Turning a blind eye – how an ‘unsupervised’ soccer game almost cost $500,000

Turning a blind eye – how an ‘unsupervised’ soccer game almost cost $500,000

21 August 2020 Authored by: Annie Smeaton, Jack Bristed   |   Topics: Education and training

Schools should ensure that teachers and other staff are not only aware of and trained in anti-bullying policies and procedures, but are also implementing them when appropriate, after two teachers’ lack of supervision resulted in a teacher being struck in the back of the head by a soccer ball.

While in this case it could not be shown that the student in question would have been excluded had the bullying policy been applied, Moriarty v Department of Education [2020] NSWDC 368, serves a valuable lesson in taking both supervision and bullying seriously, with the potential damages assessed at over $500,000.

What happened?

Ms Moriarty was a student learning support officer at Pendle Hill High School. She had been allocated to care for a student who had Asperger’s Syndrome, which involved encouraging him to participate, making sure he was safe and keeping him occupied.

Ms Moriarty attended the school sports session with the student in order to aid his participation, however, the two teachers on duty were not supervising the game, leading to one of the students becoming aggressive and swearing at other students and Ms Moriarty. Ms Moriarty was not able to discipline the student in her role as a student learning support officer and informed the teachers, who took no action to stop the behaviour.

After Ms Moriarty moved to a nearby area to console the student she was caring for, who had removed himself due to the ongoing swearing, she was struck in the back of the head by a stray ball kicked by the abusive student, resulting in ongoing neck injuries.

What should the school have done?

The Court was critical of both the supervision of the students playing soccer and the response to the abusive student’s behaviour, finding that the teachers breached their duty of care by failing to properly supervise the game and by failing to intervene in accordance with the school’s operations, policies and procedures for bullying and violence. The Court found that, in accordance with those procedures, the abusive student should have been managed at the time.

Why wasn’t the school liable?

Although the teachers had breached their duty of care, it could not be proven that, had the game been supervised and the student properly managed under the policies, the student would have been excluded from the game. It was contemplated that, had the teachers addressed the situation in accordance with the policies, the result may have only been to ask the student to ‘sit down for a while to calm down’ or be referred to another staff member.

With this in mind, and the incident being deemed an accident, the Court did not accept that, had the policies been properly applied, the incident would not have occurred. This resulted in the claim for damages, of about $587,335, being unsuccessful.

Conclusion

Despite the unsuccessful result, the case acts as a reminder for schools, teachers and other staff to ensure they are appropriately and consistently implementing school policies and procedures – this includes providing appropriate supervision so that situations that require addressing can be identified.

While in this case it could not be shown that, but for the failure to intervene, the injury would not have occurred, had the actions of the student warranted being excluded from the sporting game, a different result could have been reached.

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