Australia: Schools – Non-Delegable Duty of Care

Last Updated: 12 May 2012
Article by Alex Kohn and Indran Sinnadurai

Summary - The non-delegable duty of care owed by a school to its students continues while a student is on an excursion.

In November 2011, his Honour Judge Elkaim in the NSW District Court found both a school and a ski resort liable for a back injury sustained by a school student while the student was participating in a skiing lesson organised by the ski resort during a school excursion (see Harris v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWDC 172). While it may seem surprising that a school could be held liable for an injury to a student sustained during a school excursion in an activity supervised by a third party in a field very different from school studies, this result arises from a legal concept known as a "non-delegable duty of care".

"Non-delegable duties of care" arise when there is a special relationship between the plaintiff and the defendant where the defendant is in a special position with respect to the plaintiff (see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553). The easiest way to explain the relationship is with examples arising out of everyday life. The law provides that the following relationships give rise to a non-delegable duty of care (see Kondis v State Transport Authority (1984) 154 CLR 672; Commonwealth v Introvigne (1982) 150 CLR 258):

  • Employer to employee;
  • Hospital to patient;
  • School to student.

For the Court to find a defendant liable to a plaintiff, it first must find that the defendant owed the plaintiff a duty of a care. If the relationship between the plaintiff and the defendant is within one of the categories of non-delegable duty, the question is not whether the duty exists, the question is the extent of the duty. Further, that duty cannot be displaced in circumstances where an intermediary is involved e.g. where the school organises an excursion off-site.

It has long been the case that the duty of a school to care for students extends well beyond the school gate e.g. sporting trips and school excursions. A school also has a duty towards one of its students who gets injured at a bus stop a distance away from the school and adjacent to another school (see Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman [1996] Aust Torts Reports ¶81-399).

Which brings us back to the skiing lessons at the ski resort.

The student was taken by his school on an excursion to the New South Wales ski fields. He injured his back during a skiing lesson conducted by the ski resort involving a hole or ditch in the beginners' area. The plaintiff was injured seriously enough to cause a loss to his capacity to work.

Initially the plaintiff only sued the school for damages even though the school was not involved in conducting the skiing lessons. The school joined the ski resort as a cross-defendant and later the plaintiff joined the ski resort as the second defendant. Ultimately, the plaintiff abandoned all allegations of actual wrongdoing against the school and sought damages against the school only on the basis that the school held a "non-delegable liability for the negligence" of the ski resort.

Judge Elkaim found that the plaintiff suffered the injury to his back as a result of a ditch he encountered in the beginners' ski run. The ski resort had a system whereby the areas for skiing would be checked by a ski patrol on the morning before skiing took place. Unfortunately, the ski resort had no records of any inspection on the day of the accident.

The Judge also had to consider whether the defendants were entitled to a defence on the basis that skiing involved an "obvious risk of a dangerous recreational activity engaged in by the plaintiff" (see Civil Liability Act 2002 (NSW, sections 5F, 5K and 5L). His Honour held that the defendants were not entitled to the benefit of this defence because, while skiing might generally be a "dangerous activity" with "obvious risks", the plaintiff's injuries resulted from the presence of the ditch, making the risk not obvious.

His Honour found both the school and ski resort liable to the plaintiff.

The school sought indemnity or contribution from the ski resort if liable to the plaintiff. On this point, Judge Elkaim held that the school was entitled to a complete indemnity from the ski resort because the ski resort was in a position to control the circumstances of the skiing lessons while the school was not.

The plaintiff alleged that as a result of his injuries in the skiing accident his ability to work was impaired and that he experienced pain and suffering. The Court awarded him damages of over $300,000.00 plus costs.

This case is currently under appeal by the ski resort and raises several significant issues for schools:

  1. A school remains "on risk" for an injury to a student in circumstances in which it has no control and in which another entity is in charge due to the operation of the non-delegable duty of care.
  2. In appropriate cases, however, the Court can order that the other entity in charge of the students to indemnify the school, where the school has not breached any of its obligations to the student.
  3. Excursions pose special risks for schools because students are more likely to be placed in situations where the school has little or no control.
  4. Liability might arise from a dangerous activity if the injury is the result of another factor.
  5. Schools need to ensure that all third parties carry sufficient public liability accident insurance for any activity involving students.

A further post will cover the outcome of the appeal.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.