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[2025] NSWCA 165
respondent. Appeal dismissed. The appellant, the State of New South Wales, was ordered to pay the respondent’s costs.
The Court of Appeal dismissed the State’s appeal. It held that a school’s responsibility is not automatically limited to the final bell or the school boundary. In the circumstances here, Fairvale High School needed to have a responsible adult available to help students for a reasonable time after school. T2 returned to school seeking help shortly after 3:15pm, but the office was closed and no teacher was available. The Court found that keeping an adult available was a low-burden precaution and that T2 probably would not have been assaulted if one had been available. The Court did not uphold every part of the primary judge’s reasoning: it rejected the conclusion that the school breached its duty by not requiring XY to complete the RAGE Program, and it did not decide whether the failure to document a risk assessment was a breach because causation was not proved for that omission.
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4 cited instruments linked from this judgment.
The New South Wales Court of Appeal dismissed the State’s appeal from a negligence judgment in favour of T2, a 14-year-old Year 9 student at Fairvale High School. The appeal concerned whether the school breached its duty of care and whether any breach factually caused the assault. The State did not press its challenge to the damages award and did not raise an issue about normative causation under s 5D(1)(b) of the Civil Liability Act 2002 (NSW) (CLA) ([4]-[6]).
The final bell rang at 3:04pm on 16 October 2017. The school office usually closed at 3:15pm, when administrative staff finished work. T2 went to the bus stop just outside the school. After receiving information that XY and others were going to attack him, T2 crossed back into the school grounds seeking refuge or help. He found the office closed and no teacher or other employee available ([13], [18]-[23], [31]).
T2 texted his mother at 3:26pm, “I am about to get bashed”. She tried calling him and then called the school office at 3:28pm and 3:29pm. Those calls went to voicemail ([25]-[26]). At about 3:28pm, the bus arrived. The group prevented T2 from boarding, took him to a nearby park and assaulted him ([19], [27]-[28]). The judgment describes the assault as serious and records that T2 suffered physical and psychological injuries ([4], [28]).
The case also concerned XY’s history at school. XY had received a 20-school-day suspension for physical violence. A school counsellor and senior psychologist recommended, among other things, a risk assessment and enrolment in the RAGE Program, described in evidence as a program for learning to manage anger. No documented risk assessment had been prepared before XY returned, and there was no record that he completed the program ([35]-[42], [86]).
The primary judge found the State liable and awarded about $1.75 million. On appeal, Kirk JA concluded that the school’s failure to provide a responsible adult for a reasonable time after school was a breach and that the assault probably would not have occurred if that precaution had been taken. Bell CJ and Price AJA agreed ([6], [121]-[123]).
The Court treated the central question as one of breach rather than finally determining the outer limits of the school’s duty. The State had argued that the duty did not extend outside school hours or the school boundary, but its counsel accepted that the case could be approached as an assessment of breach. Kirk JA noted that scope and breach can overlap, particularly when the question is how long supervision should continue or how far the school’s responsibility reaches ([59]-[62], [78]-[79]).
The Court stated the general duty as an obligation to take reasonable care to prevent students being exposed to reasonably foreseeable risks of not insignificant harm ([65]). The content of that obligation depends on the particular circumstances, including the age and nature of students, the school and its surroundings, and any responsibility the school has assumed. The duty does not require schools to eliminate every risk or guarantee student safety. Teachers cannot be everywhere at once, and schooling cannot sensibly be organised to exclude every risk of injury ([66]).
On the facts, the relevant period was short and closely connected to the school day. T2 sought assistance in the school grounds within 24 minutes of the 3:04pm bell. The bus stop was close to the school entrance and plainly visible from the crossing where teachers were supposed to supervise students dispersing. About 20 students were at the stop when the bus arrived at 3:28pm ([15], [19], [31]). The Court did not impose a general obligation to supervise all students throughout their journeys home. It focused on a narrower precaution: an adult associated with the school should have been available at the office, crossing or another obvious place in the grounds for a reasonable period after school ([110]-[121]).
Several aspects of the evidence supported that conclusion. The school principal said teachers were generally expected to remain until most students had dispersed, and that they would stay longer if a student was upset or there was another concern ([112]-[114]). The deputy principal indicated that she would remain at the crossing to make sure a small group of students was okay ([115]). Both experts considered it a problem that students remained at the bus stop without staff present. The State’s expert accepted that it would be of great concern if a student who felt under threat returned to find the office locked and no way to report the concern ([101]-[108]).
The Court considered the CLA breach factors. Risks during dispersal included vehicle collisions, sexual predation, skylarking, violence and failed travel arrangements. Those risks were foreseeable and not insignificant; some could result in serious harm ([99], [116]-[117]). The burden of having one responsible adult available for a limited additional period was very low. The State did not contend that the cost was significant, and the principal’s evidence suggested that teachers often remained until around 3:30pm when circumstances required ([112]-[121]). On that balance, reasonable care required adult availability until at least 3:28pm on the facts of this case ([121]).
Causation followed from the evidence about T2’s conduct and the group’s actions. The Court inferred that T2 would have sought assistance from any teacher or school worker he encountered. An adult could have let him remain inside, contacted his family or helped him board the bus safely ([93]-[94]). The Court rejected the State’s argument that XY would not necessarily have been deterred by a teacher. It considered that attacking T2 in front of a responsible adult would have represented a significant escalation and that the group’s decision to take him away to a park was consistent with avoiding adults ([95]-[96]). The Court concluded on the balance of probabilities that T2 would not have been assaulted if the office had been open or an adult had been available at the crossing or elsewhere in the school grounds ([97], [121]).
The Court narrowed the primary judge’s reasoning in two important respects. First, it held that T2 had not established a breach in the school’s failure to require XY to undertake the RAGE Program before returning. The evidence did not show that XY could have started or completed the program during his suspension, and requiring completion first might have kept him out of school for a long period. The school also had responsibilities to XY and the community to support his education ([86]-[88]). Second, the Court did not decide whether failing to carry out a documented risk assessment was a breach. It held that causation was not proved: T2 had not shown that an assessment would probably have delayed XY’s return, led to another preventive step, or changed his behaviour ([89]-[91]).
The judgment did not announce a new categorical rule that schools must keep offices open until a particular time, or that they must supervise every student beyond the school boundary. Its stated approach is fact-sensitive. A school’s duty is generally to take reasonable care to protect students against foreseeable risks of not insignificant harm, but the period and place in which that responsibility matters depend on the circumstances ([65]-[79]).
The earlier authorities discussed in the judgment illustrate that contextual approach. In Geyer v Downs, the High Court addressed an injury before formal school supervision began, where students were regularly on the school grounds early. Kirk JA referred to Stephen J’s statement that the temporal ambit of the duty depends on the circumstances of the relationship on the occasion in question ([69]). In Graham v State of New South Wales, the Court of Appeal found no breach in the circumstances of a student with impaired vision and balance who was not transported home ([70]). In Koffman, the Court of Appeal judgments differed on the application of principle to supervision of a child waiting for a bus several hundred metres from school. Kirk JA noted that the differing results reflected the circumstances of those cases, not a universal rule based on the school gate or final bell ([71]-[76]).
Against that background, State of New South Wales v T2 applies the general principles to a more immediate post-school situation. T2 was not already on a journey some distance from school. He returned to the school itself to seek help, shortly after the office closed. The bus stop was immediately outside the grounds, close to the crossing where teachers were rostered to supervise departures. Students were still present there at 3:28pm ([15], [19], [21]-[23], [31]). Those facts supported a finding that a responsible adult should remain available for a reasonable period.
The Court also clarified the relationship between scope and breach. The school’s responsibility has physical and temporal dimensions, but it may be possible to characterise a dispute about those dimensions either as a question about whether the duty applies or as a question about what reasonable care required. The Court found no need to resolve that conceptual distinction in this case ([78]-[79]). The practical analysis was to identify the relevant risks and assess whether the school’s arrangements met the standard of reasonable care.
The outcome therefore adds a fact-specific application, rather than a fixed timetable. The precaution found reasonable was adult availability at an obvious place in or near the school grounds until at least 3:28pm in the circumstances of this large school and the events that occurred. The Court expressly rejected the need to identify a single universally applicable end time, and emphasised that the breach inquiry is sensitive to the facts ([111]-[121]).
At [59], Kirk JA explained that the case sat “at the borderline between identifying the scope of the duty of care and whether or not it has been breached.” In plain English, it was not easy to separate the question “Was the school still responsible at that time and place?” from “If it was responsible, what precautions were reasonable?” The Court did not need to resolve that distinction to decide the appeal ([78]-[79]).
At [65], the Court stated that a school’s duty is generally “to take reasonable care to prevent its students being exposed to reasonably foreseeable risks of not insignificant harm.” This is a general standard, not a guarantee of safety. It requires attention to meaningful foreseeable risks and reasonable precautions, assessed in the circumstances ([65]-[66]).
At [77], the Court said that whether a school’s duty has been breached in relation to an injury outside school hours or beyond the school boundary “is dependent on the particular facts of the case.” In other words, the final bell and school gate do not automatically decide the issue. The student’s circumstances, the place, the timing, the risks and the school’s arrangements all matter.
