Student fails to establish that her school owed a non-delegable duty following a hip fracture sustained during a horse-riding program.
In issue
In this recent decision of the New South Wales Supreme Court, Justice Fagan was asked to decide on a number of issues, being:
- Did the first defendant, the Riding for the Disabled Association (NSW), adequately assess the plaintiff’s safety requirements due to her intellectual disability to partake in a horse-riding program?
- Were staff employed by the first defendant classified as volunteers or employed staff and did they breach their duty of care?
- Did the second defendant, the plaintiff’s school, owe a non-delegable duty of care to the plaintiff even if they were not responsible for conducting the horse-riding activity?
The background
The plaintiff, a 10-year-old student at Hunter River Community School, commenced proceedings against the Riding for the Disabled Association (NSW) and the State of New South Wales (in its capacity as the Department of Education), following a fall from a horse during a horse-riding activity at the first defendant’s equestrian complex.
The plaintiff was offered a position by the school to partake in the first defendant’s program which involved a one-hour horse riding session one day per week from June through to November at the first defendant’s equestrian complex.
In response to the offer, the plaintiff’s mother submitted documents noting that the plaintiff suffered from an intellectual disability, physical disability, cerebral palsy, autism and multiple other disabilities. The level of physical support required was noted as ‘high’ in addition to further information that the plaintiff functioned at the level of a 12-month-old from spastic diplegia.
The plaintiff was accepted into the program that commenced on 6 June 2019, and she had attended eight sessions prior to the incident.
On the day of the incident, the plaintiff was assigned one coach and one side walker on the right-hand side for the session. Around 20 minutes into the ride the plaintiff became agitated about her helmet and the ride was stopped. The plaintiff was settled with assistance from the coach, side walker and her teacher. The ride resumed with the plaintiff’s teacher walking closer to the plaintiff and her horse for a short period of time. As the horse turned to the right to head towards the exit gate, the plaintiff slid off the left side of the horse landing on her left knee and left thigh and fractured the left femur.
The plaintiff issued proceedings claiming negligence against the first defendant who was responsible for employing coaches and unpaid volunteers to conduct the riding activity during which the fall occurred. The plaintiff joined the State of New South Wales as the second defendant claiming that she was in the school’s care when she fell from the horse and that they breached their non-delegable duty because of the manner in which the first defendant was conducting the horse-riding activity.
The decision at trial
Plaintiff’s claim against the First Defendant
Justice Fagan found that the first defendant failed to take reasonable care and dismissed the first defendant’s argument that the absence of an additional side walker was not causative of the plaintiff’s fall and injury, as the fall occurred so quickly that side walkers could not have moved to prevent the fall.
Justice Fagan was satisfied that the risk of the plaintiff suffering injury by falling from the horse was foreseeable and significant because the plaintiff needed to keep her feet in the stirrups to maintain balance but was unable to fulfill that requirement reliably by reason of her low intellectual function, distractibility and impulsivity.
Justice Fagan formed the view that a reasonable person in the position of the first defendant would have taken the precaution of assigning two side walkers and directing them to remain near the plaintiff whenever she was on horseback. In the absence of that precaution, the probability of the plaintiff falling was high as she needed her feet in the stirrups for stability and balance, and loss of stirrup security could not be corrected by yelling out an instruction from metres away, it was necessary that a volunteer be near the plaintiff to replace a slipped foot.
Justice Fagan was satisfied that the coach was an employee of the first defendant and was assigned to assess the riders, and allocate volunteers to various roles to accommodate the needs of the riders. The coach also had eight prior sessions to observe the plaintiff’s behaviour while she was horse riding. Consequently, the coach had the opportunity to recognise that a reasonable person would assign two side walkers to remain near the plaintiff.
Justice Fagan also commented that the evidence demonstrated that it was essential for the plaintiff to have side walkers in close proximity as the plaintiff was unable to convey the cause of her upsets or to receive or act upon verbal assurances. When the plaintiff became upset, she would not be able to concentrate on keeping feet in the stirrups and maintaining a secure seat in the saddle and correct posture and balance. The unpredictability of these upsets and the lack of communication by which she could be calmed further demonstrated that it was essential for the plaintiff to have side walkers in close proximity who could maintain the plaintiff’s safety in the saddle by direct physical means with swift reaction.
Plaintiff’s claim against the Second Defendant
Justice Fagan found that the second defendant owed no duty of care with respect to the riding activity as the conduct of horse riding was entirely independent of the school and the school did not play any part in conducting the activity. He was satisfied that the duty was owed by a school only to a child who is in the school’s care, on the school’s premises.
Justice Fagan pointed out that the school did not provide staff to supervise the plaintiff while participating. The role of the teachers on the day was to accompany the plaintiff and her peers through the paddock and along the trail as per the terms of the first defendant’s offer and to resume care of the students when their riding session ended.
Justice Fagan made an analogy between the non-delegable nature of an employer’s performance of its duty to provide a safe system of work and the non-delegable nature of a school’s duty to exercise reasonable care for the safety of children on its premises or otherwise under its control.
Implications for you
- There is no breach of duty of care on the part of a school for an activity that is conducted and run by an independent party where school staff are present in an observatory capacity only.
- The duty of care for a party conducting an activity for minors is complex, particularly when the activity involves children with intellectual and physical disabilities.
- Observations of participant medical conditions and behaviours should be noted when conducting an activity that provides a reasonably foreseeable risk of injury.
Cook v Riding for the Disabled Association (NSW) & Anor [2024] NSWSC 1332
