Overview

The State of New South Wales (‘the State’) sought to appeal a first instance decision of Justice Harrison [1] which saw a 14-year-old Year 9 student, pseudonymised as “T2”, be awarded $1.75 million in damages for personal injury.[2] In short, just after school concluded for the day, T2 was the subject of a serious physical assault perpetrated by other students from a south-western Sydney based State school. The vicious assault occurred at a nearby park, off school grounds, with the main student perpetrator “XY” recently returning from a 20 day long-suspension.

At first instance, the student succeeded in his claim in negligence against the State, with Her Honour Justice Harrison accepting the student’s contentions that:

1. The School owed and breached its duty of care, including by failing to conduct a proper risk assessment of XY prior to permitting him to return to school. Her Honour gave weight to XY’s previous history of assaulting students and the heightened risk of bullying that this gave rise. Indeed, prior to the assault, the school’s psychologist recommended that, among other things, XY be enrolled in a behaviour management program and that a risk assessment be completed. None of that occurred.
2. There were no teachers posted on “bus duty” or otherwise acting as a deterrent or capable of intervening as T2 was taken from the vicinity of the school and such precautions were reasonable in the circumstances and would have avoided the incident; and
3. The office was not kept open until 4:00 p.m. and that such an assessment would have prevented the assault.

The State appealed Her Honour’s judgment on the grounds of breach of duty and factual causation. Ultimately, the Court of Appeal (comprising Kirk JA, Bell CJ and Price AJA) upheld Her Honour’s judgment, dismissed the State’s appeal and ordered that it pay the student’s legal costs.

While the victim succeeded both first instance and on appeal, their Honours’ conclusions offered a more confined assessment of breach and causation and what was reasonable on the School’s part in the circumstances.

The Nature and Scope of the School’s Duty

Their Honours characterised the relevant duty owed as a duty to take reasonable care to prevent exposure to reasonably foreseeable risks of not insignificant harm where the school has some responsibility for the student. The duty was non-delegable in nature, one where reasonable care may require positive action and it may extend to school activities undertaken outside school hours or grounds.

The Court observed that what reasonable care requires must take account of all the circumstances of the particular case, which will include matters such as the age and nature of the students in question; the nature of the school (and potentially its surroundings); and any particular responsibility that the school has assumed. It will, as their Honours observed, consider the fact that supervising teachers “cannot be everywhere at once, and that it is not reasonable to have a system in which children are observed during particular activities for every single moment of time."

The Court pondered whether the issue at hand was the scope of the duty of care owed by the School or the breach. Their Honours observed that either way, the answer to the question depends upon consideration of what is reasonable in all the circumstances. In this case, it did not matter.

Breach of Duty and Causation is Established by the Victim

In assessing breach and causation, the Court made the following pertinent observations and conclusions:

1. The relevant test in determining breach was whether the acts or omissions involved a failure in the circumstances to take reasonable care to avoid the relevant risk of harm. This was a matter of degree.
2. If a question arises as to whether a particular precaution was still required at a particular time or at a particular place (e.g. after school hours), the focus of the inquiry is the need for that precaution at that time or place.
3. The school’s general standard of care did require that it consider the risks arising from XY returning to school after his long suspension. The attack which had led to that suspension had been preceded by an earlier episode of victimisation. The school had knowledge of XY’s propensity to bullying and violence. He posed a risk of causing harm to other students. 
4. Contrary to the primary judge’s view, the school did not breach its duty by not requiring XY to undertake the RAGE program prior to his return. Doing so may have kept him out of school for a substantial period of time and the School also owed duties to XY, and the community, to seek to ensure that XY received an education.
5. The Court did not accept that a risk assessment performed prior to the end of XY’s long suspension would have delayed his return to school, and perhaps importantly, did not accept that the performance of a risk assessment would have avoided the incident on 16 October 2017.
6. With respect to any breach of duty in respect of the failure to undertake the recommended formal risk assessment, the Court thought the issue was more ‘borderline’, though did not consider it necessary to resolve the question of breach given that factual causation was not made out by the victim on its assessment.
7. The School did breach its duty, however, by failing to ensure a responsible adult associated with it was available to assist students for a reasonable period after school hours. On the balance of probabilities, the assault would not have occurred had this precaution been taken.
8. The School had some 1,400 students and the chance that a student had a need for assistance on any given day was not negligible. There was no evidence presented to the Court suggesting otherwise.
9. The likely seriousness of harm fell within a wide range and included consequences such as missing a bus or not being picked up as arranged and extended to consequences which are serious including those risks that might arise of “skylarking, predation or violence”.
10. The suggestion that having such staff available would have distracted teachers from other responsibilities was linked to the consideration of the social utility of schooling, which their Honours concluded was high. The Court found that the precaution involved having just one responsible adult available for a short period after school, which would not have been any burden beyond what the supervising teachers, according to the principal, “generally” were undertaking.

The Court also rejected the notion that the assault would have occurred even if there were teachers present. In that regard, the Court gave weight to evidence that established that the student victim was led away from school with a view of being harmed in seclusion. Had adults been present, the inference their Honours were prepared to make was that the bullies would have been deterred from fulfilling the assault. 

At paragraph [121], the Court concluded that:

There were myriad risks of harm which could affect students of Fairvale High School as they dispersed after the end of the school day, being risks which were reasonably foreseeable, not insignificant, and potentially involving serious harm. A precaution against those risks was having at least one responsible adult associated with the school available to assist students, whether in the school office or at the crossing or at some obvious place in the school grounds, for a reasonable time after the school bell rang at 3:04pm and extending up to at least 3:28pm. The burden of taking such a precaution was very limited, and a reasonable person in the school’s position would have taken it. The failure of the school to take that step on 16 October 2017 was a breach of its duty of care owed to T2. If it had taken that step, the assault of T2 by XY and his associates would not have occurred.

Conclusion

This decision is a pertinent reminder to schools and the education community that the fact an incident occurs off school grounds and outside of school hours is not in and of itself a defence to a claim. The starting point is that a school owes its students a non-delegable duty of care, which may extend to school activities undertaken outside school hours or grounds subject to the specific facts of each case.

The factors weighing in the victim’s favour in this case included the number of students attending the school, the real and foreseeable risk of physical assaults and bullying that existed and the risk of serious harm that arose if reasonable precautions were not taken.

The Court of Appeals’ reluctance to maintain Her Honour’s finding on causation in respect of the risk assessment, namely, that that but for a risk assessment not being performed, the incident would have been avoided, is a welcomed restraint. The absence of a risk assessment is an alleged breach that often features in claims involving schools and the confined nature of the Court’s conclusion on this issue is a reminder that a plaintiff must not only establish that the risk assessment was reasonable, but that its performance also satisfies s 5D(1) of the Civil Liability Act 2002 (NSW).

Nonetheless, the decision stands for the proposition that schools may be required, in certain circumstances, to maintain sufficient office hours and/or ensure adequate supervision by staff around the school grounds including where students are known to congregate. The social utility of such precautions (which is high) and the likely seriousness of harm (which has the potential to be high in schools) cannot be ignored.

The victim in this case maintains his award of damages at $1.75 million and is entitled to his costs of the appeal from the State.

Further information / assistance regarding the issues raised in this article is available from the author, Megan Sault, Senior Associate or your usual contact at Moray & Agnew.