Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:

1. BELL CJ: I agree with Kirk JA.

2. KIRK JA: On 16 October 2017 the respondent, referred to here as T2, was a 14 year old school student in Year 9 at Fairvale High School, a State school in south-western Sydney. Shortly after school finished that day he was the subject of a serious assault by other students from the school. The instigator of the assault was XY, then also aged 14 and in Year 9 at the school. XY had only just returned to school from a long period of suspension for having assaulted another student. The assault did not occur in the school grounds but at a nearby park. T2 had been waiting for his bus at a bus stop close to the school entrance.

3. T2 had learned shortly before the assault that it was likely to occur. He immediately sought assistance from, and refuge in, the school. None was to be had. He had also texted his mother (referred to as T1) saying "I am about to get bashed". His mother frantically phoned the school, doing so just prior to the assault. No answer was received.

4. The respondent, who already had various psychological challenges, suffered physical and mental injuries as a result of the assault. He brought proceedings against the State of New South Wales, which was responsible for the school, alleging negligence. A cross-claim by the State against XY was filed but not pursued. The primary judge, Harrison AsJ, found the State liable and awarded damages in the amount of some $1.75 million: T2 (by his tutor T1) v State of New South Wales [2024] NSWSC 1347.

5. On appeal the State has challenged her Honour's conclusions as to liability, doing so on the basis that the school did not breach its duty of care, and also that factual causation was not established for the purposes of s 5D(1)(a) of the Civil Liability Act 2002 (NSW) (CLA). The State did not raise any issue as to normative causation under s 5D(1)(b). It raised but did not press a challenge to the findings on damages.

6. The appeal should be dismissed with costs. The school breached its duty of care by effectively closing itself off from offering any assistance to students some 11 minutes after the final school bell rang, in circumstances where T2 had sought assistance from the school in the 24 minutes after the final bell had rung. But for that breach the assault on T2 would probably not have occurred.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1983579a875f642c542e05d6)

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