School not negligent in failing to prevent assault
February 28, 2013
State of New South Wales v Mikhael  NSWCA 338
The Court of Appeal has unanimously overturned a finding by the District Court that a NSW public school (represented by Moray & Agnew) was negligent in failing to take adequate steps to prevent one of its students being assaulted by another student who had a record of violence.
After a touch football game on the school oval, year 8 student, T, left the field and punched a fellow student in response to sideline taunts, causing the student to be injured. School Principal Ms Brookton suspended T for four days and ordered his behaviour be monitored for five days on his return to school, in accordance with the school’s procedures. When T returned from suspension, Ms Brookton considered the risk of him doing it again to be minimal as he was remorseful, promised he would not re-offend and otherwise had a history of good behaviour. Furthermore, the daily monitoring system revealed he was behaving well.
Six weeks later, the plaintiff and T (who were friends at the school) were in Ms Edgar’s French class (Ms Edgar was also head of student welfare). During the lesson, the plaintiff was involved in a minor tussle with another student, S, over a worksheet. T became involved in the spat. Ms Edgar intervened. Later during the class, there was an angry exchange between T and the plaintiff, however, Ms Edgar was only aware of a minor argument. She considered T ‘minimally annoyed’ and told the boys to get on with their work, which they did without further argument for 10 minutes until the end of class.
At the end of class, the plaintiff stayed back with S who had been asked to do so by Ms Edgar. The plaintiff said he did so because he was worried about retaliation from T, but he did not communicate his alleged fear to Ms Edgar. Shortly after leaving the classroom in a corridor some metres away from the classroom, the plaintiff was king hit by T, causing him to be seriously injured.
At the time of the French class, Ms Edgar had not been formally told about the earlier incident involving T on the school oval. However, she recalled she had ‘heard about it, possibly in the staff room’ and understood it was ‘a violent incident.’ She did not know T had responded violently to a minor provocation. Ms Edgar conceded that, as head of welfare, the school’s procedures dictated she should have been told this and that, if she knew, she would have been very keen to ensure that the dispute in her French class did not get out of hand.
District Court’s decision and the Appeal
The District Court found that the school had breached its duty of care by failing to provide teachers with information as to T’s propensity to violence in response to minor provocation. The plaintiff was awarded damages of $318,288.
The school appealed on breach and causation. The school contended that the finding of breach was underpinned by an erroneous factual finding that Ms Edgar was only ‘vaguely aware’ of the first incident and that she knew it was violent, meaning it was irrelevant she was not formally told about it. The school’s issue with causation was that the District Court’s judgment contained no analysis of causation at all.
The Court of Appeal considered the appropriate factual finding was that Ms Edgar knew T had been involved in a fight that involved violence. This was more than having a ‘vague’ knowledge as to what occurred, as found by the District Court. However, the court said she did not know T had responded violently to minor provocation (the relevance of this is explained below).
The Court explained that the issue of breach was to be determined by reference to section 5B of the Civil Liability Act (‘CLA’) which states:
5B General principles
A person is not negligent in failing to take precautions against a risk of harm unless:
(a) The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) The risk was not insignificant, and
(c) In the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) The probability that the harm would occur if care were not taken
(b) The likely seriousness of the harm,
(c) The burden of taking precautions to avoid the risk of harm….
The plaintiff identified the risk of harm to be the risk he would be assaulted by T after class unless reasonable precautions were taken, that being advising teachers, T may respond violently to minor provocation.
The court found there was a foreseeable risk of harm to students should T become provoked because of his recent history. Whilst the chances of a similar incident appeared low in the professional judgment of the teachers involved, it was not a far-fetched or fanciful possibility. In this respect, Ms Brookton conceded a repeat incident was possible and said ‘sometimes they don’t and sometimes they do’. The appeal court also found the risk of harm to other students was ‘not insignificant’ given the serious nature of the first assault.
In considering whether a reasonable person would have taken the precaution of notifying teachers of T’s propensity to violence in response to minimal provocation, the court said that, whilst the teachers thought the risk of T reoffending was low, given T had caused a serious injury in the first assault, the potential for serious harm to other students existed if he re-offended.
The court was of the view that the privacy concerns of T were relevant in considering the burden on the school of notifying teachers of T’s propensity for violence; that is, it may not have been appropriate to publicly label T as a thug as this may have had adverse consequences for T. However, Ms Brookton herself conceded that the risk of harm outweighed that consideration.
The court therefore found that, notwithstanding the erroneous factual finding by the District Court that Ms Edgar did not know that the assault was violent, the school nonetheless breached its duty of care.
In order to establish causation under section 5D of the CLA, the plaintiff had to demonstrate that the school’s breach of duty (its failure to provide Ms Edgar with full details of the earlier assault) was a necessary condition of the occurrence of the harm. The plaintiff therefore was required to establish what Ms Edgar should have done which would have prevented his assault had she been so informed.
The plaintiff argued that Ms Edgar should have separated T and the plaintiff and counselled T to ensure he had calmed down. However, the court found that, from Ms Edgar’s perspective, she was only aware of a minor disturbance and T being ‘minimally annoyed.’ Furthermore, the plaintiff had voluntarily moved his desk away from T and they had continued on with their work. The plaintiff also argued that, had Ms Edgar known the details of the first incident, she would have perceived that he was afraid and checked that T was not lingering and escorted him from the classroom. However, Ms Edgar did not know that the plaintiff was fearful and he did not communicate any fear to her.
The court therefore questioned, even if Ms Edgar did know all of the details of the first assault, whether she would have done anything differently in the circumstances. In order to establish causation this required proof that a step would, on the balance of probabilities, have adverted the harm. In the court’s opinion, the plaintiff’s suggestions of what Ms Edgar should have done amounted to no more than a series of possibilities, which might have prevented the incident. This fell short of the required onus of proof.
Despite dealing with (and rejecting) these hypotheticals about what Ms Edgar should have done, the court ultimately found that the plaintiff’s case failed on causation because it had not been extracted from Ms Edgar in cross-examination during the District Court trial what she would have done if armed with knowledge that T had six weeks earlier responded violently to minimal provocation.
Although the school was ultimately successful, the Court of Appeal’s decision on breach might be regarded as harsh given that the school substantially complied with its own procedures and tendered an expert report which confirmed this. The Court jumped on the one procedure the school did not follow, being to communicate all of the details of the first assault to staff. The decision shows that courts are likely to find that a school has breached its duty of care unless it complies stringently with all of its own procedures.
The court’s findings on causation are of interest in that, whilst evidence was not extracted from Ms Edgar as to specifically what she would have done if armed with fuller knowledge about the first assault, she did concede that, if she had known all the facts, she would have been ‘very keen’ to ensure that the dispute in her class did not get out of hand. However, the court was not prepared to draw an inference from her evidence as to what she might have done. This demonstrates the very high onus on plaintiffs to meet the ‘but for’ test under section 5D by calling evidence as to what someone should have done which would have prevented the harm complained of.
Authored by Liam Fowler, Lawyer, Sydney.
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