Bujnowicz v Trustees Roman Catholic Church

[2005] NSWCA 457

Reported Decision: (2005) Aust Torts Reports 81-824

Court of Appeal

CITATION:	Bujnowicz v Trustees Roman Catholic Church [2005] NSWCA 457
HEARING DATE(S):	16 November 2005
JUDGMENT DATE:	21 December 2005
JUDGMENT OF:	Santow JA; Ipp JA; Tobias JA
DECISION:	(a) Appeal allowed; (b) Set aside the verdict and orders made by Judge Geraghty on 14 December 2004 and in lieu thereof enter judgment for the appellant on the issue of liability; (c) Remit the proceedings to the District Court for the purpose of the assessment of damages; (d) The costs of the proceedings before Judge Geraghty to be reserved for determination by the Judge who determines the quantum of the appellant's damages; (e) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified

CATCHWORDS:	NEGLIGENCE – Breach of duty – Duty of school to students – Where student injured while playing touch football on school grounds during lunch break – Where foot caught in pothole – Whether school breached duty to student – Whether school failed to respond to reasonably foreseeable risk of injury – Whether school should have had in place system of regular and close inspection
LEGISLATION CITED:	N/A
CASES CITED:	Fairfield City Council v Petro [2003] NSWCA 150 Roads and Traffic Authority v McGregor [2005] NSWCA 388 Rosenberg v Percival (2001) 205 CLR 434 Staines v Commonwealth of Australia (1991) Aust Torts Reports 81-106 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Shane Bujnowicz by his tutor Julie Bujnowicz The Trustees of the Roman Catholic Church of the Archdiocese of Sydney
FILE NUMBER(S):	CA 41153/04
COUNSEL:	A: Ms S Norton SC; Ms M Fraser R: Mr I Harrison SC; Mr M Barko
SOLICITORS:	A: Bryden's Law Office, Liverpool R: McCabe Terrill, Sydney

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3107/03
LOWER COURT JUDICIAL OFFICER:	Geraghty DCJ

CA 41153/04
DC 2107/03

SANTOW JA
IPP JA
TOBIAS JA

Wednesday 21 December 2005

SHANE BUJNOWICZ by his tutor JULIE BUJNOWICZ v THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH OF THE ARCHDIOCESE OF SYDNEY

Judgment

1 SANTOW JA: I agree with Tobias JA.

2 IPP JA: I agree with Tobias JA.

3 TOBIAS JA: On 20 March 2001 Shane Bujnowicz (the appellant) was 14 years of age and a student in Year 9 at the Good Samaritan Catholic College (the College) at Hinchinbrook which was owned by the respondent. The College had a relatively large recreational playing area (the playing area) which the primary judge, Judge Geraghty, found to be the approximate size of a football field being about 100 metres long by 30 to 40 metres wide.

4 During the course of a game of touch football with approximately 20 other students and whilst running with ball, the appellant stepped with his left foot into what he described as a "pothole" in the playing area twisting his leg and thereby severely injuring his left knee. By his tutor the appellant instituted proceedings against the respondent in the District Court claiming that it owed him a duty of care which it had breached in a number of respects.

5 The only relevantly contested issue before the primary judge was whether the respondent had breached its admitted duty of care to the appellant. In his judgment of 14 December 2004, the primary judge held that it had not whereupon he entered a verdict for the respondent and ordered the appellant to pay its costs. It is against that decision that the appellant appeals to this Court.

The facts relevant to the playing area

6 The College was relatively new and commenced to function as a co-educational school in 1999. At the time of the appellant's accident, it had a student population of approximately 350.

7 As I have observed, the playing area was the approximate size and shape of a football field. It was smaller when the College commenced but was extended in September and October 2000. At that time, the whole of the playing area was graded and levelled, topsoil was added and the area seeded with grass. The playing area was not thereafter used until the commencement of the new term on 30 January 2001. In fact it was little used at all before 2001.

