State of New South Wales v Mikhael

The Court of Appeal of New South Wales heard an appeal by the State of New South Wales against a decision of the District Court in favour of a student who had been assaulted by a fellow student on school premises. The dispute concerned whether the school authority had breached its duty of care to the plaintiff student.

The primary legal issues before the Court of Appeal were whether the school authority had breached its duty of care to the plaintiff by failing to take reasonable care for the safety of students on school premises during school hours, specifically by failing to inform teachers of details of a prior violent incident involving the offending student, and whether this failure caused the plaintiff's injuries. The court was required to consider the foreseeability of the risk of harm and the application of the "but for" test for factual causation under the *Civil Liability Act 2002*.

The Court of Appeal reasoned that while a school authority owes a duty of care to its students, the plaintiff had not established that the school's omissions caused the assault. The court found that the onus was on the plaintiff to establish the probable course of events, and that the school's assessment of the offending student's prior violent conduct and the teacher's familiarity with that student's behaviour did not establish factual causation. The court concluded that the plaintiff had not satisfied the statutory test for factual causation under section 5D of the *Civil Liability Act 2002*.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of the District Court, and entered judgment for the defendant. The plaintiff was ordered to pay the defendant's costs in the District Court and the costs of the appeal.