NSW fails to overturn $1.75m Fairfield High School student bullying claim

The State has failed to appeal a judge’s ruling that it was liable for a brutal assault on a vulnerable student that took place ‘after school hours and off school grounds’.

The court concluded: ‘The school breached its duty of care by effectively closing itself off from offering any assistance to students some 11 minutes after the final school bell rang.’

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The state of NSW has failed to overturn a judge’s ruling that it was liable – to the cost of $1.75m – for a brutal assault by a group of high school students on a vulnerable peer that took place “after school hours and off school grounds”.

The 14-year-old student, known to the courts as T2, was in year 9 at Fairfield High School in Sydney’s southwest in October 2017 when a group of students prevented him from getting on to a bus at a stop outside the school, “dragged” him by the school bag to a nearby park, and “repeatedly kicked and punched” him.

He had sought “assistance from, and refuge in, the school” but “none was to be had”, a judgment last week, reads.

Associate judge Joanne Harrison found the state of NSW, which was responsible for the school, liable for the assault, which was filmed by one of the students and led T2 to suffer physical and mental injuries.

She awarded damages to T2 to the amount of $1.75m.

The state, in its appeal, said Associate Justice Harrison’s finding that it had breached its duty of care, which it challenged, meant it would be “obliged to supervise all forms of public transport throughout NSW ‘in the vicinity’ of all schools until all students had left that ‘vicinity’,” which would be “intolerable”.

Yet, the NSW Court of Appeal agreed the appeal should be dismissed with costs.

T2, who is on the autism spectrum, was first approached at the bus stop about 20 minutes after the school bell rang by a student known as XY – who instigated the attack – and 11 other students.

He walked away fearing some kind of attack as XY had recently returned to school after being suspended for assaulting another student.

T2 crossed the road into the school grounds, and went to the school office to get help but it was closed. At some point, he texted his mother to say “I am about to get bashed” and she “frantically phoned the school” but received no answer. A few minutes later he walked back to the bus stop, where he encountered the students and the assault ensued.

The state, in the initial proceedings, admitted a duty of care was owed to the student but denied that duty “extended to preventing incidents which took place after school hours and off school grounds”.

Associate Justice Harrison in Oct­ober last year found the state had breached its duty of care because no teachers were on “bus duty”, there was no one at the administration office until 4pm – about an hour after school finished – and the school did not assess XY properly for his risks on returning from suspension.

The state of NSW appealed her conclusions as to liability, arguing that there was “nothing particular about the bus stop in question which distinguished it from the myriad other places the school’s students might gather after school”, and Justice Harrison’s finding the school should have kept its office open until 4pm was “entirely arbitrary”.

The full Court of Appeal dismissed the appeal.

Judge Jeremy Kirk wrote in his judgment that: “On the balance of probabilities, T2 would not have been assaulted by XY and his associates if the school office had been open or if a teacher had been on duty at the crossing or at another obvious place in the school grounds.

“The burden of taking such a precaution was very limited, and a reasonable person in the school’s position would have taken it.”

The court concluded: “The school breached its duty of care by effectively closing itself off from offering any assistance to students some 11 minutes after the final school bell rang, in circumstances where T2 had sought assistance from the school in the 24 minutes after the final bell had rung. But for that breach, the assault on T2 would probably not have occurred.”