At [90]-[91], the Court addressed the alleged failure to undertake a documented risk assessment. It did not decide whether that omission was a breach. Instead, it held that T2 had not proved that the assessment would probably have delayed XY’s return, resulted in a different preventive measure or changed XY’s behaviour. A possibility of a different outcome was insufficient to establish factual causation.
At [97], the Court concluded that T2 would not have been assaulted on the balance of probabilities if the office had been open, or a teacher had been on duty at the crossing or another obvious place in the grounds, up to at least 3:28pm. At [121], it stated that providing one responsible adult for a reasonable time after the bell was a limited burden and that the failure to do so breached the duty. The Court’s conclusion was specific to these circumstances, rather than a universal rule for all schools.
The judgment is most directly relevant to cases where a student is injured shortly after school in circumstances closely connected to the school’s immediate dispersal arrangements. Features material to this decision included that T2 was a current student, the incident occurred within minutes of the bell, the bus stop was immediately outside and visible from the school crossing, and T2 returned to the grounds seeking assistance ([15], [19]-[23], [31]).
It is also relevant where the alleged precaution is modest and directed to foreseeable risks affecting students as they leave school. Here, the Court focused on having at least one responsible adult available at an obvious place, rather than requiring staff to accompany students throughout their journeys home or to supervise every nearby public transport location ([110]-[121]).
The judgment does not establish that schools must always keep an office open until 4:00pm. Kirk JA said it was unnecessary to specify a universal end time and treated the issue as whether adult availability remained reasonable in the actual circumstances. The school’s size, the students still present, the short time since the bell, the proximity of the bus stop and T2’s attempt to obtain help all formed part of the analysis ([111]-[121]).
The decision also does not mean that a prior history of student misconduct automatically makes a school liable for a later assault. The Court found no sound basis for the primary judge’s view that there was a strong possibility T2’s vulnerability and XY’s propensity for violence would converge. It nevertheless found a breach based on the school’s general responsibility to make assistance available during the period when students were dispersing ([82]-[85], [98]-[121]).
For claims relying on a particular student’s risk profile, the judgment shows the importance of distinguishing between (a) whether the school should consider a risk and (b) whether a proposed precaution would probably have prevented the injury. The Court considered that risks from XY’s return had to be considered, but did not find causation established for the missing documented assessment. Nor did it find that the school had to require the RAGE Program before XY returned ([85]-[91]).
The supplied judgment is dated 25 July 2025 and contains no discussion of later decisions applying, distinguishing or otherwise treating State of New South Wales v T2. The material provided therefore does not establish any subsequent appellate or trial-court treatment.
The judgment itself identifies earlier authorities and explains how it used them. It considered Geyer v Downs, Graham v State of New South Wales and Koffman in discussing the temporal and physical dimensions of school responsibility and the fact-sensitive nature of supervision obligations ([67]-[77]). It referred to Hadba when noting that teachers cannot be everywhere at once, and to Tabet v Gett and Strong v Woolworths Ltd on factual causation ([66], [91]). Those are relationships discussed by the Court in this judgment, not evidence of later treatment of T2.
For a research task requiring post-judgment treatment, the text supplied is not enough to identify subsequent citations or their effect. This deep dive therefore makes no claim that later courts have followed, confined or departed from T2.
The Court left open whether it was a breach not to undertake a documented risk assessment before XY returned to school. It called the issue “more borderline” and declined to decide it because factual causation was not established ([89]-[91]). The judgment therefore does not determine what a school must document in every case involving a student returning from suspension for violence.
The Court also did not decide what the result would have been if T2 had proved that a risk assessment would probably have delayed XY’s return, led to a different protective measure or altered the risk. Its decision is limited to the evidence and causal links established in this case ([90]-[91]).
The reasoning does not set a general minimum period for post-school supervision. It found that adult availability was required here for a reasonable time extending to at least 3:28pm, but expressly rejected the need to prescribe a universal time applicable to all schools ([111]-[121]). What is reasonable in a different school, location, student population or set of travel arrangements remains a question of the circumstances.
Finally, the Court did not resolve the broader conceptual question of when a post-school incident is best analysed as falling outside the scope of the duty or as a breach of an existing duty. It said the distinction may matter in some cases, but was unnecessary to determine this appeal ([78]-[79]). Its practical approach was to assess reasonable care against the relevant risks and facts.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165
Hearing dates: 2 May 2025
Date of orders: 25 July 2025
Decision date: 25 July 2025
Before: Bell CJ at [1];
Kirk JA at [2];
Price AJA at [123]
Decision: (1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs.
Catchwords: NEGLIGENCE — duty of care — breach of duty — causation — nature and scope of a school’s duty of care — student attacked after school outside school grounds by other students, instigated by a student with previous history of incidents — alleged breaches involving lack of teacher supervision or available staff assistance and inadequate risk assessment process — whether a school’s duty is breached with respect to an injury sustained outside of school hours beyond school grounds is dependent on the particular facts — issue here is at borderline between identifying scope of the duty and whether or not it has been breached — breach established — causation established
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B-5E
Cases Cited: Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135
Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40
Electricity Networks Corporation v Herridge Parties (2022) 276 CLR 271; [2022] HCA 37
Geyer v Downs [1975] 2 NSWLR 835
Geyer v Downs (1977) 138 CLR 91; [1977] HCA 64
Graham v State of New South Wales [2001] NSWCA 248
Gugiatti v Servite College Council Inc [2004] WASCA 5; (2004) Aust Torts Reports 81-724
Richards v Victoria [1969] VR 136
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291; (2023) 21 BPR 44,483
The Trustees of the Roman Catholic Church, Archdiocese of Sydney v Kondrajian [2001] NSWCA 308
The Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman S155/1996 [1997] HCATrans 80
Trustees of Roman Catholic Church for Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161; [2005] HCA 31
Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Victoria v Bryar (1970) 44 ALJR 174
Texts Cited: Peter Heffey, “The Duty of Schools and Teachers to Protect Pupils from Injury” (1985) 11(1) Monash University Law Review 1
Carolyn Sappideen et al, Fleming’s The Law of Torts (11th ed, 2024, Thomson Reuters)
Category: Principal judgment
Parties: State of New South Wales (Appellant)
T2 (by his tutor T1) (Respondent)
Representation: Counsel:
J Sexton SC and M Taylor (Appellant)
J Morris SC and M Fraser (Respondent)
Solicitors:
McCabes Lawyers (Appellant)
Palazzolo & Associates (Respondent)
File Number(s): 2024/443266
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 16 October 2017 the respondent, referred to as T2, was a 14 year old school student in Year 9 at Fairvale High School. He was the subject of a serious assault by a group of students shortly after school in a park near the school grounds, instigated by another Year 9 student, XY. The final bell for the school day had rung at 3:04pm. At approximately 3:15pm T2 went to a bus stop immediately outside the school to return home. While he was waiting for the bus he learned that he was “about to get bashed” by XY and others. He immediately crossed the road back into the school, seeking assistance and refuge. None was to be had – there was no teacher then stationed at the school crossing, the school office had closed at 3:15pm, and he encountered no other teacher or employee of the school. He texted his mother, who frantically phoned the school. No answer was received. Shortly before 3:28pm he returned to the bus stop when he saw his bus coming. XY and his associates prevented him from boarding the bus, then led him to the nearby park and assaulted him, causing significant physical and psychological harm.
XY had a history of incidents at the school in the preceding months. He had only just returned from a 20 day suspension for assaulting another student. The school counsellor and a psychologist had recommended in connection with that suspension that, amongst other things, XY be enrolled in the RAGE Program (a behaviour management program) and that a risk assessment be completed. No formal, documented risk assessment was undertaken by the school prior to XY being allowed to return to the school, and he had not been required to undertake the RAGE Program.
T2 sued the State of New South Wales (which was responsible for the school) in the Supreme Court alleging negligence. The primary judge found the State liable and awarded damages in the amount of some $1.75 million. Her Honour’s findings as to breach were essentially that the school failed to conduct a proper risk assessment of XY prior to him being allowed to return to school; there were no teachers on “bus duty” to act as a deterrent or capable of intervening as T2 was taken from the vicinity of the school; and the school’s administration office was not kept open until 4:00pm. Her Honour also suggested that these breaches occurred in the context of T2 being at a heightened risk of bullying and XY having a previous history of assaulting students, remarking that there was a “strong possibility” that these factors would “converge”. With regards to causation, her Honour appeared to accept that if any or all of those precautions were taken, the assault would not have occurred.
The State appealed, challenging her Honour’s conclusions as to liability on the basis that the school did not breach its duty of care and that factual causation was not established. A challenge to damages was not pressed.
The Court dismissed the appeal (Kirk JA, Bell CJ and Price AJA agreeing), holding as follows:
As to the school’s duty of care and the nature of the issue
1. The duty of care owed by a school to its students can generally be expressed as a duty to take reasonable care to prevent its students being exposed to reasonably foreseeable risks of not insignificant harm: [63]-[65]. The duty only applies where the school has some responsibility for the student, which involves physical and temporal dimensions: [66]-[67]. Whether or not a school’s duty to its students is breached with respect to an injury occurring outside school hours or the school boundary is dependent on the particular facts of the case: [67]-[77]. The issues in this case arise at the borderline between identifying the scope of the duty of care and whether or not it has been breached. It is sufficient here to treat the issue as one of breach, consistently with the State’s argument: [59]-[60] and [78]-[79].
