The Supreme Court of NSW has delivered a significant judgment finding a school negligent for failing to protect a vulnerable student from bullying, notwithstanding the incident took place after school hours and outside of school grounds. 

The plaintiff was awarded over $1.2 million and the case provides important takeaways for schools regarding the scope of duty of care, risk management of students with behavioural issues and supervision.

The facts

In 2017, the plaintiff, T2, then a 14-year-old high school student, was severely injured in an unprovoked after-school attack by a group of fellow students.

T2 had been waiting at an unsupervised bus stop near the school when he was alerted to a potential threat by another student, XY. T2 walked to the school's administrative office to seek assistance, but found it unattended. He then messaged his mother, who twice attempted to contact the school to warn them of the impending danger, however, her calls were directed to the school's voicemail. T2 returned to the bus stop, and as the bus arrived, he was led away by the group, including XY, to a park where he was assaulted by about 12 students. The assault occurred between approximately 3.26pm and 4.00pm and was filmed and posted to Instagram. 

T2 was a vulnerable student, diagnosed with autism spectrum disorder (ASD) and oppositional defiant disorder (ODD), and had previously reported being bullied.  

The 'instigator', XY, had a known history of bullying, intimidation, and assaulting other students, resulting in two school suspensions. Following his 'long suspension', school counsellors had recommended ongoing counselling, enrolment into the school's "RAGE" program and completion of a risk assessment prior to XY's return to school. However, these measures were not implemented. The assault on T2 took place just four days after XY's return to school. 

Now 21 years old, T2 (by his mother, T1) sued the State of New South Wales, which had care, management and control over the school, alleging that the school's negligence led to the assault, which caused a deterioration of T2's mental state and an exacerbation of his known conditions. 

The State agreed that it had a general duty of care, but argued that this did not extend to incidents occurring off school grounds or outside of school hours. 

Ruling in favour of the plaintiff, the Court opined that the school owed an extended duty of care to : 

1. vulnerable students, including those with physical or psychological issues; 

2. protect students from bullying and assault by other students;

3. perform proper risk assessments before allowing students to return from long suspensions;

4. keep the administrative office open longer after hours so that students who find themselves in difficulty can seek help and safety there; and 

5. provide supervision in and around the school for the safe passage of students for their journey to home from school.

Was the school negligent? 

Yes - the Court held that the defendant breached its duty of care in several respects, including: 

1. Failing to supervise students at the bus stop
   
   The presence of teachers on bus duty would likely have deterred misbehaviour and allowed teachers to monitor and intervene if they observed vulnerable students, such as T2, being escorted away. Additionally, had a teacher been available, T2 could have sought their immediate assistance.
   
   The Court rejected the defendant's argument that extending a duty beyond the school gates placed an "unwarranted burden on public schools", explaining that placing two teachers on bus duty for about 15 minutes or until students disperse, would impose a 'limited burden' when weighed against its significant social utility. 
   
   The Court also found there was, in the absence of supervision, an elevated and reasonably foreseeable risk of an assault by XY, noting XY's propensity for serious violent behaviour, of which the school was aware, and T2's vulnerabilities, which made him a greater target. 

2. Failing to have staff accessible in the administrative office after school hours
   
   The school failed to implement adequate supervision and did not provide a safe place for students to resort to after hours, resulting in a significant probability of harm, as occurred in this case. It was therefore reasonable for the school's administration office to remain staffed until 4:00 pm or until students had dispersed. Had this system been in place, T2 would have had a safe place to avoid the impending assault. Additionally, if phone calls were monitored by staff until 4:00 pm, the risk of harm to T2 could have been avoided through intervention.
   
   It was suggested that these steps would also protect against a variety of additional risks, such as the risk of a student being hit by a car, a suspicious member of public approaching students, and skylarking between students where a school student could be injured. 

3. Allowing XY, who had a history of violent behaviour, to return to school without adequate risk assessment
   
   The Court provided some guidance as to the 'form' of risk assessments, stating that it need not be "one document but could have a combination of documents, or even a record in a file note". In this case, the school could not point to any such evidence. Aside from conducting an interview with XY, no other action was taken by the school. 
   
   Harrison AsJ acknowledged a school's discretion in deciding whether to readmit a student after a long suspension, but ultimately found, that if it had implemented the school counsellors' recommendations (noted above) before XY's return, he would not have been readmitted until he had completed the recommended programs, equipping him with skills to manage his anger. Her Honour opined that these measures could have likely  prevented the assault on T2.
   
   The Court also found that the school failed to adhere to its own procedures by not notifying head teachers about XY’s suspension and return, which would have enabled them to implement enhanced monitoring of XY’s behaviour.

It was acknowledged that the duty owed to school-aged children evolves as they mature, but this did not necessarily mean that certain risks diminished with age. The Court noted that premeditated group attacks, like the one inflicted on T2, would be great, if not greater, in older age groups. As such, the duty of care to protect against certain harms can increase over time.

The Court concluded that any one or a combination of the above omissions established the casual connection between the school's breaches and the injuries T2 sustained.

Damages

The school was ordered to pay over $1.2 million in damages, as follows: 

1. Past economic loss: $Nil; 

2. Non-economic loss: $290,000;

3. Future economic loss: $500,000; 

4. Past out-of-pocket expenses: $2,562.15; 

5. Future medical expenses: $400,000; 

6. Past attendant care: $Nil; 

7. Future attendant care: to be calculated by the parties (potentially over $200,000); 

8. Cost of future management of funds: to be calculated by the parties (potentially over $300,000).  

T2 v State of New South Wales outlines various measures schools could implement to maintain its duty of care to students, including: 

1. Developing and maintaining clear supervision policies
   
   Schools should establish, document, and follow supervision policies to mitigate risks. Schools should be mindful that the scope of duty of care extends beyond the ringing of the school bell and supervision must remain place for a reasonable period of time thereafter to ensure the safe passage of students home. Schools should also be aware of foreseeable risks in surrounding school areas, such as parks, particularly where there may be knowledge of prior incidents. While it may not be necessary to supervise these areas, schools should remain alert to potential risks.

2. Conducting risk assessments for students with behavioural histories 
   
   Schools should develop a protocol for assessing the risk of students returning from suspension. This should include a review of past incidents, any required behavioural counselling, risk management plans and other recommendations from school counsellors. School counsellors must have a clear line of communication with the school executive in order to alert of any risks. The risk assessment should be documented, with clear reasons for or against readmission.

3. Planning for student safety beyond school hours 
   
   Schools should have protocols in place to ensure the safety of students before and after school, where reasonable. This may include extending office hours or ensuring staff availability by phone. The methods for contacting the school should be clearly communicated to both parents and students.

4. Ensuring safety for vulnerable students 
   
   Schools should identify and prioritise the needs of vulnerable students, such as those who have physical or psychological issues, and provide additional protections as necessary. 

5. Providing regular training for staff on duty of care responsibilities 
   
   Regular training for school staff on the scope of their duty of care is essential. Sessions should emphasise the school’s supervision and risk management policies.

• Schools owe a duty of care to their students, which can extend beyond school grounds and school hours, particularly where risks are foreseeable. 

• Schools should implement detailed supervision policies, conduct appropriate and comprehensive risk assessments for students returning from suspension, and ensure robust after-hours safety measures.

The decision of T2 (by his tutor T1) v State of New South Wales [2024] NSWSC 1347 can be read here.