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Confused About Student Duty of Care Obligations? You May Not Be Alone

7/05/14
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Just as it is undisputed that schools owe their students a duty of care, it is also undisputed that taking calculated risks is an essential part of life and thus an essential part of learning.   So why do we seem to be constantly reading reports of educators curtailing seemingly innocuous activities in the name of safety?

When schools start banning kids from doing cartwheels in the playground, or not going on excursions, for 'safety' reasons, the reality is that the primary driver in the decision making process probably isn’t safety at all, but rather a fear of being sued by overly protective and/or litigious parents.

So why does this fear of litigation exist? Surely all educators understand their student duty of care obligations?  Hmmm well maybe not ….. and there could be a very good reason for this. 

Google 'Student Duty of Care' or similar and what you will find are lots of long winded documents, quoting lots of legal cases, with lots of quotes from eminent judges that are supposed to instantly clarify the concept.   Most will leave the lay reader utterly confused and none the wiser.

Here is an attempt at a plain English explanation of an Australian school’s student duty of care obligations which will, hopefully, allow educators to make better informed decisions with respect to the risks that they allow their students to take and the internal control systems that they should implement.

What is a School’s Duty of Care to its Students?

The student care obligation is an obligation for schools and teachers not to act negligently.

Simply put, schools and teachers have a duty to take or exercise 'reasonable care' to protect students from risks of harm that are 'reasonably foreseeable' whilst they are involved in school activities, or are present for the purposes of a school activity.

This duty is non-delegable which means that a school cannot discharge the duty by putting a responsible third party such as a teacher or a third party provider in charge.  Whilst teachers also have a duty of care, a school is vicariously liable for injury to a student caused by the failure of a teacher to take reasonable care of the student’s safety.

What Standard of 'Reasonable Care' is Required?

The standard of care expected by the law is that schools and teachers act as a reasonable school or teacher would act.   The standard of care required of schools and teachers is higher than would be expected of parents.

When is a Risk 'Reasonably Foreseeable'?

The answer to this question is a little more complex and is best explained by using commercial risk management principles rather than quotes from eminent judges.

The foreseeability of a particular risk requires consideration of three (3) elements in combination:

  • Firstly, the likelihood of a particular risk event occurring (e.g. a student tripping in the playground);
  • Secondly, the potential consequences (or impact) if the risk event was to occur (e.g. a grazed knee, a broken arm, a fractured skull etc); and
  • Finally, the precautions (or risk controls) that a school has implemented to mitigate the likelihood of the risk event occurring and the consequences if the event was to occur (e.g. playground supervision, first aid facilities etc).

It’s important to understand that there is usually a correlation between the precautions that a school has taken (risk controls implemented), the likelihood of a particular risk event occurring and the likely consequences if the risk event was to occur.

By way of simple example, it is much more likely that a student will suffer an injury in a playground where there is inadequate supervision.  Similarly the severity of the injury is likely to be exacerbated if no first aiders, or first aid facilities, are available.  

So asking the question 'when is a risk foreseeable ?' is in fact an over simplification as it leads people to simply focus on the first element of 'likelihood.

The appropriate question to be asked is not simply whether the risk was foreseeable but whether the consequences (ultimately the damages suffered by a student) were foreseeable in light of the precautions (or risk controls) that a school had in place at the time of the incident.

Reasonable Care + Reasonable Foreseeability + Causation?

Only when you combine the concepts of reasonable care, reasonable foreseeability and causation can you start to properly understand the nature of a school’s risk of being sued for breaching its duty of care obligations to a student. 

In very simple terms the concept of causation means that in order for a claim to be successful it must be proven that the act of negligence by the school actually caused, or played a substantial role, in causing the injury. 

Putting reasonable care together with reasonable foreseeability and the concept of causation it becomes clear that whilst many things might be foreseeable (e.g. a trip in the playground) a school will not be liable for breaching its duty of care and be required to pay damages unless:

  • it is found to have acted other than as a 'reasonable school' would have acted in the particular circumstances; and
  • its failure to act as a reasonable school was the cause of, or played a substantial role in, the harm suffered by the student.

This explains why, even though a devastating injury or even death may be foreseeable, this will not necessarily mean that a school will be found to be liable for damages.

How do Australia’s Civil Liabilities Laws Affect Things?

In Australia, the Commonwealth and each State and Territory have enacted their own Civil Liability Laws. These laws have had the effect of modifying the common law of negligence to provide additional statutory protections for organisations and individuals who are subject to negligence claims.   These laws don’t replace the common law but rather exist side by side with the common law that has been developed over time.

In most jurisdictions the Civil Liability Laws provide that:

  •  it is not necessary to warn a person of an obvious risk (of course what is obvious will vary given the age and ability of a student);
  • an organisation can not be liable in negligence for harm suffered by a person as a result of an obvious risk arising from a dangerous recreational activity; and
  • an organisation can not be liable in negligence for harm suffered by a person where a risk warning (often a verbal safety briefing) has been given with respect to a non-compulsory recreational activity.

As the Civil Liability Laws differ in each State and Territory it is important that schools understand how to manage their Student Duty of Care obligations having regard to the laws that apply in their particular jurisdiction. 

Let the Children Play by Managing Risk Proactively

It is clear in Australian law that whilst schools need to exercise reasonable care it is desirable that students take part in activities even if these activities involve a risk of injury.  The logic is simple. If this was not the case there would be no play, there would be no sport, there would be no excursions.  

The key from a schools perspective is that it understands its student duty of care obligations and proactively identifies risks and implements risk controls in order to strike the right balance between protection and encouraging a positive learning environment.

A good place to start is to ask what precautions should your school reasonably be taking, having regard to the nature of the activity?

By way of example the risk of injury arising from doing cartwheels in the playground should be able to be managed more than adequately through supervision, grounds maintenance and record keeping. Simply banning children from doing such activities is not the answer. 

What Can You do to Minimise Your School’s Civil Liability Risk Exposure?

When it comes down to it the most probable cause of a school being successfully sued for breaching its duty of care will  be its failure to act as a 'reasonable school' would have acted in the particular circumstances.   This failure will usually be due to a school failing to effectively implement reasonable risk controls (in other words failing to take adequate precautions).

What is reasonable is a question of fact to be determined in each case with the person bringing the claim having the onus of proving negligence on the balance of probabilities.   

Whilst this again may be an over simplification in the vast majority of cases the effective implementation of risk management and controls involves:

  • assessment of the risk itself (e.g. anaphylactic shock) in terms of likelihood and consequence;
  • development of polices and procedures (e.g. allergy awareness policy, anaphylactic shock management policy, excursion policy) designed to control the risk;
  • training of staff to ensure that they understand and are able to effectively carry out the school’s policies and procedures;
  • obtaining assurance from individuals responsible for the implementation of particular policies or aspects of policies to ensure that the school’s staff are actually doing what they are supposed to be doing;
  •  regularly reviewing policies and procedures to ensure that they remain current and fit for purpose; and
  • maintaining records of each of the above actions.

If a school is subject to legal proceedings it is likely that it will be asked to discover (produce) copies of its policies and procedures as well as other relevant records (e.g. records of staff training, playground supervision rosters).   It is also likely that the policies and procedures of a school (or lack of) will be scrutinised having regard to what would be expected from a school exercising 'reasonable care'.

As we live in a world where schools are expected to have documented policies and procedures in place to manage their workplace and student safety obligations the importance of having a robust set of documented policies and procedures in place and being able to evidence the fact that they have been effectively implemented cannot be overstated. 

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About the Author

James Field

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