Geyer v Downs (1977) 138 CLR 91; [1977] HCA 64; Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399; Graham v State of New South Wales [2001] NSWCA 248; The Trustees of the Roman Catholic Church, Archdiocese of Sydney v Kondrajian [2001] NSWCA 308; Richards v Victoria [1969] VR 136, considered.
Victoria v Bryar (1970) 44 ALJR 174; Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40; Trustees of Roman Catholic Church for Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161; [2005] HCA 31; Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42; Electricity Networks Corporation v Herridge Parties (2022) 276 CLR 271; [2022] HCA 37; Geyer v Downs [1975] 2 NSWLR 835; Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135; Gugiatti v Servite College Council Inc [2004] WASCA 5; (2004) Aust Torts Reports 81-724, referred to.
2. In assessing breach of duty, strictly, the question for a court is not per se what steps a person owing a duty should have taken in exercising reasonable care, as though the court was enforcing (or creating) specific rules. Rather, it is whether the acts or omissions of that person involved a failure in the circumstances to take reasonable care to avoid the relevant risk of harm. In some cases the issue will be focused on the failure to follow a particular pre-existing standard or guideline, or such like, or the failure to employ a particular system. In such cases the failure to take reasonable care may naturally be expressed in terms of having failed to meet that standard (etc) or to employ that system. Other cases will turn more on matters of degree. Thus if a question arises as to whether a particular precaution was still required at a particular time or at a particular place, then it is the need for that precaution at that time or place which is the focus of attention. It generally will not be necessary for the court to delineate for how much longer or further the precaution should have been taken: [61]-[62].
As to breach and causation
4. The school’s general standard of care did require that it consider the risks arising from XY’s return to school: [85]. However, the school also owed duties to XY, and to the community, to seek to ensure that he received an education. Requiring him to complete the program prior to returning may have kept him out of school for a long period of time. Contrary to the view of the primary judge, the school did not breach its duty by not requiring XY to undertake the RAGE Program prior to returning to school: [86]-[88]. Whether it was a breach not to undertake the recommended risk assessment in a documented manner is more borderline. It is not necessary to resolve this question as T2 did not establish that a risk assessment performed prior to the end of XY’s long suspension would have prevented the assault. Factual causation was therefore not made out: [89]-[91].
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, referred to.
BELL CJ: I agree with Kirk JA.
KIRK JA: On 16 October 2017 the respondent, referred to here as T2, was a 14 year old school student in Year 9 at Fairvale High School, a State school in south-western Sydney. Shortly after school finished that day he was the subject of a serious assault by other students from the school. The instigator of the assault was XY, then also aged 14 and in Year 9 at the school. XY had only just returned to school from a long period of suspension for having assaulted another student. The assault did not occur in the school grounds but at a nearby park. T2 had been waiting for his bus at a bus stop close to the school entrance.
T2 had learned shortly before the assault that it was likely to occur. He immediately sought assistance from, and refuge in, the school. None was to be had. He had also texted his mother (referred to as T1) saying “I am about to get bashed”. His mother frantically phoned the school, doing so just prior to the assault. No answer was received.
The respondent, who already had various psychological challenges, suffered physical and mental injuries as a result of the assault. He brought proceedings against the State of New South Wales, which was responsible for the school, alleging negligence. A cross-claim by the State against XY was filed but not pursued. The primary judge, Harrison AsJ, found the State liable and awarded damages in the amount of some $1.75 million: T2 (by his tutor T1) v State of New South Wales [2024] NSWSC 1347.
On appeal the State has challenged her Honour’s conclusions as to liability, doing so on the basis that the school did not breach its duty of care, and also that factual causation was not established for the purposes of s 5D(1)(a) of the Civil Liability Act 2002 (NSW) (CLA). The State did not raise any issue as to normative causation under s 5D(1)(b). It raised but did not press a challenge to the findings on damages.
The appeal should be dismissed with costs. The school breached its duty of care by effectively closing itself off from offering any assistance to students some 11 minutes after the final school bell rang, in circumstances where T2 had sought assistance from the school in the 24 minutes after the final bell had rung. But for that breach the assault on T2 would probably not have occurred.
I address the issues arising as follows:
facts (at [8]-[44]);
the relevant findings of the primary judge (at [45]-[58]);
the nature of the duty of care owed by the school (at [59]-[79]);
breach and causation (at [80]-[122]).
Evidence relevant to liability was given below by T2 and T1, along with the school principal (Ms Kathleen Seto), and one of the schools’ deputy principals (Ms Krystal Fountis) who was responsible for Year 9 and had had relevant interactions with XY. T2’s oral evidence in court barely touched upon the events in question as his memory of the events was poor and, as the primary judge noted, both sides strove “not to distress T2 by directly asking questions about the assault” (at [21]). He had given an account in a recorded police interview conducted the day after the assault. T2 has autism spectrum disorder. He had been diagnosed at the middle level of that condition prior to the assault, and the primary judge found that he had advanced to a higher level as a consequence of the assault.
The primary judge found that it was “not a case where any witness gave deliberately false evidence”, and said that the “only findings necessary to make are, as to where the evidence is disputed, whose evidence is preferred and why” (at [40]). On a factual issue as to a claimed admission by the principal as to liability her Honour (at [42]) preferred the evidence of the principal over that of T1 (a finding not disputed on appeal). This is not a case turning on findings based upon what the primary judge saw and heard with respect to the witnesses.
Expert evidence going to liability was called by either side. T2’s expert was Dr Kerri Ikin, an independent educational consultant. She had been “a director of schools for six years and supervised 32 schools in NSW”, and had “extensive knowledge in school policies and practices, in addition to teacher/principal practices and student behaviour” (judgment [174]). The State’s expert was Mr Peter Meaney, of whom the primary judge said this:
[181] Mr Meaney served as a school management specialist for 42 years and was a senior lecturer at the school of education at RMIT University. Mr Meaney has also published several books in the field. Importantly, when asked by me about his bus stop experience, it turned out he was responsible for supervising the bus stop every school day for a period of two years early in his career as a teacher in Scotland. In my opinion, this provided him with practical experience of the behaviour of students while waiting at a bus stop to catch a bus home.
T2 and XY had been in the same English class on the afternoon on the day of the assault. A subsequent report from their English teacher noted that T2 and XY had been sitting two metres away from each other during the class but that she did not see any exchange between them.
The bell signalling the end of classes for the day rang at 3:04pm. Office hours for the school office finished at 3:15pm, at which time the administration staff generally finished their day and locked everything up. A school staff meeting had been scheduled for 3:15pm that day. It occurred in a building located about 100 metres from the bus stop, and some 80 metres from the school office.
The school had rostered three “head teachers” to supervise students departing after the end of each school day. Two of those would supervise the crossing on Thorney Road outside the school and one would supervise the school’s rear gate. The school had some 1400 students at the time, of which some 70 caught buses to and from school.
The relevant supervision spot for the purposes of this incident is the Thorney Road crossing. It is close to a public bus stop (the primary judge estimated at [134] that it was about 20 metres away). The bus stop is, as senior counsel for the State put it, “plainly in view from the pedestrian crossing”. The entrance to the school is on the opposite side of the crossing to the bus stop, within the vicinity of the crossing. The school administration block is adjacent to Thorney Road.
The principal conceded that while the teachers were only rostered on to monitor the crossing, the bus stop was very close to the crossing and she said would expect teachers monitoring the crossing to keep “an eye out” for any conflict at the bus stop. She gave evidence that there was “no specified time” at which the supervision duty would end. The teachers were “instructed to leave once most of the students have dispersed”, which the majority usually did “in about 10 minutes”.
The two teachers who had been rostered on to supervise the Thorney Road crossing that day were not called to give evidence. The primary judge drew what she described as “a Jones v Dunkel inference that the teachers never attended the Thorney Road crossing and bus duty on that afternoon” (at [283], see further [141]-[149]). This finding seems to involve something of a leap: cf The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291; (2023) 21 BPR 44,483 at [145]-[147]. However, it was not challenged on appeal, and it is not necessary to consider whether the inference that the teachers never performed bus duty that day was properly drawn. In any event, there were no teachers there when T2 needed assistance.
T2 went to the bus stop adjacent to the Thorney Road crossing. He ordinarily caught a public bus from there to head home. Assuming that it took him up to about ten minutes to pack up and leave the school, this would have been by around 3:15pm. He said that his bus usually arrived at about 3:30pm. He indicated that after the teachers concluded their supervision there would usually be a group of students waiting for buses unsupervised.
In July through to September 2017 T2’s mother had raised various bullying concerns with the school in relation to T2. She, T2, T2’s older brother, the deputy principal (Ms Fountis), the school counsellor and another teacher had a meeting to discuss this on 11 September 2017. However, the concerns did not involve XY. T2 gave evidence of increasing tension between him and XY and his friends in the preceding months, relating to a story that T2 had stolen a phone, but it was not suggested the school should have been aware of this.
XY had, however, been involved in other significant incidents in the months preceding the assault. First, in early March 2017 XY and another student picked a student up off the ground and took and hid his shoes and socks during a sports class, doing so because it was “funny”. The deputy principal sent a letter to XY’s parents the following day cautioning that further incidents might result in a suspension.
Second, XY was suspended for three school days commencing on 3 August 2017 for “continued disobedience”. The letter informing his parents of the suspension did not mention violence as a reason. Rather, the trigger appears to have been truanting.
