Alex Kohn
9 May 2012

Schools – Non-Delegable Duty of Care

Alex Kohn

Partner And Chairman

Tel: 02 9233 9036

Mob : 0421 315 168


Dispute Resolution


Charities and Not-For-Profits Dispute Resolution



Employment, Professional Conduct and Safety

In November 2011, his Honour Judge Elkaim in the NSW District Court found both a school and a ski resort liable for a back injury sustained by a school student while the student was participating in a skiing lesson organised by the ski resort during a school excursion (see Harris v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWDC 172). While it may seem surprising that a school could be held liable for an injury to a student sustained during a school excursion in an activity supervised by a third party in a field very different from school studies, this result arises from a legal concept known as a”non-delegable duty of care”.

“Non-delegable duties of care” arise when there is a special relationship between the plaintiff and the defendant where the defendant is in a special position with respect to the plaintiff (see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553). The easiest way to explain the relationship is with examples arising out of everyday life. The law provides that the following relationships give rise to a non-delegable duty of care (see Kondis v State Transport Authority (1984) 154 CLR 672Commonwealth v Introvigne (1982) 150 CLR 258):

  • Employer to employee;
  • Hospital to patient;
  • School to student.

For the Court to find a defendant liable to a plaintiff, it first must find that the defendant owed the plaintiff a duty of a care. If the relationship between the plaintiff and the defendant is within one of the categories of non-delegable duty, the question is not whether the duty exists, the question is the extent of the duty. Further, that duty cannot be displaced in circumstances where an intermediary is involved e.g. where the school organises an excursion off-site.

It has long been the case that the duty of a school to care for students extends well beyond the school gate e.g. sporting trips and school excursions. A school also has a duty towards one of its students who gets injured at a bus stop a distance away from the school and adjacent to another school (see Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman [1996] Aust Torts Reports ¶81-399).

Which brings us back to the skiing lessons at the ski resort.

The student was taken by his school on an excursion to the New South Wales ski fields. He injured his back during a skiing lesson conducted by the ski resort involving a hole or ditch in the beginners’ area. The plaintiff was injured seriously enough to cause a loss to his capacity to work.

Initially the plaintiff only sued the school for damages even though the school was not involved in conducting the skiing lessons. The school joined the ski resort as a cross-defendant and later the plaintiff joined the ski resort as the second defendant. Ultimately, the plaintiff abandoned all allegations of actual wrongdoing against the school and sought damages against the school only on the basis that the school held a”non-delegable liability for the negligence” of the ski resort.

Judge Elkaim found that the plaintiff suffered the injury to his back as a result of a ditch he encountered in the beginners’ ski run. The ski resort had a system whereby the areas for skiing would be checked by a ski patrol on the morning before skiing took place. Unfortunately, the ski resort had no records of any inspection on the day of the accident.

The Judge also had to consider whether the defendants were entitled to a defence on the basis that skiing involved an”obvious risk of a dangerous recreational activity engaged in by the plaintiff” (see Civil Liability Act 2002 (NSW, sections 5F, 5K and 5L). His Honour held that the defendants were not entitled to the benefit of this defence because, while skiing might generally be a”dangerous activity” with”obvious risks”, the plaintiff’s injuries resulted from the presence of the ditch, making the risk not obvious.

His Honour found both the school and ski resort liable to the plaintiff.

The school sought indemnity or contribution from the ski resort if liable to the plaintiff. On this point, Judge Elkaim held that the school was entitled to a complete indemnity from the ski resort because the ski resort was in a position to control the circumstances of the skiing lessons while the school was not.

The plaintiff alleged that as a result of his injuries in the skiing accident his ability to work was impaired and that he experienced pain and suffering. The Court awarded him damages of over $300,000.00 plus costs.

This case is currently under appeal by the ski resort and raises several significant issues for schools:

  1. A school remains”on risk” for an injury to a student in circumstances in which it has no control and in which another entity is in charge due to the operation of the non-delegable duty of care.
  2. In appropriate cases, however, the Court can order that the other entity in charge of the students to indemnify the school, where the school has not breached any of its obligations to the student.
  3. Excursions pose special risks for schools because students are more likely to be placed in situations where the school has little or no control.
  4. Liability might arise from a dangerous activity if the injury is the result of another factor.
  5. Schools need to ensure that all third parties carry sufficient public liability accident insurance for any activity involving students.

A further post will cover the outcome of the appeal.

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