High spirits and derring-do: the right to play and be safe

'It's ridiculous. What's the world coming to when kids can't do handstands and cartwheels at lunch time?' So the parent at Drummoyne Public School said in challenging a ban on handstanding, cartwheeling students. Unsupervised 'playground acrobatics' are a safety matter, said the NSW Education Director-General, responding to questions from AAP. The ban was a matter for the individual school to impose or not, the Director-General advised, with issues to be resolved between the school and parents.

In Drummoyne, 250 parents and supporters signed a protest petition seeking return of handstanding, somersaulting, cartwheeling children to the playground during recess and lunchtime. Meanwhile, the State Schools Sports Unit said that for such activity to proceed, 'specialised supervision of a trained gymnastics teacher with the correct equipment mats …' was a 'must'. Apparently 'lesson breaks' are not for leaping, whirling, standing upside down or flying head-over-heels, although running, it seems, is allowed.

That fear of litigation was at the heart of the matter was ruled out.

Nonetheless, schools and other authorities with responsibility for minors do appear as defendants in law suits. Care of children and liability of authorities arise in a multiplicity of circumstances (not only with schools and schooling), cases going before the courts and on appeal illustrating children's ingenuity for play and lawyers' ingenuity for arguments about liability.

At the same time, provision of playgrounds and the opportunity for children to participate in organised inter and intra-school sports, excursions and free-play amongst themselves are as vital a part of schooling as are lessons, library periods, and study-time. The UN Convention on the Rights of the Child by Article 31 recognises children's rights to 'engage in play and recreational activities appropriate to the age of the child ...' as well as encouraging the provision of 'appropriate and equal opportunities for … recreational and leisure activity'.

Yet often, children are restricted in these activities because schools, education authorities, teachers and teaching assistants fear 'the law' and their liability should 'something' 'go wrong' in the playground, on the sporting field, or outside school on organised trips or sightseeing and educational tours. How realistic is the concern?

In one UK case, Harris v. Perry, the parents of triplets celebrating their tenth birthday hired an inflatable bouncy castle and bungee-run. Living next-door to a school, they sought permission to have the play equipment erected on the school field adjoining their property. This having been duly gained and done, they allowed the party invitees free rein. Meanwhile, the school football team was concluding a coaching session for eleven-year-olds on the school ground – at the other end of the field harbouring castle and bungee inflatables. One of the football-boys asked his father's permission to join the inflatables play, which by that time was well-advanced. Ignoring his father's 'no', together with a friend the boy walked up the field, secured an invitation, joined the party, and climbed onto the bouncy castle.

Somersaults were in progress. Securing a spot at the apex of a bouncy castle turret, the boy executed a somersault. He landed on his back. An older and far heavier boy did the same – landing not upon his own back but upon the other boy's forehead, causing brain injury.

Were the triplets' parents, the Perrys, liable? The contention was that Mrs Perry, in running the party, failed to:

• maintain continuous supervision;
• forbid children from somersaulting;
• ensure that at any one time, inflatables were played on by children of similar height and weight only.

Initially, the boy was awarded damages for breach of each such duty of care. On appeal, however, this ruling was overturned. The standard to be applied, said the court, was that which a 'reasonably careful parent' would show for their children. This standard would apply to any other reasonable provider or supervisor of equipment such as the inflatables at the Perrys' children's party. A 'reasonably careful parent' would not be required to exercise care by way of continuous supervision, banning of somersaulting, or restricting play on inflatables to physically and physiologically comparable children at any time.

In delivering judgment, the Chief Justice observed it is 'impossible to preclude all risk that, when playing together, children may injure themselves or each other, and minor injuries must be commonplace'. This applied to activities on the home ground as well as those under the aegis of a school or other educational authority. It has been interpreted as meaning that whilst risks must be reduced by supervisors 'to an acceptable level', pupils cannot be 'smothered in cotton wool' so as to rule out 'every minor injury', whilst pupils 'of all ages (even those of three or four) should take a certain amount of responsibility for their own safety and behaviour'.

Yet the court also acknowledged that circumstances could arise or exist where a failure to exercise constant supervision could equate to 'unacceptable risk', so substantiating a claim of negligence.

Just such a situation arose in Australia, Introvigene v The Commonwealth ultimately decided by the High Court in the claimant's favour. Justice Murphy held that in providing schooling, the educational authority takes on non-delegable duties, namely, to take all reasonable care:

• to provide suitable and safe premises;
• to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and
• to see that the system is carried out.

In regard to providing 'suitable and safe premises', said Justice Murphy:

The standard of care must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards.

Here, unlike the Harris inflatables, the 'play equipment' was not conventional, nor provided for playground activity. Rolando Introvigene was in a group deciding that, because no teachers were in sight, they would swing on a flagpole situated in the school grounds. No teachers were visible because the school principal died that morning, leading all teachers – apart from one remaining on playground supervision – to meet in the staffroom to discuss the principal's absence-by-death, then determine how the school should proceed pending appointment of a replacement.

