School liability for gym class accident

Zwolle District Court 16 June 2009

On 20 January 2004, a bridge class pupil, aged 14, participated in a gym class led by a physical education teacher. The gym class took place in a gymnasium of the Van der Capellen Scholengemeenschap in Zwolle, a public school for vmbo, havo and atheneum. That day's gym class consisted of an exercise known as 'the battle of the titans'; it was called 'wrestling' by the teacher. In this romp, two pupils sit on their knees on a mat facing each other and have to push each other off the mat. The pupil did the romp game with a boy. Immediately afterwards, the pupil became unwell, briefly losing consciousness. The teacher, alerted by fellow pupils, took the girl to the locker room. She then finished the lesson. The pupil was taken to a general practitioner by the caretaker and, after referral, it was established at the hospital that the girl had suffered neck injury. The neck injury subsequently led to surgical intervention, which involved removal of the intervertebral disc between the fourth and fifth cervical vertebrae and insertion of a bone chip from the iliac crest. The girl was declared disabled for 80-100% under the Wajong. The student held the school, as the employer for her teacher's fault, liable for compensation for her damages.

The court ruled as follows. The teacher has a special duty of care with regard to the safety and health of her students, which duty of care can be qualified as even more important in physical education, where the risk of (serious) injury is considerable. Combined with the fact that the pupils were going to do the frolic for the first time, this should have been an extra reason for the teacher to properly prepare and instruct the exercise by means of adequate safety instructions. Since in such a romp involving frequent body contact, reported risk of (serious) injury in itself cannot always be avoided, taking special measures to prevent or mitigate them are called for.

In the court's opinion, the instructions given by the teacher to introduce the romping game were considered too general and not sufficiently concrete, as they paid little attention to the question of which acts of romping were and were not allowed. While it was said that no "scratching, biting, tickling, hitting or kicking" was allowed, no instructions were given prohibiting grabbing and clamping of the head and overstretching of joints. Nor has it become apparent that the other general recommendations given in the Movement Education Workbook for Primary Education were taken to heart by the teacher with regard to romping, such as romping in pairs of equal height and body weight and the fact that touching during romping activities can cause 'problems', the reasons given being, among other things, the difference between boys and girls and cultural background. In this regard, it is significant that the pupil has argued that the boy is physically strong and (at the time) was into kickboxing.

By allowing the frolicking to take place on five mats at the same time, it is further established that the teacher was unable to adequately monitor what was happening on each mat at the same time. The court therefore finds that insufficient measures were taken to prevent or minimise the risk of injury. Thereby, the unlawfulness of the teacher's actions is given and thus also liability of the school.

For the sake of completeness, the court further considers that the teacher knew that the girl had briefly lost consciousness and she should therefore have given her first aid in accordance with the first aid regulations or the professional code of conduct. These regulations show that someone who has been unconscious - and also when this person has regained consciousness - may not be moved and that expert help must be called immediately. This did not happen, and thus - leaving aside the consequences - the teacher exercised insufficient (after)care.

Tip: A woeful 'textbook example' of concrete handling of the criteria that determine which standard of care is applied in accident law: the nature of the conduct, the seriousness of the consequences, the objectionability of precautionary measures and the likelihood of damage.