This is the second part of a two part series on permission notes. The first part dealt with the purpose of permission notes, types of notes, key information that should be included and archiving. This second part deals with the use of risk warnings, exclusion clauses and indemnities, problems that arise with excursion contractors and insurance issues.
Tom Waits said that ‘the big print giveth and the small print taketh away’. Reading the fine print is not something many of us care to take the time to do. We click ‘agree’ to most things without really considering carefully what we are agreeing to.
Parents/guardians are guilty of the same thing when it comes to permission slips. Many have information fatigue and assume that if the school organises the activity it must be OK. Unfortunately some school staff take the same view when it comes to signing contracts with third party providers of excursion activities – more about that later.
We often see fine print on tickets and receipts, parking tickets, venue warnings and of course any time you go to the beach there are warnings everywhere placed by the local council. All these are aimed at reducing liability for the provider of the service in the event of injury or damage.
Waivers, Disclaimers, Indemnities
Schools have a very limited range of options when it comes to including so-called waivers or disclaimers to reduce their liability in the event of injury to a student. As discussed in the previous article, many schools will provide a risk warning to parents of the risks associated with the excursion or activity as part of seeking a parent’s permission for the child to attend. Whilst there is some legal basis for this there is no substitute for a properly managed excursion with the risk effectively identified, assessed and managed. Schools should also reflect on the statistics of fatalities in outdoor education where the research shows that one in every six fatalities is of an accompanying adult, usually trying to rescue the child. We want everyone who attends an excursion to be safe including the teachers and other adults who attend.
When managing risk in excursions, schools frequently rely on contracted services from third party providers with particular expertise in the area. Examples may include snorkelling activities as part of a unit or work on marine ecosystems. Examples also include the coach company that provides the transport and the outdoor education company that runs the adventure course and abseiling. The contracts with these providers often contain ‘fine print’ such as waivers and disclaimers and indemnities. All of which are an attempt by the contractor to avoid liability in the event that something goes wrong. An indemnity could operate to prevent the contractor from having to pay monetary damages and therefore leaving the school’s insurer to carry the financial burden.
These indemnity and waiver clauses are increasingly common. Schools should ensure that they have clear controls in place limiting the number of staff who are authorised to sign contracts with contractors so that if these clauses are contained in the contracts, advice can be sought or alternative contractual arrangements put in place.
Some external providers go to the extent of requiring all participants to sign an indemnity and waiver even though the students are under 18 years. As mentioned in part one of this series there is some legal doubt as to whether a child under 18 can sign away their legal right to sue for damages should they be injured. Such a contractual arrangement would clearly not be to the benefit of the child.
Real Life Example: The Snow
A 2011 NSW case illustrates many of these issues. The student was attending a Sydney school and was badly injured when participating in a lesson on a beginners slope at the Perisher snowfields. The court found that the slope used was unsuitable for beginners and found that Perisher Blue was liable due to their negligence in conducting the lesson in that location and the school were both liable. The school was liable under the legal principle of the non-delegable duty of care that a school owes to its students. In apportioning damages between the school and Perisher Blue, the court found that Perisher Blue should pay 100% of the damages and the school pay none.
This case clearly highlights the problems that may have arisen if the school had signed a contract with Perisher Blue that contained an indemnity clause. The apportionment of damages may not have been able to occur if the school had agreed to indemnify Perisher Blue for any loss they had suffered.
Insurers of schools, if asked, would no doubt be unhappy with any school signing contractor agreements with outdoor education providers that contain indemnity clauses, waivers, disclaimers etc.
Schools should always make sure that they have adequate insurance cover for the activities and excursions that they are conducting. This is very important where overseas excursions take place. The need to provide emergency accommodation for students can arise in unexpected ways such as the situation where students were stuck in Europe when the Icelandic volcano erupted some years ago and grounded all air traffic out of Europe. Emergency medical issues are always more complicated and more expensive overseas. Schools should also make sure they have adequate cover for the situations where large numbers of students from other schools attend your campus. In the event of a major incident with multiple injuries, the need for substantial insurance cover goes without saying.
The Importance of Record Retention
In the unfortunate event of a legal case proceeding against a school in relation to an excursion gone wrong, schools must be able to produce evidence of the steps it took to manage the risks presented by the excursion. Various documents should be retained by the school prior to the excursion occurring including: permission slips, executed contracts with third parties and records of information given to parents/guardians. In terms of how long schools should keep these documents after an excursion occurs, the Australian Society of Archivists’ (ASA) new RRDS released in April 2018 includes helpful instruction on this point (refer to our previous School Governance article for more information on the RRDS). The RRDS advises the following disposal actions for excursion-related records:
- parent/guardian permissions for overseas trips: keep for 75 years from date of student's birth before destroying
- parent/guardian permissions for sports excursions: keep for 75 years from date of student's birth before destroying
- agreements with external providers for the provision of services: destroy 15 years after agreement expires (for major agreements) and 7 years after expiration for minor agreements.
Although the RRDS is an optional standard, the detail it gives in the notoriously grey area of records management is helpful.
- There is no substitute for a thorough risk assessment process and risk controls for the safety of all involved in excursions.
- Ensure that there are adequate internal controls at the school as to who can sign contracts with external providers including sports venues.
- Review insurance cover to ensure that it is adequate for the whole range of activities that a school engages in.