Third, on 29 August 2017 XY enlisted the assistance of another student to go after two students, who can be referred to as Students A and B, immediately after school. It seems he believed that those students had engaged in racial taunting of friends of XY. He and his associate did not catch Student A but did catch Student B. They demanded that Student B divulge the address of Student A, which demand was refused. XY kicked and punched Student B, who was on the ground with his hands protecting his face. The attack lasted for about a minute. On 1 September 2017 there was a meeting between XY, his mother, the principal and deputy principal. A note of the meeting included the statement that XY “could not promise that he wouldn’t do it again”. In cross-examination the deputy principal accepted that this assault could not fairly be described as a scuffle, saying “it was nasty”.
XY was suspended on Friday 1 September 2017 for 20 school days on a “long suspension”. The reason given for the suspension in the letter to his parents was “physical violence”. The letter said that the suspension could be reduced if the matter could be resolved satisfactorily, but there was no such reduction. Around the time he was suspended, the school counsellor and a senior psychologist made various written recommendations with respect to him, including that:
XY see the school counsellor to discuss his current behaviours;
XY be enrolled in the RAGE Program (a behaviour management program);
a “risk assessment” be completed; and
XY see the school counsellor to assist with emotional regulation for a “few sessions” and seek counselling from an “outside agency” depending on the assessment/success of the school counselling.
Discussed the incident – has promised he will not fight [Student B] or [Student A]
Has agreed to try and work with [deputy principal] & school regarding incidents that may occur in future
Has agreed that he will work in class to build his skills, attend the after school program sometimes when he needs it
The outcomes of the interview were recorded as “back to class” and “time out card”. It is not clear if XY returned to school on 12 October 2017 immediately after the interview with the deputy principal or on the next day.
As concerns the risk assessment process for XY’s return to the school, the principal responded to questions about the general procedures implemented in such circumstances. She acknowledged that she was involved in “senior executive discussions” about XY but said the deputy principal (who was in charge of Year 9) was responsible for the implementation of the strategies. The principal discussed general procedures such as the issuing of a “blue book” used to monitor the student, or the issuing of a “timeout card”. A blue book is issued to students who have been reprimanded for misbehaviour. They are required to carry the book to each of their classes and present it to their teacher in order to rate the student’s behaviour while in class. The student was required to show the blue book to the relevant deputy principal every day. The primary judge accepted that a blue book was issued to XY (at [100] and [329]).
The principal acknowledged the importance of the risk assessment process, saying “the risk assessment is for the safety of all staff and students at the school”. She disputed that it would always be documented, explaining that it “would be something that the deputy will be weighing up”. She referred to Department of Education templates for such a process, noting that she was not sure whether such a template was applied in relation to XY’s return.
The deputy principal referred to the risk assessment as a written document which forms part of the student’s file. She indicated that it was usually drafted by the head teacher for “learning and support” (Ms Savita Rahim), and the document would then be submitted to her for consideration. She gave evidence that a risk assessment would not necessarily need to be completed prior to a student’s return, and that procedures such as the blue book and teacher monitoring would be implemented upon their return to school. She disagreed that it would be contrary to the advice of the counsellor and the psychologist not to insist on being provided with the risk assessment from Ms Rahim.
There was no documented risk assessment prepared prior to XY’s return to school, although the principal seemed to be of the view that the school nonetheless undertook a risk assessment, saying that it was “all the things we pulled together to look at”. Nor could the deputy principal recall any inquiries she made as to whether XY had sought counselling from the school’s counsellor or an outside agency, as had been recommended. She had no recollection of XY being enrolled in the RAGE program (which she expected he would complete after his return from suspension), and there was no record this had occurred. However, the deputy principal disputed that she was incapable of making a realistic assessment of XY’s risk profile upon resumption at school without the benefit of a risk assessment or knowing whether XY had been attending counselling. She emphasised that she had had the conversation with XY (on 12 October 2017), saying that he was “very different to how he was when he was suspended initially”, and that based on her discussion she considered he was suitable to return.
The primary judge noted that both parties accepted that a duty of care was owed by the school to T2. What was said to be in dispute was the duty’s scope and content, whether it had been breached, causation and damages.
As to the relevant risks of harm, the amended statement of claim identified “risks of harms to students assembling at bus stops”, which were said to include risk of collision with a motor vehicle, sexual predation, skylarking between students causing injury, and violence between students. The duty had also been pleaded more broadly as “a duty to take reasonable precautions to prevent persons including the plaintiff from being exposed to a risk of serious harm”. The State had not admitted the specific risks of harm and, in response to the broader allegation, had admitted the existence of a duty but denied the pleaded scope, specifically denying that the duty “extended to preventing incidents which took place after school hours and off school grounds”.
Her Honour appeared to consider that the relevant risks of harm included that XY would assault or attack another student (at [280]-[281] and [290]) and that there might be “premeditated group attacks like that inflicted upon T2” (at [284]).
Beyond that, her Honour said this as to the scope and nature of the duty:
[254] The scope and nature of the duty of care are in dispute. It is my view that the school owes a duty of care to vulnerable students such as those school students who have physical or psychological issues, secondly, to keep students safe from being bullied and assaulted by other students, thirdly, to perform a proper risk assessment to school students who have been granted a long suspension before allowing them to return from that long suspension, fourthly, 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, finally, to provide supervision in and around the school for the safe passage of students for their journey to home from school.
The first matter identified does relate to the scope of the duty of care in the sense of identifying the class of persons to whom it is owed (although, as explained below, T2’s vulnerability in fact is not relevant to identifying the duty here). The second relates to the risk of harm to which the duty to take reasonable care applied. The third, fourth and final matters seem to relate to what reasonable care required in the circumstances, that is, they relate to the issue of breach. That said, there can be overlap between considering the scope of a duty and whether or not it has been breached, as discussed further below.
Her Honour considered that the scope of the duty of care owed to T2 was “broader than that owed to most other students” (at [258]). That was said to be because of “his pre-existing psychiatric diagnoses, which made him more susceptible to bullying, and the fact that the school was on notice of him having been subjected to bullying in the months leading up to the assault” (ibid). The primary judge considered that the incident at the bus stop was in “clear and close connection with the school”, bringing the incident within the remit of the school’s duty (at [271]).
Her Honour’s finding of breach seems essentially to have been three-fold (see at [295]-[297] and [337]-[339]):
the school failed to conduct a proper risk assessment of XY prior to him being allowed to resume attending the school;
there were no teachers on “bus duty” to act as a deterrent or capable of intervening as T2 was taken away from the vicinity of the school;
the school’s administration office was closed – specifically, it was not kept open till 4:00pm.
The primary judge suggested that these breaches occurred in the context of T2 being at a heightened risk of bullying and XY having a prior history of assaulting other students, having earlier remarked that there was a “strong possibility” that T2’s vulnerability and XY’s susceptibility to being violent “would converge after school, especially in the absence of supervision” (at [331]). Her Honour said that XY should have been monitored by senior teachers “while in the immediate vicinity of the school”, and said that senior teachers, including those on bus duty, should have been informed of XY’s long suspension (at [278]).
As regards the first breach, relating to not conducting a risk assessment of XY, her Honour held that the duty did not necessarily need to be satisfied by one document but could have been met through a combination of documents or a file note (at [263]). Her Honour considered that the deputy principal’s interview with XY was the only “step taken in furtherance of a ‘risk assessment’” (ibid). Acknowledging that there was a degree of discretion in the decision to permit a suspended student to return to school, her Honour emphasised that had the deputy principal implemented the procedures outlined by the school counsellors “she may well have formed a different opinion” (at [265]). Her Honour concluded that the school failed to undertake a “comprehensive risk assessment” prior to XY’s return (at [266], see also [107]). Her Honour held that it was more likely than not that no arrangements were made for XY to attend the RAGE program, per the counsellor report’s recommendation (at [107]).
[269] There are any number of reasons why students and/or their caregivers would need to access school staff soon after school finished. The reasons might include a student being hit by a car, a suspicious member of the public approaching students or, like in this case, a student fearing violence from a fellow school student and who seeks refuge inside the safety of school grounds.
[270] Closing the office immediately after school closed and forwarding the telephone onto a message bank that was unanswered, coupled with an absence of any staff on bus duty, makes it difficult, if not impossible, for students and/or caregivers to seek the assistance of staff.
[296] … ensuring that the school office was staffed until 4:00pm or such time as students had dispersed would have provided T2 a safe place to avoid the impending assault. These steps would protect against a variety of additional risks including, but not limited to, the risk of collision with a motor vehicle and skylarking between students where a school student could be injured. Further still, if the phone calls were monitored by a staff member until 4:00pm, the risk of harm to T2 could have been avoided through intervention.
[337] In the present proceedings, the school failed to conduct a proper risk assessment of XY, there were no teachers on bus duty to act as a deterrent or be able to intervene as T2 was led away from the school’s vicinity and the administration office was closed. …
[338] … the deputy principal did not follow any of the recommendations of the counsellors. Had she done, it is my view that XY would not have been allowed back to the school until he started the RAGE program and undertook the various recommendations. It is likely that undergoing these recommendations would have given him insight about the underlying causes of his prior violence and he would have been taught skills to defuse his anger.
