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Can I sue a school for sexual assault?

Learning institutions serve as sanctuaries, where people of all ages can go to learn and discover new skills that can help them become more well-rounded individuals. Teachers and administrators play an important role in ensuring that this goal is achieved, and more often than not, they make all of us proud. Every day millions of parents trust their local schools with their children’s well-being. But what happens when the school falls short? From serious injury to child abuse and sexual abuse, incidents at school can have a lifelong impact. But when is the school itself liable?

What many victims may not realize is that a school can be held responsible even if they didn’t directly cause the injury — so long as their lack of reasonable preventative action contributed. Proving this, however, can be challenging.

Ultimately, if you, your child, or another loved one was harmed as a result of school negligence, you have options. The expert solicitors at Gerard Malouf & Partners can help.

What is negligence?

Negligence is a failure to exercise the care that another in the same position would prudently exercise. The harm caused by negligence is considered to be due to carelessness, rather than a specific intent or determination to cause harm. For example, if a learning institution failed to check the criminal past of a known child abuser before hiring them, that institution could then be held liable for their actions. In short, schools don’t necessarily need to have known about it beforehand, but rather failed to take proper measures that could have prevented it from occurring in the first place.

Some common examples of negligent behavior on the part of a school include:

  • Failing to supervise children
  • Offering an inadequate amount of supervision
  • Not following up on reports of bullying or abuse
  • Failing to provide or seek out proper medical care
  • Not properly vetting staff
    Faulty equipment that leads to injury
  • Food poisoning
  • Sexual abuse and grooming

 

Notably, the concept of negligence isn’t limited to education and can be committed in any number of situations. For example, a driver of public transport could cause an accident through negligence. The harm caused to persons involved in the accident could be charged under the law, assuming it can be proven that most other drivers in the same circumstance would have been more prudent and avoided an accident.

When is a school system liable for negligence?

A school system is liable for negligence if they have fallen grossly short of their expected duty of care. Duty of care is the minimum standard of responsibility that a learning institution has to its children. These standards are established by the norms of a field and aren’t necessarily explicit — which can lead to potential confusion. Some states, however, have an official duty of care in education policies in place to make clear to staff what scenarios they are liable for. Victoria, for example, holds its staff responsible for not only “providing suitable and safe premises” but also performing specific monitoring when there are “known risks.” Notably, the policy also establishes what situations — such as before- or after-school care — schools may be liable for that fall outside school hours.

What’s needed to prove negligence?

Of course, not every injury that occurs on school grounds is the educator’s responsibility — in fact, most are not. While establishing that a child’s school fell short of its duty of care requirements is a strong parting point, it may ultimately not be enough to receive negligence compensation. For that, you’ll need to demonstrate that the negligent behavior had a direct impact on the injury — either by failing to prevent it or worsening its severity. Establishing this link is typically the main challenge victims seek in pursuing compensation.

Overall, to win a favorable judgment, you must be able to prove four elements:

Duty:

It must be clearly shown the defendant had a duty or an obligation. In a medical malpractice situation, the attending medical professionals have a moral duty of care that is a part of their profession.

Breach:

It must be proven that the defendant fell short of the expectations of their duty.
Causation: A causal link must be made between the harm suffered and the breach of duty.

Damages:

The damages being sought must be directly related to the harm caused.

 

A victim’s case may also be dependent on when the injury occurred, and if it falls outside the statute of limitations. This is a common problem for individuals who were injured as children but don’t seek compensation until their adults.

One notable exception is child sexual abuse cases. If you or a loved one experienced sexual assault as a child, there is no statute of limitations and you may be entitled to compensation from the school regardless of when the incident took place.

However, if the sexual assault occurred while you or a loved one was an adult, a lawsuit must be filed within three years of the incident.

The negligence claims process

If you feel that you have enough information to prove educator negligence, your next step is to file a lawsuit against you or your child’s school system.

From there you’ll either enter into a settlement negotiation with the school or proceed to trial. Most courts will request that the parties try to work out a settlement before hearing a case.

It’s important to know that the majority of cases are settled, rather than proceeding to court.

While a settlement may result in a lower level of compensation, it can also save you from having to pay extensive legal fees and offers a level of certainty that a trial can’t offer. If however, negotiations break down, going before a court is your next step.

The amount of compensation available to you varies based on the severity of your injuries and the long-term impact they may cause. Compensation amounts may also vary depending on the damages you seek. For example, if you’re only looking for a school district to cover the medical bills for your child’s broken arm, your payment will be smaller than if you also seek damages for emotional distress.

In general, damages are awarded based on three definitions:

Special:

This includes damages directly related to costs arising from the harm caused. Some examples are the costs of initial visits to a hospital and related specialists and long-term care, including physical therapy or at-home care.


General:

Also called “pain and suffering” damages, related to the emotional impact of your ordeal.


Punitive:

These damages are awarded by a court in rare circumstances especially gross negligence. This category is typically paid out in a lump sum.

While the educational negligence claims process may initially seem overwhelming, working with a skilled solicitor can take out much of the guesswork and improves your chances of a favorable outcome. A solicitor can review the specifics of your cases and determine if you have enough evidence to prove negligence. From there, your legal team can organize the facts into a cohesive argument and present your case — either in a settlement negotiation or in court.

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Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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