By: Greg Carruthers-Smith, Meisha Tjiong and Chad Farah

State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165

At a glance

In October 2017, a Year 9 student was violently assaulted by his peers shortly after the school bell, and outside school boundaries, sustaining significant injuries. The New South Wales Court of Appeal has now unanimously upheld the primary judge’s findings that the State had, on balance, negligently caused the injuries, loss and damage.

Background

The final school bell had rung. It was the afternoon of 16 October 2017 when a Year 9 student, identified as ‘T2’ (victim), then 14, waited near his high school entrance for the bus to take him home.

A friend then informed the victim that an assault against him was imminent, prompting him to seek the school’s protection. This was without success because the front office had already closed. The victim alerted his mother of the danger by text messaging, who in turn ‘frantically’ telephoned the school but received no answer before requesting assistance from local police.

‘XY’ was also in Year 9 (assailant) and of the same age as the victim. He had only just returned from a 20-day suspension for assaulting someone else. On the afternoon of 16 October 2017, the assailant went on to orchestrate a group assault on the victim at a nearby park, causing the victim both physical and mental injuries.

Primary decision

By his tutor, the victim commenced proceedings for damages against the State of New South Wales in negligence. The State’s Cross Claim against XY, in a personal capacity, was not pursued. The matter was heard before Her Honour Associate Justice Harrison of the Supreme Court of New South Wales.

The evidence showed there were two head teachers rostered to monitor a crossing while students departed, which was around 20 metres from the subject bus stop. Those teachers were expected to keep a lookout for, amongst other things, any conflicts at the bus stop and were instructed to leave once most students had dispersed. Most teachers would have left within about 10 minutes of the final bell.

CCTV footage from the arriving bus demonstrated that, at around 3.28 pm, 22 students remained unsupervised and only 9 of them boarded. The victim was prevented from boarding the bus by a group of youths including the assailant.

Other CCTV footage from a nearby residence showed the victim being led down a nearby alleyway to a park. There he was punched and kicked repeatedly by the group, which likely occurred between 3.30 pm and 3.40 pm. This was filmed by one of the group members, with the primary judge finding the evidence distressing.

Her Honour also heard evidence that the victim had underlying autism spectrum disorder and may have been particularly susceptible to bullying. In addition to extending the school’s office hours and providing adult supervision at the bus stop, it was submitted by counsel for the plaintiff that further precautions should have been taken to mitigate the risk of another assault by the assailant following his recent return from suspension.

Her Honour held the State liable and awarded the victim approximately $1.75m in damages for personal injury.

Appeal

The State sought to overturn the judgment, arguing the school did not breach its duty of care to the victim or alternatively that any breach was not causative of the injuries. There was otherwise no challenge as to the primary judge’s assessment of the damages.

The New South Wales Court of Appeal (Bell CJ and Price AJA agreeing with Kirk JA) unanimously found in favour of the victim in dismissing the State’s appeal with costs.

The court reiterated that the scope of a school’s duty of care to its students outside school hours or boundaries may depend on the facts of each case and ‘what is reasonable in all circumstances.’

Their Honours did not consider that the victim’s autism spectrum disorder nor the assailant’s history of violence, on the facts of this case, required a higher standard of care than that afforded to all students. Additionally, even if a risk assessment was performed in respect of the assailant prior to this assault, there was no evidence it would have (not just could have) prevented it:

‘That there was a chance [the risk assessment] might have led to a different result does not suffice in a case such as this.’ (Our emphasis)

Still, Their Honours agreed with the primary judge in finding there was a breach of duty by the school that was causative of the injuries. This was principally due to the school failing to supervise students at the bus stop or keeping the office open for a reasonable period. It was in fact noted that the liability experts instructed by both parties had agreed that the absence of teachers at 3.28 pm was problematic.

As to the question of causation on these specific points, the court rejected the State’s submission that the victim would have been assaulted even in the presence of teachers. The evidence showed the victim was subtly led away from school view to be harmed in seclusion. The inference drawn was that the offending group would have been deterred by ‘the restraining presence of other adults [had they been present]’ thus likely preventing the assault. Nor did the court accept that the burden of taking these added precautions was too great, noting the school had some 1400 students of which around 70 caught the nearby public bus. In the court’s summary:

‘[There] were myriad risks of harm which could affect students of [the school] as they dispersed after the end of the school day, being risks which were reasonably foreseeable, not insignificant, and potentially involving serious harm. A precaution against those risks 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 at 3:04 pm and extending up to at least 3:28 pm.’

Implications

Bullying behaviour amongst school students, including physical assaults, is a risk that is reasonably foreseeable, not insignificant, and potentially one that could involve serious harm. Although bullying ordinarily occurs within school grounds, it can also extend to nearby public areas in circumstances connected to a victim’s school attendance or departure.

The scope of a school’s duty of care to its students outside school hours, or school boundaries, turns on the specific facts of each case. Some (but not all) relevant factors could potentially include the number of available staff, the number of students who attend the school and, of those students, the number who are expected to linger near school grounds before or after hours. It follows that schools must discharge their duty of care, in the face of the risk, by acting reasonably in the circumstances.

As an example, this decision highlights that bullying (or at least serious bullying involving physical harm) is unlikely to occur in the presence of responsible staff members. Schools may therefore be required, in certain circumstances, to maintain slightly longer school office hours and/or longer supervision by staff in the immediate vicinity of the grounds such as at bus stops where students are known to congregate

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