Case note: Cook v Riding for the Disabled Association (NSW) & Anor [2024] NSWSC 1332

DATE PUBLISHED: November 26, 2024

Overview

The Supreme Court of New South Wales found a school owed no duty of care in circumstances where a student was undertaking an extra-curricular activity conducted by a third party.

key takeaways

A school’s non-delegable duty of care applies only to children in its care, typically while on the school premises. The duty does not extend to activities conducted independently of the school.
Schools acting as intermediaries for extracurricular activities, do not necessarily owe a duty of care for those activities.
The involvement of school staff in extracurricular activities does automatically give rise to a duty of care, especially when the staff have no authority to manage or intervene in the activity while it is in progress.

Background:

1
The 10-year-old plaintiff suffered a right femoral neck fracture after falling from a horse during an organised riding session.
2
The plaintiff, who had severe intellectual and physical disabilities, attended Hunter River Community School (School), operated by the New South Wales Department of Education, which provided specialised care and education for children with complex disabilities.
3
For several years prior to the incident, Riding for the Disabled Association (NSW) (RDA) offered the School up to 12 places annually for students to participate in one-hour riding sessions at its premises.
4
Each year, one teacher from the School would serve as an excursion coordinator and would consult with the School Executive, including the Principal, to identify students whose medical condition and behavioural characteristics would be compatible with the horse riding activity. The parents of those children were then invited to complete pro forma application documents supplied by RDA. RDA would determine the suitability of the children for whom applications were submitted.
5
That process was followed prior to the incident. The plaintiff’s mother submitted application documents, and the plaintiff was accepted into the program. The plaintiff and two or three other students, were transported by the School-operated bus each Thursday afternoon from the School to RDA’s premises. Two teaching staff from the School accompanied the students to the RDA’s premises and remained present throughout sessions.
6
Upon arrival, the School’s teaching staff handed the students into the care of RDA’s coach and volunteers, but accompanied the group as the ride progressed.
7
The School’s teaching staff remained on-hand to resume supervision of any of the students at any time (for example, if the ride was brought to an end prematurely for one or more of the students). The teachers resumed supervision of the children after they had dismounted at the conclusion of the ride, at which time the children were returned from the care and control of RDA’s personnel.
8
During one session, the plaintiff fell off her mount and sustained an injury.

Claims and findings

The parties

9
The plaintiff alleged RDA breached its duty of care on the basis that it employed the coach and unpaid volunteers who were responsible for conducting the riding activity at its premises, at the time of the accident.
10
The plaintiff also joined the School to the proceedings, asserting that she was in the School’s care when she fell from the horse and that that is non-delegable duty of care extended to the riding activity and was breached by RDA’s conduct.

Court findings

11
RDA’s liability: The Court held RDA breached its duty of care to the plaintiff by failing to have a sufficient number of side walkers during the riding session.
12
The School’s Duty of Care: The Court determined the School did not owe a duty of care to the plaintiff during the riding activity, as:

the horse riding sessions were conducted independently by RDA, with no involvement by the School in managing or directing the activity; and
the School’s teaching staff accompanied the students to RDA’s premises and were present during the sessions, but had no authority to intervene in the activity.

13
Non-Delegable Duty: The principle that a school must ensure reasonable measures are taken for the safety of students while in its care was emphasised. However, the Court found this duty only applies while students remain in the School’s care, typically on school grounds. The duty did not extend to the plaintiff once RDA staff had taken over supervision for the duration of the session.

Conclusion

This case clarifies the limits of a school’s non-delegable duty of care and highlights the distinction between activities conducted under a school’s authority and those managed independently by third parties. The decision is particularly relevant to schools, independent companies, not-for-profit organisations, and their insurers in assessing the scope of liability for extracurricular activities.