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Beyond the School Gates: When is a School liable in negligence for bullying & student assault?

In late 2017, shortly after the end of his school classes, T2, a then-14-year-old school student, was set upon by 12 fellow students (including XY) in an attack that was unprovoked, violent and lengthy. T2 sued the State of New South Wales claiming it was negligent, in its capacity as the occupier of the school site and having the care, management and control of the school at which T2 and his attackers were students.

T2 alleged that the State owed him a duty of care as a student and that it breached that duty of care by failing to effectively monitor students nearby to the school as they were going home, by having no staff on bus duty at the end of the day, by closing the administrative office shortly after school hours ended, and by not properly managing the risks a troublesome student (the instigator of the assault) posed before allowing him to return to the school. T2 alleged that, as a result of the State’s negligence, the assault upon him occurred and he suffered a deterioration in his mental state and an exacerbation of his underlying psychiatric conditions, impairing his enjoyment of life and derailing his educational and vocational trajectory.

The State conceded that it owed T2 a duty of care. However, it denied that it was liable for the assault that occurred because, it said, the duty neither extended beyond the confines of the school, nor lasted outside school hours. It further denied any causative link between the alleged breach of the duty of care (if one existed) and the damages that T2 alleged he suffered.

T2’s claim succeeded. Among other things, the Court held:

1) The duty of care that a school owes to its students can extend beyond the confines of the school boundaries and outside of its operating hours.

2) The demands of the duty of care owed to school-aged children will change as they mature. However, the risks of some forms of harm can increase, rather than decrease over time. Accordingly, the duty of care to protect against certain forms of harm may increase over time.

3) The school owed a duty of care to:

a.  vulnerable students such as those students who have physical or psychological issues;
b.  keep students safe from being bullied and assaulted by other students;
c.  perform a proper risk assessment to school students who have been granted a long suspension before allowing them to return from that long suspension;
d.  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;
e.  provide supervision in and around the school for the safe passage of students for their journey to home from school.

4) Both legal and factual causation were established. The school breached its duty of care by failing to conduct a proper risk assessment of the instigating student before he was allowed to return to the school from a suspension for prior violence. There were no teachers on bus duty to act as a deterrent to misbehaviour or to intervene when T2 was led away from the school’s vicinity. The school’s administration office was closed so that T2 could not seek refuge with staff when he attempted to do so. Any one or a combination of these omissions established factual causation as they enabled the assault on T2 to proceed in the way it did and were a necessary condition to the assault occurring. The severity and multitude of the breaches justified a finding of legal causation. They were inconsistent with a primary duty of the school to keep its students safe.

The Court held that the scope of the duty of care owed to T2 by the school was broader than that owed to most other students. This was because his pre-existing psychiatric diagnoses (which were known to the school) made him more susceptible to bullying, and because the school knew he had been subjected to bullying in the months leading up to the assault. It was also relevant that the school was on notice of XY’s propensity to violence.

The Court stated:

Taking into account the defendant’s suspension and expulsion policy and the recommendations made by the school counsellors … the school failed to undertake a comprehensive risk assessment prior to the return of XY

The school failed to comply with its own procedures relating to the return of students after a suspension when it failed to disseminate information to alert the head teachers about XY’s long suspension and subsequent return to school.

It was also interesting to see that the Court inferred that, as no evidence was given by the head teachers assigned to supervise the bus stop, the teachers “never attended the Thorney Road crossing and bus duty on that afternoon”. Therefore, there were no teachers at the crossing and bus stop to assist any student who may have encountered problems after school while waiting for the bus, and to deter and monitor the threat to T2. T2 could have approached the teachers for assistance had they been in attendance.

It is clear from this decision that the scope of the school’s duty of care includes taking reasonable steps to ensure that a school student, such as a vulnerable student like T2, can leave the school safely. The duty of care owed to students extends beyond the school gates, including while travelling to and from school (or at least, up to a point). There was no mention in the judgment of a 1996 NSW Supreme Court case in which, in not entirely dissimilar circumstances, a vulnerable (primary aged) student from a non-government school was injured by an older student who attended a nearby high school, while waiting at an unsupervised bus stop after the end of the school day. In that case, one of the judges of the Court of Appeal indicated that, in circumstances where a school knows students are bullied while travelling on the bus or while walking to or from school, the school’s duty may extend to requiring the school to take preventative measures.

Where parents send their child to school for the day, they are entitled to expect that teachers will take all reasonable precautions to prevent physical, foreseeable harm being inflicted upon their children. Therefore, the question is not whether the school owes a duty to students beyond the school gates and while they travel to and from school as it clearly does. The question is: what is the extent of a school’s obligation, in the particular circumstances, and what preventative measures should be taken?

It is important schools consider their duty of care to their students, including while they travel to and from school, by:

1. checking their system of supervision is suitable for their circumstances (although they need not ensure the system is perfect);
2. ensuring the school remains open for a period after classes end, so students can seek assistance if need be;
3. taking prompt, appropriate action to prevent bullying when it is brought to the school’s attention; and
4. ensuring students feel supported and encouraged to report bullying and other wrongdoing.

This article is based on a recent blog by Bill Madden, Senior Legal Counsel at Carroll & O’Dea Lawyers. If you need help in understanding your school’s duty of care as it applies at the beginning and end of the school day, please contact Stephanie McLuckie.