[339] If any or all of these reasonable precautions were taken, in all likelihood the group attack of T2 would not have occurred. …
On one understanding of these paragraphs, her Honour considered that if all of the recommendations of the school counsellor and the psychologist had been followed then XY would not have been allowed back into the school until he had started the RAGE program, and/or until a risk assessment had been completed, and that would have meant XY would not have been at school on 16 October 2017 such that the assault would not have occurred. On another view, she was suggesting that completion of the RAGE program would have led XY to have better control of his violent impulses such that the assault would not have occurred. In any event, her Honour did suggest it would not have occurred if the crossing had been supervised or the school office open at the relevant time.
Her Honour went on to resolve numerous issues relating to damages.
it is important to keep in mind the distinction between the existence and content of the duty (who owes the duty, whom do they owe the duty to, and what kind of risks of harm must they take reasonable care to minimise or avoid?) and questions of breach (what were the reasonable precautions required in the circumstances, and did the person discharge the duty?).
The State argued that the school’s duty of care did not extend outside school hours and the school boundary in the manner found by the primary judge, thus raising a temporal and physical issue. Such points might have been made in terms of scope of duty. However, senior counsel for the State suggested that the case was best understood as involving an assessment of breach. I return to this point below (at [78]-[79]).
The issue of breach is sometimes expressed in terms of asking what the duty of care required in the particular circumstances of this case. Strictly, the question for a court is not per se what steps a person owing a duty should have taken in exercising reasonable care, as though the court was enforcing (or creating) specific rules. Rather, it is whether the acts or omissions of that person involved a failure in the circumstances to take reasonable care to avoid the relevant risk of harm. That analysis does involve considering whether or not the person failed to take precautions against the risk, as is addressed in ss 5B and 5C of the CLA. Nevertheless, the key question is whether such precautions as the person did take (if any) failed to meet the requisite standard of reasonable care. Understanding the issue in that way appropriately recognises that whether a duty has been breached is always dependent on the circumstances of the particular case.
In some cases the issue will be focused on the failure to follow a particular pre-existing standard or guideline, or such like, or the failure to employ a particular system. In such cases the failure to take reasonable care may naturally be expressed in terms of having failed to meet that standard (etc) or to employ that system. Other cases will turn more on matters of degree. Thus if, for example, a question arises as to whether a particular precaution was still required at a particular time or at a particular place, then it is the need for that precaution at that time or place which is the focus of attention. It generally will not be necessary for the court to delineate for how much longer or further the precaution should have been taken.
The duty of care owed by a school has tended to be expressed in terms encompassing a broad range of risks of injury. That reflects the fact that “[c]hildren stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school” (Geyer v Downs (1977) 138 CLR 91 at 93; [1977] HCA 64). It also reflects the myriad risks which may arise in connection with schooling. Children “need protection from their environment, from others and from themselves”: The Trustees of the Roman Catholic Church, Archdiocese of Sydney v Kondrajian [2001] NSWCA 308 at [55].
In Richards [1969] VR 136, at 138, the Full Court of the Victorian Supreme Court said that it was “now clearly established by authority that in general a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil”. In (1970) 44 ALJR 174, by reference to , it was said that a school teacher owed a duty “to take reasonable care for the safety of the pupil” (Barwick CJ at 175, speaking for four members of the Court). In Murphy and Aickin JJ approved a formulation that the duty owed by a teacher or schoolmaster requires that they “should take such measures as in all the circumstances were reasonable to prevent physical injury” (quoting at 102, Mason and Jacobs JJ agreeing). Drawing upon that statement, Brennan J said in (1982) 150 CLR 258 at 280; [1982] HCA 40 that the duty of a school authority “is no less than the duty of the schoolmaster, who is bound to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen”. Similarly, Mason J said in that case that the (non-delegable) duty of any body conducting a school was “to ensure that reasonable care was taken for the safety of the pupil” (at 271-272). Justice Murphy spoke of the duty extending to taking “all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury” (at 274-275). In it was said that the duty of a school is “to take reasonable care to prevent [students] from being injured” (at [53]). Although these statements are all very general, the duty would not sensibly extend to risks of insignificant harm.
In my opinion the extent and nature of the duty of the teacher to the pupil is dictated by the particular circumstances. I do not think its extent is necessarily measured or limited by the circumstance that the final bell for the day has rung and the pupil has walked out the school gate. The circumstances of a small country high school located beside a quiet street and a primary school located on a busy highway in a big city may be contrasted. In the first case older children leave the environs of the school in comparative safety. In the second small children emerge from the school into a situation of immediate danger. School buses and parents may arrive late. Major streets have to be crossed and so on. Moreover as happened at Bathurst High School, high spirited children congregate outside the school waiting to be taken home.
Mr McAlary [for the school], legitimately, asked rhetorically whether the duty extended to the journey on the bus or in the case of other pupils during the time they spent walking from the school to their homes. The answer must be that this depends upon the circumstances. Ordinarily I would not expect the duty to be so extended. But if the school were aware that a particular bus driver, who transported its children, was a dangerous driver or that on a particular journey older children habitually and violently bullied younger children, the duty may well extend so far as to require the school to take preventative steps or to warn parents. This duty would be founded in the relationship of teacher and pupil.
What … the obligation of the school to do things for the safety of the pupil, will require to be done will depend upon the circumstances. Thus, if it is plain to the school that, immediately outside the school premises, there is a busy and therefore dangerous road, the school will ordinarily have an obligation to shepherd pupils of a young age across the road. But if, in the course of walking from school to home, the student has reason to cross a busy road two kilometres from the school, it does not follow that the obligation of the school to take precautions for the safety of the student will involve that it shepherd the student across the road. I do not mean by this that a school may not have some obligations in respect of pupil safety even two kilometres from the school. Thus, if the school was made aware that, at that place, the student was habitually molested, it might arguably have an obligation, inter alia, to draw that matter to the attention of the parents, the police or others. I have referred to these examples to illustrate that what the obligation to take precautions in respect of a pupil's safety will require the school to do will vary according to the circumstances of time, place and otherwise.
Special circumstances apart, a school is not in my opinion obliged to provide a member of the staff or otherwise to supervise children who, three or four hundred metres away from the school, will wait to board a bus or other transport to take them to their suburb and so to their home. … it is not uncommon for children to walk a considerable distance between school and home or to travel even further by public transport. Dangers or possible dangers of various kinds are incidental to such journeys. A child who walks a kilometre or two from the school to the home will run the risk of injury in crossing a road; he or she will be at risk because of the propensity of a child of the instant age to act impulsively and without thought; there is the risk of injury from climbing fences or trees as children tend to do; and children are apt to be involved in disputes with other children. A school will, of course, recognise these possibilities. Where transport is involved, other risks will exist. But … I do not think the law requires that a school provide supervision by a staff member to safeguard a child against such injuries.
As senior counsel for the State submitted to us, the difference between the judgments of Mahoney P and Sheller JA related not to principle but to its application. Special leave to appeal was refused on the basis that the judgments of the majority contained no error of principle: The Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman S155/1996 [1997] HCATrans 80. Neither side in this matter criticised the statements of principle in either judgment in the case.
The varying results in these cases illustrate the basic point that whether or not a school’s duty to its students is breached with respect to an injury occurring outside school hours or the school boundary is dependent on the particular facts of the case.
That leads back to the question as to whether what is at issue here is the scope of the duty of care or rather breach of the duty (recognising that breach must be established in any event). The issue at hand can be expressed either way. As indicated, a school’s duty links to when it has responsibility for students, which has temporal and physical dimensions. Thus in Geyer Stephen J spoke of the “temporal ambit of the duty” (at 94). Justices Murphy and Aickin similarly treated the issue in that case as whether the headmaster “was under a duty to ensure that there was adequate supervision of the girls in the playground before 9:00am” (at 104). So understood, the issue goes to whether the duty applies or not, being a matter of scope. On the other hand, the school-student relationship giving rise to the duty can be said to have incidental and penumbral aspects. What is required in the period shortly before or after school hours can be viewed as a question of what the duty requires in the penumbra of the school’s control and supervision coming into or ceasing operation. Thus in Koffman Mahoney P considered that as the duty arose “from the relationship of master and pupil”, the question was what precautions the school was required to take in light of the circumstances, including as to the time and place of the injury (at 63,590). That analysis treats the issue in terms of breach.
It is conceivable that in some cases the difference between treating the issue at hand as one of scope or breach could matter, given that the former is treated as a question of law and the latter as a question of fact: see eg Fleming at [7.10]; Heffey at 5-6. In general, however, the difference will be more theoretical than real. Either way the answer to the question depends in essence upon consideration of what is reasonable in all the circumstances. In this case it does not matter, and it is sufficient to treat the issue as one of breach, as was argued by the State.
The State’s case on appeal is that the primary judge erred in finding that the school breached its duty of care in the three ways identified above (at [51]), namely, not conducting a risk assessment of XY prior to his return to school; not having teachers on bus duty on Thorney Street after school on the day in question; and that the school’s office was not kept open till 4:00pm.
The State also challenged the primary judge’s statements that there was a “strong possibility” that T2’s vulnerability and XY’s susceptibility to violence “would converge after school” (at [331]), and that XY should have been monitored by senior teachers “while in the immediate vicinity of the school” (at [278]). As the respondent submitted, it does not appear that those statements were findings which ultimately went to the primary judge’s findings on breach of duty. Nevertheless, addressing them serves to throw some light on what is at issue, and it is convenient to start analysis there.
