Schools have a legal duty to take reasonable care to protect students, and court cases show that this duty can extend outside school premises and outside school hours. A school that breaches this duty by, for example, failing to provide adequate supervision during a camp, tour or excursion may be found to be negligent in failing to safely conduct an excursion.
What “reasonable care” means in practice is not always clear and can only be determined by a court. Laws generally only tell schools what not to do in specific scenarios, rather than what they should do to protect students. In addition, this process is generally retrospective rather than pre-emptive and changes in state and territory standards, or in school policies and procedures, are usually brought about by unfortunate and often arguably preventable accidents and events that result in legal actions and/or public scrutiny.
Education Departments around Australia provide guidelines on the procedures to employ with respect to excursions and specific sports and recreational activities. Examples sourced from around the country show very detailed documents, some in excess of 100 pages. Teachers however have limited time to read and digest tomes, before beginning to plan an excursion, camp or tour. Therefore, without clear guidance, teachers tend to rely on a ‘common sense’ approach to student safety. However, without extensive record keeping, this approach is likely to be insufficient before a court.
The safest approach for schools is to have a structured and documented online planning process, assess all reasonably foreseeable excursion risks and conduct due diligence in relation to vendors used. But schools are often unaware of the extent of their legal obligations or how best to implement them and they rarely employ staff who are risk experts. Additionally, planning an excursion is costly and time-consuming, even without all the bureaucratic red tape.
Therefore, solving the excursion management problem would involve:
- standardising the creation, planning and implementation of an excursion
- ensuring that activities are properly documented and archived
- developing a healthy risk appetite
- adopting a due diligence approach to vendor selection.
By taking these steps, schools can minimise their potential liability and cut bureaucratic red tape, enabling them to focus more on their core educational purpose and student duty of care obligations.
Duty of Care Obligations
The student duty of care obligation is a commitment for schools and teachers to not act negligently. Schools and teachers have a duty to exercise "reasonable care” to protect students from risks of harm that are “reasonably foreseeable”. The legal standard of care expected of schools and teachers is to act as a reasonable school or reasonable teacher would act. The standard of care required of schools and teachers is higher than would be expected of parents. A duty of care situation arises out of the formation or development of a relationship between a student and the school and it is a concept that is well-established under the common law and in state and territory Education Department policies and guidelines.
“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 (1969) VR 136 at 138)
A teacher’s duty of care is non-delegable. Therefore, a school cannot completely discharge its duty while students are on a camp, tour or excursion or by placing the students in the control of an external provider. This does not mean that a school should not allow its students to participate in camps, tours or excursions operated by others. Instead schools must be vigilant to ensure that external providers with whom it deals are safe and competent. In addition, it also does not mean that schools should forbid staff from taking children on camps, tours or excursions where there are some manageable risks.
In order to determine the extent of a school's duty of care, schools must first determine the purpose of the excursion, camp or tour and then determine the risks. Camps, tours and excursions should be planned around the school’s ethos, with specific teaching and learning outcomes. However, 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.
Teacher Influences Regarding Excursion, Camp and Tour Planning
There are many factors that can influence teachers in relation to whether they choose to take students on a camp, tour or excursion. However, any activity that takes students off the campus of the school, including simply crossing a public road to access an oval, can be defined as an excursion.
The release of the Final Report from the Review of the Australian Curriculum (Report) in 2014 revealed many findings, including the worrying trend that excursions are being “dumped” by teachers too frightened to take their students outside of school grounds because of the threat of being sued (Donnelly and Whitleshire (2014) p.105 & 148). Some of the factors raised by teachers included:
- concern for the safety of their students
- wanting students to derive some meaning from their excursions
- taking into account the interests of their students when planning an excursion
- not generally wanting to construct activities to occupy every waking minute of the student’s time
- running a camp, tour or excursion can be very stressful
- excursion administration and litigation fears
- planning a camp/tour or excursion can be very time consuming - often involving many after-work hours
- teachers were wanting to use external providers’ material to enhance the learning for students.
The Report’s assessment of certain subjects such as health and physical education, included references to teacher feedback regarding the use of excursions as part of teaching content outside the classroom. This feedback indicated that many teachers felt burdened by excessive administration requirements and were worried about potential legal liabilities if things went wrong.
What is apparent is that “school excursions, camps and tours are generally enjoyable activities that can provide a welcome break from a school’s normal routine for students and their teachers” (Ritchie, Brent W and Coughlan, Duane (2004)). Education commentator Kevin Donnelly warned that the overcrowded nature of the curriculum and the mountains of red tape required to take children on excursions meant children were increasingly desk-bound. Dr Donnelly said, “[c]ertainly, with schools, there is a concern that there is so much paperwork and bureaucracy in terms of getting approval for extra-curricular and co-curricular activities”. He went on to say “[t]here is a very real danger and concern about litigation from parents - parents who have every right to be involved in their child’s education - but we do tend to wrap our kids in cotton wool.”
In addition, parents (and the community in general) also have higher expectations of the level of supervision and care expected of their children by the school. Schools have also assumed that children require a greater level of planned and carefully monitored activities when on scheduled out-of-school activities. There is also a clearer understanding of risks and how to mitigate risks - particularly relating to the potential injury or death of a child or the lesser risks of financial or reputational loss. Teachers know the value in real life learning and the enjoyment that just getting out of the classroom brings to students and, if they are truthful, the teachers too.
The issue is, how can schools encourage teachers to continue to organise and execute well-planned and successful out-of-class learning experiences while keeping the burden of ‘paperwork’ down to a reasonable level?
Craig D’cruz, National Education Lead at CompliSpace, will be presenting at LawSense School Law WA in Perth on 1 August 2019. He will be expanding on the topics listed in this series of articles and going into depth on how to implement new policies and practices in school sport to meet child safe obligations and manage risk. For more information, you can read the full event information here.