Student assaulted by fellow student - liability of School Authority

State of New South Wales v Mikhael [2012] NSWCA 338

Judgment date: 22 October 2012

Jurisdiction: New South Wales Court of Appeal1 In Brief

The question whether, in the circumstances, a reasonable person would take particular precautions is to be considered having regard to the factors in s 5B(2) of the Civil Liability Act 2002 (CLA). This requires the court to consider the probability of the harm occurring and the burden of taking precautions. Section 5B(2)(c) of the CLA is not confined only to the economic burden of taking a particular precaution, but may involve factors such as time, distance and communication. Privacy concerns are also relevant. The question of causation has to be determined having regard to the factual circumstances in which the duty of care was owed and breached. The court has to be satisfied that the precaution or relevant step that ought to have been taken, would, on the balance probabilities, have averted the harm caused. Background

The plaintiff brought a claim in negligence in relation to injuries he sustained when he was assaulted by a fellow student, identified as "T", at a state high school on 5 December 2008.

T had been involved in a previous assault following a touch football game some 6 weeks prior to the subject assault. T had struck another student from behind and inflicted injuries sufficient to warrant an ambulance to be called. T was suspended for 4 days, underwent 5 days of monitoring, and a further 20 days of restrictions.

On 5 December 2008, the plaintiff and T were undertaking a French class and were involved in a disagreement over a worksheet that required intervention by the teacher. At the conclusion of the class, the plaintiff stayed behind with the teacher and another student as he was apprehensive of further problems with T.

At the teacher's direction, the plaintiff left the classroom and was hit on the left side of his head by T causing a significant injury including brain damage.

The teacher in charge of the class was also the head teacher for welfare and during the course of giving evidence confirmed that, whilst she was aware of the previous assault, she had not received any formal notification from the school regarding T's propensity to violence following minimal provocation.

The District Court

The initial proceedings were heard in the District Court of NSW by Sorby DCJ. The plaintiff alleged that the defendant had breached its duty of care by failing to, amongst other things, adhere to its own procedures and provide teachers with information regarding the previous assault and T's propensity to violence, even if provoked by a minor event.

His Honour held the defendant had breached its duty of care to the plaintiff and had been negligent in failing to take adequate precautions to prevent harm to the plaintiff and he was awarded $318,288 in damages.

The defendant appealed against the finding of negligence.

Court of Appeal

The appeal was brought by the defendant on the grounds that the primary judge had erred in finding the defendant had breached its duty of care to the plaintiff, had failed to undertake any analysis, and made no finding on causation.

Of particular relevance to the issue of...