As the State submitted, “every school has some children with disabilities and/or who are bullied and every school also has potentially violent children”. The reasonable care required of a school must take account of those facts. In this matter there was no relevant history of XY having bullied T2 prior to the assault (see above at [32]). As the State said with respect to the primary judge’s references to T2’s vulnerability and XY’s propensity for violence, those matters really go no further than the proposition that bullies are generally attracted to vulnerable people as victims. And that proposition, too, affects what a school’s duty of care generally requires.
There is no sound basis for concluding that prior to the assault there was a strong possibility that T2’s vulnerability and XY’s susceptibility to violence would converge in a harmful way after school. And it is impractical and unrealistic to suggest that XY should have been monitored by senior teachers in the immediate vicinity of the school, if that was meant to suggest that a teacher should have followed XY for some indeterminate time and distance outside of school lest he harm any other student. As the principal said in evidence, “[w]e are a school, not a gaol”. Nor was the school a police or security agency.
In some cases there may be a real risk that one particular student is in danger of harm by another. And in some cases a student’s vulnerability, of one kind or another, will be distinctive such as to require the school to take particular steps to protect the student from harm. Here, T2’s legal representatives gave some emphasis in the court below to his autism spectrum disorder and the difficulties he had been having at school. However, those difficulties were not of a nature or degree to require recognition of some standard of care specific to him, as opposed to the standard generally required of a school, which must recognise the presence of both vulnerable students and bullies. Senior counsel for T2 ultimately accepted as much in this Court.
The school’s general standard of care did require that it consider the risks arising from XY returning to school after his long suspension. As the deputy principal said, the attack which had led to that suspension was “nasty”. That attack 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. The joint report of the school counsellor and the psychologist prepared around the commencement of XY’s long suspension recognised and responded to that risk with its recommendations, including that he be enrolled in the RAGE program and that a risk assessment be completed.
The State challenged the primary judge’s conclusion that the school failed to exercise reasonable care by not having required that a formal risk assessment be completed prior to XY’s return to school. The primary judge’s (ambiguous) conclusions on causation were set out above (at [56]-[57]). The primary judge did not explain the nature of the RAGE program. The principal said it was a program “offered in the local area where students learn to manage their anger”. She gave the following evidence in cross-examination:
Q. … Before a child or a student is returned to the school environment after a long suspension, do you ensure that each of the recommendations set out in the school counsellor suspension report has been completed?
A. No, cause during a 20 day suspension, they're completing classwork, so there may not be an opportunity to get into the RAGE program, for example, they may have to be waitlisted. They're not offered all the time, and we can't just drop them into programs. But they're the suggestions, and whether the student, you know, was willing to participate in some of the things. So, it's not a recommendation that - or it's not a condition of returning to school that you have to do all these things, no.
Thus it was far from certain that it would have been possible for XY to start, let alone complete, the RAGE program during his 20 day suspension (or prior to 16 October 2017). T2 did not establish otherwise. Requiring him to complete it prior to returning may have kept him out of school for a long period of time.
It is important to recall that the school also owed duties to XY, and to the community, to seek to ensure that he received an education. The principal said that “I take many students that are expelled from private schools”. Seeking to educate difficult, even potentially violent, students is to the benefit of society. That fact is relevant to assessment of breach, going as it does to the social utility of the activity creating the risk of harm: CLA, s 5B(2)(d). In these circumstances I consider, contrary to the view of the primary judge, that T2 did not establish that the school breached its duty by not requiring XY to undertake the RAGE program prior to returning to school. It is unnecessary then to consider the causation issues raised with respect to completion of the program.
Whether it was a breach of duty not to undertake the recommended risk assessment prior to letting him back to school, doing so in a documented manner consistent with the departmental template, is more borderline. True, it was only expressed as a recommendation. But it was entitled to real weight given that it was provided by both the school counsellor and a psychologist. Moreover, a departmental memo entitled “Suspension and Expulsion of School Students – Procedures 2011” (updated in 2015) said that where a student is returning from a suspension following an incident involving violence, “the principal must undertake a risk assessment in order to assess whether the return of the student will pose a risk to staff, students or other persons”. The principal accepted that doing so was “for the safety of all staff and students at the school”.
In the end it is not necessary to resolve this question of breach. Even if there was a breach, T2 did not establish that a risk assessment performed prior to the end of XY’s long suspension would likely have delayed him returning to school so as to be still absent on 16 October 2017. Nor did he establish that the risk assessment would have led to a conclusion that some other step should be taken which would have delayed XY’s return, or that it otherwise would have probably changed his behaviour. And it is relevant that the deputy principal did interview XY and considered that he was “very different” and that he was suitable to return to school (see above at [42]). That view militates against drawing any inference that a risk assessment would have reached a different conclusion or otherwise avoided what occurred on 16 October 2017.
Factual causation must be established by the claimant on the balance of probabilities: CLA, ss 5D and 5E; Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 at [108]-[113]; (2012) 246 CLR 182; [2012] HCA 5 at [17]-[30]. That there was a chance it might have led to a different result does not suffice in a case such as this. Contrary to the conclusion of the primary judge, factual causation was not made out here with respect to any breach with respect to the failure to undertake a formal risk assessment.
The other two breaches of duty found by the primary judge were not having teachers on bus duty at the street crossing on the day in question, and not keeping the school’s office open till 4:00pm. As to the latter, in order to find a breach of duty it was not necessary to specify a particular time till when the office should have been kept open. All that strictly was necessary was to conclude that not having the office open at a particular time fell below a standard of reasonable care (see above at [61]). Moreover, as addressed below, in the circumstances of this case it is not necessary to distinguish between the two actions of stationing a teacher on the street crossing and keeping the office open. The harm caused to T2 had nothing to do with crossing the road. What is significant is that he learned around or soon after 3:15pm that he was “about to get bashed”. He then crossed back over the road to seek refuge or assistance in the school.
It is convenient to address the issue of causation first, insofar as a breach occurred in the period 3:18 to 3:28pm (as to which see above at [31]). It can readily be inferred that he would have sought assistance from any teacher or school worker that he came across when going back into the school, whether at the crossing or the office. The State criticised the primary judge for not explaining how things would have been different if the office had been open given that T2 “had only been told by another student that XY wanted to talk with him”. As explained above (at [20]), given that T2 understood he was about to be “bashed” it seems likely he was in fact told more than that. In any event he certainly believed more than that.
It can also readily be inferred that a teacher or school worker would have assisted him if requested, whether by encouraging him to stay inside the refuge of the school for a short while, or phoning his mother or another family member to ask to be picked up, or seeing him safely on to the bus. The principal, when speaking about the teachers rostered on duty to supervise students leaving the school said, unsurprisingly, that “if there’s a concern, they’ll stay out there”.
The State said it cannot be inferred that XY would have been deterred from attacking T2 by the presence of a teacher. I disagree. For XY to assault T2 in the presence of a responsible adult would have involved a significant escalation in seriousness and arrogance from what he had done before, and what he did on that day. Such behaviour would stand in contrast to the fact that XY and his associates did not physically assault T2 at the bus stop but merely impeded him getting on the bus. It would stand in contrast to the cowardly actions of XY in leading T2 to a park away from the school (and presumptively other adults) in order to be assaulted by a large group.
The State also submitted that nine students boarded the bus that T2 was planning to catch and it was not open to a teacher to tell them to disembark and board another bus. The submission is not to the point. It was not those students who T2 had cause to fear and it was not them who caused him harm. Further, it seems unlikely that XY and his gang of associates would have followed T2 onto the bus if a teacher had escorted him on. Again, being on the bus would likely have involved the restraining presence of other adults.
WITNESS MEANEY: … no high school just shuts up on a … time. They just don't do that. So, the office might have been shut, and I agree with that, but if you've ever been into multiple high schools, you'll find that the staff then go to the staff room, pick their bags up, do some work for the next day, cover their emails, so the staff are at the school, the office might be shut. So maybe the practise should have been that if the office is shut, that anyone who needs to speak to a member of staff, and this happens in lots of high schools, goes to the staff room, knocks on the door and says, “I need to speak to someone.”
MORRIS: Or perhaps a sign on the door as the door gets shut?
WITNESS MEANEY: Correct, yes.
No, I wouldn't disagree with that, it's just that in my experience, and … I have been teaching for an excess of 50 years now, I have never seen a school close up shop. I mean, if … they do, I find that remarkably unprofessional. So, I'm … taking on board that this might be a possibility, but I have never seen it done.
MORRIS: If [T2’s] account was accepted by her Honour, that he felt under threat at the bus stop sometime around 3.15, 3.20, went back across the crossing, no teacher, went to the school office, and the school office was locked, and there was no way for him to report his safety concern to anybody, that would be a matter of great concern to you, would it, Mr Meaney?
WITNESS MEANEY: Would be, yes.
Both he and Dr Ikin then agreed with the proposition that regardless of T2’s pre-existing difficulties, “a high school such as this might have students of 13 or 14 years of age who require the intervention of an adult in authority to provide them with a level of safety”.
Thus the experts gave evidence that the absence of a supervising teacher at the crossing at 3:28pm was a problem; that it would be seriously problematic and remarkably unprofessional to close a school office straight after teaching finishes; that the absence of anyone for T2 to report his safety concern to at around 3:15 or 3:20pm was a great concern; and that a high school such as this should have had an adult around to provide them with a level of safety.
