provisions of the Act, and not otherwise, and all officers or persons employed under the provisions of that Act shall be deemed to be under the control of the Board for the same purposes and to the same extent as the other branches of the Public Service to which the Act applies.

It will be seen from a perusal of these statutory provisions that a master in a public school stands in the same relationship to the Crown as any other servant of the Crown who derives his authority from the Crown and who is subject to its control in the course of his employment. But it is claimed upon the authority of the cases earlier referred to that the authority of such a master is, at least in some part, derived, not from the Crown, but from the parents of each child subject to his charge. In my view this notion is completely inconsistent with the statutory provisions the substance of which has been set out. It is not difficult to see how the notion may have developed in earlier times. No doubt an express or implied delegation of parental authority occurred when a child was committed to the care of a tutor. Likewise a delegation of parental authority might well be taken to have occurred when the care and education of a child was voluntarily entrusted to an established school. In such cases the delegation, if not express, would be implied from the contractual relationship between the parent or guardian, on the one hand, and the tutor or the board of management of the school, or other governing authority, on the other hand. But I can see no ground, in the circumstances of the present case, for any implication that any part of their parental rights in relation to the respondent were delegated by his parents when, in compliance with their statutory obligation, and under pain of the penalties prescribed by the legislation, they caused him to attend at a State school where he became subject to the care and authority of masters who, in turn, were subject in all matters to the control of the Crown. But even if grounds existed for thinking that there had been some delegation of parental authority to the Crown it would, I think, be impossible to hold that there was a delegation by the parents of the respondent to any and every master who, from time to time, might have charge of him at the school. The authority of the master must, even on that view, be regarded as having been acquired from the Crown and exercisable in the course of his employment. Ferguson J. in the Full Court dealt with both aspects of this point in the following passage with which I respectfully agree: “Pupils of the prescribed school age attending public schools have, during school hours, been compulsorily removed, by the authority of the Crown, from the protection and control of their parents. In view of that compulsion, by the establishment of public schools for the reception of such pupils, and the provision of teachers to impart instruction and maintain discipline, the Crown must be regarded as having taken over, in respect of the pupils those obligations of which their parents have been deprived, including the obligation to take reasonable care for their safety—an obligation which is to be measured by that care which a careful father would take of his own children. It does not seem to me to be right to say, as was said in Hole v. Williams [1] , that a teacher in maintaining discipline and imparting instruction, is exercising an authority delegated to him by the parents of a pupil, and unless there is evidence of an express or implied delegation I would not think that compulsion provided that evidence. However that may be, I prefer the view that a public schoolteacher in the exercise of his functions as such is exercising an authority delegated to him by the Crown in respect of obligations assumed by the Crown. At common law where a person has assumed a legal duty towards another he cannot escape liability for a breach of that duty by delegating its performance to somebody else. I therefore think that the maxim of respondeat superior applies to the circumstances of the present case” [2] .

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(1910) 10 S.R. (N.S.W.) 638; 27 W.N. 160.

(1963) 80 W.N. (N.S.W.), at pp. 1634, 1635.

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I should add that the view which I have expressed seems to be in accordance with the decision of the Court of Appeal in Smith v. Martin and Kingston-Upon-Hull Corporation [3] where the corporation, as the educational authority for the borough in question, was held liable for the negligence of a teacher at school which had resulted in injuries to a pupil. It is true that the corporation did not seek to contend that the authority of the teacher was an authority derived not from it but by delegation from the parents of the pupil but the decision is plainly contrary to the proposition contended for by the appellant.

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[1911] 2 K.B. 775.

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The appellant, however, maintains that the maxim respondeat superior has no application for the additional reason that the duties of a schoolmaster are of such a character as necessarily to involve the exercise of independent authority in their performance. As already appears it is sought to support this proposition by cases such as Enever v. The King [4] and Baume v. The Commonwealth [5] but there is no analogy between those cases and the present case. That there is no such analogy, so far as the firstmentioned case is concerned, is made abundantly clear by the reasons in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) [6] where it is pointed out that the authority of a police constable, as the holder of a public office, “is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract” [7] . The secondmentioned case, Baume v. The Commonwealth [1] , was a case where it was sought to make the Commonwealth liable for the action of a Collector of Customs in performing a quasi-judicial duty required by the Customs Act to be performed by him personally in the performance of which he was required to exercise independent judgment on a question of fact. At the most it may be said that the nature of the occupation of a master at a public school is such that much must be left to his discretion in the performance of his duties. This is so, however, in the case of a great many occupations but it does not mean that the maxim respondeat superior is inapplicable. As was said in Zuijs v. Wirth Brothers Pty. Ltd. [2] : “The terms of the often repeated statement of Bramwell L.J. are: “A servant is a person subject to the command of his master as to the manner in which he shall do his work”: Yewens v. Noakes [3] . The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters” [4] . In my view the submissions made on this aspect of the appeal should be rejected and, accordingly, I am in agreement with the majority of the Full Court that there should be a new trial.

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(1906) 3 C.L.R. 969.

(1906) 4 C.L.R. 97.

[1955] A.C. 457; (1955) 92 C.L.R. 113.

[1955] A.C., at pp. 489, 490; (1955) 92 C.L.R., at p. 129.

(1906) 4 C.L.R. 97.

(1955) 93 C.L.R. 561.

(1880) 6 Q.B.D. 530, at pp. 532, 533.

(1955) 93 C.L.R., at p. 571.

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Windeyer J.

The argument for the appellant was that the Crown was not liable for the consequences to the plaintiff of the negligence of the schoolmaster. But that, in my opinion, is not so. I agree in what my brother Taylor has written on this aspect, and I do not wish to add anything to it.

The direction concerning contributory negligence given to the jury by the learned trial judge might I think have misled them. I do not think that the facts given in evidence, whichever version be accepted, provide much, if any, support for a finding of contributory negligence. True it is that the boy said in hospital that it was his own fault that he was hurt. He meant, as the context of his remark clearly showed, that if he had not disobeyed the orders that he must not climb trees he could not have fallen from the tree. That is obvious. But, however it came about that he was up the tree, if the schoolmaster adopted and took advantage of his presence there to invite or direct him to attempt to fix a rope, I do not think he could be said to have been guilty of contributory negligence unless his falling was the result of a lack of reasonable care by him for his own safety in the course of performing the task he was asked or directed to perform. And, as I see it, he would be still in the course of performing that task when he was returning from it pursuant to a direction to return.

I agree that the appeal should be dismissed.

Owen J.

I agree that the appeal should be dismissed for the reasons given by my brother Taylor.