The 16-year-old plaintiff and his classmates engaged in a game that involved throwing laptop stands at each other during a class. The teacher reprimanded the students, removed the laptop stands from their possession, and sent one student outside. When the teacher left the room to speak to the removed student, the plaintiff and another student resumed the game until one stand prised apart which exposed a sharp point that penetrated the plaintiff’s eye. The court found the school liable in negligence, however reduced the plaintiff’s damages by 35% for contributory negligence.
The court considered:
- The nature of the duty of care owed by the Minister of Education to the plaintiff;
- Whether the teacher (and therefore the Minister of Education as the defendant) breached the non-delegable duty to take reasonable care for the safety of students; and
- The extent to which the plaintiff was guilty of contributory negligence.
The plaintiff, Mr Sidhoum, was a Year 12 student in a class taught by Ms Sandra Davis. Ms Davis was a highly experienced teacher. Whilst in a class, the plaintiff and two other students (Mr Beer and Mr Stewart) began throwing small laptop stands at each other. Ms Davis confiscated the stands and put them on her desk. Ms Davis then directed the plaintiff, Mr Beer and Mr Stewart to sit on the floor. Mr Stewart became angry, at which point Ms Davis directed him to leave the classroom.
Ms Davis subsequently went outside to speak to Mr Stewart, at which point Mr Beer retrieved the stands from Ms Davis' desk. While the plaintiff looked around for a stand to throw, Mr Beer threw a stand at the plaintiff which broke apart and pierced the plaintiff’s left eye.
The decision at trial
Duty of care
With respect to duty of care, the defendant admitted that it owed the plaintiff a duty to take reasonable precautions to protect him against reasonably foreseeable risks of harm. The court found that the content of this duty is not to insure against injury, but to take reasonable care to prevent it. The duty of care does not require that 16-year-old boys be kept under constant observation and supervision, however it must account for the ‘notorious’ risk-taking behaviour of teenage boys left to their own devices.
Breach of duty
It was alleged that Ms Davis breached her duty by leaving the stands in a visible and accessible location and then leaving the classroom, therefore leaving two of the students who had just engaged in this activity unsupervised and with access to the stands.
The court found that that there was a foreseeable risk that the boys would resume throwing the stands and cause not insignificant injury if left unsupervised and with ready access to the stands. At the time Ms Davis left the classroom, there was an enhanced risk of bad behaviour given that at least 2 of the boys had been forcefully throwing objects and a third had been told to leave the classroom. A student throwing a stand at another student was not a sudden, unprecedented or unexpected occurrence in these circumstances and Ms Davis ought to have taken precautions against this foreseeable risk.
The court concluded that Ms Davis did not take reasonable precautions against this foreseeable risk. The court held that Ms Davis should not have left the stands in a visible and accessible location while the students were unsupervised, immediately after the students had been throwing the computer stands at one another. Furthermore, Ms Davis should not have left the room when she knew that the students had been throwing the stands at one another and when she knew that they could retrieve the stands. The court held that a reasonable person in Ms Davis' position would either have gathered up and taken the stands out of harm's way before leaving the room, or simply not left the room.
Notwithstanding that Ms Davis failed to take reasonable precautions and therefore was in breach of her duty of care, the court also concluded that the risk that injury would be sustained if the students resumed throwing the stands was an obvious risk. As such, the defendant did not owe a duty to warn the plaintiff of that obvious risk.
The defendant contended that, even if Ms Davis had remained in the classroom or permanently confiscated the offending stands, then injury would have occurred in any event having regard to the students’ previous behaviour. The court dismissed this argument, noting that neither student resisted Ms Davis removing the stands, and both students sat on the floor when told to do so.
The court considered whether the plaintiff failed to take reasonable care for his own safety, having regard to what conduct might have been expected from a reasonable person in the plaintiff’s situation, being of the same age and having regard to his ADHD in the context of the peer pressure he was exposed to.
The court held that it was reasonably foreseeable to a person in the plaintiff’s position that resuming the prohibited activity might cause injury. The Court noted that a school's duty requires it to have regard to the possibility of misbehaviour, mis-judgment or sheer stupidity or carelessness on the part of students. While a student’s mere inadvertence or error may not be sufficient to amount to contributory negligence, the court held that the plaintiff’s conduct fell appreciably below the standard of a person acting reasonably for his safety.
With respect to apportionment, the court referred to the plaintiff’s testimony that he would throw the stands “overarm so it would cause as much damage as possible”, and that he understood that getting hit “hurt but [he] knew that that was part of the game”. The court noted the plaintiff’s age, ADHD, associated vulnerability to peer pressure, and reluctance to take Ritalin for various reasons. These factors were balanced against the fact that the plaintiff’s conduct was quite deliberate, protracted and completely inappropriate. The court found that the plaintiff was capable of controlling his behaviours and impulses if he chose to do so. As the plaintiff made the deliberate decision to re-engage in clear defiance of his teacher and not to have regard to the need to protect himself, the court apportioned blame to the defendant at 65% and the plaintiff at 35%.
The court awarded the plaintiff $362,712.50, being 65% of the total quantum assessment of $558,019.24.
Implications for you
Parties should be aware that the duty to take precautions against foreseeable risks is comprised of more than merely a duty to warn of such risks. Liability in negligence may still attach to conduct in circumstances where the plaintiff is knowingly engaging in an obviously risky activity and where there is no duty to warn of that obvious risk.
Education authorities and teachers should also be aware that, notwithstanding that the scope of their duty of care requires them to take precautions against the possibility of a student’s misbehaviour, mis-judgment or carelessness, arguments regarding contributory negligence may still be viable in circumstances where a student has made a deliberate decision to re-engage in an obvious risk in clear defiance of directions.