Over the years, we have published many articles regarding duty of care in schools. A quick search of the School Governance site uncovers a large number of valid and useful articles that deal with playground duty, student restraint, homestay accommodation, before and after school hours and a myriad of other topics relating to duty of care.
However, although we are moving into the last term of the academic year, it is still essential to regularly revisit this potential minefield for schools to remind staff of their responsibilities, obligations and accountability regarding the students who are placed in their care on a daily basis.
What is a Duty of Care?
Duty of care is a common law concept that is underpinned by case law. Both a school and its staff owe a duty to take care of students while they are involved in school activities and this extends to situations where students are present at the school outside normal school hours or engaging in school activities that are off-site. A duty of care arises when a teacher/pupil relationship exists. This statement may seem simple, but it can be difficult to determine in practice where the school’s duty starts and ends. For example, a duty of care exists when students are on the school site even if it is outside school hours, (see the School Governance article on the St Marks case).
The standard of care required is that of a 'reasonable' teacher. This means that the duty of care owed is the duty one would expect from a hypothetical teacher 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.
School staff also need to understand the extent of their duty of care when involved in school-based activities and need to be aware that their duty of care for students extends beyond the school gates and the hours of school. A school that breaches this duty by, for example, failing to provide adequate supervision during a recess or lunch break or on an excursion may be found to be negligent.
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.
The circumstances in which courts find in favour of an injured student often provide the best guidance as to the extent of the duty of care owed by schools. Unfortunately these legal decisions often refer to very specific factual scenarios and are generally retrospective rather than pre-emptive. Changes in state and territory standards, or in school policies and procedures, are usually brought about by unfortunate and often arguably preventable accidents or incidents that result in legal action and/or public scrutiny.
Trained teachers are expected to have a higher level of accountability and therefore have a higher duty of care for students. If there is an injury, the court will determine whether a teacher has acted as a reasonable teacher would have acted in that situation. It was once argued that a teacher had to take as much care as the ‘reasonable parent’ would take (‘in loco parentis’). In more recent times the standard expected of a ‘reasonable teacher’ is now thought to be the appropriate test, given that teachers, unlike parents, have specialist training and are in charge of much larger groups than a parent normally is.
Factors for schools to consider when assessing the reasonableness of the standard of care include:
- the student’s age, experience and capabilities - the level of care will generally be greater the younger the student
- any physical and intellectual impairment - a student with a disability is generally at greater risk of injury than a student without a disability. This could be due to a physical inability to complete an activity without difficulty or an intellectual inability to appreciate the risks involved. Student health plans or emergency action plans (EAPs) must be considered and incorporated into the risk assessments and planning
- any medical conditions - particular medical conditions including conditions such as asthma and epilepsy require special attention to ensure that students with those conditions are not exposed to a greater risk of injury. Once again, student health plans or emergency action plans (EAPs) must be considered and incorporated into risk assessments
- behavioural characteristics - if a student is known to have behavioural issues then the level of care needs to increase
- the nature of the activity and the environment in which the activity is held - school activities with a higher level of risk (e.g. a rugby match) or held in higher-risk environments (e.g. a science laboratory) require a higher level of care
- whether the school has relevant and appropriate policy and procedures in place - following the school’s practices in its various policies and procedures will ensure that staff are adhering to all recommended protocols
- proactive steps taken by the employee to prevent the injury occurring,
- information obtained from a risk assessment in relation to an individual activity primarily:
- the probability of the risk occurring
- the magnitude of the risk
- the expense, difficulty and inconvenience involved in alleviating the risk
- the staff member’s level of experience, attributes and skills and the nature of the relationship between the staff member and the student/s.
To ensure a school discharges their duty of care responsibilities to students a school must:
- provide ‘adequate’ supervision in and out of class
- ensure that school premises and equipment are safe
- implement ‘safe strategies’ at the school premises or on out of school sanctioned events.
Thankfully, the courts recognise that accidents happen in schools, however, an employee may be determined to have breached their duty of care if:
- the injury was reasonably foreseeable (not completely unexpected); and
- the injury occurred because the employee did not carry out their responsibilities in a sufficiently careful manner (or failed to follow school policies and procedures).
- on school premises
- involved in school activities both on and off school premises
- in the proximity of the school premises.
This can be carried out through a combination of:
- supervision (primary basis of negligence claims) of students
- maintenance and inspections of facilities and premises
- incident reporting and corrective action
- record keeping
- policy management.
So please don’t ask how many staff should be on duty each day at recess or lunch-how long is a piece of string?
Duty of care is based on individual circumstances and situations and staff need to assess and mitigate the risks associated with whatever class, activity or experience is taking place whenever a duty of care ‘relationship’ has been established - be that in class, on the oval, on an excursion, online or, in certain circumstances, after school hours.