In 2017, T2, a 14-year-old with autism and oppositional defiant disorder, was assaulted near his school. After seeking help at an unattended office and his mother’s failed calls, he was attacked again in a park. The assault, filmed and posted on Instagram, involved XY, a suspended student with a bullying history. The State found that the school had failed to enforce post-suspension counselling, and so T2 sued NSW for negligence, claiming it worsened his conditions. The state acknowledged duty but denied off-campus liability.
Mathisha Panagoda, Partner at Colin Biggers & Paisley, and Solicitor Nina Naidu, say while schools often assume their duty ends with the school bell, and that parents bear full responsibility once a child leaves the school premises, the case of T2 shows that a school's duty can extend beyond both its boundaries and operating hours.
“Another common belief is that the demands of the care owed eases as students mature,” Panagoda and Naidu told The Educator. “While this is true to an extent, the Court has cautioned that risks of certain serious harms, such as premeditated group attacks, will be as great if not greater in older age groups.”
As such, said Panagoda and Naidu, the duty of care to protect against some harms can actually increase over time.
“Finally, some schools think that their duty of care only covers the avoidance of physical harm, but T2 emphasises that the duty extends to a student's emotional and psychological safety as well,” Panagoda and Naidu said.
“Schools need to be particularly mindful of ‘hidden’ vulnerabilities, such as those students experiencing psychological, mental or intellectual issues or disabilities, and provide additional protections where needed.”
Striking the right balance
Panagoda and Naidu said the case of T2 offers valuable guidance on balancing a school's duty of care with practical limits.
“Essentially, schools are not required to take measures that create a significant burden if the ‘social utility’ or benefit is minimal. That is, measures must be ‘reasonable’,” they said.
“For instance, in T2, the Court held that placing two teachers on bus duty for about 15 minutes or until students disperse imposed a 'limited burden' when weighed against its significant social utility [e.g., preventing fights between students].”
Similarly, they said, it was reasonable for the school's administration office to remain staffed until 4:00 pm or until students had dispersed, and for phone calls to be monitored until 4:00 pm.
“If these measures had been in place, the harm to T2 could have been prevented,” Panagoda and Naidu said.
“Additionally, effective communication between staff and the school executive is critical. When an issue or risk of harm arises, it must be reported to the appropriate personnel so that prompt action can be taken to mitigate harm.”
Panagoda and Naidu said the findings in T2’s case highlights the need for schools to rethink how they handle after-hours emergencies. They pointed out that, as seen in the case of T2, extending office hours and ensuring staff availability by phone are two practical measures that should be considered immediately.
“Clear communication is also key. Schools should regularly remind parents and students how to reach them during emergencies - whether through newsletters, assemblies, or periodic text and email alerts,” they said.
“Finally, schools should stress that in emergencies, if the school is unreachable, students and parents should not hesitate to contact emergency services for assistance.”