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'.