Summary
Schools/teachers frequently ask whether their legal responsibility for students ends when the final bell rings or when students leave the school grounds. The short answer is no. A school’s duty of care does not operate by reference to rigid boundaries of time or place. Whether liability arises depends on the particular facts and on what risks were reasonably foreseeable and reasonably manageable in the circumstances. A recent NSW Supreme Court of Appeal case is relevant to this position and was examined by the court. Below, we set out some general comments on the duty of care position and then a summary of the case State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165.
Disclaimer
This update provides general information only and is intended for educational purposes. It does not constitute legal advice and should not be relied upon as such. The information is general in nature and does not take into account the specific circumstances of any individual school. Schools should seek legal advice tailored to their particular circumstances before taking or refraining from any action.
Duty of care generally
The nature of a school’s duty of care
It is well established that schools owe a duty to exercise reasonable care to avoid or prevent foreseeable risks of injury to students under their control and supervision: Richards v State of Victoria [1969] VR 136.
That duty is not one of strict liability and does not require schools to prevent all harm. Rather, it is a duty to take reasonable care to prevent harm where the risk is reasonably foreseeable: Commonwealth v Introvigne [1982] HCA 40.
The rationale for the duty is settled. While attending school, a child is removed from the immediate protection of their parent or guardian. In that context, the school assumes responsibility to take reasonable steps to protect the student from injury.
Injuries to students typically arise in one of two ways:
- harm caused by unsafe conditions or systems within the school’s control, or
- harm caused by the conduct of others, including other students, staff or third parties
The High Court has confirmed that a school’s duty extends to protecting students from the conduct of other students where the risk is foreseeable: New South Wales v Lepore [2003] 77 ALJR 558.
The scope and burden of the duty
The duty imposed on schools is significant. It requires schools to:
- regulate their own systems and practices
- supervise students appropriately
- manage known risks arising from student behaviour
- respond to emerging risks in a timely and proportionate way
Schools may be exposed to liability in numerous ways, including:
- direct liability in negligence for breach of duty
- vicarious liability for the acts or omissions of employees
- direct liability for acts of senior staff who represent the mind and will of the school, such as a principal: Erlich v Leifer [2015] VSC 499
Where a breach of duty causes injury, a student or parent may bring a negligence claim against the school.
In broad terms, such a claim requires proof that:
- the school owed a duty of care
- the school breached that duty by failing to take reasonable care
- the breach caused the injury, including that it is appropriate for liability to be imposed
- the harm was reasonably foreseeable
The standard required by the courts in the discharge of the duty of care is that of a “reasonable” school. A “reasonable” school is not the average school or even, at times, the highest standard presently carried out by other schools and it is not defined by common practice alone. A practice may be widespread and still fall short of what reasonable care requires. A reasonable school is one that takes active steps to identify and manage foreseeable risks and implements precautions that are reasonable in light of the risk, rather than relying on custom or convenience.
Duty of care is not extinguished at the school gate
A school’s duty of care does not operate as a binary obligation that ends when a student leaves school grounds or when the school day finishes. Rather, the duty may diminish as the school’s practical capacity to supervise and control events diminishes.
The content of the duty is shaped by factors such as:
- the foreseeability of the risk
- the school’s knowledge of the student or situation
- the degree of control or influence retained by the school
- the precautions reasonably available at the time
There is no fixed point at which a school’s responsibility definitively ends. Liability is assessed retrospectively by reference to the circumstances of the incident. This uncertainty is inherent in negligence law and cannot be eliminated by policy drafting alone.
It is against this legal backdrop that the recent decision in State of New South Wales v T2 is particularly instructive.
Case Note – State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165
Overview: This decision of the New South Wales Court of Appeal provides important guidance on the scope of a school’s duty of care where a student is injured after school hours and outside the school grounds. It confirms that a school’s duty of care does not automatically end at the school gate or when the school day finishes. Rather, liability depends on the particular facts, including foreseeability of risk and the school’s practical capacity to respond.
Facts – T2 was a 14 year old student at a New South Wales public school. Shortly after the end of the school day, he was assaulted by other students near a bus stop outside the school grounds.
Before the assault occurred, T2 attempted to seek assistance from the school. At that time:
- there were no teachers on duty
- the school administration office had closed
- no staff member was available to assist him
T2 suffered injury as a result of the assault. Proceedings were commenced alleging negligence by the State of New South Wales as the school authority.
Decision – The Court of Appeal upheld findings of breach of duty and causation. It rejected the proposition that the school’s duty of care had ceased merely because the incident occurred after school hours and beyond the school boundary.
1 Duty of care may extend beyond the school gate and after hours
The Court confirmed that a school’s duty of care is not confined to school hours or the physical school premises. The headnote states: “Whether or not a school’s duty to its students is breached with respect to an injury occurring outside school hours or the school boundary is dependent on the particular facts of the case.” The Court emphasised that liability is not determined by rigid temporal or geographical limits, but by reference to context and responsibility.
