Today’s question is: “Hi, how does this decision in the States compare to Australia?”  The decision in question is reported on the US website and is headed ‘Judge rules LEOs, schools had no duty to protect students during Parkland shooting’ (20 December 2018).  The gist of the story is “A federal judge has ruled that Broward schools and the sheriff’s office were not responsible for protecting students during the shooting at Marjory Stoneman Douglas High.”  U.S. District Judge Beth Bloom is quoted as saying:

Plaintiffs suggest that the essential nature of a public school’s role and control over its students requires that schools provide protection and safety for their students,” Bloom wrote. “However, the suggestion that school attendance equates to the level of custody implicating a constitutional obligation to protect has been expressly rejected by the Eleventh Circuit.

I would infer that this is some claim based on an argument that the school and police had some duty to protect the plaintiff’s right to life that is enshrined in the fifth amendment to the US Constitution – “No person shall be … deprived of life, liberty, or property, without due process of law…”  I cannot comment on the jurisprudence relating to the US Constitution so the best one can say, in answer to the question, is that Australia does not have an enshrined Bill of Rights to whatever constitutional argument is applicable in the US is not applicable here.

Were this action brought in Australia it would presumably be brought in negligence – arguing that the school and police had a duty to ‘provide protection and safety for their students’.   I think the result would be the same.

In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 the High Court of Australia had to consider civil liability for the criminal conduct of a third party.  In that case (at [1]) Gleeson CJ (with whom Hayne J agreed) said:

The first respondent sued the appellant, in tort, for damages for personal injury. The injury was inflicted by three unknown men, one armed with a baseball bat, who criminally assaulted the first respondent in a car park. There is no suggestion that the appellant was vicariously responsible for the conduct of the attackers. The basis of liability is said to be that the appellant was the occupier of the car park; that, at the time of the attack, the car park lights were off; that, in the circumstances of the case, which will be set out in more detail below, the failure to leave the lights on was negligent; that the risk of harm of the kind suffered was foreseeable; and that the negligence was a cause of the harm.

He continued (at [19]):

The appellant had no control over the behaviour of the men who attacked the first respondent, and no knowledge or forewarning of what they planned to do. In fact, nothing is known about them even now. For all that appears, they might have been desperate to obtain money, or interested only in brutality. The inference that they would have been deterred by lighting in the car park is at least debatable. The men were not enticed to the car park by the appellant. They were strangers to the parties.

And at [29]-[30]:

The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Ltd. It also appears to be the basis upon which United States decisions relating to the liability of occupiers have proceeded.

Finally at [35]:

The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is based upon considerations of practicality and fairness.

Gaudron J agreed.  She added (at [42]):

There are situations in which there is a duty of care to warn or take other positive steps to protect another against harm from third parties. Usually, a duty of care of that kind arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both. Those situations aside, however, the law is, and in my view should be, slow to impose a duty of care on a person with respect to the actions of third parties over whom he or she has no control.

Kirby J (dissenting) took the view that there could be a duty to protect a person from the criminal actions of a third party.  At [76] he said:

This review of legal authority therefore demonstrates that neither in Australia nor in any other common law country examined have claims in negligence for damage consequent upon the criminal acts of a third party been excluded as a universal category or class. Such claims have been evaluated by the application to the facts of each case of the ordinary principles of negligence law.

He reviewed the facts and the decision of the Full Court below and concluded that their decision, in favour of the plaintiff should stand.

Hayne J agreed with Gleeson CJ but did add some further observations.  He said (at [110]):

In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners. Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child.

Callinan J quoted from an earlier case, Smith v Leurs, at [139].  In that case Dixon J said;

But, apart from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognized that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger. Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others.

With respect to the police there is a general immunity (though not universal) from civil action for the way police exercise their wide powers that they must exercise to meet multiple and conflicting demands. For a detailed discussion see Police liability for damage caused by high speed pursuit (March 22, 2018).

In my view there is another reason against imposing liability for the criminal conduct of third parties.  If a school is ‘liable’ in circumstances such as this (or if the Port Arthur Historic Site was liable for conduct of the offender who was responsible for the 1996 Port Arthur massacre) then it goes some way to ‘excusing’ the offender.  The person responsible for the deaths in all those cases is the person who had their finger on the trigger.


