Avoiding teacher negligence or malpractice claims

Schools should be aware of the kinds of teacher conduct which may be considered to be bullying or harassment, the circumstances in which schools may be held liable and ways to manage the legal risks involved.


School Boards and Principles should understand the risks a school faces if found liable for teacher negligence or malpractice claims. While schools are intended to be safe places for teachers and students, many students face bullying and harassment. Schools can face legal risks if teachers are found responsible for bullying or harassment of students.

What is bullying and harassment?

Teachers can be held responsible for bullying or harassment of students in a wide range of circumstances. Bullying and harassment can include:

  • Assault and sexual assault
  • Verbal abuse
  • Defamation and humiliation
  • Cyberbullying

However, it may not always be easy to determine whether a teacher's conduct can be considered to be bullying or harassment.

For example, in a recent case in New South Wales, a student claimed against their school with a range of allegations, including:

  • Not being given permission to go to the toilet
  • Being forced to complete group assignments by themselves
  • Having their belongings confiscated
  • Being held in detention and put on bin duty

While the case was settled before being tried in Court, it shows the range of claims that could be made against teachers.

When are schools responsible for bullying and harassment?

Schools have a legal duty to take care of the well-being and safety of students in their care. A school will be held negligent if it does not uphold this duty. However, it may be unclear when schools can actually be held responsible for bullying and harassment of students.

In a recent case in the Supreme Court of New South Wales, a student sued the State of New South Wales as the school authority in regards to psychiatric injuries from sexual assaults committed by a teacher at a public school. The school authority cross claimed against the offending teacher to be indemnified from the claim by the teacher.

In the circumstances, the student had been sexually assaulted off school premises and outside school hours. The Court found that while the school authority might have been aware that the student had a crush on the teacher, the school authority could not have been aware of the sexual assaults. The Court required the teacher to pay 90% of the judgment sum.

Importantly, the Court identified some factors which might show that a school is responsible for teacher-to-student bullying or harassment, including:

  • Whether the bullying or harassment takes place on school premises and/or during school hours
  • Whether the school is actually aware of the bullying or harassment
  • Whether the school monitors behaviour on premises during school hours
  • Whether the school takes any steps to prevent the bullying or harassment in circumstances where it appears there is a risk of it occurring, such as moving the student to another class

Be prepared!

  • Promote a safe learning environment where bullying and harassment will not be tolerated. This can prevent any incidents occurring in the first place.
  • Put anti-bullying and harassment policies in place, and educate your staff on the risks of bullying and harassment of students.
  • Monitor what happens on school premises, in school hours, so that any bullying or harassment behaviour is identified if it happens.
  • Take steps early if bullying and harassment occur, referring to your anti-bullying and harassment policies.

How can Sharrock Pitman Legal help me?

Remember when things go wrong, it can be hard to know the best course of action. If you need advice, please contact our Accredited Specialist Workplace Relations team. Call us today on 1300 205 506.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

For further information contact  
Samuel Ellemor

Samuel Ellemor is a Senior Associate and Accredited Specialist in Workplace Relations Law, with expertise assisting individuals, businesses and not-for-profit organisations across a broad range of employment, commercial and not-for-profit matters. Samuel can be contacted directly on (03) 8561 3316 or by email, samuel@sharrockpitman.com.au.

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