By Cheyenne Griffiths, Lawyer

Facts:

The Plaintiff brought proceedings against the State of New South Wales, for injuries suffered whilst participating in an athletics activity at Neutral Bay Public School.

On 24 July 2019, the Plaintiff, who was 11 years old at the time of the incident, was participating in long jump, for the purpose of qualifying for the school athletics carnival.

The Plaintiff had participated in three rounds and on his last attempt, alleged his feet impacted with sand as well as the hard surface underneath, causing his feet to slip forward, and subsequently fall on his buttocks and back.

The subject sandpit was located in the infant part of the school and used by kindergarten children outside of athletics season. The sides and bottom of the sandpit were made of softfall playground material, commonly used in parks and playgrounds.

In December 2022, the Plaintiff, in an unrelated incident, again suffered another injury during a sporting activity.

The Plaintiff’s claim:

The Plaintiff alleged the State of New South Wales was vicariously liable for any negligence on the part of either the school or members of the school staff on the basis it failed to take adequate precautions for the risk of injury, being any long jump activity. Ultimately, the Plaintiff’s case was whether or not there was a sufficient amount of sand in the pit.

The Defendant’s response:

The State of New South Wales denied any breach of its duty of care. The State submitted it took adequate precautions by ordering more sand for the pit and the activity was supervised by teachers. The State also questioned the reliability of the Plaintiff’s evidence, asserting it was inherently unreliable on the basis it included lay opinion evidence on measurement and perception as to what he landed on, four years ago and at age 11. At the time the Plaintiff gave evidence, he was 16 years old.

The State also asserted the identified risk of harm, being insufficient sand in the pit, was inherent in the activity and therefore could not be avoided by the exercise of reasonable care.

Key issues:

1. Whether the softfall surface was adequately covered by sand for the purposes of the long jump activity.
2. Was the Plaintiff’s incident a materialisation of inherent risk?
3. If the State of New South Wales breached its duty of care, did it cause any significant injuries or disabilities to the Plaintiff, or at all, if the symptoms were as a result of the unrelated 2022 injury.

Court’s findings:

His Honour found in favour of the Defendant.

Whilst it was not accepted the activity was an inherent risk, His Honour concluded adequate precautions had been taken, which included filling the pit with new sand prior to the athletics season and teachers supervising the activity. His Honour also concluded the softfall material was sufficient to use in the bottom of the sandpit.

His Honour found the Plaintiff’s lay evidence, which was based on his own observations as to the level of the sand in the pit, to be insufficiently reliable to make a positive finding that the amount of sand in the pit was inadequate.

Notably, His Honour concluded the standards expected by teachers in supervising a school long jump event are not akin to international athletics standards.

Though the issue of Quantum need not be decided as a result of the findings on liability, His Honour noted the Plaintiff did suffer injury as a result of the incident and in the event His Honour was incorrect in his findings on liability, stated an award of 20% for non-economic loss and nil for all other claimed heads of damage.

Key takeaways:

1. Whilst sporting injuries are unfortunate and not uncommon, not all injuries will be an inherent risk and reasonable precautions need to be taken.
2. School sporting events and the standard of care required by teachers supervising and organising athletic events for children should not be assessed to the standard of international sporting events.
3. Pleading materialisation of inherent risk under Section 5I of the Civil Liability Act whilst simultaneously pleading adequate precautions had been taken to avoid the subject risk, can result in a positive finding for one of these propositions negating the other.