Child Safety at the Bus Stop? Duty of Care Outside of School Hours
Trigger Warning: This article discusses topics related to child abuse and harm, which some readers may find distressing.
On 25 October 2024, the Supreme Court of New South Wales handed down a decision into the unprovoked attack of plaintiff T2, who was attacked by 12 fellow students after school hours. The full decision can be found at this link (Decision). The events which led to T2’s attack highlight the importance of schools having appropriate policies and procedures in place to ensure they meet their duty of care requirements, which extends beyond the school boundaries and outside of school operating hours.
Background
T2 was a 14-year-old student at Fairvale High School. On 16 October 2017, he was assaulted after school, sometime between 3:26pm and 4:00pm. Whilst waiting at the bus stop on Thorney Road, T2 was approached by a male student, TJ and told that XY wanted to talk to him. T2 did not want to talk to XY and was concerned, so he walked back to the school office, but it was locked, and no one was there to help him. T2 then contacted his mother, telling her he was about to be ‘bashed’. His mother tried calling the school twice, but each call was diverted to a message bank.
CCTV footage captured students surrounding T2 at the bus stop, seeming to position themselves to prevent him from getting on the bus. Further footage depicts T2 and another student walking towards Endeavour Park, followed by 10 to 12 other students. The assault is captured in a final video, where T2 was spear tackled from behind and then had his head and various other parts of his body kicked, punched and stomped on while he was defenceless, lying on the ground. The assault was violent and lengthy.
T2 was diagnosed with what has now been reclassified as autism spectrum disorder in 2012 and this assault worsened his condition.
The Judgment
The Court found in favour of T2. It was held that the duty of care that a school owes to its students can extend beyond the school boundaries and outside of school operating hours. The Court found that the school had breached its duty of care by failing to conduct a proper risk assessment on XY, the instigating student, before he was allowed to return to school after being granted a long suspension for previous violence. The Court found that the School also breached its duty of care to provide supervision in and around the school for the safe passage of students home by failing to have teachers on bus duty, and by failing to keep the administrative office open at the end of the day so that students can seek assistance and refuge if needed.
Whilst the duty of care owed to school-aged children will change as they mature, the risks of some forms of harm can increase over time and so the duty of care to protect against these harms may also increase. The Court found that the duty of care owed to T2 was broader than that owed to most other students, due to his pre-existing medical diagnoses, which made him more susceptible to bullying, and the fact that the school was aware he had been bullied in the months leading up to the assault.
What is duty of care?
Schools and other organisations working with children owe a duty to take reasonable care to prevent harm to their students. Duty of care is non-delegable. A school is not absolutely liable for injuries sustained by students while under their supervision, but they must take reasonable steps to take precaution against foreseeable risk that is not insignificant and that a reasonable person in their position would have taken. The scope of the duty of care includes taking reasonable steps to ensure that students can depart the school in a safe manner.
What are schools and other organisations working with children required to do to comply with its duty of care?
Organisations need to ensure that they take reasonable steps to mitigate risk to children.
This includes:
- Having sufficient policies and processes in place to deter and control bullying and mitigate other types of risk
- Ensuring appropriate supervision of students and access to adult support and assistance when needed
- Ensuring that all staff are properly trained to understand Duty of Care and mitigate risks of harm
This case illustrates that schools cannot deny students adult support beyond the time that school concludes. The Court in this case held that it is reasonable that schools keep its administrative office open until 4:00pm, ensure that teachers monitor bus stops until students have departed and properly supervise both vulnerable and violent students.
How can Safe Space Legal help?
Safe Space Legal has extensive experience working with schools and other organisations working with children to ensure they are meeting their child safety obligations and can support organisations by:
- Conducting Child Safety Training, including to schools on Duty of Care
- Drafting best practice child safety policies, procedures and codes of conduct;
- Conducting gap analysis audits of critical incidents;
- Providing training on legal obligations, duty of care and child safety;
- Conducting child safety investigations which are compliant with relevant state and territory schemes; and
- Provide advice on risk mitigation.
Contact [email protected] or call 03 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.