By Wendy Blacker and Greg Moss of Gadens Lawyers,
Changes have been made to the law in NSW, which affects
non-government schools. The changes are prescribed by the Civil
Liability Regulation 2009 (NSW). Certain non government
schools are now entitled to be categorised as a "public or
The amendment establishes as law what former NSW State
Treasurer, the Hon Michael Egan, foreshadowed in 2002 when he said:
... that some non-government organisations perform functions of
public character and as such, should be treated in substantially
the same way under negligence law.
The affect of the amendment is that non-government schools
with limited resources will now be treated by the courts
in the same way as their government counterparts. Significantly,
non-government schools with limited resources are now entitled to
have their limited resources taken into account by the court when
liability for breach of duty is being determined.
When a court is determining whether there has been a breach of
duty, the court will be required to take into account the limited
financial and other resources that are reasonably available to the
non government school and the general allocation of those
resources. Consequently, liability for breach of duty may be
excluded in an action in negligence where the alleged breach
relates to the allocation of resources when the resources are
limited. These matters will not be open to challenge by a
Notably the amendments only apply to those non government
schools with limited resources. This is an essential requirement
for a school to come within the legislation.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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