A recent NSW Supreme Court Case provides guidance to schools concerning their duty of care to protect students from bullying and assault after-hours.
A former Sydney student has been awarded $1.2 million in compensation after he was assaulted at age 14 by a group of students while waiting at his school bus stop in 2017. Now aged 21, the student sued the state of New South Wales through his mother, claiming that the school failed in their duty of care to effectively monitor students at the bus stop, staff an administrative office shortly after school hours, and properly risk-manage the instigator of the assault who had returned from a long school suspension. The defendant conceded that it owed the student a duty of care however denied liability, arguing that this duty did not extend beyond school confines nor lasted after school hours. The student, who has autism spectrum disorder (‘ASD’), suffered serious physical and psychological injury as a result of the assault.
A school has a non-delegable duty of care to its students, meaning that this duty cannot be delegated to others. However, a school is also not “an insurer of its pupils”.[1] The question for the Court to consider was the scope of the defendant’s care to the student. The Court found that the scope of the duty included “taking reasonable steps to ensure that a school student, such as a vulnerable student [the plaintiff student], can depart the school in a safe manner.”[2]
Ultimately, the Court held that the defendant had breached its duty of care towards the student. On the matter of a school’s duties after-hours, the Court found that:
- There is a heightened risk of physical bullying in and around the school immediately after school hours, which significantly increases the probability of harm where there is no supervision. The injuries from a single attack by fellow students can be life changing. Therefore, the seriousness of harm if no preventative action is taken by the school ranks high.[3]
- Whilst the demands of duty of care owed to students will change as they mature, not all harms will reduce; premeditated group attacks may even increase with age. As such, the duty of care to protect against some harms can increase over time.[4]
- The burden upon a school to supervise students’ safe-passage home is low when weighed against the significant social utility of deterring and intervening in poor student behaviour. Similarly, ensuring that school office hours are staffed until 4:00pm or such a time as students have dispersed provides a point of safety for students, not only in instances of bullying or assault but the risk of collision with motor vehicles and play causing injury.[5]
On the matter of a school’s duties regarding appropriate risk-management of bullying and assault, the Court found that:
- Schools have a duty of care to take reasonable steps to protect particularly vulnerable students (such as those who have physical or psychological issues) who have been bullied from further bullying, and prevent students who are known to have bullied students from further acts of bullying (including assault).[6] Prevention may include a comprehensive risk assessment and behavioural-management interventions.[7]
The student was awarded compensation for non-economic loss, future economic loss, past out-of-pocket expenses, future medical expenses, future attendant care, and cost of future management of funds.
This case signifies that schools should be prudent in managing risks around home-departure for students to fulfil their duty of care to students.
Vocare Law is well equipped to assist our clients with school related matters and has a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on school law or litigation. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Sarah Gates and Alistair Macpherson.
Footnotes
[1] T2 (by his tutor T1) v State of New South Wales [2024] NSWSC 1347, [199].
[2] Ibid [273].
[3] Ibid [291]-[292].
[4] Ibid [284].
[5] Ibid [294]-[296].
[6] Ibid [277]-[281].
[7] Ibid [264]-[266].
