A former Sydney student who was subjected to an “appalling” assault by a dozen fellow pupils, which was filmed and posted to Instagram, will receive more than $1 million in damages for negligence from the state of NSW.
In a decision that has wide implications for how schools address bullying complaints, Associate Justice Joanne Harrison found the public high school had breached its duty of care by failing to conduct a proper risk assessment of the student who instigated the attack after class.
The former student will receive more than $1.2 million in damages.Credit: Monique Westermann
The instigator had returned to the school in western Sydney following a suspension for prior violence, the court heard.
The 14-year-old victim, now aged 21, was assaulted at a park near the school between about 3.30pm and 4pm in 2017. He had been waiting at a bus stop before the attack.
“To avoid the assault, he had gone back into the school grounds to seek help from the school office, but it was unattended,” the judge said in a decision on Friday.
He “then messaged his mother, who at 3.26pm attempted to call the school and warn it of the impending danger. Twice her phone call was diverted to an answering machine.”
The court heard another student present had filmed the assault on a phone and the footage was later uploaded to Instagram.
‘After the end of the school day’
Harrison said the state of NSW acknowledged it had a duty of care to its students, but denied it had breached its duty “on the basis that the assault occurred sometime after the end of the school day and because it occurred in a park that could not be supervised by any staff”.
It also said there was “no causal link between the assault and the injuries and disabilities suffered as alleged” by the student.
“In analysing the scope and nature of the duty of care, the various guidelines of the Department of Education … set out that the duty of care owed in respect of high school students does extend to after school hours and beyond school grounds,” Harrison said.
“The principal was aware of prior violent altercations that had occurred in the park … In these circumstances, I consider there was ‘a clear and close connection’ between the assault on [the victim] and the school.”
The victim had been accused in the months before the attack of taking a phone belonging to a friend of the instigator and he “became fearful of going to school”, according to the judgment. He later attended school with his mother and older brother to report the bullying.
The student, who is on the autism spectrum, was “assured … he would be safe”, the judge said.
The decision has wide implications for how schools address bullying complaints.Credit: Janie Barrett
The court found he had suffered physical and severe psychological injuries as a result of the attack.
The judge found the school owed a duty of care “to keep students safe from being bullied and assaulted by other students” and “to perform a proper risk assessment to school students who have been granted a long suspension before allowing them to return from that long suspension”.
The scope of the duty of care owed to the victim “was broader than that owed to most other students … because of his pre-existing psychiatric diagnoses, which made him more susceptible to bullying, and the fact that the school was on notice of him having been subjected to bullying”.
The instigator was “was a known aggressor who had been suspended for assaults in the past and had just returned to school after a long suspension”, she said.
“After the assault [the victim’s] need for psychiatric and psychological care has increased, as he is now on the highest classification of the autism spectrum disorders.”
Damages exceeding $1.2 million
While the judge has yet to enter final orders, she proposed to award the victim $500,000 for future economic loss, $400,000 for future medical expenses, $290,000 for non-economic loss, and $2,562.15 for past out-of-pocket expenses.
Two other categories of damages will be calculated by the parties, bringing the total to more than $1.2 million.
‘The duty doesn’t stop at 3 o’clock’
The decision comes amid a renewed focus on school bullying following the death of a Santa Sabina student earlier this year.
University of Sydney Emeritus Professor Barbara McDonald, an expert in the law of negligence, said “the school was found negligent on the basis of its own guidelines”.
McDonald said the decision didn’t set a precedent for whether other schools were negligent, “but it certainly is an indication that from a duty [of care] point of view, the duty doesn’t stop at 3 o’clock and at the [school] fence, as it were”.
The decision would be “carefully read by schools, but of course every case is different”, McDonald said.
The NSW Department of Education was “considering the judgment”, a spokesperson said.
“We want to assure all parents and caregivers that NSW public schools have zero tolerance for any form of bullying. All students should have the right to feel safe at school.
“Even one incident is too many, and measures and supports are in place to prevent and respond to bullying, discrimination and injuries.”
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