In recent years, litigation has become more prevalent in many areas of our society and non-government schools have not been immune from an increasing number of legal claims.

Anecdotal evidence seems to indicate that this is because parents, and increasingly, students, have become more aware of their rights and wish to exercise those rights, and schools (in general) have become more accountable for the actions of their employees.

In general terms, most of the claims from parents or students/ex-students that have been examined by the Australian courts have been based on two broad issues:

• a school’s breach of their duty of care; and/or
• a school’s breach of contract – a breach of express or implied terms in the enrolment contract.

Of the two general matters, the breach of duty of care seems to be the one most often challenged in the courts in Australia – usually following incidents of bullying, sexual misconduct, injury or death.

As an example of the latter, it is possible that some breaches of contract could include claims of educational negligence through the failure to educate a student to the standard as published in the enrolment documents or promised within the school’s advertising material or webpage. Allegations of a breach of contract can also be used in relation to child abuse cases, as reported in School Governance’s article ‘A refund for faulty service’: Private school repays school fees following sexual abuse of student.

However, this has not been a common occurrence in Australia but, in recent times has been pursued more in the UK and to a lesser extent the US. The US courts to date have rejected educational negligence as a basis for a claim. However, the English courts have been more willing to embrace the concept – particularly where it pertains to children with certain learning disabilities.

A third form of claim, however there have been relatively few, are the recent claims by the Commonwealth Government made against non-government schools regarding the use of Federal per-capita funding and the falsification of student data in order to increase the level of funding. In two such well-publicised cases, individuals from the affected schools received severe fines and prison sentences.

Breach of Duty of Care

A duty of care situation arises out of the formation or development of a relationship between a student and the school (or representative of the school) and it is a concept that is well-established in education regulations and at common law.

Given that duty of care is a common law concept, it is generally underpinned by case law. Therefore, the level of duty of care and the breach of that duty of care can only be determined in a court of law. The standard of duty of care is often determined as that expected of a ‘reasonable person’ however, in recent times with teachers, it has been described as that of a ‘reasonable teacher’.

It has now been made clear through a number of cases that:

“In general a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. It is not, of course, a duty of insurance against harm but a duty to take reasonable care to avoid harm being suffered” (Richards v. State of Victoria).

The Board of a school is under a clear duty to take reasonable care to ensure that it employs competent employees and provides safe premises. The school will be held vicariously liable for the actions of all employees whilst they are acting in the course and scope of their duties as an employee of the school.

In addition, schools also owe a non-delegable duty to ensure that all reasonable care is taken for the safety of their students. However, even though it is a non-delegable duty, this does not mean a school is subject to absolute liability.

Breach of duty in most negligence cases depends on whether the way in which an injury occurred was reasonably foreseeable to a school. If a school had knowledge beforehand of the potential for injury or inappropriate teacher conduct with the student, the courts may determine that the ‘reasonable foreseeability threshold’ would be automatically satisfied.

The courts recognise that accidents happen in schools, and an employee will have breached his or her duty of care specifically if:

• the injury was reasonably foreseeable (not completely unexpected); AND
• the injury occurred because the employee did not carry out his or her responsibilities in a sufficiently careful manner (or failed to follow school policies and procedures).

It should also be noted that the higher the risk, the greater the level of duty that must be employed by the school.

In summary, the courts look to a number of factors in determining the extent of a duty of care. These include whether:

• there is a relationship between the parties that establishes a duty of care
• there has been a breach of that duty of care; and
• any injury suffered by a person was foreseeable.

In addition, other factors that may be included in the determination but are not exclusive are the:

• nature of the relationship (teacher/student);

• age of the students and the school employee;
• experience of the employee;
• physical and mental intellect of the students to be cared for;
• nature of the activity being undertaken;
• employee’s attributes and skills;
• probability of the injury occurring; and
• proactive steps taken by the employee to prevent the injury occurring.

Therefore, school principals must ensure that all employees practice adequate supervision at all times, there is regular maintenance and inspections of facilities, incident (and near miss) reporting and corrective action (with record keeping) takes place and policy management is regular and not just in the lead up to re-registration.

Breach of Contract

A breach of express or implied terms in the enrolment contract can result in legal claims being brought against a school.

To date in Australia, there have been no successful claims for these types of actions through the courts, however there are no records of how many of these types have claims have been settled out of court. Out of court settlements are a popular alternative to litigation and rates of settlement may be as high as 99% of all cases.

To reduce the possibility of claims against the school, schools should ensure that school brochures and promotions are accurate and do not embellish the reality. For example, statements that indicate ‘promises of expected high student academic achievement’ that may not necessarily be achievable by all students, may result in claims being brought against the school. Although they may not necessarily be brought to court, they can cause severe stress and can create a large financial impost upon the school in terms of the human resources that are used to develop a defence against the claim.

Schools need to develop policies and procedures whereby the notes relating to all matters, from enrolment interview to graduation or departure, are not only accurate and complete but are also retained in a secure centralised data base. These notes can be subpoenaed and can support a school if a case is brought against it. If the notes of interviews, complaints and agreed conditions are missing or non-existent, the school would find it difficult to mount a valid case of defence.

Boards must ensure that school policies are extensive, clearly drafted and consistently applied. In particular, given the wide ranging scope of the Royal Commission into Institutional Responses to Child Sexual Abuse, Boards must also ensure child protection policies are up to date and express current standards. This is particularly relevant as many States and Territories are updating their legislation with regards to child protection, as a direct result of the outcomes of the Royal Commission to date.

On a final note, schools need to ensure that they do not allow for large debts to be incurred by parents.

Unfortunately, parents who owe large sums of outstanding academic fees may be more inclined to bring claims against the school, whether they are founded or unfounded, because it may result in the reduction or removal of their debt. They may cite cases of breach of contract re educational outcomes, bullying, inappropriate actions by employees of the school and so on. We have previously written about how contracts can be enforced against parents who have not paid the contracted school fees. However, the school will reduce the possibility of these types of incidents arising if there are policies and procedures in place regarding the allocation of, collection of and penalties in lieu of payment of school fees.