4
The Duty of Care
9.
A school authority owes a duty of care to its students.
4
The duty is a non-delegable duty.
5
That is, it is not sufficient for a school authority to say that it employed competent
teachers. The authority has the legal duty to ensure that reasonable
care is taken of the
students.
10.
In
Kondis v State Transport Authority
6
Mason J said:
“Likewise with the school authority. It is under a duty to ensure that reasonable care is taken of pupils attending the
school. It is the immaturity and inexperience of the children and their propensity for mischief that lie at the basis of
the special responsibility which the law imposes on a school authority to take care for their safety:
Introvigne
. The
child's need for care and supervision is so essential that it is a necessary inference of fact from the acceptance of the
child by the school authority, ‘that the school authority undertakes not only to employ proper staff but to give the
child reasonable care’, to use the words of Kitto J. in
Ramsay v. Larsen
(footnotes omitted).”
11.
The duty of care will or will not exist if the relationship of schoolmaster and pupil was or
was not in existence at the particular time of times.
7
However,
the relationship of
schoolmaster and pupil (or school authority and pupil) is not merely dependent on whether
the relevant incident occurred in school hours. In
Trustees of the Roman Catholic Church for the
Diocese of Bathurst v Koffman
8
a 12 year old boy was injured by the conduct
of students from a
nearby school about 20 minutes after school and about 400 metres from the school
grounds. The New South Wales Court of Appeal held that the
relevant relationship of
schoolmaster and pupil was subsisting at the relevant time. Sheller JA said:
“In my opinion the extent and nature of the duty of the teacher to the pupil is dictated by the particular
circumstances. I do not think its extent is necessarily measured or limited by the circumstance that the final bell for
the day has rung and the pupil has walked out the school gate.”
9
12.
Sheller JA further made it clear that depending on the knowledge of the school authority,
the duty could persist to cover incidents well away from the school.
10
13.
In the recent
High Court decision of
Hunter and New England Local Health District v
McKenna
11
the Court held that a hospital which had released a mentally ill man into the care
4
Commonwealth v Introvigne
(1982) 150 CLR 258.
5
Ibid per Mason J at 270-272, per Murphy J at 274 and at 279
per Brennan J; New South Wales v Lepore (2003) 212 CLR 511
per Gaudron j at [105]McHugh J at [136], Gummow and Hayne JJ at [248].
6
(1984) 154 CLR 672.
7
Geyer v Downs
(1977) 138 CLR 91.
8
[1996] NSWSC 348; (1996) Aust Torts Reports 81-399.
9
Ibid at p.15.
10
Ibid pp.15-16.
11
(2014) 253 CLR 270.
5
of his friend, who
he shortly afterward killed, did not owe a duty of care to the friend,
because the statutory regime under which the hospital acted required it to detain mentally
ill people for the minimum period of time and this was inconsistent with owing the friend a
duty of care.
12
14.
In its reasons the Court (following
Sullivan v Moody
13
) set out four classes of cases in which
difficulty will arise in relation to the duty of care. They are:
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