Duty of Care and Online Learning: Suggestions for Schools

Published
26 March 2020

The Duty of Care Principles

Duty of care is a legal concept that has its origins in the common law principle of negligence.

A school and its staff owe a duty to take care of students while they are involved in school activities or are present for the purposes of a school activity. A duty of care arises when a school/student relationship exists. This duty of care is non-delegable, that is, you cannot avoid liability by delegating responsibility to someone else.

The duty is to take such measures as are reasonable in all the circumstances to protect students from risks of harm that reasonably ought to be foreseen. This requires not only protection from known hazards but also protection from harm that could foreseeably arise and against which preventative measures can be taken.

Duty of care therefore requires vigilance and attention to detail and an understanding of the foreseeable hazards that might arise when conducting a particular program or activity.

The standard of care required is that of a 'reasonable' teacher or other school worker*. This means that the duty of care owed is the duty one would expect from a hypothetical teacher/worker with normal skills and attributes exercising their professional judgement. The duty owed to students is not an absolute duty to ensure that no harm will ever occur but a duty to take reasonable care to avoid harm being suffered.

*‘worker’ can include contractors and volunteers depending on their role

There are five elements that must be established in order to prove that there was a breach of the duty of care by a school in relation to a student. The five elements are:

  1. The school has a duty of care to the student at the particular time the injury occurred
  2. The risk of injury was reasonably foreseeable
  3. The likelihood of what happened was more than insignificant
  4. There was a failure to observe a reasonable standard of care, in other words a breach of the duty of care
  5. This failure was the cause or contributed to the injury, loss or damage.

Individual circumstances will determine whether there was a failure to observe a reasonable standard of care. The following issues may be considered in assessing the reasonableness of the level of care:

  • the student’s age, experience and capabilities: younger students require more care than mature students
  • physical and intellectual impairment: students with disabilities are exposed to higher levels of risk of injury than students without a disability
  • medical condition: special care must be taken to protect students with known, or ought to be known, medical conditions which expose them to a higher risk of injury (e.g. asthma or epilepsy)
  • behavioural characteristics: the level of care is increased where students are known to behave in a manner that increases the risk of injury
  • the nature of hazards present: increased care is required if the activity has an inherently high level of risk of injury or the activity takes place in a hazardous environment
  • the normal practices and procedures in the school.

These factors should be taken into account when planning student activities. These duty of care principles apply equally to activities at the school and at other locations where school activities are occurring. This includes online learning environments.

 

The Five Elements of Duty of Care Rubric

Applying the five-point duty of care rubric to the current environment where some states and many schools have or will be moving to online learning environments:

1. The school has a duty of care to the student at the particular time the injury occurred

Where schools are providing online learning, it is considered to be a sanctioned school activity and the school is delivering learning to its students through an online system. Therefore, it is clear that schools (and teachers) owe a duty of care to the students while this teaching and learning is occurring.

An excellent example of a policy directive can be found in the Victorian Education Department Duty of Care and Supervision Policy in relation to online learning environments which states:

Teachers are required to supervise all learning environments; the school grounds, the classroom and excursions - online spaces are also considered a learning environment. Therefore, as part of that duty, teachers are required to adequately supervise students who are working in these spaces. This duty also requires protection from risks that could arise (that is, those that the teacher should reasonably have foreseen) and against which preventive measures could be taken.

The Department also suggests that a school should develop a student engagement policy that outlines:

  • every student’s right to feel safe at school (including broader learning situations such as digital learning environments)
  • that bullying or inappropriate behaviour including cyberbullying will not be tolerated
  • initiatives and strategies that have been implemented to prevent and respond to bullying and inappropriate behaviour, including cyberbullying, and
  • explicitly how the behaviours and strategies in place relate to the safe and responsible use of digital technologies.

 

2. The risk of injury was reasonably foreseeable

It goes without saying that online environments pose a number of potential risks of injury for students participating in learning in these environments.

These include:

  • opportunities for cyberbullying; perhaps to a greater extent that if there was no online learning environment
  • opportunities for online predatory behaviour through a student’s increased online activity
  • opportunities for teachers or other supervisory staff to engage in grooming behaviours or other misconduct
  • failure to teach students who are unable to learn well in an online environment
  • less visibility by schools over students who are being or at risk of being abused as well as less ability for students to disclose to school staff.

A school’s duty of care also includes foreseeable risks of harm to a student’s educational progress. Some students are not able to participate in online learning environments due to a number of factors including students with special needs, students with less developed computer skills, students who do not learn as effectively in online environments, students who do not have suitable internet access at home and so forth.

There is substantial research and commentary regarding online learning and whether students are able to succeed in these learning environments.

