Disclaimer: This article contains descriptions of violence that may be distressing to some readers. 

The NSW Court of Appeal has affirmed a significant judgment from the Supreme Court of NSW, upholding and further clarifying that schools can be found negligent for failing to protect students from bullying, even when bullying incidents occur outside of school hours and beyond school grounds.   

In 2017, the plaintiff (T2) was a 14-year-old student in Year 9 who sustained physical and psychological injuries after being attacked by a group of fellow students after school at a nearby park. T2 was diagnosed with autism spectrum disorder and had previously reported being bullied to the school.  

On the afternoon of the incident at around 3.28pm, T2 was waiting at an unsupervised bus stop near the school when a friend alerted him to the threat of an attack by another student (XY). T2 initially sought help from the school’s administration office but found it unattended. T2’s mother then attempted to call the school twice, but her calls went unanswered and were instead directed to the school’s voicemail.  

T2 returned to the bus stop where he was assaulted by a group of about 12 students, who led him to a nearby park where T2 was spear tackled to the ground and then kicked, punched and stomped on by various members of the group. The assault was filmed and posted to social media by the attackers.   

XY was identified as the instigator of the assault and, at the time of the attack, had only recently returned from a 20-day suspension. This was one of two suspensions in the context of a known history of bullying and intimidation, which included prior assaults on other students. The school’s counsellor recommended ongoing counselling for XY, enrolment into the school’s ‘RAGE’ program, and the completion of a risk assessment prior to his return. None of these recommendations were implemented by the school.  

T2, through his mother, brought a claim against the State of New South Wales (State), which had the care, management and control of the school. T2 alleged that the school’s negligence enabled the assault, and that he suffered a deterioration of his mental state and exacerbation of known conditions as a result.  

While the State agreed it held a general duty of care to students, it argued that this duty did not extend to incidents involving students outside school grounds or outside school hours.  

At trial, the Supreme Court of New South Wales found in favour of T2, ruling that the State had been negligent, and awarded damages amounting to over $1.75 million. The State appealed this decision to the New South Wales Court of Appeal.  

The New South Wales Court of Appeal (Bell CJ, Kirk JA, and Price AJA) ruled unanimously in favour of T2 and dismissed the State’s appeal.  

The Court confirmed that the school’s duty of care extended beyond school hours and the physical boundaries of the school. However, it rejected the argument that T2’s diagnoses of autism spectrum disorder and oppositional defiant disorder, along with XY's history of bullying, required the school to exercise a higher duty of care than that owed to students generally.  

Furthermore, the Court held that T2 failed to prove factual causation between the school’s decision not to implement a risk assessment of XY and the attack, as there was no evidence to support that such a risk assessment would have prevented it.  

Kirk JA observed that the school also had a responsibility to XY and to the broader community by ensuring he received an education. The principal had noted that the school often accepted students who had been expelled from private schools. Educating students with behavioural challenges, including those who may pose a risk, was considered to have social value. This social utility was relevant when assessing whether the school breached its duty of care under section 5B(2)(d) of the Civil Liability Act 2002 (NSW). In light of this, the Court concluded that the school did not breach its duty by allowing XY to return without first completing the RAGE program. As a result, it was not necessary to consider whether the failure to complete the program contributed to the harm suffered by T2. 

Instead, the Court found the school was negligent for failing to supervise the bus stop and for not ensuring the administration office was staffed. It held that the absence of staff at 3:28pm amounted to a failure to take reasonable precautions against foreseeable harm, and noted that the subject bus stop was used by around 70 students from the school each day. The Court also dismissed the argument that implementing such measures would be excessively burdensome on the State. 

The State did not challenge the primary judge’s findings on damages, and as such, the award of $1.75 million stood. The damages were calculated at such a high level due to the serious and lasting impact of the assault on T2’s mental health and overall wellbeing. The Court considered the severity of the attack, T2’s pre-existing vulnerabilities, and the long-term consequences for his psychological functioning, education, and future earning capacity. Expert evidence supported the conclusion that T2 would require ongoing care and treatment, justifying a substantial award to compensate for pain and suffering, economic loss, and future needs. 

All schools owe a duty of care to protect students from bullying behaviour, including physical assault, and this duty of care does not end at the physical or temporal boundaries of the school. Schools can be held liable for harm suffered by students in nearby areas before or after school, especially if the associated risks of harm were reasonably foreseeable.  

The vulnerabilities and behavioural histories of students do not automatically elevate the standard of care that is owed to students; rather, schools must focus on responding appropriately to known risks in general. This decision has important consequences for how schools manage student safety beyond the bounds of the school. Schools may need to reassess their supervision practices, particularly in areas near school grounds where students gather after school hours. The Court’s finding that the absence of staff supervision at a busy bus stop was unreasonable suggests that schools cannot rely on limited resources as a defence where serious harm is foreseeable. This may lead to changes in staffing policies, student behaviour management, and communication protocols to ensure that reasonable precautions are in place to protect students during vulnerable periods. 

• Duty of care extends beyond school grounds and hours where risks are foreseeable. 

• Schools must take reasonable precautions in areas like bus stops where students gather. 

• Social utility of educating high-risk students can weigh against findings of breach. 

The judgment in State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165 can be accessed here.

This case highlights the complex issues surrounding the scope of duty of care in school settings, risk management, and institutional responsibility. For further insights into these and other key principles underpinning school and institutional liability, download the Fourteenth Edition of A User’s Guide to Civil Liability in Australia 2025  here.

If you would like to discuss any of the matters raised in this article, please contact a member of our Insurance team.