Commonwealth v Introvigne: 1982

(High Court of Australia) A pupil was injured when he swung, whilst skylarking unsupervised, from a halyard attached to a flagpole in the school quadrangle. The halyard was in turn connected to a pulley which was part of a truck attached to the top of the flagpole. The truck, weighing about 7 kilograms, was dislodged by the pupil swinging, fell, and caused severe head injuries. The injury was said to be caused by the negligent failure of school staff to supervise the pupils, as well as the state of the premises. The members of staff were employees of the state, yet the Commonwealth of Australia was sued.
Held: A school may owe a non-delegable duty of care to its pupils.
Mason J. said: ‘There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J. in Ramsay v. Larsen (1964) 111 CLR, at p 28[4]. The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants’ and ‘It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score.’
Murphy J said: ‘1. The Commonwealth assumed the role of conducting a school; it is immaterial whether it was required to do so by Act of Parliament. It became liable for damage caused by any lack of reasonable care of the students or pupils placed in its care. In terms of the prevailing concepts of duty, the Commonwealth became fixed with certain non-delegable duties:
(1). To take all reasonable care to provide suitable and safe premises. The standard of care must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards.
(2). To take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out.
2. The Commonwealth also became vicariously liable to pupils and parents for the acts and omissions of the teaching and other staff (whether or not these were supplied by another entity or agency).
3. The notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent. A school should not be equated to a home. Often hazards exist in a home which it would be unreasonable to allow in a school. A better analogy is with a factory or other undertaking such as a hospital. Parents and pupils have in practice no choice of the classmates or other students. Injury occasionally occurs through foolish or sometimes malicious acts of other students. The school has the right to control what occurs at school, just as an employer has the right to control what happens in its undertaking. Where a student is injured by the negligence of another student (and perhaps by act or omission which if it were that of a person of full capacity would be negligent) without breach of personal duty by those conducting the school, and without act or omission by those for whom otherwise it is vicariously liable, it may be that the loss is best spread by treating the body conducting the school as vicariously liable just as an employer would be for its employee’s acts or omissions; but it is unnecessary to decide this.
4. In this case the damage to the plaintiff may be attributed to causes for which the Commonwealth is liable, unsafe premises and lack of supervision of the children. It is enough that Introvigne’s injuries were due to the inadequate system of supervision and care. The system did not provide for sufficient staff to exercise proper supervision over the children in the playground. As well, there was a failure to ensure that the system was carried out. The departure from the system by the teachers was understandable because of the death of the school principal, but this does not excuse the breach by the Commonwealth of this non-delegable duty.’


Gibbs CJ, Mason, Murphy and Brennan JJ


[1982] HCA 40




CitedCarmarthenshire County Council v Lewis HL 17-Feb-1955
The House considered the unexplained fact that in the temporary absence of the teacher (who, on the evidence, was not negligent) it was possible for a child of four to wander from the school premises onto the highway, through a gate which was either . .

Cited by:

CitedWoodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
CitedWoodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence

Updated: 08 May 2022; Ref: scu.445624