Such expert evidence is not determinative of the issue of breach. But it is significant. The evidence went to general (although not invariable) practice, which throws light both on what school authorities themselves consider reasonable practice, and what is reasonably practicable taking account of the resources available to schools. The experts’ opinions based on experience of risk management is also entitled to some weight in assessing what reasonable care required in such circumstances. The evidence from both experts supports a conclusion that the failure on 16 October 2017 to provide any means by which students could seek assistance from any responsible adult at or in the vicinity of the school after 3:15pm – and specifically the failure to do so in the window between that time and 3:28pm – constituted a breach of duty.
The principal testified that two teachers were always rostered on duty at the Thorney Road crossing and that there was no specified time for them to finish, as they were “instructed to leave once most of the students have dispersed”. She said that she would not have expected a teacher to be on duty given the number of students remaining as shown in the bus CCTV footage at 3:28pm. Yet there is an unchallenged finding that the two rostered teachers did not attend on duty that day (see above at [17]). And the principal accepted that if the teachers rostered on duty had left some time before 3:25pm that would cause her concern. It is implicit in the experts’ evidence that they considered that the school’s practice would have been insufficient taking account of the number of students present at the bus stop at 3:28pm.
The State argued that there was nothing particular about the bus stop in question which distinguished it from the myriad other places the school’s students might gather after school, whether to catch public transport or for any other reason. Nor, it argued, was there any particular risk on the day in question. It said that the consequence of the primary judge’s decision was that the State “is obliged to supervise all forms of public transport throughout New South Wales ‘in the vicinity’ of all schools until all students have left that ‘vicinity’”. It argued that such a requirement “would be intolerable”. Whatever the merits of these arguments, they do not go to the more narrowly expressed precaution of ensuring some responsible adult was available at or in the immediate vicinity of school to assist students for a reasonable period after school ended.
at 3.15, 11 minutes after 3.04, the majority of the students may have dispersed, but there’s still parents that are working, go to other schools, they’re still picking up their … child, and I doubt that the two head teachers would've … moved back into the school at that time.
Well, if all the students are gone, then it’s no use standing out there if there’s no students there, but on the whole, most students disperse within ten minutes, but there might be a few students, or if there’s a concern, they’ll stay out there. Sometimes they even stay out there longer, let’s say a student’s upset, or a parent turns up, for example, and their child has not jumped into the car, or they don’t know where they are, they’ve gone off and played with a friend and forgotten to tell their parents, teachers will stay out there longer.
This answer recognises some of the reasons why it might be important to have a responsible adult from the school available. It also implicitly accepts that such a need might arise for a reasonable time even if there are only a few, or even no, children still around (as when a concerned parent seeks to find out where their child is).
The deputy principal was asked if she would stay till 3:30pm when performing crossing duty, answering “thereabouts”, depending on “how many kids are there”. She was then asked if she would stay if there were “half a dozen or so”, and she appeared to indicate that she would, saying “just to make sure that they were okay”.
Turning then to the breach calculus considerations identified in ss 5B and 5C of the CLA, I do not understand it to have been disputed that there were myriad risks of the kind identified above (at [99]) which could affect students of the school in the period after school as they were dispersing. Such risks were foreseeable and not insignificant. Taking account of the fact that there were some 1400 students at the school, the chance that a student need for assistance might arise on any given day was not negligible. There was no evidence to suggest otherwise. The evidence of the experts implicitly supports these conclusions.
As to the likely seriousness of the harm, the potential consequences of any of the risks eventuating fell within a wide range. They include consequences which are relatively minor, such as student distress from missing a bus or not being picked up as arranged. They extend to consequences which are serious, including those which might result from the risks of skylarking, predation or violence.
The burden of taking precautions to avoid the risk of harm which came home, along with similar risks, would not have been substantial. The principal testified that “[e]very day after school, a total of three head teachers are rostered to supervise students and to facilitate, co-ordinate and control students being picked up by parents or catching buses”. As noted, such teachers were directed to remain until “most of the students have dispersed”. All that would have been required was either that at least one teacher be tasked to remain available for somewhat longer than that, or for the school office to be kept open (staffed by at least one person) for some time past 3:15pm.
The evidence of the experts as to usual practice suggests that some such requirement has not proved generally difficult or onerous for schools. That understanding is supported by the departmental memo on “Care and Supervision of Students”, which referred to a duty of care being “exercised” for half an hour before school and, if considered necessary by the principal, for half an hour afterwards (see above at [100]).
The State did not seek to argue that the cost of meeting such a requirement was significant. It fairly noted that the school had 14 administrative staff and 140 teachers. It did submit that there was an opportunity cost in terms of distracting teachers from their other responsibilities. That point links to consideration of the social utility of schooling, which is high. The existence of some such opportunity cost can be accepted, but its extent is limited when it involves having one responsible adult available for a short period after school. And it would not have been any burden beyond what the supervising teachers, according to the principal, “generally” were undertaking.
**********
Corrected typographical error in school name in headnote and at [2], [99] and [121]
State of New South Wales
T2
(2022) 109 NSWLR 240
(1982) 150 CLR 258
(2022) 276 CLR 271
(1977) 138 CLR 91
(2007) 234 CLR 330
(2012) 246 CLR 182
(2010) 240 CLR 537
(2005) 221 CLR 161
(2005) 223 CLR 422
(1970) 44 ALJR 174
Appeal dismissed. The appellant, the State of New South Wales, was ordered to pay the respondent’s costs.
The time window of what occurred next is established by the fact that there is time-stamped CCTV footage from the bus that T2 was intending to catch which indicates it arrived at the bus stop and started opening its doors at 3:27:58pm. The parties assumed that this CCTV timing was accurate. The footage reveals that there was a group of some 22 students at the bus stop, including T2. Nine students got on the bus (judgment [156]). T2 was prevented from doing so as he was surrounded by the group of youths who were to assault him. The footage also confirms that no teacher was on duty at the crossing.
The following occurred in that 13 minute window between approximately 3:15pm, when T2 first arrived at the bus stop, and 3:28pm when he was prevented entering the bus. He told police that whilst he was waiting there a student who was his friend (referred to as TJ) had approached T2 and indicated to him that XY “wants to speak to you”. T2 responded “Why, I did nothing wrong”. It can be inferred that he understood from this message that XY was planning to cause him some injury (as shown by the text that he sent his mother, discussed below). It may well be that TJ said more than this, because T2 told the police he had been told that XY wanted to fight him. Shortly after that – T2 said it was about two minutes later – XY and some 11 or so other students walked across the road to the bus stop, coming from a nearby park, and stood next to T2. Given that there were some 22 students present when the bus came, it can be inferred that there were about 10 students (including T2) at the bus stop prior to the group approaching. That is consistent with the fact that nine students boarded the bus that T2 had been going to catch.
T2 then walked away, back across the road and into the school grounds. He said this was about five minutes before the bus was due to come – which, if correct, would have been about 3:25pm. He walked to the school office but it was closed, so T2 waited outside the office for probably a “couple of minutes”. On T2’s evidence the group then walked away from the bus stop and from where he was standing he could not see them. When he saw the bus coming down Thorney Road he then went back out through the school’s front gate and crossed the road back to the bus stop.
Two contemporaneous documents indicate that T2’s mother said that T2 had found the school office closed at 3:18pm. Presumably she understood or inferred that from what T2 told her. The State pointed out that this timing is not consistent with what T2 told the police, which implicitly suggested he walked back into the school at about 3:25pm. In any event, it is apparent that he went to the school office in the window between about 3:18pm and shortly before 3:28pm (when the bus arrived) and waited there for some minutes.
It can be inferred that in going to the office he was seeking refuge or assistance. So much is supported by the text messages exchanged with his mother around this time (see below). He also told police that “I walked away and I hid”.
There were a series of text messages between T2 and his mother in the lead up to, and following, the assault. The text messages themselves were not in evidence, due to issues retrieving the messages from T2 and his mother’s phone. The evidence of the text messages is thus in the form of handwritten transcriptions which T2’s mother said were copied from the phone she had at the time. The timing of some of these messages can be corroborated by telephone records of T2’s mother’s phone, noting that the phone records seem only to indicate outgoing text messages and calls from the phone.
T2 sent a text message to his mother at 3:26pm saying that “I am about to get bashed”. T2’s mother responded at 3:27pm saying “what”, the timing of which is corroborated by the phone records. The records then indicate that she attempted to call T2. The records indicate the call lasted 3 seconds which presumably indicates it went to voicemail. She texted him again at 3:27pm, saying “where are you”, the timing of which is again consistent with the records.
At 3:28pm and 3:29pm T2’s mother rang the school office and did not receive an answer; both calls went to voicemail. She left messages to the effect that her son was getting bashed at the front of the school and could they please go out the front of the school. At 3:31pm she called the local police station and asked the police to do a drive by.
T2 described that as he was about to walk onto the bus, the group led by XY grabbed him by his school bag and “dragged” him away. The bus CCTV footage indicates that the group prevented him from boarding the bus by standing in his way. After the bus left he was taken down an alleyway on the same side of the road as the bus stop on Thorney Road. That alleyway led to a park by a river. There is CCTV footage from a residence abutting the alleyway (with a timestamp agreed to be inaccurate) which shows one individual in the group with his arm around T2 walking with him down the alleyway, with the remaining members following behind.
