Don’t trip up by failing to have a reasonable system of inspection

06 September 2021

A schoolgirl who sustained an ACL injury during a weekend school touch football match failed to establish that it was caused by a hole or depression on the field, and her claim against the local council and the school was dismissed.

In Issue

  • In this case, the court considered whether a plaintiff’s injury was caused by any negligence of the Council or school, specifically whether the knee injury sustained was caused by a pothole on the playing field where a game of touch football took place.

The background

On Saturday 29 October 2016 the Plaintiff, Ms Mersal, a 14-year-old school student of MLC School Burwood (MLC), was playing touch football for her school team at Peakhurst Park, in NSW. The team was part of an inter-school touch football competition organised and run by the Association of Heads of Independent Girls Schools in New South Wales (AHIGS) through its Sports Arm, the Independent Girls School Sports Association (IGSSA). Peakhurst Park is located within the Georges River Council (Council) and is owned by the Council.

The Plaintiff alleged that 5 minutes into the second half of the game she was running, and whilst attempting to sidestep, she felt her legs buckle under her. She alleged her foot got stuck in a pothole or depression in the field, which caused her to rupture her ACL, requiring surgical repair.

The Plaintiff sued MLC and the Council for damages alleging negligence and breach of duty of care. MLC issued a cross-claim against the Council and AHIGS seeking contribution and indemnity.

MLC gave evidence that it distributed a Risk Warning for sporting activities to parents and students by school newsletter and the weekly newsletter. The AHIGS venue coordinator gave evidence she inspected the venue at 7am the morning of the incident which consisted of a visual inspection whilst walking the perimeter of the field. Her inspection checklist of the field revealed that the field was free from potholes and slip hazards and was not slippery. She also displayed a Risk Warning sign.

The Council gave evidence that the field was regularly maintained and inspected and that no defects were recorded relating to the field prior to the incident, including by other organisations who also used the field.

The Plaintiff gave evidence that she did not see the pothole prior to stepping into it. She was not looking for a hole or looking at the ground. After she fell, she did not see a hole as she was in pain. Witnesses of the incident, and those who attended to the Plaintiff subsequent to it, gave evidence they did not see a pothole. The Plaintiff relied upon the feeling or sensation of her foot going into a hole and becoming stuck to establish the presence of the pothole. The Plaintiff submitted that a meter-by-meter visual inspection of the field ought to have been conducted by a person walking the field to avoid safety hazards.

The decision at trial

The court found that on the balance of probabilities the Plaintiff failed to establish that her injury was caused by a pothole or depression in the surface of the field and that she did not prove that her injuries were a result of any breach of duty of MLC or the Council. Although not necessary, the court considered the possibility that a pothole did exist in the dimensions suggested by the plaintiff, and whether the plaintiff established on the balance of probabilities that any such hole would have been detectable upon a reasonable inspection of the playing surface of the field. In the court’s view, there was no evidence to support a finding that a reasonable person in the position of the defendants (or AHIGS) would have taken precautions to prevent it from causing injury, because it could not be found on the balance of probabilities that the hole would have been discovered by any reasonable system of inspection by either of the Council, MLC (on the assumption it had such an obligation) or AHIGS.

The Plaintiff failed to convince the court that MLC and the Council’s system of inspection was not sufficient, and that an alternative system of inspection would have reasonably discovered the pothole. Since the claim failed, the cross claim was dismissed.

Implications for you

The case highlights the importance of having clear and considered systems of inspection and maintenance to identify and avoid safety hazards for those involved in community and school sports and emphasised the significance of complete record keeping in discharging an organisations’ common law duty of care owed to individuals partaking in sports.

Mersal v Georges River Council [2021] NSWDC 395

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