Are schools liable for the risk of harm in sporting activities?

7 minute read  09.09.2021 Michelle MacMahon, Terri Raciti

We discuss a recent decision in the NSW Supreme Court and what this means for the liability of schools in relation to sporting activities.


Key takeouts


  • The decision in Mattock v State of New South Wales (New South Wales Department of Education) (No 2) [2021] NSWSC 1045 was delivered on 19 August 2021.
  • The NSW Supreme Court held that the State of NSW was not liable for head injuries suffered by a student, while participating in a game of touch football.
  • This decision illustrates that schools are not responsible for eliminating all risks of harm to children while engaging in sporting activities.

The decision in Mattock v State of New South Wales (New South Wales Department of Education) (No 2) [2021] NSWSC 1045 was delivered on 19 August 2021. The NSW Supreme Court held that the State of NSW was not liable for head injuries suffered by a student, while participating in a hybrid game of touch football. This decision is important for schools, as it discusses the balancing act required of schools when determining the seriousness of the risk of harm to students. The risk of harm to a student engaged in a sporting activity must be balanced with the social utility of developing and providing physical fitness and sports skills to students.

The 15 year old plaintiff, Daniel Mattock (Mattock), suffered a head knock, while participating in a game of touch football during a physical education (PE) class, at Eden Marine High School (School) on 29 June 2012. The game was being supervised and refereed by Mr Blair, an experienced PE teacher. The game started with a high ball kick-off, following which both Mattock and another student, Callan Sinclair (Sinclair), jumped up to intercept the ball, in order to gain possession for their respective teams. Both of their heads collided while they were running at significant speed, and Mattock reported that he felt Sinclair's teeth going into his left temple.

Mattock commenced personal injury proceedings in the NSW Supreme Court, against the State of New South Wales (New South Wales Department of Education) (State). He alleged that the manner in which the game commenced constituted a risk of harm to him, which was foreseeable and not insignificant. Mattock alleged this was a risk that reasonable persons, in the position of staff at the School, should have taken precautions to protect students from. He alleged that his injury, loss and damage were caused by Mr Blair's negligence.

In addition, Mattock raised a claim of negligence in relation to the School's administration of the first-aid rendered to him following the head knock.

The School was not negligent

The School argued that merely because it (or Mr Blair) failed to take an alternative course, which would have eliminated all risk of harm to Mattock, did not mean it was negligent. The School further submitted the fact that just because a risk was foreseeable and preventable, it did not mean that the School was negligent.

Justice Harrison accepted 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 under the supervision of teachers and 'is not an insurer of its pupils'. The mere fact that a serious injury or death may occur, while children are playing a game at school, does not automatically result in a finding that a breach of duty has occurred. The fact that such a devastating result was foreseeable does not necessarily mean that liability will be established.

Her Honour further noted that every sport or physical activity carries with it a foreseeable risk of injury. Her Honour considered that the seriousness of the harm needs to be tempered by the social utility of the risk-taking activity, pursuant to s 5B(2)(d) of the Civil Liability Act 2002 (NSW) (CLA). Her Honour accepted that games and activities involving potential collisions are 'ordinarily' part of the school curricula. This is the case despite the fact it is foreseeable that participation in sporting activities, even when carefully organised and supervised, can lead to injury.

Ultimately, her Honour held that Mattock could not succeed against the State in circumstances where:

  • it was accepted that accidental contact was a possibility, and the game played by the students under the supervision of Mr Blair was appropriate;
  • the risk of harm to Mattock, while foreseeable, was insignificant; and
  • a reasonable person in Mattock's position was able to make a considered decision about whether he should contest the high ball, the probability of harm, and whether he would be injured.

Obvious risk – minors

Under section 5G of the CLA, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk. This is the case unless the person proves, on the balance of probabilities, that they were not aware of the risk. In this case, the risk of harm was identified as the risk that contesting a high ball kick might result in injury. Her Honour held that the identified risk of harm was the standard of reasonableness to be expected of a 15 year old boy in Mattock's position.

Her Honour noted that, while Mattock was a minor participating in a compulsory PE class, the evidence led at trial revealed that he was a very skilled, experienced, and talented rugby league player. This was particularly true when it came to competing for high balls. Her Honour accepted that Mattock would have been able to make a considered decision, based on his skill and experience, as to whether it was safe for him to contest the ball. Given that Mattock decided it was safe for him to contest the high ball, her Honour held that a person in his position would not have considered that the risk was obvious. Therefore, the State's defence pursuant to section 5G of the CLA failed.

Dangerous recreational activity

The State relied upon the statutory defence contained in section 5L of the CLA. Her Honour accepted that the game being played at the time fell into the category of a 'recreational activity', but considered that the key issue is whether the activity was 'dangerous'.

Her Honour held that, while the risk of physical harm ¬– including a head clash arising from collision between two or more players competing for the ball – was a possibility, the game was not dangerous. Her Honour reasoned that when the game is played through the school PE and sports curriculum, the risk of two players physically colliding is not a significant one. This is because the game is predominantly non-contact, and a physical collision is only possible in a distinct period of the game – the high ball kick-off. Her Honour considered that the risk was, in overall terms, 'very slight'. Consequently, the defence under section 5L also failed.

Causation

Although it was unnecessary to go further, her Honour turned to the remaining elements of the case. She considered the issue of causation to be the most challenging issue. Mattock alleged that, as a consequence of the head knock, he suffered from post-traumatic epilepsy. It was accepted that, as a consequence of the head knock, Mattock suffered a mild, traumatic brain injury. However, the joint report from the neuropsychologists considered that he did not suffer any cognitive impairment.

Her Honour held that Mattock did not suffer a loss of consciousness, or traumatic amnesia, following the incident. If her Honour was found wrong, then this could not have been for more than 24 hours. Her Honour accepted and preferred the peer review evidence of the State. This evidence was that, if Mattock had traumatic amnesia or a loss of consciousness of more than 24 hours, he had less than a 1.2% chance of suffering post-traumatic epilepsy. This means that, while Mattock suffered a mild traumatic brain injury, it did not cause him to develop post-traumatic epilepsy.

Her Honour held that if there was negligence, then it was not an occurrence of the harm. In addition, it was not appropriate for the scope of the School's liability to extend to Mattock suffering epilepsy. Accordingly, his claim in relation to causation pursuant to section 5D of the CLA failed. His claim that the School failed to provide adequate and appropriate first aid also failed.

Implications

We know that sport continues to remain the most common cause of children's injuries requiring hospitalisation in Australia. This decision illustrates that schools are not responsible for eliminating all risks of harm to children, while engaging in sporting activities. This is consistent with earlier Court decisions. Schools can take comfort that when games are properly controlled and supervised, allowing children to participate in them is not negligent – unless there are special circumstances. The level of supervision by teaching staff, the staffs' experience in those specific games, and the experience of students in participating in those games, is important in determining whether a school has breached its duty of care.

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