Student assaulted by fellow student – liability of School Authority

State of New South Wales v Mikhael [2012] NSWCA 338

Judgment date: 22 October 2012

In Brief

• The question whether, in the circumstances, a reasonable person would take particular precautions is to be considered having regard to the factors in s 5B(2) of the Civil Liability Act 2002 (CLA). This requires the court to consider the probability of the harm occurring and the burden of taking precautions.
• Section 5B(2)(c) of the CLA is not confined only to the economic burden of taking a particular precaution, but may involve factors such as time, distance and communication. Privacy concerns are also relevant.
• The question of causation has to be determined having regard to the factual circumstances in which the duty of care was owed and breached. The court has to be satisfied that the precaution or relevant step that ought to have been taken, would, on the balance probabilities, have averted the harm