8 The evidence of the Deputy Principal of the College, Ms Bridget Eljed, was that the playing area had been seeded and grassed in November 2000 and that by the time she returned to the College after the Christmas holidays, the grass was well grown. However, as a creek bounded it on one side, the area was prone to flooding. After heavy rains on or about 31 January 2001 the creek rose and flooded the playing area with water up to waist level. However, the water drained away as quickly as it had risen, over approximately 24 hours. Due to the fact that the playing area was left in a very soggy condition after its inundation, it was not used for a further week. Accordingly, it was in use for approximately six weeks prior to the appellant's accident.

9 Ms Eljed, whose evidence his Honour accepted, described the playing area in these terms:

"…it's not a bowling green and that sort of thing –you know smooth, perfectly trimmed grass, but it was a surface that we were happy to play on, it was predominantly grassed, probably little patches from time to time where there was heavy wear or maybe rain or water had settled and you know through sort of heavy usage had got a bit sort of dirt – you know the grass had removed some dirt patches but we – we continued to refer to it as our grassed area, it was like sort of a park – grassed area."

10 When asked whether the playing area was perfectly level, Ms Eljed responded that

"it was flat but within that there would be slight sort of – I don't know if you'd – you know just undulations I suppose but certainly not potholes or anything like that."

11 The primary judge found, it not being in dispute, that the playing area was used for physical education classes as part of the Personal Development, Health and Physical Education (PDHPE) curriculum. Apart from its use for PDHPE, it was not used for organised sport. However, it was used during recess for occasional informal activities such as touch football, cricket and soccer. Tackle football was prohibited and the playing area was not used for any competitions. Further, the students could only use it with permission from a member of the teaching staff and under their supervision.

12 From time to time the playing area was mowed using a ride-on mower. According to the appellant's evidence, the College employed a gardener but he did not carry out the mowing. Although Ms Eljed gave evidence that the Principal and/or a staff member would sometimes mow the area, a person who came in after school usually did it. There was no evidence as to whether the playing area had been mowed in the six weeks prior to the appellant's accident although given the fact that the area had been inundated at the end of January and that it was summer, it would be reasonable to infer that the grass would have required mowing at least twice before the accident.

13 The only other active maintenance of the playing area referred to in the evidence was that after heavy rain pebbles or stones would occasionally come to the surface which were removed either by the PDHPE co-ordinator or students who were on detention. It is apparent from Ms Eljed's evidence (Black 90 T-U) that there was a desire "to keep the surface smooth".

The appellant's accident

14 On the day of his accident, the appellant had sought a teacher's permission to play touch football during the lunch break. Permission was granted and the game commenced under the supervision of three teachers, there being some 20 boys involved in the game.

15 After approximately 30 minutes the appellant, who was in possession of the ball, executed a "side step off his left foot – 'a Brad Fittler' ", when his left foot was caught in what he described as a "pothole" whereupon his leg twisted, his body went one way and his leg remained where it was. This resulted in him sustaining a badly twisted left knee. In cross-examination, he conceded that, firstly, he had not seen the "pothole" and, secondly, when he stood up and looked at what had caused his fall, it was still difficult to see the "pothole" because it was surrounded by grass and was itself grassed.

16 The appellant described the "pothole" as being about 30cm in diameter and six to eight centimetres deep. He said that there was grass at the bottom of the hole and around the hole itself, and that this grass was approximately two to three centimetres in length. In re-examination he said that from the top level of the dirt to the bottom of the hole was about eight centimetres.

17 Christopher Ayoub who was also participating in the game and was a friend of the appellant gave a slightly different description. He described the hole that he saw as being about the same as a size 10 shoe. He said it was approximately 30cm long by 15-20cm wide and about eight to ten centimetres deep. In cross-examination he agreed that the indentation, depression or pothole was shaped like a bowl or a dish and that it was five to eight centimetres deep at its deepest point.

18 In cross-examination the appellant accepted that if one took off the two or three centimetres of grass growing around the depression, it would have extended three or four centimetres below its rim.

The system of inspection that the College had in place

19 It can be deduced from Ms Eljed's evidence that the system the College had in place for ensuring that the playing area was safe for use by the students for the purpose of the various games and activities permitted to be played thereon, was as follows. Firstly, the personnel who used the area such as the PDHPE teachers, if they became aware of anything that was unsafe, would report it.

20 Secondly, if the teachers on playground duty became aware of anything untoward, they would also report it. The example of pebbles and stones rising to the surface after heavy rain was referred to in this context.