2 Scope of duty depends on responsibility and context
The Court reaffirmed the orthodox formulation of the duty: “The duty of care owed by a school to its students can generally be expressed as a duty to take reasonable care to prevent its students being exposed to reasonably foreseeable risks of not insignificant harm.” The duty applies where the school retains some responsibility for the student in physical or temporal terms. It is not unlimited, but it does not automatically evaporate once the bell rings.
3 Foreseeability and known risk are central
The decision reinforces that foreseeability is critical. Where a school knows or ought reasonably to know that a student is exposed to a risk of harm, the duty of care may require action even outside ordinary school structures. The Court accepted that the school was aware of relevant risks associated with student behaviour and post dismissal interactions. In that context, a failure to respond could amount to a breach.
4 Identified failures in the school’s systems
Although the appeal focused on breach and causation, the Court endorsed key factual findings, including:
- the absence of supervision at a location where students commonly gathered after school
- the closure of the school office shortly after dismissal
- the lack of a sufficient risk assessment relating to a student with known behavioural issues
The Court agreed that reasonable precautions were available, stating:
“A precaution against those risks was having at least one responsible adult associated with the school available to assist students … for a reasonable time after the school bell rang…”
This demonstrates that relatively modest measures may be required where risks are foreseeable and manageable.
5 Causation linked after hours conduct to the injury
The Court held that the school’s failures were causally connected to the harm suffered: “On the balance of probabilities T2 would not have been assaulted … if the school office had been open or if a teacher had been on duty at the crossing…” This finding confirms that after hours omissions can ground liability where they materially contribute to the occurrence of harm.
Practical Guidance for Schools
Below we set out some key things schools may wish to consider in light of the above.
1 – Broaden the way risk is identified: Schools should avoid limiting risk assessment to what occurs during school hours or on school grounds. State of New South Wales v T2 illustrates that duty of care questions can arise outside those boundaries where risks are foreseeable and the school has some ability to respond. The critical question is not where or when the risk arises, but whether:
- the risk is reasonably foreseeable
- the risk arises out of the school environment or school relationships
- the school has some practical capacity to influence, reduce or respond to the risk
This reflects that a school’s duty of care is shaped by responsibility and context, not rigid boundaries.
2 – Focus on risks the school can reasonably influence or control: Schools should turn their minds to risks affecting students beyond the school setting, including risks arising as students transition from school to home, or where interactions between students continue outside formal supervision. Consideration should be given to risks, behaviours or matters that may arise outside of the school gates or outside school hours where a school could reaosnably be expected to extend control. Examples include:
- known bullying or conflict that extends beyond school hours
- student interactions connected to school attendance or school relationships
- situations where a student seeks assistance from the school outside ordinary hours
- student use of school issued ICT resources outside school hours (particualrly where the school can control the software and filtering products on the devices)
- known dispersal or gathering issues where students are known to gather or spend time on or near school grounds before or after school
- school endorsed or sponsored events – either at the school or outside the school which may not be run by the school – and for which the school might be seen to control or be responsible for
- situations where school policies actively shape student conduct outside school hours
- bullying, cyberbullying, harassment outside school hours – where it then carries over to the school or where the school can control it or respond to it in school hours
- travel arrangements organised or facilitated by the school
- adjustments made for individual students affecting movement or supervision
- use of school communication platforms outside school hours
- student participation in work experience or structured placements
- informal supervision arrangements known to the school
- parent or carer reliance on school practices
- disciplinary processes with foreseeable external impacts
The duty does not require a school to control all external environments. It requires reasonable precautions where the school has knowledge of the risk and some capacity to act.
3 – Test whether existing systems respond adequately to known risks: Schools should review whether their systems are capable of responding when students are exposed to foreseeable harm, even where that harm materialises outside ordinary structures. This may include consideration of:
- whether students know how to seek help when at risk
- whether staff are available, contactable or accessible in identified risk periods
- whether policies align with known student vulnerabilities and behavioural risks
The emphasis is on preparedness and responsiveness, not constant supervision.
4 – Ensure decisions are reasoned and documented: Where a risk is identified but additional controls are assessed as not reasonable or not practicable, the decision and the reasoning should be documented.
Records should show:
- the risk identified
- the options considered
- why particular measures were adopted or not adopted
This assists a school to demonstrate it exercised reasonable care in the circumstances, particularly where decisions are later assessed with hindsight.
5 – Obtain legal advice where the scope of duty is uncertain: Where it is unclear whether a risk falls within the school’s duty of care, or where operational constraints require careful balancing, early legal advice should be obtained.
Legal advice can assist schools to:
- understand how duty of care principles apply to particular scenarios
- implement proportionate and defensible controls
- reduce the risk of hindsight based criticism following an incident
Should you require legal advice or assistance on advice or policy drafting matters, please feel welcome to contact us.