By Sonya Parsons, Partner and Evangeline McCowage, Paralegal

A full copy of the case can be accessed here.

Summary of the Decision

A NSW school has been found to have been negligent in failing to take reasonable steps to avoid the risk of harm caused by a violent attack of bullying to a student with pre-existing psychiatric diagnoses.  The student was assaulted after school after he was directed away from his bus by students who then set upon him at a local park.

The school could not establish that it had teachers supervising on bus duty that day, or that it had taken any steps to implement recommendations to re-integrate one of the students who attacked the plaintiff, who had a history of bullying and violence, into the school community.

The plaintiff was awarded significant damages.

Key takeaways for schools

Bus stops should be monitored until students have been collected.  In the case of this school, supervision should have been needed for only around 15 minutes after the school bell had rung by which time the buses would have departed.

Schools, if they do not already do so, should keep their offices and phone lines open and attended and staff available after school hours for a reasonable period.  What is reasonable will depend on the circumstances of the school but can be expected to be at least 30-60 minutes after the bell for the end of the day, to allow students time to be collected, depart via transport and to reasonably be expected to have left the vicinity.

Schools need to make arrangements for staff to miss mandatory all-staff meetings if they otherwise need to be available and present as adult support, even after school.

Awareness by a school of student violence occurring in a nearby park means that further attacks of a similar nature are likely and therefore foreseeable.  This does not necessarily mean that a school needs to patrol the park.  However, schools need to be alert particularly to the risk of harm to vulnerable students by students with a history of bullying and/or violence.

If school counsellors make recommendations for a student to be re-integrated into the school, such as completion of a risk assessment and for counselling both internally and externally, these steps need to be implemented.  A school’s best practice is to ensure that such recommendations are not only made but executed, with steps being defined, tasks being allocated and checks undertaken to ensure that steps have been completed.

Prior reports of threats of violence and bullying need to be taken very seriously by schools as it increases the foreseeability of harm to the particular student.  Teachers should be put on notice of the same so that they can keep an eye out for any concerns.

Overview of the Key Facts

T2 (by a pseudonym) was a 14-year-old student at a high school in western Sydney in 2017 when after school hours he suffered an unprovoked, violent attack by fellow students. There was no supervisor at the bus stop area adjacent to the school and the school administration office was locked and unstaffed, meaning T2 was unsuccessful in seeking refuge in the office after being threatened. His mother also attempted to contact the school to warn them of the impending attack but her calls were sent to voicemail. T2 was escorted to a park where he was repeatedly punched and kicked by 12 students.

T2 was a particularly vulnerable student, diagnosed with Autism Spectrum Disorder and Oppositional Defiant Disorder and had reported bullying in 2017 prior to the attack. The instigator of the attack, ‘XY’, was known to the school for his violent behaviour and had faced two previous suspensions prior to the assault for continued misbehaviour and involvement in a prior assault. Despite a list of recommendations being prescribed by counsellors to facilitate XY’s reintegration into school following suspension, none were enacted. A proper risk assessment was not performed before his reintegration into school and while the Deputy Principal did state she would have informed teachers via email or through a meeting due to her concern regarding XY’s prior long suspension and prior violence, there were no emails in evidence to demonstrate this was done.

The School’s Liability

The Court found that the school was negligent in the circumstances. The Court found that a school owes a duty of care:

1. to vulnerable students, such as those with physical or psychological issues, which may be more extensive than to other (less vulnerable) students;
2. to keep students safe from being bullied and assaulted by other students;
3. to perform a proper risk assessment for school students who have been given a long suspension before allowing them to return from that long suspension;
4. to keep the administration office open at the end of the day for a longer period so that students who find themselves in difficulty can seek help and safety there; and
5. to provide supervision in and around the school for the safe passage of students for their journey to home from school.

In finding that the school breached its duty of care, the Court paid much attention to the vulnerability of T2 and the previous and known violent history of XY, noting that the scope of the duty of care includes ‘taking reasonable steps to ensure that a school student, such as a vulnerable student like T2, can depart the school in a safe manner.’ The court emphasised that T2’s diagnosed psychological conditions and the fact he was previously the subject of bullying, meant the risk of harm by way of bullying to T2 was reasonably foreseeable. This was heightened by the fact that XY was a known aggressor with previous suspensions for assaults and had just returned to school after a long suspension.

This reasonable foreseeability of risk was paired with the fact that the risk was not insignificant as the school had knowledge of XY’s propensity for serious violent behaviour and of T2’s vulnerabilities, which made him a greater target.

Factual causation was established on the basis that the school failed to conduct a proper risk assessment of XY prior to his return, no evidence was led that there were actually teachers on bus duty to deter or intervene in the attack and the administration office was closed – all in the circumstances where T2 was at high risk for bullying due to his vulnerabilities and XY had a prior history of assault. Furthermore, no recommendations regarding XY’s return had been enacted. Any or all of these omissions were said to establish factual causation and enabled the assault on T2 to proceed in the manner it did.

One of the ‘paramount duties’ of a school is to keep school students safe and it was found to be reasonable that the school should keep its administration office open until 4pm, ensure senior staff turn up to bus duty until students’ buses depart and properly monitor both violent and vulnerable students.

Damages

T2 was awarded $290,000 in non-economic loss due to his psychiatric condition being seriously aggravated by the assault which would likely not have happened but for the assault occurring. Future economic loss was assessed at $500,000, with the Court acknowledging that despite not having the same earning capacity as an individual working on a full-time basis prior to the assault, he still had 46 years of earning capacity left that had been diminished.

The court also granted $400,000 in future medical expenses due to an increased need for care and $2,562 in past out-of-pocket expenses.

No past economic loss or past attendant care was granted. Future attendant care and cost of future management of funds was to be calculated by the parties.