A student failed to establish liability by a school for a back injury sustained during a long jump activity.
In issue
- Whether a Softfall surface covered by 30cm of sand is a sufficient surface to not expose primary school children engaging in a long jump competition to a foreseeable risk of injury.
- Whether the teachers placed sufficient sand in the pit to ensure the plaintiff was not exposed to a foreseeable risk of injury upon landing.
- Whether the risk of harm from participating in the sport of long jump is an inherent risk.
- The extent of the impact of the injury on the plaintiff’s life.
The background
The plaintiff, a 16-year-old boy, commenced proceedings against the State of NSW, with respect to an incident which occurred while he was participating in a long jump competition in year 6 at Neutral Bay Public School, when he was 11 years old.
The plaintiff and 50 other students were participating in a qualifying long jump competition for the school athletics carnival, which was being supervised by two teachers. The sides and the bottom of the sand pit were made of Softfall, said to be a surface used commonly in modern playgrounds, and the Softfall was covered with 30cm of sand.
Prior to the competition starting, the teachers had topped up the sand in the pit. The teachers were also monitoring and supervising the competition.
Whilst the plaintiff was performing his final jump for the day, he landed feet first and perceived his feet to impact not just the sand, but the hard surface. His feet slipped forward, and he fell backwards, resulting in injury to his back.
The plaintiff’s case was that the State of NSW was vicariously liable for the negligence of its school staff and breached its duty of care to him by failing to take adequate precautions for the risk of injury involved in the long jump activity. The plaintiff also argued that he would suffer a diminution in earning capacity into the future.
In terms of liability, the State of NSW accepted it would be vicariously liable for negligence of its school staff, but denied there had been any breach of duty of care in the circumstances. In the alternative, it was pleaded that the risk, being the risk that anyone involved in long jump type competitions is injured upon landing, is an inherent risk within the meaning of section 51 of the Civil Liability Act 2005 (NSW) (CLA), and there was therefore no liability in negligence for harm suffered by a person in the materialisation of an inherent risk. As to the quantum of the loss, the State of NSW argued that the plaintiff was doing well academically and was an ambitious young man who would not be impeded by his back injury.
The decision at trial
His Honour ultimately found that whilst the injury to the plaintiff’s back was unfortunate, the school had taken reasonable precautions against the risk of a child being injured whilst engaging in the long jump activity by obtaining a new supply of sand, putting further sand in the pit, and having the activity supervised by two teachers. He did not consider the standards expected of teachers at Neutral Bay Public School, when supervising a preliminary long jump event before school to work out which children should compete in the school carnival, should, or could sensibly be compared to what a person in charge of an international athletics meeting might do.
His Honour therefore ruled in favour of the State of NSW (decision on appeal) on this basis. His Honour did not accept the State of NSW’s argument that the risk of being injured whilst landing was an inherent risk of participating in the sport of long jump, as there were precautions available to reduce the risk of this occurring, as were taken by the school in this matter.
His Honour made some brief observations with respect to quantum, in case his decision was incorrect, and agreed with the State of NSW that the plaintiff seemed to be flourishing in terms of his academic and sporting career, and in the circumstances, awarded an amount of 20% for non-economic loss and a nil allowance for the other categories.
Implications for you
- Not all injuries incurred through participating in recreational sporting activities can be classified as inherent risks of the sport for the purposes of section 51 of the CLA.
- There may be no breach of duty of care on the part of a school, in circumstances where the school has taken reasonable measures to ensure the safety of students while participating in a sporting activity.
- International athletics standards may not be taken into consideration for the purpose of determining the standards expected by primary school teachers in supervising recreational sporting activities for the purposes of a school carnival.