21 Thirdly, if the Principal or staff member who performed the mowing became aware of any problem they would also report it in the same way as the PDHPE staff. Every other teacher had an obligation to report anything they noticed whilst on duty.

22 Fourthly, as I have already noted, on occasion students on detention would be required to pick up stones, rocks or pebbles that had come to the surface after heavy rain.

23 Fifthly, if anything was found to be unsafe and was reported, then Ms Eljed would be the one to go down and check the area.

24 Finally, according to the appellant, even though he asserted that he had played some form of sport or carried out some form of physical activity on the playing area on "hundreds of occasions", it was assumed by him that if anything unsafe was discovered by those participating in the activity, it would be reported to one of the supervising teachers by the students.

25 One observation can be made at this point with respect to the foregoing "system": it was extremely ad hoc. It was very much a hit and miss system. This notwithstanding, there was no doubt that Ms Eljed was concerned to ensure that the playing area was safe for the purposes for which it was used. Although she was not aware of any tripping hazards in the undulations of the playing area or of any potholes or anything of that nature, she was conscious of the necessity to ensure that the area was safe for children to play on. From her own observations prior to the appellant's accident she did not consider that the area was unsafe for the type of activities for which it was being used.

26 Furthermore, she denied that in 2001 there was a problem with the unevenness of the surface of the playing area notwithstanding that she said that she had inspected the whole of the surface at one time or another. In this context the following exchange took place (Black 88 C-G):

"Q Do you have a system of having someone go out and inspect the whole of the surface of the playing area to make sure that it's safe?
A We have a system where the people that use that – like the PDHPE people that would use it as a surface would be very much aware of that if there was anything that they found unsafe it would be reported. We had a system where at – at that stage certainly I would be the one who would go down and if it was very wet ask students not to be on it."

The nature of the appellant's claim before the primary judge

27 As I have observed, there was no issue but that the respondent owed a duty of care to the appellant. The critical issue was whether it breached that duty. In this respect, the appellant's particulars of negligence contained in his Ordinary Statement of Claim were as follows:

"(a) Failing to take any or any adequate precautions for the Plaintiff's safety;
(b) Putting the Plaintiff in a position of peril in the circumstances;
(c) Failing to ensure that the playground area was smooth and well covered by grass;
(d) Allowing touch football to be played in an inappropriate area;
(e) Allowing touch football to be played at all in circumstances where the playground area on which it was played was irregular and potholed;
(f) Failing to fill the playground potholes and re-grass the surface."

28 Although not specifically covered by those particulars but probably encompassed in (e) and (f) above, the appellant's case before the primary judge appears to have been based upon an allegation that the respondent was in breach of its duty of care by failing to respond to what was conceded to be a reasonably foreseeable risk of injury arising as a consequence of the nature of the student activities performed upon the playing area by having in place an adequate system of regular inspections of the playing surface to identify and remedy any physical conditions such as potholes, indentations and the like which, if accidentally stepped into or tripped over, could result in serious injuries.

29 The respondent submitted that there was such a system in place, that it was adequate and there was no reason in the circumstances for the playing area to have been inspected at any relevant time prior to 20 March 2001 for the purpose of discovering whether there were any potholes, indentations or the like which constituted a risk to the safety of the students utilising the area.

The reasoning of the primary judge

30 The primary judge found on the basis of Ms Eljed's evidence that prior to the accident, no injuries had occurred on the playing area and that she had no reason to suspect that the area was unsafe. In particular, there had been no reports of injuries resulting from, or complaints about, the surface of the playing area. According to his Honour, Ms Eljed had inspected the general surface of the playing area on an almost day-to-day basis, but had not been aware of any problem with respect to any unevenness of that surface. His Honour then summarised the following exchange in her cross-examination:

"Q The hole in the ground eight centimetres deep and big enough for a large boy's foot to go into would be an unsatisfactory thing to have in the surface of the playing area wouldn't it?
A I would consider it so, yes.
Q It's the sort of thing that the school ought to identify and correct, that's right isn't it?
A Yes, that's correct."

I shall return to this evidence later in these reasons.

