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:
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:
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.
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:
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:
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:
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:
See the following:
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.
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:
This list of examples is endless and highlights the sort of opportunities that present for cyberbullying and inappropriate behaviour.
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.
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:
We are planning a further article next week that looks at child safety issues in an online learning environment in more detail.
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.