Nguyen Vu Thuy Duong

S3742745

ASSIGNMENT 1 - CASE NOTE

The case note analyzed how Margaret Wilson J judged the case Carswell v
Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane from the
Supreme Court of Queensland on 7 September 2012. This paper would thoroughly
evaluate the identification of the legal issues from the case, identification of the legal
rules utilized by the court and the analysis of judgment made by the judge before
concluding at the end.

The case was a prosecution between Margaret Jean Carswell, the Plaintiff, who
was 53 years old and employed by the Defendant, the Trustees of the Roman Catholic
Archdiocese of Brisbane, who provided social support services. On Wednesday 18
January 2006, the plaintiff arrived at the camp where the CHARM program was
taking place to support the camp in supervising disable children. Each child engaged
in the camp had a carer who was not allowed to leave that child unattended only if
another carer was informed. At that day, she was injured by a ball kicked by JR, a boy
with several disorder problems, a history of dangerous behavior, and potential risk of
injury to the staffs of CHARM. Antoine Chaghoury was JR’s carer, and at the time the
accident happened, he left JR unsupervised. The plaintiff sued the company for her
injury. This led to the case’s main legal issue that whether the Trustees of the Roman
Catholic Archdiocese of Brisbane committed a Tort of Negligence to Carswell when
Chaghoury left JR unattended since the company have vicarious liability for the
commitment made by its employees.

In this case, the Court applied the rule from March v E & MH Stramere Pty
Ltd to analyze the causational relationship between Carswell’s injuries and
1

Defendant’s breach of Duty of Care by using the ‘But for’ test. Besides, the rule
established in Tabet v Gett2 was also implemented to decide whether Carswell provide
sufficient proof since the person seeking compensation is required proof that the
Defendant’s negligence conducts be the reason of the damage.

However, the judge did not follow an appropriate process since she only
determined the causation relationship without proving the existence of Duty of Care
and the Defendant’s breach of Duty of Care. Therefore to answer the legal issue, three

1
(1991) 171 CLR 506
2
(1010) 240 CLR 537
factors including Duty of Care, Breach of Duty of Care and Causation relationship
have to be illustrated.

Firstly, the rule established in O’Connor v Commissioner for Government

Transport should be used to find out whether the Defendant owed the Plaintiff a Duty
of Care. Secondly, to determine the Defendant breached the Duty of Care, the rule
established in Romeo v Conservation Commission of Northern Territory3, Bolton v
Stones4, Paris v Stepney Borough Council5 , Latimer v AEC6 and Watt v Hertfordshire
County Council7 should also be implemented. To see whether Defendant’s conduct
met the Standard of Care four components have to be considered including the
probability, the likeliness of the harm, the cost of taking precautions and the social
utility.

Regarding Duty of Care, the relationship between the Plaintiff and the
Defendant fell within the established categories of Duty of Care, Employers and
Employees. Therefore, the Defendant owed Carswell a Duty of Care and had a
responsibility to guarantee the safety as well as avoid any potential injuries to her.

In terms of Breach of Duty of Care, the probability of the harm is high since
the children played on the grassy area between two building, which was not a proper
football field for playing football. Moreover, the kids were playing without sufficient
supervision of the carers, particularly, Chaghoury, JR’s carer left him unattended. This
makes the change of a person walking across this area be injured by the ball was high
because people might not pay attention as they are not warned whether a game is
happening. Secondly, the likely seriousness of the harm is high since a ball hit anyone
head could cause several damages. When a moving object hits the head, it can cause
concussions, headache, memory problems or dizziness, which could last for many
weeks or even months if too severe (Avitzur 2010)8. The third factors needed to be
considered is the burden of taking precaution. In this case, the cost is low since the
Defendant just needs to prohibit camp’s participants playing the game in this area
which is neither expensive nor infeasible. Last but not least, not sufficiently managing

3
[1998] 192 CLR 431
4
[1951] AC 850
5
[1951] AC 367
6
[1953] AC 643
7
[1954] 1 WLR 835
8
Avitzur, O 2010, “Sports and head injuries—when is it serious?”, Consumer
reports, viewed 12 November 2018,
https://www.consumerreports.org/cro/news/2010/02/sports-and-head-injuries-when-is-
it-serious/index.htm>
the carers is not useful for the society, therefore, Defendant’s conduct has not social
utility. All the factors above contributed to the conclusion that the organization
breached the Duty of Care to Carswell.

To determine the Causation, the Court used the ‘But for’ test, deciding Plaintiff
would still be injured even if the Defendant made any precaution. In this case, if the
Defendant provided sufficient carers to supervise to JR, there would still be a chance
of Plaintiff hit by the ball since the harm was not reasonably foreseeable enough for
the carers to forecast and warn the Plaintiff. As a result, the "But for" test yield a
negative answer that eliminating factors would not make the outcome different.
Moreover, to justified the judgment, the court also mentioned that the Plaintiff did not
provide sufficient proof to prove that the damage caused by the Defendant’s
negligence. There was no evidence about JR’s anti-social behavior and his aim at the
Plaintiff while kicking the ball. Therefore, the Court stated that the Plaintiff failed to
evidence the Defendant’s breach of Duty of Care made her suffer from harm.

The final decision of the court was the Defendant did not commit a Tort of
Negligence to the Plaintiff, therefore Carswell’s claim was dismissed. From my
perspective, although the decisions were accurate, the judge did not follow the
appropriate order and analyse sufficient element to solve the legal issue.