31 His Honour then referred to the decision of this Court in the Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308. It was accepted that the principles articulated in that case by Ipp AJA (as he then was) and with whom Mason P and Giles JA agreed, were applicable to the present case.

32 Relevantly for present purposes, those principles may be stated as follows (references are to paragraphs in Ipp AJA's judgment):

(a) The relationship between a school and one of its pupils is such as to give rise to a duty to take reasonable care to prevent injury to that pupil: at [53].

(b) That duty is only to take reasonable care for the safety of the pupil concerned: a school is not absolutely liable for injuries sustained by pupils whilst they are under the supervision of their teachers. It is not an insurer: at [54].

(c) Where games are being played, it is foreseeable that there is a risk of a player acting in such a way, whether deliberately or accidentally, as to cause injury to another player: at [58].

(d) Nevertheless, the risk of serious injury whilst playing some types of games (although real and not far-fetched) is remote particularly where the games are properly controlled, with the consequence that merely to allow children to participate in them will not, in the absence of special circumstances, be regarded as negligent: at [60].

(e) Accordingly, where an injury is caused by an unfortunate concurrence of circumstances that reasonable precautions could not have prevented, no breach of duty will have occurred: at [61].

(f) Further, the mere fact that a serious injury may occur while a child is playing a game at school will not automatically result in a finding of breach of the school's duty of care even if such an injury is foreseeable. In order to establish breach, the injured pupil must establish that the school did not take such reasonable precautions for the safety of the student as would have prevented the relevant harm: at [62].

(g) Factors such as the benefits of the game, the magnitude of the risk involved, the degree of probability of its occurrence, the degree of possible inadvertence or negligent conduct on the part of the participating students, the training given to them and their level of skill are all relevant in determining whether reasonable steps have been taken to prevent the injury occurring: at [65].

(h) The question of what amounts to reasonable care in a given case must be seen in the context that it is neither practicable nor desirable to maintain a system of education that seeks to exclude every risk of injury: at [66].

(i) When assessing whether the taking of or the omission to take particular precautions is to be regarded as reasonable or otherwise, the Court must bear in mind the following observation of Gleeson CJ in Rosenberg v Percival (2001) 205 CLR 434 at 441 [16]:

"In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the alleged tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumes. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated."

33 The primary judge found it indisputable that the respondent owed a duty to take such precautions for the safety of its students as was reasonable in all the circumstances. He also found that the risk of injury to the appellant was

"reasonably foreseeable in that when you allow twenty students on a day-to-day basis to go onto a field and to play touch football or any sport, there is some risk of injury, of twisting an ankle, of injuring a knee."

34 His Honour next considered whether there were means available of preventing that risk. He referred to two possibilities. The first, which he rejected, was that the respondent could have forbidden students to use the playing area at all. The second was that the respondent could have engaged somebody to inspect the playing area on a regular basis in order to identify any relevant risk and to remedy it. It was the latter possibility that formed the crux of the appellant's case in this Court.

35 The primary judge then referred to the Shirt balancing exercise as stated by Mason J in Wyong Shire Council v Shirt(1980) 146 CLR 40 at 47-48 which, in the context of the present case, required an assessment of the reasonable response of the College to the foreseeable risk of injury to the appellant when playing touch football on the playing area. That assessment involved consideration of the magnitude of that risk, the nature and difficulty of the measures that would be needed to overcome it, the likelihood that the risk would eventuate, and the resources available to the respondent to remedy the risk.

36 His Honour then listed nine factors that he had taken into consideration in determining the reasonableness of the respondent's response to the identified risk. Relevantly, those matters included the fact that there was no prior warning, complaint or incident that the playing area contained the indentation, depression, concavity or pothole in question; that it was used on a daily basis for various purposes including physical education, soccer, cricket and touch football by a very large number of students; that it was not a formal playing field nor was it a pitch or a marked football area but simply an informal recreational ground; that the area had been top-dressed, levelled and grassed late in 2000, several months before the accident; that it had been flooded for a day or so at the beginning of the term and stones and pebbles would tend to come to the surface when it was wet; and that there was no evidence as to how long the subject indentation or pothole had been present.

