“Liability of school to its pupils engaged in recreational activities”: Bujnowicz -v- Trustees Roman Catholic Church [2005] NSWCA 457

Author: Nicholas Gordon

Judgement Date: 21st December, 2005

Citation: Bujnowicz -v- Trustees Roman Catholic Church [2005] NSWCA 457

Jurisdiction: NSW Court of Appeal

In Brief

  • This case involved the liability of the owners of a school for damages arising out of injuries suffered by the plaintiff after he tripped in a pot hole whilst playing touch football.
  • The Court of Appeal overturned the trial judge’s decision and found that the school was liable for not providing a proper response to the risk by way of a system of regular and close inspection of the condition of the playing area.

Background Circumstances

  • The respondent was the owner of the Good Samaritan Catholic College (“the College”).  The College had a recreational playing area of about 100 metres long by 30 – 40 metres wide.  The playing area was rarely used at all before 2001.
  • The playing area suffered from heavy rains on or about 31 January 2001 and was not used for a further week.  On 20 March 2001 approximately 21 students, including the plaintiff, undertook a game of touch football in the playing area.  
  • At one stage the plaintiff went to execute a side step off his left foot when his left foot caught in what he described as a “pot hole”, resulting in him sustaining a badly twisted left knee.  The pot hole was approximately 30 centimetres long and extended 3 or 4 centimetres below its rim.
  • The plaintiff issued proceedings against the respondent for damages arising out of injuries sustained.

District Court Decision

  • The trial judge, Judge Geraghty, found that, on the evidence of the deputy principal, no prior injuries had occurred on the playing area, that she had inspected the general surface of the playing area on an almost day-to-day basis and that she had no reason to suspect that the area was unsafe.
  • The trial judge then referred to the Court of Appeal decision in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 where the Court laid down a number principles the duty of care owed by a school to its pupils.  One of those principles was stated by Ipp J as follows:

“The question of what amounts to reasonable care in a given case must be seen in the context that it is neither practicable nor desirable to maintain a system of education that seeks to exclude every risk of injury”.

  • In finding for the respondent, the trial judge found that, whilst the respondent owed a duty to take such precautions for the safety of its students as was reasonable in all the circumstances:

“However, it seems to me, the area being large, and that any regular inspection would be time consuming, and perhaps expensive, and that in any event, the school had no reason to institute such a system.  There had been no complaints.  In the absence of complaint or any incident, this step, it would seem to me, was not reasonably called for.  If notice of some problem had been given before this incident, the school might have had an obligation, it seems to me, to institute a system to identify such dangers…If the area had been top dressed and levelled, and there had been no prior notice, it seems to me that no reasonable person would require the school to institute such a system of inspection”.

  • The plaintiff appealed to the Court of Appeal.  The Court of Appeal only dealt with the issue of liability.

Court of Appeal Decision

  • Justice Tobias, writing the unanimous decision, noted that the relevant question was “whether, in all the circumstances was it reasonable for the respondent to take the precaution of instituting a system of regular inspections of the surface of the playing area, square metre by square metre, in order to identify any unexpected pot holes or indentations in that surface which, if not remedied, might result in a student who was focused on the game he was playing inadvertently stepping into that hole or indentation and thereby twisting an ankle or knee”.
  • Justice Tobias held that the system in place for identification of any potential risks was “ad hoc”, “hit and miss” and “clearly inadequate for the purpose of identifying depressions, pot holes or indentations of the dimensions of that which caused the appellant’s accident”.  His Honour also noted that the Deputy Principal conceded in her evidence that such a condition constituted a danger requiring identification and remediation.
  • Justice Tobias noted that the principle shown in the case Wyong Shire Council v Shirt (1980) 146 CLR 40 required the Court to balance the magnitude of risk with the reasonable actions of a defendant to eradicate that risk.  In this regard, his Honour noted that the circumstances in this case were “an accident waiting to happen” and that the magnitude of risk “could potentially be extremely serious”.  In relation to the reasonable response part of the Shirt calculus, his Honour disagreed with the trial judge’s findings that the implication of a system to identify risks would have been time consuming and burdensome.
  • In upholding the plaintiff’s appeal, Justice Tobias concluded that:

“The primary judge erred in finding that the reasonable response of the respondent to the foreseeable risk of injury to the students playing touch football from a hole, depression or indentation of the size, shape and depth of that into which the appellant stepped was, in effect, only to take irregular and ad hoc measures which, to say the least, rather hit or miss.  On the contrary, the respondents duty to take reasonable precautions for the safety of its students playing the running sports of soccer and touch football upon the playing area required it to implement a regular system of inspection of that area for the purpose of identifying and remedying holes, depressions or indentations of the nature of those which the Deputy Principal of the respondent regarded as being unsafe for children playing ball sports”.

 


Implications

  • The decision highlights the critical question in terms of breach of duty of care is whether the defendant’s response to a risk of injury is reasonable in all the circumstances, applying the Shirt calculus.
  • The case also highlights the issue that whilst the absence of any prior injuries or complaints, whilst relevant to that part of the Shirt calculus relating to the degree of probability of the occurrence of the risk it is not determinative of the reasonable response of the party sought to be made liable: Roads & Traffic Authority v McGregor (2005) NSW CA 388.