Recently in the news was the case of a child found unresponsive in their mother's car in Victoria, after the mother assumed she had dropped the child off at their primary school.  In light of this incident, it seems right for teachers to question where their duty of care obligations to their students end. And with schools now expected to be responsible for students both before and after school hours, and seminars held regularly to discuss the limits of teachers obligations both within and outside the school gates, this article attempts to outline some guidelines for teachers in determining when their student duty of care obligations need to be discharged.

What is a teacher's duty of care to their students?

As mentioned in our previous article, the student duty of care is an obligation for schools and teachers not to act negligently. 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.

The standard of reasonable 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, and the duty of care is a special duty which goes beyond the ordinary duty in negligence. It is a special relationship due to the vulnerability of students and requires teachers to act positively to insure against the risk of injury which includes protecting students from harm caused by themselves or another source.

Schools and teachers must also maintain other duties imposed by legislation including:

• reasonable care for the health and safety of employees and others in the workplace (for the purposes of work, health and safety laws, students are considered 'others')
• mandatory notification of suspected or actual child abuse
• duty to prevent discrimination and harassment of students
• contract obligations to parents upon enrolment of students.

With all these duties, it is no wonder that teachers often feel overwhelmed by their student duty of care obligations. But is this the only place where a teacher's duty of care lies?

Moral duty of care for student safety

Some would argue that a teacher's duty of care to a student extends past their legal liability to a moral duty of care to generally ensure the safety, welfare and wellbeing of students under their care. With mandatory schooling, parents are entrusting their parental responsibilities to the teachers and the school, extending the student duty of care past simple legal liability. Therefore, it is clear that the school community's expectations are also extremely high in regards to a teacher's duty of care to their students.

Reputational risk is also one of the main concerns of school boards, and independent schools rely on their reputation to ensure financial viability and growth in enrolments. A major incident which indicates a failure to protect students by breaching student duty of care obligations can impact on a school's future financial viability and enrolment growth. A school in financial difficulty is at even greater risk of failing to protect their students as a lack of resources will further impact any risk management strategies.

Child in a hot car - was there a duty?

The tragic confluence of events which led to the student from a Victorian primary school being left in his mother's hot car for six hours raises questions of what duties schools have regarding attendance.  According to the Victorian Department of Education School Attendance Guidelines noting attendance is necessary to meet legislative requirements and discharge a school's duty of care for all students.  All states and territories have legal requirements regarding attendance for school students and Victorian primary schools are required to take attendance twice a day under the Education and Training Reform Regulations 2017 (Vic) (Schedule 4 Clause 11 - Attendance register).  However schools are given three days to alert parents to their absence under the Department of Education's existing policy. A review of student absentee policy in schools has been ordered by the Victorian Department of Education after the boy's mother was only told her son was absent hours later when his brother appeared distressed and teachers questioned him.

In the case of attendance, schools will be ensuring the safety of students in the first instance by complying with their requirements under legislation.  Noting an unexplained absence may then prompt obligations under common law duty of care obligations.

Balancing risk and opportunity

Effective risk management strategies ensure that both teachers and schools discharge their duty of reasonable care, as well as their legal and regulatory obligations, and do not overshadow the importance of providing opportunities to participate in a variety of activities for students. The key from a teacher's perspective is that they understand their student duty of care obligations and proactively identify risks and implement risk controls in order to strike the right balance between protection and encouraging a positive learning environment.

The most probable cause of a school being successfully sued for breaching its student duty of care will  be its failure to act as a ‘reasonable school’ would have acted in the particular circumstances. What is reasonable is a question of fact to be determined in each case but the majority of cases can be mitigated through the effective implementation of risk management strategies including:

• 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
• maintaining records of each of the above actions.

In determining the scope of a teacher's duty of care, the legal position is often not clear enough, especially when school and community or religious lines are blurred. Instead, where teachers are unsure whether they have a legal or moral duty of care for students, they should look towards creating a culture of safety through their capacity to influence the situation involved. Embedding that culture of safety is the most effective way of ensuring a teacher and a school meets their student duty of care obligations both within and outside the school gates.