37 After excluding as an appropriate response to the relevant foreseeable risk that the respondent should have forbidden the use of the playing area altogether, his Honour acknowledged that the only other way the risk might have been avoided was for the respondent to have instituted a system of regular close inspections of the playing area "square metre by square metre". This level of inspection, he surmised, could have been carried out by the children of the school, the teachers, groundsmen or a yardman or by the College parents. The critical passage in his Honour's reasoning was the following:

"However, it seems to me, the area being large, and that any regular inspection would be time consuming, and perhaps expensive, and that in any event, the school had no real reason to institute such a system. There had been no complaint. In the absence of complaint or any incident, this step, it would seem to me, was not reasonably called for. If notice of some problem had been given before this incident, the school might have had an obligation, it seems to me, to institute a system to identify such dangers.
…If the area had been top-dressed and levelled, and there had been no prior notice, it seems to me that no reasonable person would require the school to institute such a system of inspection."

38 Accordingly, having held that a reasonable person in the position of the respondent should not have been required to carry out an investigation or inspection in the circumstances, his Honour held that there had been no breach of the respondent's duty of care to the appellant. Consequently it was entitled to a verdict.

Did the primary judge err in finding that it was not reasonable for the respondent to have instituted a system of regular and close inspection of the playing area in order to identify and remedy indentations of the nature of that which caused the appellant's injuries?

39 As is apparent from the statements of principle to which I have referred above taken from the judgment of Ipp AJA in Kondrajian, relevantly in the present case it may be accepted that the mere fact that a serious injury may occur to a student who was playing a game of touch football at the College will not automatically result in a finding of breach of the respondent's duty of care even though such an injury and the risk thereof was clearly foreseeable.

40 Critically, the question is whether the respondent failed to take such reasonable precautions for the safety of those playing the game as would have prevented the harm that in fact befell the appellant in the present case. In other words, in all the circumstances was it reasonable for the respondent to take the precaution of instituting a system of regular inspections of the surface of the playing area, square metre by square metre, in order to identify any unexpected potholes or indentations in that surface which, if not remedied, might result in a student who was focussed on the game he was playing inadvertently stepping into that hole or indentation and thereby twisting an ankle or knee.

41 His Honour answered this question in the negative essentially upon the basis that the College staff had had no notice that there was any problem with the surface of the playing area, there being no complaint or other incident that might have alerted them to the existence of a condition of the surface which created a risk of injury. Furthermore, his Honour took into account the fact that the playing area was large and that any regular square metre by square metre inspection would be time-consuming and possibly expensive. However, it is to be noted with respect to these last two factors that the respondent made no submission to the primary judge nor to this Court, firstly, that the institution of any such system of inspection would be beyond its financial resources or, secondly, that it would be beyond its human resources to have implemented such a system.

42 Furthermore, it is well established that the absence of any prior injuries or complaints, whilst relevant to that part of the Shirt calculus relating to the degree of probability of the occurrence of the risk, is not determinative of the reasonable response of the party sought to be made liable: Fairfield City Council v Petro [2003] NSWCA 150 at [21] and [34]; Roads and Traffic Authority v McGregor [2005] NSWCA 388 at [81].

43 The appellant submitted that, although there was some form of system whereby those involved, either actively or in a supervisory capacity, in activities on the playing area would report anything that they found to be unsafe with respect to its surface, such an ad hoc system was in the circumstances inadequate or, if it was not, inspections made pursuant to the system were themselves inadequate. That was particularly so given that the playing area only six weeks prior to the accident had been inundated by reasonably deep flood waters. Simply to assume that the effect of those floodwaters on an area, which had been levelled, top dressed and seeded only some two or three months prior to the flood, would have resulted in no damage to the surface of the playing area, other than bringing some pebbles or stones to the surface, was without justification.

44 Reliance was placed by the appellant on the decision of the Full Court of the Federal Court of Australia in Staines v Commonwealth of Australia (1991) Aust Torts Reports 81-106. That case involved a plaintiff who was an organiser of junior hockey walking from a playing area occupied by the defendant down a slope through grass several inches high towards a small retaining wall of the carpark where she had left her car. The slope was often used for access. She did not see any irregularity in the ground but put her foot into a hole where it jammed causing her to fall and fracture her foot. The only evidence led by the plaintiff was from a witness who testified to having seen the hole and to the grass being of a uniform height so as to have disguised its presence. No evidence was led as to any system of mowing and inspection that might reasonably have been expected of the defendant although it seemed that the grass had been mown with some degree of regularity. The defendant called no evidence at all.

