In October 2024, the District Court of NSW determined that the State of NSW (State) was not liable for serious injuries sustained by a pupil (Plaintiff) during a long jump event at Neutral Bay Public School's (School) athletics carnival. The primary judge, Newlinds SC DCJ, held that the School had taken all reasonable precautions to minimise the risk of injury to the Plaintiff. However, in June 2025, the NSW Court of Appeal (Court) allowed an appeal of this decision and found in favour of the Plaintiff, confirming that the School was indeed liable for his injuries.

In July 2019, the Plaintiff, an 11-year-old Year 6 student, sustained a lower back injury while participating in a long jump event at School, which was being supervised by two teachers. The Plaintiff alleged that the State had breached its duty of care by failing to ensure a sufficient level of sand in the landing pit, either inherently or due to inadequate raking. While the State denied liability, it accepted that it would be vicariously liable for any negligence on the part of the School, including that of the supervising teachers.

The Plaintiff’s allegations of breach relied on expert evidence that referred to adult competition standards for sand depth in long jump competitions. The State submitted that this was irrelevant, as the base of the pit was made of Softfall material, commonly used to cushion falls. The evidence also indicated that sand was delivered at the beginning of the season and was raked periodically on the day.

The State asserted that the Plaintiff's injury resulted in only minor, temporary discomfort. While acknowledging the Plaintiff’s ongoing back issues, the State disputed that his injuries would have any significant impact on his education or future employment prospects. This was particularly relevant to the assessment of future economic loss.

The Court of Appeal, comprising Mitchelmore and McHugh JJA and Griffiths AJA, unanimously held that the Primary Judge erred in his findings on liability.

In the leading judgment, Griffiths AJA considered that the School failed to take adequate precautions by only raking the sand after every second or third jump. Griffiths AJA also noted the absence of direct evidence supporting the presence of ‘Softfall’ material at the bottom of the sandpit.

The Plaintiff submitted that there was no evidence upon which the Primary Judge could conclude that the bottom of the pit was covered with ‘Softfall’. The only material relied upon for this finding was from a supervising teacher, whose evidence pertained solely to the surrounding surface of the pit. The Court of Appeal accepted that this finding was in error.

There was considerable discussion about the depth of the pit and the adequacy of the amount of sand, both in the District Court and on Appeal. Aside from finding that the depth of sand could not be the level determined by the Primary Judge, the Court of Appeal made several useful comments about the limitations of relying on photographic evidence in the absence of further supporting details regarding the context and parameters of the photographs.

The Court of Appeal also placed significant weight on the Plaintiff's evidence that it was the fifth of six jumps when his feet landed on a ‘hard surface’. This, combined with the sand not being raked after every jump and there being no positive evidence that the base of the pit was made of ‘Softfall’ material, led the Court of Appeal to collectively determine that there was sufficient material available to prove that the School breached its duty of care to the Plaintiff. This breach arose from the failure to implement reasonable precautions against the risk of harm that ultimately materialised. Those reasonable precautions included raking the sand after every jump given the displacement of sand each time a student landed in the pit.

The Court of Appeal also rejected the State's contention that the lack of soft sand was not causative of the Plaintiff’s injuries. It was noted that expert evidence, as well as the cross-examination of expert witnesses, indicated that on the balance of probabilities, a lack of sand in the pit could have caused injuries of the severity sustained by the Plaintiff.

Regarding causation, the State asserted that the Plaintiff’s injuries could materialise from a trivial event, relying on the opinion of the State’s orthopaedic expert. However, this was not accepted by the Court. While the Court accepted that the injuries could be caused by multiple factors, it determined that the critical issue was what actually caused the injury. The medical evidence supported a sudden and traumatic event, consistent with the Plaintiff landing unexpectedly on a hard surface.

As to damages, the District Court found that if liability was established, the Plaintiff would have been awarded non-economic damages equal to 20% of a worst-case scenario, with no other damages entitled for treatment costs or loss of income.

The Court agreed that the Primary Judge’s assessment of non-economic damages was within an acceptable range, despite the Plaintiff arguing this was grossly inadequate. Consequently, the Court ruled that the Plaintiff should also be awarded buffer damages for economic loss, having proved his injuries would likely affect his future earning potential. As such, the decision of the Court increased the Plaintiff’s damages to include $250,000 in future economic loss.

While the decision of the District Court underscored the inherent risks associated with physical activities and sports in schools, the Court of Appeal has exemplified that while schools are not expected to eliminate all risks, they must take reasonable steps to ensure student safety, particularly where the onus of taking such steps is low.

Please reach out to our Insurance team to discuss considerations around duty of care, liability, and causation in school sporting activities, or if you require further advice.