School PE Head Clash, School Successfully Defends Claim of Negligence

21 October 2021

NSW Department of Education not liable for serious head injuries (including delayed onset of seizures) suffered by student during hybrid sports game.

In Issue

  • The Supreme Court of New South Wales has found the New South Wales Department of Education not to be liable for injuries suffered by a teenage student, who suffered head injuries (experiencing, amongst other things, onset neurological injuries such as seizures), while participating in a ‘hybrid sports’ game during PE.

The background

The plaintiff commenced proceedings for damages for personal injury arising out of a head clash he sustained while playing touch football during a school PE class on 29 June 2012 at Eden Marine High School (the school).

The PE program involved mixing the skills and rules of different games such as AFL, soccer, NRL, touch football, rugby union or league into a new game (the hybrid game). The plaintiff described the game as touch football with added elements from rugby league.

On the day of the accident, it was agreed that the game started with a high ball kick-off. The plaintiff and another student jumped up to intercept the ball to gain possession for their respective team and their heads collided when they were running at significant speed.

Following the accident, the supervising teacher requested that two students assist the plaintiff to the first aid office which was some distance away and he remained there for a short time before being sent back to class.

The plaintiff received minor treatment at the school first aid office (who did not believe the plaintiff had suffered a ‘serious injury’). The plaintiff was eventually cleared to go home, as the school day had by then concluded. His mother was not notified at the time of the injury (or when leaving school) as the plaintiff advised that she was not contactable.

The plaintiff and a friend walked to the bus stop, but the friend then left the plaintiff alone at the bus stop. When the bus arrived, the plaintiff tried to get onto the bus, but fell backwards down the stairs. The bus driver refused to let him on the bus. The plaintiff sat down in the gutter and later wandered towards the beach because he could not get his bearings. At the beach he was met by two of his friends who called his mother, who subsequently picked him up sometime after 5:30pm.

The decision at trial

The plaintiff commenced proceedings in the Supreme Court of New South Wales against the New South Wales Department of Education.

The Civil Liability Act 2002 (NSW) provides, and the defendant pleaded, that there is no liability for harm suffered from the materialisation of an obvious risk of a dangerous recreational activity. The question for the court was whether the risk was one which, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff (who was in Year 9 and 15 years old) exercising ordinary perception, intelligence and judgment. The court noted that “obvious”, under its ordinary meaning and in the CLA, means something which is “clearly apparent or easily recognised or understood”. Whether a risk is obvious is a matter to be determined objectively.

The trial judge found that the plaintiff was a very skilled, experienced, and talented rugby league player who played above his grade in rugby league at the time of the head knock. He had experience playing rugby league and competing for high balls. As a result, the plaintiff would have been able to make a considered decision based on his experience whether it was safe for him to contest the ball or if he should back off. The plaintiff decided that it was safe for him to contest the high ball, and a person in the position of the plaintiff would not have thought that the risk was obvious.

The court then had to consider whether the hybrid game was a “dangerous recreational activity”. The trial judge found that the hybrid game was not dangerous, and that when this type of hybrid game is played, there is a risk that two players may physically collide in the air, but the risk was not a significant one, and the “risk of physical harm” was not significant.

The defences under the CLA having failed, the court had to consider liability under other CLA sections.

It was not disputed that the defendant, a school, owed the plaintiff, a student, a duty of care. In relation to breach, the court noted that the hybrid game played by the top graded males in PE class was supervised by a PE teacher who also acted as the referee. The game was properly controlled and supervised. After considering all of the circumstances, the court concluded that the defendant did not breach the duty of care it owed to the plaintiff.

After reviewing the expert medical evidence, the court found that the head knock did not cause the plaintiff to suffer post traumatic epilepsy. Therefore, the claim also failed on causation, and the trial judge also rejected the plaintiff’s claims that the defendant failed to provide adequate and appropriate first aid care after the incident.

Implications for you

The decision provides further clarity regarding defendant liability issues surrounding schools, teachers, and their students, with the trial judge noting, after reviewing relevant authorities, that while a school has a duty of care in relation to its students, it is not absolutely liable for injuries sustained by pupils while they are under the supervision of their teachers, and is not an insurer of its pupils.

Accordingly, injuries to students at school do not form a no-fault ‘catch all’ source for injury compensation.

Mattock v State of New South Wales (New South Wales Dept of Education) (No 2) [2021] NSWSC 1045

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