45 The majority, Foster and Higgins JJ, held that it could be inferred that the hole had been in existence and visible to a vigilant viewer for a significant period of time and, therefore, if a proper system of inspection had been implemented, the hole would have been eliminated before the plaintiff trapped her foot in it.

46 The dissentient, Davies J, found for the defendant upon the basis that the circumstances giving rise to the danger and the length of time during which it had existed were unknown and that, as the existence of the danger was not apparent to a person walking in the area, no reasonable inference could be drawn that there was fault on the part of the defendant or that any such fault contributed to the accident.

47 The majority acknowledged that there was no evidence to support a finding that the defendant through its servants and agents actually knew of the existence of the hole. It was accepted that it owed a duty of care but whether there was a breach of that duty required the application of the Shirt balancing exercise. Their Honours said (at 68,981):

"In the present case, clearly, a reasonable person knowing that the slope was used by persons as a thoroughfare from the carpark to the oval would bear in mind that any defects in the surface of the slope, especially in circumstances where they might be concealed by the growth of grass, could constitute a risk to such persons. In these circumstances the question necessarily arises whether any response was called for and, if so, what response."

48 Their Honours considered that the trial judge was correct in finding that some response was called for and that to have done nothing and allowed lawful entrants to its oval to use the slope for ingress and egress would be unreasonable given the risk of harm from some concealed danger. They concluded that it was incumbent upon the defendant to institute and maintain some appropriate system of inspection through an employee or employees charged with that duty. The majority considered that given that occupiers and controllers of sporting ovals and their associated facilities commonly employed groundsmen charged with the duty of caring for the oval, this required the defendant to instruct the employee who performed the mowing or tidying operations to keep a proper lookout for any dangerous conditions observable on the slope including any irregularities or defects in its surface so that appropriate steps might be taken for their rectification.

49 The appellant submitted that the primary judge in the present case should have adopted a similar approach. Although the College did not, apparently, have any employee who was specifically charged with the duty of mowing the playing area or otherwise inspecting it on a reasonably regular basis for the purpose of identifying any dangerous objects or conditions and removing or rectifying them, nonetheless it was not suggested by the respondent either that such a person or persons could not have been so charged or that it was beyond its budgetary constraints to have provided for such a system of inspections to be implemented.

50 The respondent submitted that the relevant question was the degree of imperfection which was acceptable in a recreational playing area of the nature of that the subject of the present case. Furthermore, there was no evidence that a regular system of inspections would have discovered the subject pothole or indentation. However, it is apparent from his Honour's reasoning that a system of regular inspections of the playing area "square metre by square metre" would in all probability have revealed the particular condition of the surface which caused the appellant's injury although his Honour held that it was not reasonable in the circumstances for such a system to have been implemented.

51 The respondent further submitted that given the extensive use of the playing area and the nature of the depression or pothole in question, had it been perceived as a danger it would have been drawn to the attention of the teachers even if there had been no prior incident arising out of it. As this did not occur, it could not have had the significance contended for by the appellant. In any event, it was more an undulation than a pothole. Undulations in an informal playing area of the nature of that in question were to be expected and reasonable care did not require them to be identified and removed.

52 I have already referred to the system which was in place as being ad hoc or hit and miss. It was one which was clearly inadequate for the purpose of identifying depressions, potholes or indentations of the dimensions of that which caused the appellant's accident. That the College regarded such a condition as constituting a danger requiring identification and remediation was conceded by Ms Eljed in the passage from her evidence recorded in [30] above. Furthermore, this was an area where soccer and touch football were being played. Such sports involved their participants in running and dribbling a ball (as in soccer) or running with a ball and sidestepping opponents (as in touch football). In such circumstances, in terms of the Shirt balancing exercise the magnitude of the risk was high in that any injury resulting from stepping unexpectedly and without warning into a pothole or depression of the dimensions found by the primary judge could potentially be extremely serious.

