Author – Wendy Lee, paralegal
Sydney Compensation Specialists

RJ bht RPC v State of New South Wales

This is an interesting case which considered the liability of a school for sexual abuse perpetrated by an older student upon on a younger student within a disability support unit.


What are the facts of the case?
The 13 year old Plaintiff had a “mild but relatively obvious” intellectual disability and co-mingled with other students of varying ages within the support unit, including an older 17 year old male student. The school had received multiple complaints about the older student’s truanting, as well as allegations of sexual abuse being perpetrated onto others within the school.


The Plaintiff who was 13 years old at the time had received sexual and inappropriate messages from the 17 year old. The parents of the 13-year-old became aware of this and reported it to the school, which caused the school to warn the Plaintiff to stay away from the 17-year-old. In or around 23 September 2019, the Plaintiff asked for permission to use the school toilets. In doing so he obtained a key from a staff member and attended the toilets unaccompanied. Unfortunately, the older student entered the toilets and sexually assaulted the Plaintiff.
The Court had to consider whether the school could be held liable in negligence for failure to protect the 13-year-old.


Negligence
In order to establish that the school was negligent, the Plaintiff needed to prove that there was a duty of care owed to him, that the risk of harm was reasonably foreseeable, and that causation was established.


The Court held that the school owed a duty of care to ensure the safety of the school students, including the Plaintiff. This was particularly relevant in circumstances where the school were aware of the dangers posed by the 17-year-old. It was established that the school knew of the 17-year-old students attempts to approach other students inappropriately and threaten them. Further, the Plaintiff’s mother wrote to the school outlining her concerns about how the 17-year-old inappropriately messaged her son and how he attempted to engage with him in the school toilets. The 17-year-old had also frequently “groomed” other younger male students which was recognised by the school. Thus, this risk was held to be reasonably foreseeable by the school.


In relation to the action taken by the school, the Court noted that they cautioned the 13-year-old to stay away from the 17-year-old, and that beyond this point, it did ‘nothing’. The Court also dismissed the school’s argument that ‘constant supervision’ could not be considered a reasonable precaution, and found that rather, it needed to pay additional attention, particularly in instances when the teachers were aware the 17-year-old was truanting to supervising him. On this basis, it was held that the risk was reasonably foreseeable and therefore, it was found that the school had been negligent.


Key Takeaways
Abuse cases involving the liability of schools are often complex and turn on the individual facts of each case. It is necessary to consider where the abuse took place, who perpetrated the abuse and whether or not the school were on notice of the possible dangers to students.
In the event that you require assistance in relation to a case involving sexual abuse at a school or other institution, please do not hesitate to call our offices at (02) 9801 7508 or send an email to [email protected].


References
RJ bht RPC v State of New South Wales [2024] NSWDC 128.