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

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':