In brief - School found to be liable for injury even though student under care of another party

 

In Harris v Roman Catholic Church [2011] NSWDC 172 the NSW District Court applied established principles to find a school liable for an injury suffered by a student on a school skiing excursion. Although this case is not authoritative, it shows how courts may view a school's liability where a student is on a school excursion but under the care of another party.

The student's accident

James Harris attended a skiing excursion to Perisher Blue Ski Resort as a student of Penshurst Marist Brothers. James had never skied before. He participated in a beginners' ski lesson run by the resort. During the lesson James injured his back while on a beginners' slope. James claimed that he began to increase in speed and went over a mogul while trying to avoid an unmarked ditch.

Claim against the resort

James brought an action against the resort. He alleged that the resort was negligent in not teaching him how to turn properly and in holding a ski class close to a ditch and a mogul.

The court found that the ditch had not been reasonably marked. The Court held that although the activity was a recreational activity for the purposes of defences available under the Civil Liability Act 2002 (NSW) (CLA), the risk of injury as a result of a ditch on a beginner's slope was far from obvious.

The court held that Perisher was negligent in failing to identify the ditch and take precautions to avoid injury.

The school's non-delegable duties

James also brought an action against the school for breach of non-delegable duties of care.

In considering the scope of the school's duties, the District Court applied the case of Commonwealth v Introvigne. The High Court's decision in Introvigne outlines principles of a school's non-delegable duty of care to its students. The District Court also considered section 5Q of the CLA (Liability based on non-delegable duty).

Whilst the school had delegated to the resort to teach skiing to James, it nonetheless retained the primary responsibility to ensure that reasonable care was taken. Elkaim DCJ held that there was no distinction between the resort being an independent contractor or an employee of the school. None of the activities of the resort, even if negligent, fell outside the scope of the engagement of the resort by the school.

Elkaim DCJ found first, that the resort was negligent and secondly, that the school retained non-delegable duties while James was participating in the skiing lesson. As a result Elkaim DCJ held that the school was also liable to James.

What does this mean for schools?

Schools should be conscious of their duties even when they engage the assistance of external providers. Potential resources for schools are the Department of Education & Communities' Excursions Policy and its Guidelines on engaging external providers.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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