Civil Procedure – Case Law – Non-Delegable Duty - Cook v Riding for the Disabled Association (NSW) & Anor [2024] NSWSC 1332

In the recent matter of Cook v Riding for the Disabled Association (NSW) & Anor [2024] NSWSC 1332, the plaintiff sustained a right femoral neck fracture when she fell from a horse on 12 September 2019. The fall occurred at the first defendant’s (Riding for the Disabled Association (NSW)) Irrawang Equestrian Complex located 5 km north of Raymond Terrace, off the Pacific Highway to the west. The plaintiff claims damages in negligence against Riding for the Disabled Association (NSW), whose employed coach and unpaid volunteers were conducting the riding activity during which the fall occurred.

The plaintiff was 10 years old at the date of the accident. She suffers from cerebral palsy, severe global developmental delay and autism. During 2019 she attended the Hunter River Community School at Maitland, run by the Department of Education of the State of New South Wales. The school provides specialised care and teaching for children with complex disabilities. The plaintiff has joined the State of New South Wales as second defendant, alleging that she was in the school’s care when she fell from the horse, that the performance of the school’s duty to her was non-delegable and that duty was breached by the manner in which the first defendant conducted the riding activity.

There are cross claims between the two defendants. They seek an apportionment of liability if the plaintiff should succeed against both.

Of particular interest is the court’s consideration of a non-delegable duty argument on the part of the second defendant, the court said at [95] and [97]:

The plaintiff relies upon the principle that a school owes a duty to ensure that reasonable measures are taken for the safety of pupils while they are in the school’s care. The duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the children. It is a duty, the performance of which cannot be delegated, to ensure that reasonable steps are taken: Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258 at pp 269-270 (Mason J). The duty is owed only to a child who is in the school’s care, usually while on the school premises. It was not owed by the second defendant after the teachers had relinquished care of the plaintiff, passing her into the hands of the first defendant’s coach and volunteers for the duration of the riding session. The evidence does not support a finding that the school was conducting the riding activity through the first defendant, as the plaintiff has argued…

… the school-pupil relationship was not operative and did not support a duty of care on the part of the second defendant at the time of the plaintiff’s accident in the present case.

Ultimately, on 22 October 2024, the New South Wales Supreme Court ordered as follows:

  1. Verdict and judgment for the plaintiff against the first defendant, damages to be assessed.
  2. Verdict and judgment for the second defendant on the plaintiff’s claim.
  3. The cross claims of the first and second defendants are dismissed.
  4. The first defendant is to pay the plaintiff’s costs of the proceedings to date so far as those costs concern litigation of the first defendant’s liability in negligence.
  5. The plaintiff is to pay the second defendant’s costs of the proceedings, including the second defendant’s costs of the cross-claims.
  6. List the proceedings before the Registrar at 9:30 am on 1 November 2024 for directions with respect to further conduct of the proceedings against the first defendant.

Our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, including a medical negligence claim, please reach out to Littles Lawyers today.

Further blogs in relation to medical negligence and personal injury claims can be found on our website.

If you have any queries regarding the article, please contact via Free Claim Checker or email us.