Case Study

School excursion injury: Discharge of Duty of Care

by Alex Kohn
11 October 2013
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Client: Catholic Church Insurance

Perisher Blue Pty Limited v Harris [2013] NSWCA 38

Issue:

Whether a school authority could avoid liability by entrusting a student into the care of a specialist third party service provider

The plaintiff, a Year 10 student at a Catholic school, sustained serious orthopaedic injuries, particularly to his lower back, during the course of a skiing excursion to Mount Perisher as part of an organised school activity.  He commenced proceedings in the District Court of NSW solely against the school.  We were retained by the insurer of the school.

  • There was much consideration whether at the time of the plaintiff's injury, he was under the care and control of the teachers from the defendant school.  Instead, was he under the care and control of a ski instructor from Perisher Blue Pty Limited (Perisher)?  The case raised the issue, which is very important for the education sector, as to the circumstances in which a school authority may discharge its duty of care by retaining a third party to undertake specialist functions such as conducting a ski lesson. 
  • There was a detailed consideration of the Civil Liability Act with respect to breach of duty (s.5C); dangerous recreational activities (s.5B); vicarious liability; non-delegable duty of care (s.5Q) and causation (s.5D).

Our role:

We were instructed by Catholic Church Insurance Ltd (CCI) to defend the proceedings and seek to have Perisher made legally liable for the serious injuries which befell the plaintiff.  We worked closely with the CCI claim's team and teachers from the school.  We made recommendations on how the claim should be defended and the importance of lodging a cross-claim against Perisher seeking indemnity and/or contribution should the plaintiff be successful.  We were proactive in recommending an offer of contribution when Perisher was not prepared to make any offer to the plaintiff and it was inevitable that the case would proceed to a long hearing.

Solution:  

Attempts made to resolve the matter prior to the hearing with the plaintiff and Perisher were to no avail, including serving offers of compromise and offers of contribution.  Once it was apparent that settlement could not be achieved, our focus turned to defending the plaintiff's claim and sheeting home responsibility to Perisher.

We successfully achieved the primary objective of avoiding liability by successfully cross-claiming against Perisher as the employer of the ski instructor.  This was an important issue given the school's non-delegable duty of care.  Secondly, Perisher was ordered to pay our client's costs of the whole proceedings.

Perisher appealed against the decision to the NSW Court of Appeal.  The Court of Appeal essentially endorsed the findings of the trial judge and, as a result, the school authority was able to maintain its indemnity from Perisher and avoid having to pay any compensation to the plaintiff. 

Perisher further appealed by way of special leave application to the High Court, but this was also unsuccessful.