Wikipedia tells us that:

On February 14, 2018, a gunman opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, killing seventeen students and staff members and injuring seventeen others. Witnesses identified [a] nineteen-year-old former student … as the assailant…

The Modbury Triangle Shopping Centre Pty Ltd owed a duty of care to a person lawfully on the premises but that did not extend to a duty to protect an entrant onto the premises from unlawful activity from an unknown third party that the shopping centre had no control over.

A school is not like a shopping centre.  Students at a school are vulnerable and subject to control in the way a visitor to a shopping centre is not.  A school must owe a duty to take reasonable care to make the school safe for students, but that may not extend to a duty to protect them from unlawful actions from an unknown third person (including a former student).  There may be a duty to protect students from violence from other, current, students because of the control a school may attempt to exercise over the assailant and because of whatever prior knowledge they may have of that student.  A former student in the absence of threats or warnings is as much a stranger as anyone.

Even if there was a relevant duty, as Kirby J said (at [76]) the issue of liability is to be ‘evaluated by the application to the facts of each case of the ordinary principles of negligence law’.  In considering whether a defendant who owed a relevant duty has been negligent their response to the risk has to be considered.

In Wyong Shire v Shirt (1980) 146 CLR 40, Mason CJ said (at page 48):

… the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

Even if it is foreseeable that a stranger may come to a school and shoot students what is a school to do about it?  It goes almost without saying that the consequence of such action will be devastating but then one has to consider the question of how likely it is (and one can say, I think with confidence) that it is much more likely in the US than Australia).   So what can a school do to prevent it?  They can’t control the offender.  Security measures may make a school a ‘harder’ target but would conflict with other demands on schools: they are public institutions and many people have legitimate reasons to be there; students are not to be ‘imprisoned’ particularly senior students who are being educated to be responsible adults.  Even if the school is a ‘harder’ target, a mass shooting at a school is hardly a spontaneous or impetuous crime (particularly in Australia where getting access to guns is much harder than in the United States).

The question of a reasonable response is to be judged from the point of view of the defendant considering potential future risks when there are many risks and factors to be considered.  It is not retrospective so the question is not ‘what could have been done to prevent this offence (or harm)?’ but what would a person who does not know which risks or harms might occur do when scanning the risk horizon and consider what risks to address and how.  It’s probably impossible to stop shootings like this without turning schools into prisons like institutions. (I can say, having sent my children to UK primary schools that introduced significant security after the Dunblane massacre of 1996, sending children to high security primary schools is confronting.)

Finally it has to be remembered that Australia has universal health care so if this occurred in Australia the victims would have been treated by jurisdictional ambulance services, in public hospitals, and been provided with follow up care all at the public expense.  Further all states and territories have victims of crime compensation schemes (see Victims of Crime (Financial Assistance) Act 2016 (ACT): Victims Rights and Support Act 2013 (NSW); Victims of Crime Assistance Act (NT); Victims of Crime Assistance Act 2009 (Qld); Victims of Crime Act 2001 (SA); Victims of Crime Assistance Act 1976 (Tas); Victims of Crime Assistance Act 1996 (Vic) and Criminal Injuries Compensation Act 2003 (WA)).  These schemes would not be as generous as a common law claim but the payments do not require litigation or proof of fault.  What that means is that many of the victims’ needs would be met (or at least better met than I anticipate would be the case in the US) by the state without the need to litigate.


In the United States, U.S. District Judge Beth Bloom felt the issue in question had been determined ‘by the Eleventh Circuit’ and so the matter could be struck out.  I would expect that in Australia, given the state of authorities (of which I have only discussed one), a trial court would not necessarily dismiss the case without trial, but plaintiffs would face a very difficult trial.

It is my view that a school would not be under a duty to prevent the criminal conduct of a stranger set on causing harm.  There would be a duty to have generic emergency procedures and procedures to control entry to the school (there are lots of people, not just shooters, who shouldn’t be on school grounds) so there may be a question of whether whatever procedures were in place were a ‘reasonable response’ to the risk.  We don’t know anything about Marjory Stoneman Douglas High so one cannot comment on whether their security measures were ‘reasonable’.  I would suggest that the type of security in an Australian school would, reasonably, look very different to that in an American school.

My prediction is that if this occurred in Australia the matter may go to trial but I would predict firstly that no-one would actually seek to sue the school or police (given we don’t have the constitutional provisions of the US) and if they did, neither the school nor the police would be liable for damages.