Some of the main findings include:

  • computer skills are required including computer problem solving skills when things go wrong, and the ability to manage software and find information
  • online (on screen) reading and writing skills (typing) are important and a proficient level of English reading and writing
  • a good environment to study and a disciplined schedule for study without distractions, good time management and a level of motivation, whether intrinsic or extrinsic are also important.
  • online learning can be effective but there is no guarantee and it generally requires a different learning design approach to face to face learning
  • there isevidence that online education is least effective in teaching the less proficient students who need skilled classroom teachers and learning support.

See the following:

 

3. The likelihood of what happened was more than insignificant

Not only is the risk of injury foreseeable in an online context but the injury may well be substantial rather than insignificant.

The harm caused to students through cyberbullying is well documented as is the harm from misconduct and online predatory behaviour.

There is also substantial harm that can occur if students lack good learning environments that meet their learning needs.

 

4. There was a failure to observe a reasonable standard of care, in other words, a breach of the duty of care

In the current environment where schools vary considerably in their level of preparedness to deliver online learning to students, there is potential for failures of all kinds.

For some school learning platforms, the teacher delivering the online learning will be delivering content and viewing the students via a webcam. This in effect brings the teacher and other members of the class ‘into the student’s home’ (and indeed ‘into the teacher’s home’ if they are also working from home) in a way that does not usually occur in school settings. This risks exposing students to the conduct of other students’ and the teacher’s family members, as well as to other aspects of these home environments.

Delivery of lessons in real time using streaming and interactive classroom technology also provides an opportunity for inappropriate behaviours between the teachers and the student and between students.

Some examples of online conversations that might be inappropriate include:

  • Is that your sister in the background? What does she do?
  • Your house looks weird/messy/gross.
  • Do you still have a teddy bear/dolls?

This list of examples is endless and highlights the sort of opportunities that present for cyberbullying and inappropriate behaviour.

 

5. This failure was the cause or contributed to the injury loss or damage

A failure to consider the risk of harm and take measures that a reasonable school would take to minimise the risk of harm will lead to liability where damage occurs to a student as a result of cyber bullying or other forms of misconduct that occurred or had there genesis in the online environment.

 

What Can Schools Do to Meet the Student Duty of Care Requirements in relation to Online Learning?

One of the big challenges faced by many schools is to have these online systems, technologies and appropriate learning content for delivery online ready at short notice.

Decisions and preparations for online learning would ordinarily take months or years to organise and plan, yet many schools have had insufficient time to put in place all of the systems that they would like to have ready to use now.

Some suggestions to consider in relation to trying to meet the student duty of care requirements in relation to online learning are:

  • Clear policies on online learning, including staff and student professional boundaries in online learning environments with the policy communicated to teachers, parents and students.
  • Ensure that all staff, students and parents understand that all Adult and Student Codes of Conduct apply in cyberspace as well as in the ‘real world’ including the staff dress code. Schools should consider the need to add into their Student Code of Conduct standards in relation to appropriate dress when learning via tools that enable visibility such as webcams.
  • Ensure that other policies such as your staff Social Media Personal Usage Policy and Student Usage Social Media Policy are clearly understood and will be adhered to. The more common risks that arise in relation to social media use relate to:
  • privacy and confidentiality
  • IT systems and security failures
  • brand and reputation
  • staff or student harassment, discrimination and bullying
  • child safety and maintaining a child safe culture.
  • School monitoring of the online learning environment with the ability to see the interactions between students and between students and teachers/staff
  • Ensure that the online environment is transparent to parents and other school staff so that there is not a closed circle of interactions only visible by students and teachers/staff.
  • Put in place additional support and resources to assist students identified as less suited to online learning (for whatever reason).
  • Regularly check in with parents as to their views on the learning and ensure that there are simple feedback and complaint mechanisms for parents and students to use.
  • Consider the support that will be required for students where they or members of their household of extended families become sick or if there is a bereavement in the family due to the pandemic.
  • Ensure that there are pastoral care resources available for students to deal with stress and anxiety. This may be as a result of the COVID-19 illness or concerns particularly for students in their final years of schooling.

 

Further Article Next Week About Child Safety

We are planning a further article next week that looks at child safety issues in an online learning environment in more detail.

Short Survey: What Questions Do You Have?

To assist us with identifying the challenges that you and your school may be facing – from a child safety and duty of care perspective - as you move your teaching and learning to a predominantly online platform, please click here to complete a short survey.

Submit Your Questions

Jonathan Oliver

Jonathan is a Principal Consultant working with CompliSpace education clients. He has more than 10 years experience in the school sector as a teacher, compliance and legal adviser and more recently as a Business Manager. Jonathan has been a solicitor for nearly 30 years and worked in both private practice and community legal centres.