Home' Independence : Independence Vol 33 No 1 May 2008 Contents 74 Independence Volume 33 No. 1
Dr Keith Tronc, barrister-at-law and
consultant in educational adminis-
tration, explains the concept of con-
tributory negligence in relation to
damages claims involving children.
In claims for damages for personal injury
the court may assess a percentage of blame
or fault as the part-responsibility of the
injured person. A determination of contri-
butory negligence leads to a reduction of
that same percentage in the amount of
Can injured children have their damages
reduced as a result of their own contri-
butory negligence, where they have been
assessed as having been partly responsible
for their own injury? It all depends on the
age of the child.
Courts are usually sympathetic with the
plight of young children, often assigning
no percentage reduction in the damages
payout because of their immaturity, their
lack of experience and their unawareness
of danger. With older children, a frequent
court view is that they ought to have
known better and knowingly placed them-
selves in a position of potential peril,
carelessly exposing themselves to a risk
of which they could have been expected
to be aware.
As a generalisation, it can be suggested
that injured teenage children will often
face court scrutiny for their own contri-
bution to their injury. Certainly, it's a
fairly standard defence, at least in part,
pleaded in court by numerous schools
and school authorities when being sued
for personal injury damages by injured
students arguing negligence by the school.
In Sheppard v State of Victoria (2007)1, a
civil jury case, the Victorian Department
of Education was sued for the injuries
sustained by a high school student who
fell off a tennis court gate while skylark-
ing. The comparatively high reduction of
75 per cent was made for contributory
Breaches of the school's duty of care were
proven and the school was held to be lia-
ble in negligence because, although teach-
ers were aware of the skylarking, they had
not taken effective action to intervene and
prevent recurrence of the risky misconduct.
So, although the injured plaintiff boy 'won'
his case in principle, it was somewhat of
a hollow victory, because the damages
award was reduced to only one quarter
of the claim.
In Home v State of Queensland (1995)2,
a 13-year old high school student rode
a borrowed and unsuitably large bicycle
along a dangerous road. The journey
occurred during school hours, involving
movement from one school activity to
another, from the school to tennis courts.
The plaintiff child fell off the bicycle in
front of a semitrailer, was run over and
sustained very serious injuries to her legs.
The school authority was held liable in
negligence. It was in breach of its obliga-
tion to exercise reasonable care for the
safety of the plaintiff during the time that
she was within the control of the authority.
In advising the students that they could
'make their own way' to the tennis courts
and that both cycling and walking were
acceptable modes of travel, the school
authority failed in its duty to exercise pro-
per supervision over the plaintiff as she
travelled between school-related activities.
The school authority was familiar with the
location of the tennis courts and knew that
if the students rode their bicycles from the
school to tennis it would involve travel-
ling on the particular road, which was
dangerous for cyclists of any age. In this
case, contributory negligence on the part
of the 13-year old plaintiff was also held.
The onus is on schools to ensure adequate
supervision of students at all times, inclu-
ding at out-of-class sessions and to and
from out-of-school events.
This is an edited version of an article to be pub-
lished in a forthcoming issue of The Australian
Educational Leader, journal of the Australian
Council for Educational Leaders. It is printed
with kind permission of the author and ACEL.
More information about ACEL publications can
be found at www.acel.org.au.
1 Victorian County Court, No. C1-03-05567,
October 2007 (unreported)
2 Aust Torts Reports, 81-343; 22 MVR 111
Dr Keith Tronc
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