A 20-year-old former student has sued her school for a breach of duty of care after she fell during a physical education (PE) lesson in 2005 and injured her wrist. The ex-student claimed that the injury she suffered at age 10 has since evolved into a condition known as complex regional pain syndrome (CRPS) resulting in her continued suffering and inability to work. Ms JS (the plaintiff) claimed that she is entitled to damages as a result of the school’s negligence. While the judgment does not identify the school, the background of the named defendant suggests it was a religious non-government school.

The school denied all liability throughout the proceedings and the NSW Supreme Court (Court) this week found in favour of the school.

The PE class

In June 2005, the plaintiff and approximately 20 other Year 5 students engaged in a warm-up game of ‘table soccer’ on an asphalt court as part of their PE class. The game, described as similar to Bullrush, was a common warm-up game used in accordance with the 2005 State Sports Curriculum. The game involved students running between two marked lines with ‘taggers’ in the middle attempting to tag the runners. It was during this game that the plaintiff was jostled and fell to the ground, injuring her wrist.

The plaintiff contends that the game should not have been played on asphalt as there was a significant risk of injury if a student was to fall, and that the game itself was inappropriate for children of that age where inadequate instruction and supervision were given.

Reaction to the injury by staff

Ms JS gave evidence of how the injury had changed her schooling life, mainly that she was in such pain she was unable to fully participate in classes. She alleged that she left the school in Year 11 because teachers were insensitive to her condition and that this should be factored into the assessment of damages should the school be found liable. She recounted to the Court instances of bullying and sarcastic comments from teachers in response to the special conditions she required in school, for example that she couldn’t write in class. The judge found that there was inconclusive evidence to suggest that the plaintiff had been forced to leave the school, and cease her high school education, because of such bullying.

The issues before the Court

Essentially, it was for the Court to decide, with the aid of evidence from experts and witnesses, whether the school had breached its duty of care, whether that breach caused the injury suffered by the plaintiff and whether monetary damages should be awarded if causation could be proved.

Instruction and supervision

Tag games were included as a part of the 2005 State Sports Curriculum as a way to enhance students’ physical capacities and to teach them to think ahead about movement patterns and respond in various situations.

The PE teacher taking the class informed the students before the game began that they were to adhere to a code of conduct which included being aware of others, listening to the teacher’s direction and whistle, and that rough play would not be tolerated.

The judge was satisfied that although all of the possible risks of the game were not explicitly detailed to the students, the PE teacher’s instruction was adequate and appropriate for the age of the children and the activity being undertaken.

The PE teacher gave evidence that she did not observe the fall in question and Ms JS claimed that this showed a lack of adequate supervision of the class. The Court considered that the fact that this one incident had not been seen didn’t establish inadequate supervision, given that even in competitive sports, referees miss things that happen on the field all the time.

An appropriate environment

The school had a policy in place that there was to be no running on asphalt or concrete during playtime. This was because of the number of children on the playground in comparison to the number of supervising staff at various break times. The policy didn’t apply to PE classes. The Court heard that many schools in NSW and Qld conduct outdoor games on bitumen and indoor games on timber as a means for meeting their curriculum requirements for PE. The Court found that only some sports, such as rugby, are unsafe to play on these surfaces and that the school did not breach its duty of care by allowing tag games to be conducted on asphalt.

The Court’s decision

Taking relevant medical evidence into account, and the testimony of various witnesses who were also in the 2005 PE class, the Court found that the school was not negligent and had not breached its duty of care. While Ms JS did suffer both physical and psychological injury after the incident, she had recovered from the injuries which were caused by the fall. Further, the plaintiff could not establish that she did in fact suffer from CRPS (as there were numerous inconsistencies in the medical evidence). For example, she reported pain levels of seven out of 10, yet she competed in discus and javelin at a state level and trained two to three times a week for these events.

Crucially, the judge was satisfied that the symptoms the plaintiff now suffers, both physical and psychological, developed independent of the fall in 2005 and that the treatment she received in relation to such symptoms between 2008 and 2011 was unconnected with the fall in PE class.

Reasons for the decision

The Court found that the school was not negligent and therefore not liable to pay any damages to the plaintiff. Her Honour listed the following facts that were determinative of this decision:

• the 2005 fall caused physical injury from which the plaintiff recovered in 6-8 weeks;
• the fall contributed to pain symptoms that the plaintiff received treatment for in 2006;
• the fall did not cause the symptoms that the plaintiff suffered in 2008 or 2011, or the psychological condition she now continues to suffer;
• the plaintiff did not leave the school as a result of bullying by teachers;
• the plaintiff is not at present taking any prescribed pain medication or pursuing treatment; and
• the plaintiff is unemployed and not pursuing any further study but a hand therapist who gave expert evidence could find no reason why she couldn’t find full time employment.

The judge found no reason that, as a result of her fall in 2005, was now incapable of pursuing physical and social activities that she had pursued at the school because of her condition. Also there was no reason why she would be incapable of pursuing education or employment now or in the future.

What is the lesson for schools?

Unfortunately, litigious students and parents are becoming more common these days in both government and non-government schools. We have previously written about former students suing schools for bullying and parents obtaining injunctions to stop the disciplinary actions of a school against their children. While the school in this case was not negligent and did not fail in its duty of care, there are serious financial and reputational repercussions for schools that do.

In this case, the school’s clear code of conduct for students engaging in physical activity acted as documentary evidence that the school understood and discharged their duty of care appropriately. It is important for schools to recognise that although there are unforeseeable risks that may occur from time to time, having policies that identify foreseeable risks, especially in PE activities, and ways to mitigate those risks will help to achieve good school governance.