T2 v State of NSW [2024]: Duty of Care in School Assault Claims

In the recent matter of T2 (by his tutor T1) v State of New South Wales [2024] NSWSC 1347, the plaintiff (T2 (a pseudonym) by his tutor T1 (a pseudonym, the plaintiff’s mother) is seeking damages from the defendant, the State of New South Wales, for personal injury arising from an assault that occurred on 16 October 2017 (the assault), when the plaintiff was set upon by about 12 students shortly after he had finished school for the day.

On 16 October 2017 shortly after the end of his school classes, the plaintiff, T2, a then-14-year-old school student was set upon by 12 fellow students in an attack that was unprovoked, violent and lengthy. By his tutor, T2 sues in negligence the State of New South Wales in its capacity as the person occupying and having the care, management and control of the school of which T2 and his attackers were students.

T2 alleged that defendant owed him a duty of care as a student and that it breached that duty of care by failing to effectively monitor students nearby to the school as they were going home, staff an administrative office shortly after school hours had concluded and properly risk manage a troublesome student (the instigator of the assault) before he be allowed to return to the school. T2 alleged that as a result of the defendant’s negligence, the assault upon him occurred and he suffered a deterioration in his mental state and exacerbation of his underlying psychiatric conditions, impairing his enjoyment of life and derailing his educational and vocational trajectory.

The defendant conceded that it owed T2 a duty of care, however it denied that it was liable for the assault that was occasioned because it argued that the duty neither extended beyond the confines of the school, nor lasted outside of school hours. It further denied any causative link between the alleged breach of the duty of care (should one exist) and the damages that T2 alleged he suffered.

The New South Wales Supreme Court held as follows:

1. The duty of care that a school owes to its students can extend beyond the confines of the school boundaries and outside of its operating hours.
2. The demands of the duty of care owed to school-aged children will change as they mature. However, the risks of some forms of harm can increase, rather than decrease over time. Accordingly, the duty of care to protect against certain forms of harm may increase over time.
3. The school owed a duty of care to vulnerable students such as those 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.
4. Both legal and factual causation were established. The school breached its duty of care by failing to conduct a proper risk assessment of the instigating student before he was allowed to return to the school from a suspension for prior violence. There were no teachers on bus duty to act as a deterrent to misbehaviour or intervene when T2 was led away from the school’s vicinity. The school’s administration office was closed such that T2 could not seek refuge with staff when he attempted to. Any one or a combination of these omissions established factual causation as they enabled the assault on T2 to proceed in the manner in which it did and were a necessary condition to the assault occurring. The severity and multitude of the breaches justify a finding of legal causation. They were inconsistent with a primary duty of the school: to keep its students safe.
5. While T2 suffered from psychiatric disorders that limited his vocational trajectory even prior to the assault, the assault nevertheless worsened his condition such that his future prospects were further undermined. His level of autism spectrum disorder increased from between levels one and two to levels two and three.
6. It was appropriate to order damages for non-economic loss, future economic loss, past out-of-pocket expenses, future medical expenses and future attendant care. Because of the difficulty with making forward-looking assessments as to future prospects given T2’s young age and the uncertain effectiveness of future treatment, it was necessary to award damages on the basis of a buffer.
7. It was further necessary to order costs for the future management of funds, given T2’s relatively young age and psychiatric state.

The schedule of damages is as follows:

Non-Economic Loss (General Damages) – $304,500.00

Past Economic Loss – $nil

Future Economic Loss – $500,000.00

Past Out-of-Pocket Expenses – $2,562.15.

Future Medical Expenses – $400,000.00

Past Attendant Care – $nil

Future Attendant Care (2 hours per day, 2 days per week) – $224,400.00

Cost of Future Management of Funds – $322,578.00

Totalling damages in the amount of $1,754,040.15

Ultimately, on 25 October 2024, the New South Wales Supreme Court ordered as follows:

1. The defendant to pay the plaintiff the sum of $1,754,040.15.
2. By consent the defendant is to pay the plaintiff’s costs on an ordinary basis up until 17 October 2022 and then on an indemnity basis as from 18 October 2022
3. The judgment sum, less any amount repayable to any person or body whether in respect of the Social Security Act 1991 (Cth), Health and Other Services (Compensation) Act 1995 (Cth) or otherwise, is to be paid into Court pending appointment of a financial manager for the plaintiff.

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