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ABOUT JAMES MCINTYRE
James McIntyre has extensive experience advising commercial insurers, self insurers and the Australian
Government in relation to liability claims. James has defended a wide range of liability claims arising from
sports including horse and greyhound racing, mountain biking, motor sport and soccer as well as school
physical education lessons.
James has also spoken on sporting liability issues at an international sports law conference. In addition to
his liability experience, James has worked as an in-house lawyer at Lloyd’s of London.
Level 19, 480 Queen Street | Brisbane QLD 4000
Phone +61 7 3169 4840 jtmcintyre@hwle.com.au | www.hwlebsworth.com.au
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I
n June 2005, the plaintiff, then 10
years old, fell and injured her wrist
whilst playing a form of tag on an
asphalt basketball court during a
school physical education lesson. The
plaintiff was unsuccessful at trial in the
District Court in 2015 and appealed to
the Court of Appeal, contending that
the trial judge had failed to give proper
reasons as to why there had not been a
breach of duty by the defendant. The
plaintiff also attempted to add a further
ground of appeal that the trial judge
had erred in her findings with regard to
the appropriateness of the activity on
the asphalt surface.
The plaintiff had been injured while
playing a form of tag known as "table
soccer" in which the taggers were
required to keep to white lines across
the court whilst runners would attempt
to run from one end the court to the
other without being tagged. The taggers
were required to keep one foot on the
white line and those runners who were
tagged, in turn, became taggers. The
plaintiff was injured when she collided
with another runner and fell on her
right wrist and hip.
There was no dispute that the teacher,
Ms Luland did not see the accident occur.
With regard to the allegations that Ms
Luland and had been distracted or
inattentive, the Court of Appeal noted
that whilst the trial judge had found that
Ms Luland did not see the incident, this
did not amount to negligent inattention.
The Court observed that even if there
had been negligent inattention, it was
not shown to be causally significant
as there had been no evidence at trial
as to whether Ms Luland might have
anticipated the collision and intervened
to prevent it. Consequently, Ms
Luland's failure to notice the incident
was not causally significant.
The Court of Appeal held that the
ground of appeal relating to inadequacy
of instructions was not made out as the
plaintiff had conceded in her evidence
that it was obvious from other games
the class had played that she had
to avoid others moving in different
directions. Consequently, any failure
to give such instructions or directions
on the day of the accident was not
significant.
Similarly, the ground of appeal with
regard to the selection of playing
surface was not made out in view of
the evidence at trial that both a fall
onto asphalt or grass could result in a
wrist injury of the type suffered by the
plaintiff.
The court noted that the plaintiff's
allegation that the game of table soccer
was inherently dangerous and that safer
activities should have been undertaken
could not be pursued. This was because
the possibility of alternative activities
had not been put to the witnesses in
cross-examination at trial.
Accordingly, the plaintiff's appeal was
dismissed.
IMPLICATIONS
The decision is particularly relevant for
schools and clubs organising children's
sporting activities.
The decisions is an important illustration
of how the mere fact that a teacher or
coach did not witness the incident giving
rise to the injury which is the subject of
a claim does not automatically translate
to a finding of negligent inattention.
Like the earlier decision in Uniting
Church in Australia Property Trust
(NSW) v Miller [2015] NSW 320, the
decision demonstrates the importance
of demonstrating a causal connection
between
the
alleged
negligent
behaviour and the subject injury. This is
of critical importance in sporting injury
claims because in a fast moving game,
a supervising teacher, coach or referee
will only have a split second to identify
the hazard and intervene to (possibly)
prevent the injury.
Accordingly, in claims for injury
occurring during fast-moving play,
plaintiffs should be pressed to
substantiate how the teacher, coach or
official could have prevented the injury
in the narrow window of opportunity
open to them.
APPEAL COURT BOOTS OUT SCHOOL 'TABLE SOCCER' CLAIM
The New South Wales Court of Appeal recently dismissed an appeal by a plaintiff who was injured
during a school physical education lesson in Sanchez-Sidiropoulos v Canavan [2016] NSWCA 221.