Legal liability

Passing the buck not an option

“Where students are in the care of a school the contracting out of the running of an activity does not relieve the school operator of its legal liability to the student.”
Andrew Knott, Specialist Employment Lawyer with Tresscox Lawyers examines some recent legal liability cases.

In 2011 the NSW courts awarded substantial damages to a student who had been injured in a ski accident during a school trip. In 2013 the decision was unsuccessfully appealed by the two defendants – the school’s legal entity and the resort.

The student sustained quite serious injuries after a skiing accident which occurred in 2006. In the course of a beginner’s skiing lesson, the student failed to negotiate a ‘ditch’ located towards the bottom of the slope. He somersaulted forward and was injured when he landed heavily on his back.

The basis of his claim against the resort (and, thus, also against the Trustees of the school) was that there had been a failure to take adequate precautions to prevent injury to beginner skiers by reason of the difficulty they would confront when negotiating the ditch.

As the court put it: “The basic problem for the Appellant (Perisher Blue Pty Limited) is that it put a novice skier in an area where there was a ditch and had either failed to conduct a proper pre-ski inspection or else failed to take note of the findings of the inspection team. In either case it is not what a reasonable person would have done in the circumstances.”

The case for liability against the school was that they had a ‘non-delegable duty of care’ and were liable by virtue of that for any failure on the part of the resort. For non-government schools it is, of course, important to insure against this risk.

The case is a reminder that where students are in the care of a school the contracting out of the running of an activity does not relieve the school operator of its legal liability to the student (provided, of course, that there is a breach of duty to the student by the operator).

The full decision can be found at:

Active steps to prevent bullying

On 27 May 2013 the NSW Court of Appeal dismissed an appeal by St Patrick’s College Campbelltown against a finding that there had been a breach of its duty towards a student who was the subject of bullying. The judgement placed particular emphasis on the need for schools to take active steps to prevent and manage bullying.

Both the trial judge and the court of appeal acknowledged the basic principle that the duty of schools is to take reasonable steps to minimise the risk of foreseeable injury and that “ the duty did not require the College to ensure that its students were protected from bullying but only to take reasonable steps to that end”.

The court of appeal rejected the submission by the College that bullying only occurred on isolated occasions and noted that while it “may not have been on a daily basis” it was “on a fairly regular and continuing basis”.

The Court also noted that the general duty of care includes actively identifying perpetrators and to take reasonable steps to prevent repetition of acts by those persons.

The Court noted that the College was aware for some time that the appellant was vulnerable in that she suffered from anxiety and panic attacks. Whether or not those attacks were brought on in whole or part by bullying, “it should have been clear to the College that (the student) was likely to be susceptible to psychological harm caused by such conduct” and that the risk of psychological harm, being both foreseeable and not insignificant, required the college to take “such active steps as were reasonable in order to prevent that risk from eventuating”.

In particular, the court noted that once a complaint of bullying was received, it required investigation and, if substantiated, action against the perpetrator, and that reasonable steps should have been taken by the relevant staff to “carefully investigate” the allegations and to “act on them if satisfied that they were justified”.

It was essential to the finding that the College was aware that the appellant was subject to ongoing bullying and that it failed to take reasonable steps to bring that conduct to an end.

The judgment can be read at