School’s duty of care extends beyond school grounds

A NSW school was held responsible for failing to monitor students after school hours and outside school grounds in circumstances where the school had knowledge of its troublesome and vulnerable students.

In issue

• The Supreme Court of NSW considered the scope and nature of the duty of care owed by schools to students to protect their safety beyond its operating hours and school boundaries, particularly when students are vulnerable or at risk of harm.

The background

A former 14-year-old student at Fairvale High School, referred to as T2, was led away from his bus stop shortly after the school day ended (between 3:26pm and 4:00pm) and violently assaulted by a group of 12 fellow students in a nearby park. In an attempt to avoid the impending assault, T2 returned to the school to seek refuge and called his mother who phoned the school, however the office was left locked and unattended.

T2 alleged that the assault caused him to suffer a deterioration in his mental state and exacerbation of his underlying psychiatric conditions, impairing his enjoyment of life and derailing his educational and vocational trajectory.

T2, by his tutor, commenced proceedings against the State of New South Wales (State) for breaching its duty of care owed to T2. Specifically, it was alleged that the State failed to:

• monitor students nearby to the school as they were going home,
• staff an administrative office shortly after school hours had concluded, and
• properly risk manage a troublesome student before he was allowed to return to the school.

In response, the State denied that the duty of care owed to a student extended beyond the confines of the school, nor applied outside of school hours. Furthermore, it was the State’s contention that there was no causative link between the alleged breach of duty and damages suffered by T2.

The decision at trial

During the hearing, it was found that the school was aware of XY’s propensity for violence and that he had just returned to school after a long period of suspension. While the school had policies in place which would require a comprehensive risk assessment be undertaken prior to a student’s return, an assessment was not carried out prior to XY’s return. A key question in these proceedings therefore was whether the failure to apply the school’s policies was sufficient to determine the suitability of XY’s return to school, noting that aside from conducting an interview with XY prior to his return to the school, no other action was taken by the school.

Furthermore, the school was aware that T2 had been diagnosed with both physical and psychological conditions, including autism spectrum disorder (ASD) and oppositional defiant disorder (ODD), and was previously the subject of bullying at the school prior to the assault.

Ultimately, the court found a school owes a duty of care to:

1. vulnerable students such as those school students who have physical or psychological issues,
2. keep students safe from being bullied and assaulted by other students,
3. to perform a proper risk assessment of school students who have been granted a long suspension before allowing them to return from that long suspension,
4. to keep the administrative office open at the end of day for a longer period so that students who find themselves in difficulty can seek help and safety there, and
5. to provide supervision in and around the school for the safe passage of students for their journey to home from school.

While the NSW Supreme Court acknowledged that the demands of the duty of care owed to school-aged children will change as they mature, the risk of certain serious harms, such as premeditated group attacks like that inflicted upon T2, will be as great if not greater in older age groups. As such, the duty of care to protect against some harms can increase over time.

The court was satisfied that the duty of care had been breached by failing to apply its policies in relation to bullying, including by failing to undertake a comprehensive risk assessment of the violent student before allowing him to return to the school. In addition, the failure to open the school office beyond the end of formal school lessons, to provide adult support if required, was also a breach of duty. These factors combined with the school’s awareness of the expelled student’s propensity for violence and the plaintiff’s vulnerabilities, as well as the lack of supervision at the time, led to the finding of breach of duty. The court had no hesitation in finding that the probability and seriousness of harm were both significant, and that T2 established breach of duty.

The failure to supervise and keep the school office open until around 4pm established factual causation in the court’s view. Legal causation was also established. The school failed to meet its duty of care not just in one respect, but in several respects. It was appropriate that the scope of liability be extended to the school: 'even if not every individual failing of the school were present, the remaining omissions were sufficient to justify a finding of causation'.

Given the above, the court ordered damages for non-economic loss, future economic loss, past out-of-pocket expenses, future medical expenses and future attendant care given the assault resulted in a deteriorated mental state and exacerbation of underlying psychiatric conditions undermining future prospects.

Implications for you

Ultimately, a duty of care may be imposed on a school beyond regular school hours and the confines of school boundaries, particularly where there are known risks involving vulnerable students or students who are at risk. This case emphasises a school’s requirement to provide a greater level of care towards vulnerable students, i.e. students with physical or mental health disabilities and reinforces the need for the implementation of appropriate bullying policies, including performing risk assessments, and provision of adequate monitoring and supervision to fulfil its duty to keep students safe.

T2 (by his tutor T1) v State of New South Wales [2024] NSWSC 1347