Teachers will be relieved at last week’s playground case in the High Court.
Typically, school authorities respond to a successful playground-injury cases with extra playground duties all round. The teachers cop it.
But this time the High Court threw out a claim for damages for a girl (then aged eight) injured at St Anthony’s Primary School in Wanniassa.
The ACT Court of Appeal had awarded about $100,000 to Farrah Hadba who had fallen from a – the sort you see next to slides and monkey bars with a fixed steel beam and a sliding triangle.
Playground duty was divided among teachers, each of whom had to supervise areas where it was not possible to see all of the children all of the time. In this case, the teacher turned her back briefly to find out why some older children were inside a classroom during the break, contrary to school rules.
Just then, two students grabbed Farrah by the legs while she was on the flying fox – contrary to school rules. Farrah fell, struck the platform and suffered injuries to her face and teeth.
In earlier times, the court might well have said the school was negligent. It could have said that any playground monitoring arrangement that left any child out of sight of a teacher was negligent. It could have said that the injury was reasonably foreseeable; the school owed a duty of care to the child and it breached that duty resulting in damage.
Indeed, this was the line taken by Justice Michael McHugh, the sole dissenting judge.
He said the system could have been changed to protect the child. The school, as risk maker, should have balanced the risk against the inconvenience of changing the system of playground supervision and should have changed it and the incident would have been prevented.
But he was on his own. In the past five years, the courts have been taking a much more practical line. In the past it has been all too easy to assert an incident was foreseeable and should have been prevented. So easy, indeed, that it appeared the courts were being wise in hindsight and expected people to take unreasonable precautions.
The majority in this case pointed out a few things that would have most teachers applauding. It was too easy to suggest extra supervision by existing staff, it said.
“Teachers, as much as the pupils, are entitled to the benefits of a break from work,” the majority said. “[The school was] entitled to regard it as desirable to secure staff those benefits with a view to teaching being properly conducted.”
Further, teachers had to intervene if students elsewhere in the playground misbehaved – like the other students in the out-of-bounds classroom. If a teacher did not intervene, then the school would be blamed if something went wrong there.
“Teachers . . . cannot be everywhere at once,” the majority said.
Finally, the majority said, “Nor is it reasonable to have a system in which children are observed during particular activities for every single moment of time — it is damaging to teacher-pupil relationships by removing even the slightest element of trust; it is likely to retard the development of responsibility in children, and it is likely to call for a great increase in the number of supervising teachers and in the costs of providing them.”
It was a practical, commonsense approach.
Accidents happen. You cannot automatically expect compensation. There is a limit to how much care a school or anyone else can take. Students can even be injured while under the very eye of teachers. The courts are also now saying that people have to keep a reasonable look out for their own safety.
The trouble is that the new approach has been too long coming. The law moves quite slowly – case by case. And even each case takes an inordinate amount of time. This case, for example, took six years from accident to resolution.
In the meantime, insurance companies have squawked loudly. So loudly, indeed, that they managed to get the politicians to over-react with so-called tort law “reform”. The changes, particularly in NSW, went way to far – denying people compensation when they deserve it. They have taken the form of thresholds and caps on damages and removing liability altogether in some cases.
It was almost a panic in the wake of the 2002 collapse of HIH.
This month, actuary Richard Cumpston said in a report to a Law Council of Australia that public liability claims had dropped to their 2000 levels of about $900 million, while premiums had more than doubled in that time. Insurers are now making their best profits for 10 years – a 19 per cent return on capital. So we are paying for coverage we are not getting.
The Insurance Council of Australia says it is too early to say if the changes have gone too far because personal injury claims have a long tail.
But if the courts were ensuring the common law did not allow unreasonable claims, as the playground case so clearly illustrates, the legislative caps, thresholds and denial of liability were unnecessary.
The only people to have benefited are the insurance companies. They have won on the swings and roundabouts and the politicians should revisit their earlier over-reaction.