The plaintiff, a year 8 student, was assaulted at school by another student, T. The plaintiff suffered brain damage as a result. Six weeks before the assault, T had been involved in another fight in which he broke a student’s jaw. He was suspended and monitored on his return to school.

During a class together the plaintiff and T were involved in a minor tussle and verbal exchange requiring the teacher’s intervention. On leaving the classrooms at the end of class, the plaintiff was king hit by T.

The plaintiff sued the school alleging that it had been negligent in failing to notify the teacher in question of the earlier assault and of T’s propensity to violence. The school had an established disciplinary policy which required a student returning from a suspension to be monitored by all of his teachers, but the teachers were not formally notified of the reason for the suspension unless there was a pattern of behaviour.

Until the earlier assault, T had been an exemplary student and had not been involved in any violent incidents. He had been remorseful for his actions and assured the principle he would not engage in violence again. Accordingly, the principal assessed the risk of T being violent again to be low.

It is well established that a school owes a student a non-delegable duty of care to ensure that reasonable care is taken of them whilst they are on school premises during school hours. The New South Wales Court of Appeal considered that there was a foreseeable risk of harm to students should T be provoked, and that if he did re-offend the likely seriousness of the harm would not be insignificant. Accordingly, the Court was satisfied that the school had breached its duty of care.

The Court was not satisfied, however, that factual causation had been made out. The Court agreed that the teacher possibly would have acted differently if she had known of T’s earlier assault and propensity for violence, however this was not sufficient. The plaintiff had to prove, on the balance of probabilities, that the teacher would have acted differently and by doing so would have prevented the assault.

The teacher was an experienced teacher and was familiar with T and his general behaviour. Having dealt with the immediate verbal exchange, she made a professional assessment that the incident was over and that there were no ongoing anger management issues. The plaintiff’s claim therefore failed.

New South Wales v Mikhael

This case demonstrates the difficulty involved in establishing causation where the breach of duty involves an omission. The Court needs to be satisfied that the thing that was not done would have, on the balance of probabilities, prevented the injury or damage occurring. That can be difficult to prove.