53 As to the degree of probability of the risk’s occurrence, the fact that such an accident appears not to have occurred prior to that of the appellant was a factor to be taken into account in the balance. However, it must be remembered that the playing area had only been in use for six weeks prior to the incident in question, although it was in reasonably constant use during that period. It was in my view an accident waiting to happen.

54 It must also be recognised that the playing area had been inundated at the end of January but it does not seem that the effect of any such flooding upon its relatively new surface was acknowledged except to the extent that it may have brought pebbles and stones to the surface. Ms Eljed acknowledged that there was a necessity to remove such pebbles and stones in order to "keep the surface smooth". Further, she prohibited any use of the playing area for approximately one week after the flood had subsided until it had dried out. In cross-examination Ms Eljed, when asked whether holes of the sort described (being that into which the appellant placed his left foot), assuming they existed, posed a risk to students when they were playing ball games, responded that

"we didn't allow the students back onto that area until we had checked it and were quite happy that it was safe."

55 Admittedly, Ms Eljed was not further challenged on that response and, in particular, as to the nature of what was done in order to enable her to be happy that the surface was safe for the playing of ball games. In any event, it is clear that whatever inspection was made occurred some six weeks before the appellant's accident.

56 Critically however, the following question and answer when combined with those recorded in [30] above, make it clear that Ms Eljed, as the Deputy Principal of the College, appreciated the danger of a hole or depression in the surface of the playing area to students playing touch football:

"Q Assume that the holes are there, they're unsafe aren't they for children playing ball sports?
A If they were there, they would be unsafe."

57 In the present case, young male students were permitted to play touch football and soccer in circumstances where the surface of the playing area contained a dangerous pothole or depression which Ms Eljed would have regarded as unsafe and where the risk of serious injury to a young student might affect him for the rest of his life.

58 Although there was some attempt by the respondent to suggest that the pothole in question was obvious, I do not regard that factor, even if correct, (which is far from clear) as being relevant in the circumstances. This is because of the nature of the activity in question which, to the knowledge of the respondent, involved the students understandably concentrating on the game they were playing rather than where they were putting their feet. In that sense, even if the pothole in question may have been discoverable by close inspection, it constituted a form of trap to youngsters playing touch football.

Conclusion

59 For the foregoing reasons in my opinion the application of the Shirt balancing exercise did require a response from the respondent in the form of the institution of a system of regular and close inspection of the condition of the surface of the playing area before sports such as soccer and touch football were permitted to be played upon it. Furthermore, even though such a system would have required the inspection of the surface "square metre by square metre" as his Honour observed, there was no reason to believe that the implementation of such a system would have been time-consuming as his Honour suggested. After all, the dimensions of the playing field were only 100 metres by 30 to 40 metres and therefore covered an area of approximately 4,000m². Even an inspection "square metre by square metre" once a week should not have taken more than two hours. But if such an inspection regimen proved too burdensome, the area to which it was applied could have been reduced to a size sufficient for the playing of the games which required its implementation.

60 In any event, as I have already noted, the respondent did not suggest to either the primary judge or this Court that it did not have the human resources to enable such a regime of inspection to be implemented.

61 Accordingly, in my opinion, the primary judge erred in finding that the reasonable response of the respondent to the foreseeable risk of injury to the students playing touch football from a hole, depression or indentation of the size, shape and depth of that into which the appellant stepped was, in effect, only to take irregular and hoc measures which, to say the least, rather hit or miss. On the contrary, the respondent's duty to take reasonable precautions for the safety of its students playing the running sports of soccer and touch football upon the playing area required it to implement a regular system of inspection of that area for the purpose of identifying and remedying holes, depressions or indentations of the nature of those which the Deputy Principal of the respondent regarded as being unsafe for children playing ball sports.

62 It follows that the respondent was in breach of its duty of care to the appellant. Accordingly, I would propose the following orders:

(a) Appeal allowed;

(b) Set aside the verdict and orders made by Judge Geraghty on 14 December 2004 and in lieu thereof enter judgment for the appellant on the issue of liability;

(c) Remit the proceedings to the District Court for the purpose of the assessment of damages;

(d) The costs of the proceedings before Judge Geraghty to be reserved for determination by the Judge who determines the quantum of the appellant's damages;

(e) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

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