Evidence was that the school and its teachers had not at any time observed swinging on the flagpole. However, the possibility of the flagpole's exciting pupils' attention, and the likelihood that, unobserved, youngsters might swing on the halyard or attempt to do so were so obvious that they ought to have led to action guarding against it. What's more, steps leading up to one of the classrooms provided a convenient 'swinging off' platform from which the halyard could be grabbed and students launch themselves into space. This made greater the need for attention being paid to the existence of what was or could readily be seen as a lure to imaginative, sporty risk-takers amongst the school population.

Rolando Introvigene's injury occurred through his being struck on the head when the 'truck' (comprised of wood and metal) at the flagpole top loosened and fell. The truck is that part of the flagpole through which the halyard threads to raise and lower the flag. The pulley system could have been secured by padlocking the halyard to the base of the flagpole, a security measure followed by the school on some occasions but, regrettably, not upon that in question.

Ordinarily, at least five teachers regularly patrolled on playground duty, during recess and lunch-hour breaks. Never were there fewer than five, and sometimes as many as twenty teachers roamed the grounds during these times.

As was said by the majority on the first appeal:

In our opinion it is more probable than not that the accident would not have occurred if proper supervision had been exercised over the pupils in the grounds of the school on the morning of 19 February 1971 [the date of young Introvigene's injury]. Nor as a matter of probability would it have occurred had the halyard been padlocked to the pole.

In the High Court, Justice Murphy said that in addition to 'non-delegable duty', vicarious liability also existed in respect of pupils and parents for acts and omissions of teaching and support staff. The common law, he said, should follow 'developments in protection of employees … and those of other social organisations such as hospitals'. He endorsed the view that a hospital 'by receiving a patient assumes a non-delegable, personal duty to ensure that [the patient] receives careful treatment at the hands of such staff as it provides, including even visiting specialist and other independent consultants'. As to vicarious liability, the notion that a school teacher is in loco parentis to pupils and students does not 'fully state the legal responsibility of a school, which in many respects goes beyond that of a parent':

A school should not be equated to a home. Often hazards exist in a home which it would be unreasonable to allow in a school. A better analogy is with a factory or other undertaking such as a hospital. Parents and pupils have in practice no choice of class mates or other students. Injury occasionally occurs through foolish and sometimes malicious acts of other students. The school has a right to control what occurs in the school, just as an employer has the right to control what happens at its undertaking.

The school had a system in place to guard against injury and accident, misuse of 'equipment' and the opportunity for pupils to succumb to lures – here, the lure of the flagpole. On the day of the principal's death, the system was ignored. The exigencies of the situation and its unusual nature did not mean that the system devised as appropriate for everyday schooling should be abandoned. Despite the principal's death, educational authority and staff responsibility to students remained as a matter of 'everyday schooling'. Hence, once devised – unless risks were, after proper consideration, determined as lessened – the system should be implemented and adhered to.

Does this mean that Harris v. Perry has no place for guidance in Australian schools? Does Introvigene place a supervisory burden precluding staff from allowing or even encouraging 'acrobatics' in playtime hours? To the contrary, the position remains that children are not to be banned, regardless, from somersaulting and jumping, bounding about the playground, or taking delight in playground equipment. Nor are schools obliged to provide armies of supervisors or padlocked swings, boarded-up monkey bars, see-saws anchored to the ground rendering them immovable, removal of roundabouts and climbing platforms, or fencing of potential 'jumping off points'. Introvigene provides a lesson in taking care where extraordinary 'equipment' exists – that which is not built nor intended for playing, but has another function entirely. It guides schools and educational authorities in what duty of care and taking care in respect of school pupils and students mean.

Children cannot be denied the right to play, simply because schools are wary of liability. Indeed, to engage in such denial lends itself to legal challenge, for as the UN Convention affirms, play is a part of being a child and young person. Schools are bound by the responsibility to provide access to play and playgrounds, just as they provide lessons in academic endeavour. Equally, just as they are bound to ensure that a proper standard of classroom teaching is maintained, they are bound to ensure that a proper standard of care is met in school grounds.

The right to play and the right to be safe are not in opposition. Schools and education authorities need to be sure that they work together, as complementary.

No child is 'safe' if bound up in rules or subject to surveillance allowing of no or little freedom of movement, no freedom to play and no freedom to be a child. The right to play and the right to be safe in so doing place no immeasurable burden upon schools, teachers, educationalists or Education Departments and their officials. The ruling in Introvigene is clear. In Justice Murphy's words:

The damage … may be attributed to causes for which the [authority] is liable, unsafe premises and lack of supervision of the children. It is enough that [the] injuries were due to the inadequate system of supervision and care. The system did not provide for sufficient staff to exercise proper supervision over the children in the playground.

Once having decided, upon a balanced assessment of risk and the right to play, that no fewer than five staff were essential, providing fewer brought the education authority's liability into play. Risk assessment does not dictate 'cotton wool' treatment. Encouraging daring and latitude for 'derring do' to enable imaginative play and initiative are part of the educational platform. As Australia's Minister for Early Childhood, Kate Ellis, said in response to the Drummoyne ban, health and safety is a matter for schools, yet:

… if I hadn't done handstands while I was at school, I would never do them in my whole life, because I'm not likely to do them again anytime soon …

A country bereft of handstanding, cartwheeling youngsters, confident in being safe whilst engaging in derring-do, is surely a country deprived.