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Liability For Sporting Injuries
(Minter Ellison – “School Law – General Principles”)

At general law, a participant in a sport or game voluntarily assumes those risks of
injury which are inherent in the sport or game. The assumption of risk is evidenced
by participation in the game. Rugby Union for example is a vigorous body contact
sport. A participant in the game must run the risk of even catastrophic injury such as
quadriplegia or death if it can be established that such risks are inherent in the game.
That is not to say, however, that a sporting participant accepts the negligent acts or
omissions of other participants, for the negligence of others cannot truly be said to be
a risk inherent in the game.

The leading and most useful case in the area is Rootes v Shelton 116 CLR 383. There,
the then Chief Justice, Sir Garfield Barwick, said:

“By engaging in a sport or pastime the participants may be held to have accepted
risks which are inherent in that sport or pastime…but this does not eliminate all duty
of care by the one participant to the other.”

Similarly, His Honour Mr Justice Kitto said:

“I cannot think that there is anything new or mysterious about the application of the
law of negligence to a sport or game… the tribunal of fact [is required to] apply the
same kind of questions of fact as arise in other cases of personal injury by
negligence…[you must consider] whether in a situation in which the plaintiff’s
injuries were caused, the defendant owed him a duty to take care not to harm him,
what the extent of the duty was if a duty did exist and what causal relation the
plaintiff must prove between an act of omission by the defendant which was a
breach of the duty and the plaintiff’s injuries.”

To summarise, if a sorting participant is injured in the course of the sporting activity
but not as a result of the negligence of another, there is no liability. Conversely, if
injury is caused by the negligent act or omission of another, liability will arise.

Whether there has been negligence will depend on the particular circumstances of
the case. The rules of the game may be a relevant factor but:




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“they are neither definitive of the existence nor of the extent of the duty; nor does
their breach or non-observance necessarily constitute a breach of any duty found to
exist.” (Barwick, CJ: Rootes v Shelton)

Therefore, whether or not a defendant has breached the rules of the game, is merely
one factor which will be taken into account. For example, head high or spear tackles
are in breach the rules of Rugby Union because such acts are recognised as
dangerous. If a player were injured as a result of a head high tackle, the fact that the
tackle was illegal would be persuasive evidence of negligence. However, not every
breach of the rules would constitute negligence: a player who is off side will not
necessarily be liable for injuries caused to another merely because he or she was off
side.

The application of these principles in the teacher/pupil area must be seen in the
context of the special duty principles discussed above.

There are probably 3 main ways in which an injury can occur in school sports. The
first of these is where a student is injured by the actions of another participant in the
game. This would be the most common cause of injury. In the first instance, it will
be necessary to determine whether the participant/defendant had been negligent in
light of the Rootes v Shelton test. If so, that participant would be liable.

However, whilst the primary reasonability for the injury would lie with the
participant, there are ways in which the liability could arise in the teacher and/or
school. Of course, if a teacher had directly caused the injury, he or she would be
liable and the school would be vicariously liable. In addition, however, the special
relationship between the teacher and pupil makes it incumbent on the former to take
reasonable steps to prevent injuries which are reasonably foreseeable. For example, if
a teacher were aware that a particular student had a propensity to malicious or
aggressive behaviour and used dangerous tactics on a regular basis, it might be
negligent not to protect other pupils from such a student (Richards v State of
Victoria). It might, in certain circumstances be necessary to send such a student
from the field in order to prevent him or her from injuring others. Again, if a teacher
were found to have breached this duty of care, the school would be vicariously
liable.

Over and above this vicarious liability, the school itself has a duty to ensure that it
implements an adequate system to ensure no child is exposed to any unnecessary
risk of injury. Because the school cannot delegate its responsibilities to the teacher, it
must also ensure that it takes steps to prevent injury to the child. For example, if the
school were aware of a pupil likely to harm others, it would also have a duty to take
steps to prevent such a pupil doing so.

The second was in which a player could sustain injury would be as a result of his
own physical unsuitability to either play the sport or to play a particular position in
the game. The decision of Watson v Haines dealt specifically with this situation. It
is almost certain that any teacher or school who now permitted a boy with a long
thin neck to play hooker would be found negligent for any injuries suffered as a
result. The notoriety of the facts of the case is such that all teachers and schools will
be deemed to know of the risks.



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Another example of a possible physical unsuitability is a player who is small for his
or her age. It may be that such a child should not be permitted to play in or against a
team of very large players. Ultimately, however, it must be a matter of common
sense: there is no need to remove a child from a team if there is no risk.

A third possibility of injury may arise as a result of the condition of the school
ground upon which the sport was played. In Nowak v Waverley Municipal Council
& Ors (1984) Aust. Torts Reports 80-200, it was held that the owner of a sports field
(the Council) had failed to ensure that a football field was a fit and safe as far as
reasonable care and skill could make it. In that case, water sprinklers in the field
posed a danger to players. The Rugby League and the Club were also held liable and
the basis of this liability was that the League and the Club had taken it upon
themselves to organise and present football games to be conducted on the field. The
court held that where a person takes it upon himself to do such things, he may be
liable in negligence in respect of the dangers which arise from what he does.

Extrapolating the principles in the Nowak and Introvigne cases, it is clear that a
school has a duty to ensure that its fields and/or sporting equipment pose no danger
to its students. It is also incumbent on the school to ensure that any fields upon
which its students play (whether owned by the school or by some other authority)
are fit and safe for that purpose.

The fact that students play inter school competitions gives rise to the issue of shared
responsibilities. Just as a school cannot delegate its duty to its teachers, it cannot
abdicate that duty to another school. If, therefore, a school knew that its students,
under the charge of an employee of another school, were being exposed to the risk of
injury, it would be negligent not to take steps to intervene to protect its students.

Conversely, a school owes a duty of care to the students of another school playing
upon its premises. For example, the school must ensure its fields are safe for all who
play on them and if one of its employees negligently injures the child of another
school (in the course of his duties), the employing school would be vicariously liable.


School Sports Facilities
(Minter Ellison – “Duty of Care to Schools” – NCISA Conference paper 2000)

Insurance aside, it is clear that a school and its teachers have a duty to ensure that its
fields and sporting equipment pose no danger to its students. A school also has a
duty to ensure that any fields upon which its students play (whether owned by the
school or by some other authority) are fit and safe for that purpose.

If students play inter-school competitions, then the issue of shared responsibility
may arise. Just as a school cannot delegate its duty to its teachers, it cannot abdicate
that duty to another school. If, therefore, a school knew that its students, under the
charge of an employee of another school, were being exposed to the risk of injury, it
would be negligent not to take steps to intervene to protect its students.

Conversely, a school owes a duty of care to the students of another school playing
upon its premises. A school must ensure its fields are safe for all who play on them.



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