In a recent decision of the New South Wales District Court1 a teacher successfully sued the New South Wales Department of Education and Communities (the Department) after it was established that education authorities failed to take steps to protect staff and students from an eight year old student at the school.

The Facts

On 18 March 2009, Jeanette Sticker was injured in the course of her employment with the Department. Ms Sticker was injured as a result of deliberate violent acts carried out by an eight year old student that was in her care.

On this date Ms Sticker was called to the school playground to intervene in an altercation where a year two student was behaving aggressively towards other students. It was apparent that the Department had knowledge that the student, who was a refugee from Sudan, had been traumatised prior to his enrolment at the school and had a history of severe behavioural problems that had been the subject of attempts of remediation and disciplinary action by the school authorities.

When Ms Sticker arrived at the playground, she prevented the student from engaging in further aggressive behaviour and led him gently to the Principal’s office in accordance with school procedures. On the way to the office, the student propped and braced himself in a doorway in the corridor and with his free hand and feet, he then violently pulled Ms Sticker back with force.

This caused Ms Sticker to land on the floor in an awkward position and caused her to sustain a serious twisting injury to her lower back. Ms Sticker was diagnosed with sustaining a large central lumbar disc protrusion at the level L3/4. Ms Sticker had to undergo surgery and complications arose, these had ongoing effects on her and impacted on her earning capacity.

Negligence

It was found that the Department owed a non-delegable duty to Ms Sticker. This duty was to take reasonable care to avoid exposing Ms Sticker to an unnecessary risk of injury. Ms Sticker pleaded the following particulars of negligence:

  • placing the plaintiff in a position of peril in the circumstances;
  • failing to take reasonable precautions for the plaintiff’s safety;
  • failing to devise, institute and maintain a safe system of work;
  • failing to make available additional staff to deal with the risk of violence posed by the student; and
  • failing to engage support to provide funding for the provision of support staff to manage the student’s behaviour.

Levy J found that the magnitude of the risk of injury to staff members, not just to other pupils, was a real and significant one, and the probability of associated serious harm was not remote but very real. Levy J said that it was very clear from the evidence that the Department had the means to protect Ms Sticker from the unnecessary risk of injury of the kind she suffered.

This protection could have been by suspending the student from the school and finding alternative arrangements for his education. It was found that the removal of the student from the school as a protective measure would have been reasonable, practical and one that the Department was capable of providing, as it did in fact occur after the incident.

It was found that the Department had breached the duty that it owed to Ms Sticker and was negligent in failing to carry out basic steps to protect Ms Sticker from exposure to risk of injury that could have been prevented by exercise of reasonable care.

Levy J stated that he found that Ms Sticker’s injury was caused by the failure of the Department to act in a timely manner to protect staff and student from the violent, aggressive and anti-social behaviour of the student that had been evident over a long period of time. During this time the misbehaviour of the student remained uncontrolled, prone to unpredictable outbreaks and defied rational analysis; the student’s behaviour had in fact escalated and worsened.

The Department did plead a defence of contributory negligence stating that Ms Sticker failed to take any proper precautions for her own safety, that she was inattentive and conducted her work in a manner that was contrary to her induction and training. Levy J found that the Department failed to make out any aspect of their contributory negligence defence.

Ms Sticker was awarded a total of $689, 294 damages, this included damages for past economic loss, past loss of superannuation, future economic loss, future loss of superannuation and for reimbursement of tax Ms Sticker had paid on her workers’ compensation benefits.

Schools and Duty of Care

This case is an important reminder of the non-delegable duty of care that school authorities owe to students and staff. It highlights the importance of school authorities taking reasonable steps to protect students and staff from harm.