Court Rules School Failed Vulnerable Student

T2 (BY HIS TUTOR T1) v. STATE OF NEW SOUTH WALES [2024] NSWSC 1347

On 16 October 2017, a 14-year-old student (“the plaintiff”) was attacked by 12 fellow students. The plaintiff commenced proceedings against the State of New South Wales (“the defendant”) as occupiers of the school.  It was alleged by the plaintiff that the defendant owed a duty of care as to the plaintiff as their student and had breached that duty of care by failing to monitor students as they were going home at the end of a school day.

Duty of Care

The defendant submitted that its duty of care did not extend to preventing incidents which took place outside of its operating hours and off school grounds and also that it should not be responsible for the criminal acts of third parties.

However, the Court considered the Department of Education guidelines which provided that the duty of care owed to high school students extends beyond school hours and beyond school grounds.

It was also noted that the defendant was aware that prior violent altercations had occurred in the park where the plaintiff was attacked.

The Court determined that the school owed a duty of care to:-

1. Vulnerable students who have physical or psychological issues;
2. Keep students safe from being bullied and assaulted from other students;
3. Perform a proper risk assessment for school students who have been suspended for a lengthy period before allowing them to return to school;
4. Keep the administrative office open at the end of the day so that students who find themselves in difficulty can seek help and safety there; and
5. Provide supervision in and around the school for the safe passage of students for their journey to home from school.

Breach of Duty

The Court found that the school breached its duty of care in several respects. The school had failed to conduct a proper risk assessment of the ringleader of the attack before allowing him to return to the school from a previous suspension.

The Court also found that the school was aware that the ringleader had problematic tendencies towards violence and ought to have monitored his behaviours more closely.

The Court also found that the defendant was aware that the plaintiff had been bullied in the past and was a vulnerable student given his known psychiatric disorders. Therefore, the plaintiff was considered to have a higher risk that he would be bullied.

The school also failed to have any teachers on bus duty who could act as a deterrent or to intervene when the attack occurred. Further, the school’s administration office was closed so the plaintiff could not seek assistance.

Causation

These abovementioned breaches enabled the assault to occur in the manner in which it did, and causation was easily established.

If these measures were adequately implemented, the Court considered the risk of the attack would have been much lower.

Plaintiff Successful

The plaintiff’s claim was successful, and damages and costs were awarded, to be determined at a later date.

Key Takeaways

As a result of this decision, schools should take a number of precautions to ensure the safety of their students, such as:

• Bus stops should be monitored until students have been collected.
• Schools should keep their offices and phone lines open and attended and staff available after school hours for a reasonable period. This may be 30 minutes to one hour after school finishes to allow students enough time to be collected.
• Schools need to make arrangements for staff to be available and present as adult support, even after school.
• Schools need to be alert to the risk of harm of student violence, particularly involving vulnerable students and students with a history of bullying and/or violence.
• If school counsellors make recommendations for a suspended student to be re-integrated into the school, these steps need to be implemented.
• Prior reports of threats of violence and bullying need to be taken very seriously by schools. Teachers should be put on notice of the same so that they can keep an eye out for any concerns.

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