The Court found, in Stanberg v State of New South Wales [2024] NSWDC 462, that the State of New South Wales (State), in particular Neutral Bay Public School (School), did not breach its duty of care despite the plaintiff suffering a serious injury whilst participating in a supervised long jump event at the school for the purpose of qualifying for the school's athletics carnival.  

In July 2019, the plaintiff, an 11-year-old Year 6 student, sustained a lower back injury during a long-jump activity organised by the School and supervised by two teachers. 

The Plaintiff’s case against the State, in which the State accepted that it would be vicariously liable for any negligence on the part of either the school or members of the school staff, is that the State breached its duty of care to him because the School failed to take adequate precautions for the risk of injury involved in any long jump activity. The Plaintiff’s case boiled down to the proposition that there was not sufficient sand in the landing area, either per se or because the sand was not raked after each jump.

The State denied any breach of duty of care and that the Plaintiff suffered any significant injury which caused him anything other than minor short-lived pain and discomfort. The State accepted that the plaintiff has ongoing back problems but rejected the assertion that they prevented him from participating fully in his school life nor impacted his future life and employment opportunities. 

Evidence in the form of an invoice and delivery docket confirmed that sand was ordered and delivered to the school at the start of the athletics season. Furthermore, the sand was raked periodically throughout the day of the event. The plaintiff's case relied heavily on expert testimony regarding the required depth of sand in long jump pits, referencing standards applicable to competitive events, including the Olympic Games. 

The State submitted that the focus on the amount of sand in the pit may be a distraction noting the bottom of the pit was made of "Softfall" material designed to cushion falls and commonly used in playgrounds. No evidence was relied upon by the plaintiff to demonstrate the "Softfall" material was in any way inadequate.

The Court found that the School was not negligent, notwithstanding the risk was foreseeable, preventable and eventuated causing harm. The judge dismissed the comparison between the standards expected by teachers in supervising a school long jump activity and those of Olympic-level events, noting that the depth of sand in the pit likely met the expert's standards regardless. The Court concluded that the School had taken all reasonable precautions that a reasonable person in its position would have taken.

The Court noted that section 5I of the Civil Liability Act provides that there is no liability in negligence for harm suffered by a person as a result of materialisation of an inherent risk. It was found that whilst there obviously is an inherent risk of injury in the sport of long jump, there were reasonable precautions that could be taken to reduce the chances of the risk eventuating. His Honour pointed to an inherent tension between the defendant pleading materialisation of an inherent risk (where no adequate precautions could have been taken) simultaneously with pleading adequate precautions had been taken, ultimately preferring to decide the matter by the root of a finding in relation to the latter. 

In the event his Honour was wrong in his findings on liability, he noted that the plaintiff did suffer injury as a result of the incident and would have otherwise been entitled to an award equivalent to 20% of a worst case for non-economic loss, with nil for any other heads of damages (including treatment and economic loss).

This ruling underscores the inherent risks associated with physical activities and sports in schools. It highlights that while schools must take reasonable steps to ensure student safety, they are not expected to eliminate all risks. 

In the words of His Honour, "there will always be unfortunate consequences and injuries suffered by children at school or at play, even when there has been every reasonable precaution taken to prevent such outcomes" [at 52]. 

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