In brief - School found to be liable for injury even though
student under care of another party
In Harris v Roman Catholic Church  NSWDC 172 the
NSW District Court applied established principles to find a school
liable for an injury suffered by a student on a school skiing
excursion. Although this case is not authoritative, it shows how
courts may view a school's liability where a student is on a
school excursion but under the care of another party.
The student's accident
James Harris attended a skiing excursion to Perisher Blue Ski
Resort as a student of Penshurst Marist Brothers. James had never
skied before. He participated in a beginners' ski lesson run by
the resort. During the lesson James injured his back while on a
beginners' slope. James claimed that he began to increase in
speed and went over a mogul while trying to avoid an unmarked
Claim against the resort
James brought an action against the resort. He alleged that the
resort was negligent in not teaching him how to turn properly and
in holding a ski class close to a ditch and a mogul.
The court found that the ditch had not been reasonably marked.
The Court held that although the activity was a recreational
activity for the purposes of defences available under the Civil Liability Act 2002 (NSW) (CLA), the risk of
injury as a result of a ditch on a beginner's slope was far
The court held that Perisher was negligent in failing to
identify the ditch and take precautions to avoid injury.
The school's non-delegable duties
James also brought an action against the school for breach of
non-delegable duties of care.
In considering the scope of the school's duties, the
District Court applied the case of Commonwealth v Introvigne. The High Court's
decision in Introvigne outlines principles of a school's
non-delegable duty of care to its students. The District Court also
section 5Q of the CLA (Liability based on non-delegable
Whilst the school had delegated to the resort to teach skiing to
James, it nonetheless retained the primary responsibility to ensure
that reasonable care was taken. Elkaim DCJ held that there was no
distinction between the resort being an independent contractor or
an employee of the school. None of the activities of the resort,
even if negligent, fell outside the scope of the engagement of the
resort by the school.
Elkaim DCJ found first, that the resort was negligent and
secondly, that the school retained non-delegable duties while James
was participating in the skiing lesson. As a result Elkaim DCJ held
that the school was also liable to James.
The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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