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Getting ahead on sporting risks at school; “When games are properly controlled and supervised, allowing children to participate in them is not, in the absence of special circumstances, negligent”

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Introduction

The authors successfully acted for the NSW Department of Education in a crucial case where the NSWSC considered whether a school breached the duty of care owed to a student suffering a serious head injury whilst playing a ‘hybrid’ football game.

Consideration was given to various statutory defences around dangerous recreational activity and also obvious risk; Mattock v State of New South Wales (New South Wales Department of Education) (No 2) [2021] NSWSC 1045.

Principles

  • The inquiry in s5B of the Civil Liability Act asks what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Wyong Shire Council v Shirt (1980) 146 CLR 40.
  • Where an injury is caused by an unfortunate occurrence which reasonable precautions could not have prevented, no breach of duty will have occurred. The mere fact that a serious injury or death may occur while children are playing a game at school will not automatically result in a finding that a breach of duty occurred. The fact that such a devastating result was foreseeable will not necessarily mean that liability is established: see Trustees of the Roman Catholic Archdiocese of Sydney v Kondrajian [2001] NSWCA 308.
  • The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. To succeed, the plaintiff must show that it is more probable than not that, but for the breach, the “particular harm” which materialised would not have been suffered. This involves two elements: “actual causation” and “scope of liability”: see Adeels Palace at [42]; Wallace v Kam (2013) 297 ALR 383.

Background

On 29 June 2012, Daniel Mattock (plaintiff) was a year 9 student at Eden Marie Park High School. He sustained a serious concussion injury when he collided with another student during a game of ‘hybrid’ football, whilst both where jumping to gather / contest a high ball. The game was being played as part of a Physical Education and Sports Studies (PASS) class.

Proceedings were commenced in the Supreme Court of NSW against the New South Wales Department of Education, claiming damages for the school’s alleged negligence in failing to adequately supervise the game, allowing dangerous ‘kicks’ to be used, and for lack of control and management of the game generally. Allegations were also made of alleged inadequate post-incident first aid, but these were largely abandoned at trial and dismissed by the trial judge, Her Honour A/Justice Harrison.

Relevantly, the plaintiff also sought to adduce expert liability evidence which was disallowed due to their expert’s lack of qualifications, unfamiliarity with the Department’s PASS curriculum, and lack of firsthand experience teaching high school sport.

Her Honour agreed with the Department’s expert evidence that the game being played, whilst involviong a ‘hybrid’ mix of NRL and AFL codes, still “fitted nicely” into the PE program at the school.

The judge accepted evidence from the supervising sports teacher that the hybrid game accorded with approved curriculum, was conducted in a “safe manner” , and was “properly controlled and supervised” .

One of the critical observations made by Her Honour was that the plaintiff was a highly competent and experienced footballer, having plated in a top grade at the school, and considered a top student in PE. Indeed, a number of the plaintiff’s friends participating that day went on the play at NRL-level.

Ultimately, Her Honour found that the school has not breached the duty of care that was owed to the plaintiff. Her Honour held:

“The seriousness of the harm needs to be tempered by the social utility of the risk taking pursuant to s 5B(2)(d). When games are properly controlled and supervised, allowing children to participate in them is not, in the absence of special circumstances, negligent.

I take into account the social utility of developing physical fitness and sports skills to PE students at school.

The defendant’s expert Mr Meaney’s opinion is that accidental contact was a possibility and the game played by the students and the supervision by Mr Blair was appropriate.

The risk was foreseeable, the risk of physical harm was insignificant. A reasonable person in the plaintiff’s position was in a position to make a considered decision whether he should contest the high ball (s 5B(1)(a)-(c)).

As to s 5B(2), the reasonable person would have considered the probability of harm and whether he would be injured and the burden of contesting the highball was not burdensome.

In all of these circumstances, it is my view that the defendant did not breach its duty of care it owed to the plaintiff”

Whilst considering the principles involved, the Department’s ‘dangerous recreational activity’ defence was not made out, as Her Honour held that the game was not ‘dangerous’ in the manner it was played and supervised by Mr Blair, holding further that the “risk of physical harm is not significant”.

Similarly, Her Honour did not uphold the Department’s ‘obvious risk’ defence on the basis that the risk of the plaintiff being injured was not immediately obvious to him at the time he jumped for the ball and suffered the accidentally head knock.

Interesting Note

An emerging area in the context of NRL players is post-traumatic epilepsy as a result of an injury. In this case, the plaintiff and defendant’s expert neurologists disagreed as to whether the plaintiff had post-traumatic epilepsy or primary generalised seizure disorder (a disorder with no identifiable cause). The defendant’s neurologist opined that “loss of consciousness and post-traumatic amnesia are two major risk factors for the development of post-traumatic epilepsy.” As to causation, the judge found that the head knock did not cause the plaintiff to suffer post-traumatic epilepsy.

Decision

The plaintiff’s claim in relation to liability under ss5B, 5C and 5D of the Civil Liability Act fails.

The Supreme Court of NSW entered judgment in favour of the NSW Department of Education

Why this case is important

This case reminds us that a school will not breach the non-delegable duty of care it owes its students simply because an injury is sustained while playing an organised school sport.

The Court is required to consider the manner in which the sport was played, the instruction and supervision provided, and that the sport sat within the approved curriculum. The evidence adduced by the Department of Education in this matter addressed each of these issues and demonstrated to the Court that there was no negligence in the way the game was organised and played.

The decision further confirms five ‘pillars’ we suggest be followed to ensure that a school does not breach the non-delegable duty of care owed to students participating in sport:

  1. Ensure the activity is age and skill appropriate for all participants (who do not have to be same age).
  2. Ensure the activity and its rules have been clearly explained and are reinforced.
  3. Evaluate risks and decide on precautions to be taken, provide risk warnings.
  4. Ensure that students are properly supervised.
  5. Ensure the activity has physical, educational or developmental benefits, and is part of the schools’ approved curriculum.

Contributors

Ryan Dorahy
Senior Associate
Michelle Sin
Lawyer

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