T2 was then assaulted in the park by the group. The assault was filmed by one of the students. T2 was spear tackled to the ground, then repeatedly kicked and punched by various members of the group. The primary judge noted that the footage of the assault is very distressing (at [160]). T2 told the police that XY indicated he was being punished for acting “big” in his English class.
T2 said that the group then ran off towards the river, following which his friend TJ arrived from the alleyway. T2 and TJ walked back to the school “to see if anybody was there but no one was there”.
At 3:42pm, according to T2’s mother’s notes, T2 texted her, saying “come to the school”. That time appears reliable, because it is apparent from the phone records that his mother sent a series of texts to him from 3:43pm to 3:47pm and tried to call him at 3:45pm. T2 estimated that he was picked up about five minutes after he got back to the school, following which he received medical attention.
Thus T2 sought assistance from and refuge in the school in the period between about 3:18pm and just before 3:28pm, no more than 24 minutes after the school bell for the end of the day, and very shortly after the school office closed at 3:15pm. He was led away from the bus stop directly opposite the school by the group of students immediately after 3:28pm. The assault itself likely occurred between 3:30pm and 3:40pm. He had returned to the school by 3:42pm, and there was again no-one there available to assist.
On Thursday 12 October 2017, the date that XY’s suspension was due to end, XY participated in an interview with the deputy principal. She gave evidence that she “wanted to understand if he was remorseful in any way”. The reason for the interview was noted in the school’s record to be “[r]esolution – return from suspension”. In the “Details” section of the record, the following notes were recorded:
The principal gave evidence, based on conversations with teachers, that XY was “productive” and “settled” after he returned and that there was no cause for concern.
The assault on T2 occurred after XY had been back at school for just two full days.
As regards the second and third breaches, relating to the absence of teachers on bus duty and the closure of the office, the primary judge said:
Thus the duty of care owed by a school to its students can generally be expressed as a duty to take reasonable care to prevent its students being exposed to reasonably foreseeable risks of not insignificant harm. The duty is non-delegable, being a duty to ensure reasonable care is taken, but that characteristic is not material in the context of this matter. Given the nature of the circumstances calling the duty forth, it is one where reasonable care may require positive action: note Peter Heffey, “The Duty of Schools and Teachers to Protect Pupils from Injury” (1985) 11(1) Monash University Law Review 1, 2.
What reasonable care requires must be assessed in light of ss 5B and 5C of the CLA. That assessment must take account of all the circumstances of the particular case. Those circumstances 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 take account of 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”: Trustees of Roman Catholic Church for Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161; [2005] HCA 31 at [24] and [25]. And “it is neither practicable nor desirable to maintain a system of education that seeks to exclude every risk of injury” (Kondrajian at [66]), nor is the duty one of insurance against harm (Richards at 138).
The duty only applies where the school has some responsibility for the student, as reflected in the formulation employed in Richards (see above at [64]). Responsibility involves physical and temporal dimensions. The State had sought to rely on the statement by Meagher JA in Graham v State of New South Wales [2001] NSWCA 248, at [5], that “[e]xcept in exceptional circumstances the master/pupil relationship ceases to exist at the school boundary”. What his Honour said – in an ex tempore judgment – is something of an overstatement. As Mason P said in the same case, what the duty of care requires “may be affected by the particular circumstances of the pupil or of the vicinity of the school”, and there “will be some situations where the duty extends beyond the school gate” (at [7]; Giles JA agreed with both judgments at [10]). So much is well established.
The duty may extend to school activities undertaken outside school hours or grounds: eg Gugiatti v Servite College Council Inc [2004] WASCA 5; (2004) Aust Torts Reports 81-724 at [19]; see generally Heffey at 27-30.
Further, Geyer concerned a primary school for which classes commenced at 9:30am, with students expected to assemble at about 9:20am, and with teachers required to be on duty from 9:00am. However, the school allowed students into its grounds from 8:00am, and it was known to the headmaster that a considerable number of students were regularly in the school yard by about 8:30am: see Geyer v Downs [1975] 2 NSWLR 835 at 838 and 847. The High Court held that it had been open for the jury to find that the school’s duty of care was breached as regards an injury to a student occurring at 8:50am. Justice Stephen said that the duty’s “temporal ambit will be determined by the circumstances of the relationship on the particular occasion in question” (at 93).
In Graham, in 2001, this Court held that a high school had not breached its duty by failing to take steps to transport a 12 year old to her home, about 1 km away, even though she had impaired vision and balance. The student’s mother had previously sought transportation assistance but the school had declined. Normally the mother waited for the student at the one busy crossing on the route from school to home, but this did not occur on the day in question.
In this matter the State invoked the decision of this Court in Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399. The plaintiff was a 12 year old primary school student who was injured when sticks and rocks were thrown by high school students whilst he was waiting at a bus stop to go home after school. The bus stop was about 300-400 m away from the (private) primary school, being outside the (public) high school. The plaintiff and a handful of others from the primary school regularly went up to that bus stop to catch a school bus, which seemingly was provided for the benefit of both the primary and high school students. Justice Sheller, with whom Priestley JA agreed, upheld the trial judge’s conclusion that the primary school’s duty of care had been breached by its failure to supervise the primary school students until they had caught the bus. President Mahoney dissented.
Justice Sheller said as to principle (at 63,957):
Thus, on the balance of probabilities, T2 would not have been assaulted by XY and his associates on the afternoon of 16 October 2017 if the school office had been open, or if a teacher had been on duty at the crossing or otherwise at an obvious place in the school grounds, up to at least 3:28pm on that day.
The key question is whether the failure to take any of those steps constituted a failure by the school to take reasonable care to avoid not insignificant harm to its students, in other words, whether the school breached its duty of care. In my view it did.
To begin with there is the point made by the State itself that all schools have students prone to bullying and being bullied. Such interactions can readily occur as students disperse at the end of the day. There are numerous other risks arising in connection with going to and from school, including those pleaded by T2 such as potential collisions with a motor vehicle, sexual predation, and skylarking or violence between students. Parents or guardians may fail to pick students up in the manner previously arranged. The likelihood of such risks eventuating increases with the size of the school. Fairvale High School was large, having some 1400 students.
A departmental memorandum to school principals entitled “Care and Supervision of Students” was in evidence. Although it dated from 1997, Dr Ikin (T2’s liability expert) said that it was still current. Under the heading “Duty of Care” the memo said that the time in which a school’s duty is exercised “is generally that related to the hours of duty of teachers i.e. half an hour before school work begins in the morning, and if considered necessary by the principal, for half an hour after the dismissal of the school in the afternoon”. It also said that students “must be supervised to safely leave the school grounds and commence their journey home” and that “students waiting for buses outside or near the school must be directly supervised”. Dr Ikin gave evidence that “commonly” at schools a staff member would be on duty for approximately 30 minutes after school finishes to supervise the safe boarding of buses, and to be on hand for circumstances such as parent failing to pick up a child or one student being endangered by others.
Dr Ikin and the State’s liability expert, Mr Meaney, gave evidence concurrently. The primary judge in general preferred the evidence of Mr Meaney in instances where the two of them disagreed because “he had done bus duty every school day for two years, so he had ‘on the job’ experience”, and because he was more prepared to change his view when presented with evidence contrary to his instructions (at [189]). As regards the issue at hand, however, they were largely in agreement.
Both of them considered that it was “a problem” that there were up to some 20 students at the bus stop at 3:28pm (as shown by the bus CCTV footage) but there were no staff present. Mr Meaney said that “the problem is, if an issue arose, with no staff being there, that there’d be no staff to intervene on any particular issue”.
When asked his view about the school office being shut by “sometime around 3:15 to 3:20”, Mr Meaney said this:
The State argued that the primary judge’s conclusion (at [345]) that the school should have kept its office open until 4:00pm was “entirely arbitrary”. As discussed above (at [61]), it is not necessary to identify some specific time up to which the relevant precaution should have been taken. And it is certainly not necessary to do so in a way that might be thought to apply to all schools. Issues of breach are fact sensitive. The State itself said that “that there is no specific time, half an hour, one hour, two hours, that supervision is required”, and that if “most of the children have disbursed, then the precaution has been satisfied”. Yet the risks in question could manifest even after most students had gone, for example because a student’s travel arrangements had fallen through (as to which, see the principal’s evidence quoted below at [113]). That does not mean that reasonable care required indefinite availability of an adult until every student had left the vicinity. Imperatives are to be balanced. But the issue arising here relates to a large high school in Sydney, with respect to a time window extending up to 24 minutes after the final bell. And at that time on the day in question there were at least some 20 odd students still gathered at the bus stop in front of the school, there having been up to some 10 students present there a few minutes earlier (see above at [20]).
The State submitted that the finding that the school office should have kept open after 3:15pm was “an exercise in hindsight reasoning”. The evidence of the State’s own expert undercuts that submission. The principal herself implicitly suggested that 3:15pm was not an appropriate time to end when a responsible adult was available for supervision, saying this when asked about teachers not supervising the crossing at that time:
Thus 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.
These conclusions are more confined than those reached by the primary judge. Nevertheless, they mean that her Honour ultimately did not err in finding that breach of duty and causation were established. The appeal should thus be dismissed. There is no reason why costs should not follow the event.
PRICE AJA: I agree with Kirk JA.