On 25 July 2025 the NSW Court of Appeal gave judgment in the case of State of New South Wales v T2 (by his tutor T1), which involved a student suffering injuries by other students after the school day had finished and outside of school grounds.
Factual Background
On 16 October 2017, the final bell for the school day rang at 3:04pm. At approximately 3:15pm, a year 9 student ('T2') went toabus stopimmediately outside the schooltoreturn home. Here, he learned that he was going to be "bashed" by another student ('XY') and his associates. Upon learning this, T2 immediately sought refuge and assistance inside of his school but could not locate a teacher or school employee to assist him. At the time, the three teachers who were scheduled to be supervising a school gate and a nearby school crossing (from which the bus stop could be easily seen) had already left and the administration office was also closed (and had been since approximately 3:15pm). When T2 saw his bus coming, he returned to the bus stop at approximately 3:28pm, but XY and his associates prevented him from boarding the bus. XY and his associates subsequently led T2 to a park near school grounds where he was subjected to an unprovoked and serious assault by a group of 12 students (including 'XY'), between approximately 3:30pm and 3:40pm.
The school was aware that T2 had been subjected to bullying in the months before the assault and was also aware of T2's pre-existing psychological issues, which made him more susceptible to bullying.
XY had a history of incidents at the school and had only recently returned to the school following a long suspension for assaulting another student. The school counsellor and a psychologist had recommended that, before XY return from his suspension, XY be enrolled in a behaviour management program and that the school complete a risk assessment. However, this did not occur.
The Trial
T2 sued the State of New South Wales, which was responsible for the school, claiming that it owed him a duty of care as a student. T2 also claimed that the State had breached its duty by failing to:
- effectively monitor students nearby to the school as they were going home;
- have staff on bus duty at the end of the day to supervise students as they dispersed from the school grounds and to deter any misconduct;
- keep its administrative office open shortly after school hours; and
- properly manage the risks posed by a troublesome student;
- prevent reasonably foreseeable harm to vulnerable students with physical or psychological issues.
T2 alleged that,as a result ofthe State's negligence, the assault on him occurred and caused him significant physical and psychological harm. T2 claimed that his injuries impaired his enjoyment of life and adversely impacted his educational and vocational trajectory.
The State conceded that it owed T2 a duty of care but denied that it was liable for the assault because its duty did not extend beyond the school gates or outside of school hours.
At the trial, Associate Justice Harrison found that the school had breached its duty of care to T2 and awarded him $1.75 million in damages.
Appeal
The State appealed the decision, especially the trial judge's conclusions as to liability, on the basis that the State did not breach its duty of care.
The New South Wales Court of Appeal unanimously dismissed the appeal with costs.
Among other things, the Court held that:
- 'On the balance of probabilities, T2 would not have been assaulted by XY and his associates... if the school office had been open, or if a teacher had been on duty at the crossing or at another obvious place in the school... up to at least 3:28pm on that day'.
- 'The school breached its duty of care by effectively closing itself off from offering any assistance to students some 11 minutes after the final school bell rang... but for that breach the assault on T2 would probably not have occurred'.
The Court of Appeal's conclusions were more confined than those reached by the trial judge. Accordingly, the Court of Appealdid not agreewith the trial judge's findings that:
- the school's failure to require XY to undertake the behaviour management program before returning to the school constituted a breach;
- the school's failure to undertake a formal risk assessment constituted a breach; and
- there was a strong possibility thatT2's vulnerabilityand XY's susceptibility to violencewould converge in a harmful way after school; and
- the scope of duty owed to T2 required the school to take additional steps, such as paying particular attention to him, to protect him from harm.
Key findings:
The Court confirmed the following with respect to the duty of care that a school owes to its students:
- The duty of care owed by a school 'can generally be expressed as a duty to take reasonable care to prevent its students being exposed to reasonable risks of not insignificant harm'.
- The duty of care owed by a school is non-delegable.
- 'Children stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school'.
- 'In some cases a student's vulnerability... will be distinctive such as to require the school to take particular steps to protect the student from harm'. This was not the case for T2 as the Court found that his preexisting diagnosis were 'not of a nature or degree to require recognition of some standard of care specific to him, as opposed to the standardgenerallyrequired of a school'.
- The school owed a duty to T2 but also owed a duty to XY and the community, especially to ensure that XY received an education.
As to the scope of the school's duty and the school's breach of duty, the Court held as follows:
- 'There were myriad risks of harm which could affect students ... as they dispersed after the end of the school day, being risks which were reasonably foreseeable, not insignificant, and potentially involving serious harm'. Therefore, the school's duty of care can extend to outside the school hours and beyond the school boundary.
- Ordinarily, when assessing a breach of duty, the Court must consider 'whether the acts or omissions ... involved a failure in the circumstances to take reasonable care to avoid the relevant risk of harm'. This question is'always dependent on the circumstances of the particular case'.
- Therefore, '[w] hether or not a school's duty to its students is breached with respect to an injury occurring outside of school hours or the school boundary is dependent on the particular facts of the case'( emphasis added).
As to the burden of taking precautions to avoid a foreseeable risk of harm, the Court held as follows:
- In these circumstances, ' a precaution against those risks [when students are dispersing at the end of the school day] was having at least one responsible adult associated with the school available to assist students, whether in the school office or at the crossing or at some obvious place in the school grounds, for a reasonable time after the school bell rang... to at least 3.28pm'.
- The burden of taking that precaution was 'very limited', and 'not ...any burden beyond what the supervising teachers... "generally" were undertaking'.
In Summary
Parents are entitled to expect that, when they send their children to school, the school and its staff will take al reasonable precautions to prevent harm to their children from foreseeable risks which have a more than insignificant chance of happening. Then, the question remains: what is the extent of a school's obligation, in the particular circumstances, and what preventative measures should be taken both inside and beyond the school gates?
Accordingly, it is important for schools to consider the duty of care that it owes to its students before, during and after the school day. Further, schools need to ensure that they arrange adequate supervision of students during all these periods, both within the school grounds and outside the school gates where students leave and arrive for school.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
