In a unanimous decision on 24 August 2016, the New South Wales Court of Appeal dismissed an appeal by Jade Sanchez-Sidiropoulos (the plaintiff) from a judgement of the Supreme Court, which held that St Joachim’s Primary School (the School)[1] had not breached a duty of care that it owed to her when she was injured while playing a game of ‘table soccer’.

The game of table soccer was played on an asphalt basketball court as a warm up to a physical education class being supervised by Amy Luland, a PE teacher. The game involved runners attempting to travel from one end of the court to the other while taggers had to keep one foot on the white lines across the court when attempting to tag them. The plaintiff was a 10 year old student at the School in June 2005 when she collided with another player and fell to the ground, injuring her right wrist. It was not disputed that Ms Luland had not seen the collision occur.

At trial, expert evidence was given on behalf of both parties. The experts ultimately agreed that the game was appropriate if properly supervised for that age group. However, the plaintiff’s expert considered that Ms Luland’s supervision had not been adequate and that not enough instruction had been given prior to the game being played.

At first instance the trial judge found that the evidence did not establish that reasonable care required a different warm-up activity to be undertaken or that Ms Luland’s instructions or supervision of the game were inadequate. The plaintiff appealed the Supreme Court’s finding that the School had not breached the duty of care owed to her.

The Court of Appeal observed the fact that children might collide, fall, trip or stumble for any reason while playing the game was foreseeable and an inherent part of it. The plaintiff’s challenge to the appropriateness of the game having been selected depended on the views taken as to the instructions and supervision provided and how the game was actually played.

When giving evidence at trial, the plaintiff agreed that she had received instructions about playing safely on many occasions but said that on the day of the incident she had not been told to be aware of other children on the court. She did however concede that she already knew this and it was obvious from other games she had played. In light of this, the Court of Appeal found that any failure to give such instructions or directions on the day of the incident would have been causally insignificant.

The trial judge had accepted evidence that falls onto grass, as opposed to asphalt, could also result in serious injury but would cause less abrasion. The Court of Appeal commented that the evidence forming the basis of this finding demonstrated that the danger from the asphalt surface was of an increased risk of abrasion and not the hyper flexion injury of the wrist sustained by the plaintiff. Accordingly, even if it had been accepted that the game should not have been played on an asphalt surface, this was causally immaterial.

The trial judge had held that the State curriculum required 10 year old children to play team games that involved running dodging, weaving and, in some cases, touching and that such games did give rise to risks of collision, falls and injuries. The Court of Appeal considered that there was no basis to find that the selection of the game was inappropriate for 10 years olds. It was satisfied that the plaintiff had not established that the game was dangerous generally or that it exposed her to a risk of injury which could have reasonably been avoided.

In terms of the trial judge’s finding that Ms Luland had been momentarily distracted by something else happening on the court she was supervising, the plaintiff contended that it could be inferred that Ms Luland had been inattentive given that she did not see the collision, did not see the plaintiff for 30 seconds or more and may not have seen her until she was standing again. The Court of Appeal held that, even if Ms Luland had been watching students as they ran, it was difficult to identify any possible causal mechanism by which the incident could have been avoided. No submissions had been made as to how Ms Luland may have been able to intervene had she seen the collision. Even if there had been negligent inattention, this was not established to be causally significant.

The plaintiff also submitted that the trial judge had failed to give proper reasons in explaining how Ms Luland was distracted. Ms Luland’s evidence was that she did not remember what she was doing at the time of the collision and also did not know if she had been distracted. The Court of Appeal held that the trial judge had given reasons for inferring that Ms Luland had been distracted by other events at the time of the collision and that there was nothing in Ms Luland’s evidence that allowed for the point of distraction to be more precisely identified. The trial judge had not erred in inferring from Ms Luland’s evidence as to her practice and the adequacy of her supervision that there was some other event on the court that may have drawn her attention.