In Cook v Riding for the Disabled Association (NSW) & Anor [2024] NSWSC 1332, the NSW Supreme Court considered the concept of a school's non-delegable duty to a student and found it did not extend to a horse riding program run by an external provider, though the external provider was found negligent. 

The plaintiff, a 10 year old girl who attended a community school run by the NSW Department of Education, fell and suffered a right femoral neck fracture while participating in a horse-riding activity organised by the Riding for the Disabled Association (RDA). 

The RDA is an incorporated non-profit organisation which offers equestrian activities for people with disabilities. It employs coaches and unpaid volunteers to conduct its activities. The school received an annual offer from the RDA for a number of its pupils to take part in riding sessions. Each year one teacher would serve as an excursion coordinator and consult with the school executive, including the principal, to identify pupils whose medical condition and behavioural characteristics would be compatible with the horse riding activity. The RDA would determine the suitability of the children for whom applications were submitted and parental consent would be obtained.  

The plaintiff suffered from cerebral palsy, severe global development delay and autism. On the day of the subject accident, the plaintiff and other pupils were transported to the RDA's complex by a bus operated by the school. The pupils were accompanied on the bus by two members of the school's teaching staff who remained with them at the complex. 

The plaintiff joined the NSW Department of Education as the second defendant, alleging it had been negligent and had breached its non-delegable duty of care by failing to safely oversee the horse-riding session. 

The case focussed on whether the RDA was negligent for failing to provide two 'side walkers' (rather than just one) in close enough proximity to the plaintiff to be able to reach her quickly in the event she lost balance, and whether the State had breached its non-delegable duty of care to the plaintiff by failing to adequately supervise the activity. 

The RDA was found to have failed to take reasonable precautions to prevent the plaintiff's injury, specifically through failing to ensure there were two side walkers. This failure was found to have been causative of the plaintiff's fall and injury, noting the plaintiff had the intellectual function being no more than that of a 12 month old and due to her disabilities, there was a need to ensure that she kept her feet in the stirrups, maintained a secure seat in the saddle, had correct posture and maintained balance.  

Fagan J noted the kindness and generosity of the volunteers, coaches and others like them in the RDA. His Honour described it as a most unenviable duty to determine whether the RDA's actions were less than reasonable. Ultimately the RDA was found to have acted negligently and breached its duty of care to the plaintiff with damages to be assessed. 

The Court found that, whilst the State owed a non-delegable duty of care to the plaintiff while she was under the care of the School, the conduct of the RDA was entirely independent of the oversight of the School and thus the State's duty of care did not extend to the horse-riding activity.  

The Court confirmed that a school's established duty of care to ensure the safety of the students under its care is non-delegable, in that this duty of care cannot be delegated to another person or organisation. However, the evidence in this case was such that the School had relinquished its care of the plaintiff to the RDA with respect to the riding activity, and thus passed her into the hands of RDA's coach and volunteers for its duration.

The plaintiff sought to rely on Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213, a case concerning the duty of an employer to provide a safe system of work, the performance of which duty similarly cannot be delegated. In that case the respondent’s employer had directed him to work on a building site that was under the control of a third party. Through failure of the third party to adopt a safe system of work, the respondent was injured. On the authority of Kondis v State Transport Authority [1984] HCA 61 and cases that have followed it, the Court of Appeal held that the respondent’s employer was liable to him in damages. The employer was under a duty to ensure that the third-party provided the respondent with a safe system of work.

The Court acknowledged the analogy between the non-delegability of an employer’s performance of its duty to provide a safe system of work and the non-delegability of a school’s duty to exercise reasonable care for the safety of children on its premises or otherwise under its control. The Court found that the school was an intermediary through which disabled children were introduced to the RDA to participate in the activities that the RDA offered. However, the Court found that the school-pupil relationship was not operative and did not support a duty of care on the part of the State at the time of the plaintiff’s accident. 

The School was ultimately found to not have breached its non-delegable duty of care and the plaintiff's claim against the State failed. 

Schools and organisations that work with children need to be continually aware of when their non-delegable duty of care to a child commences and ends and ensure appropriate contracts, policies and procedures are in place for activities operated by external organisations.