New South Wales v Lepore; 6 Feb 2003

References: [2003] HCA 4, (2003) 212 CLR 511, (2003) 195 ALR 412, (2003) 77 ALJR 558, (2003) 24 Leg Rep 2
Links: Austlii
Coram: Gleeson CJ, Gaudron, Mchugh, Gummow, Kirby, Hayne and Callinan JJ
Ratio: Austlii (High Court of Australia) 1. Appeal allowed in part
2. Paragraph 2 of the order of the Court of Appeal of New South Wales made on 23 April 2001 set aside, and in its place, order that the judgment entered in the District Court on 16 April 1999 be wholly set aside and that there be a new trial.
3. Appellant to pay the costs of the appeal to this Court.
4. Costs of the new trial to abide its outcome.
Callian J (majority) said: ‘Education authorities do not owe to children for whose education they are responsible (absent relevant contractual provision to the contrary) a particular or unique non-delegable duty of care, in practical terms, giving rise to absolute liability. There is no doubt that the ordinary standard of care in the case of such authorities is a very high one. Their duties include the engagement of reliable, and carefully screened, properly trained employees, and the provision: of suitable premises; an adequate system for the monitoring of employees; and, I would think, because, regrettably, the incidence of sexual abuse seems to have been more common than had previously been thought, an efficient system for the prevention and detection of misconduct of that kind. In saying what I have, I do not intend to state comprehensively a catalogue of the duties to which the relationship of education authority and pupil may give rise. But I do agree with the Chief Justice that absent fault on the part of an education authority, it will not be personally liable in situations of the kind with which these cases are concerned’.
McHugh J. (minority: he alone would have found non-delegable duties in the particular circumstances) said: ‘a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil . . The duty arises on the enrolment of the child. It is not confined to school hours or to the commencement of the teachers’ hours of employment at the school. If the authority permits a pupil to be in the school grounds before the hours during which teachers are on duty, the authority will be liable if the pupil is injured through lack of reasonable supervision. In Geyer v Downs this Court held that the education authority was liable for injuries suffered by a pupil playing in the school grounds at about 8.45am although teachers at the school were not required to be on duty at that time . . The duty extends to protecting the pupil from the conduct of other pupils or strangers and from the pupil’s own conduct The measure of the duty is not that which could be expected of a careful parent.
Murphy and Aickin JJ rejected the parent analogy in Geyer v Downs saying that it was unreal to apply that standard to ‘a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of thirty or more children’.
This case is cited by:

  • Cited – Woodland -v- The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
    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 . .

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 445625