Over the past few months, CompliSpace held a four-part webinar series about navigating excursion risk management. The recordings of the webinars are accessible here.
A school’s liability in relation to excursions (and also the liability of its staff) and how they interrelate with external provider liability is an area of concern generally for schools. In this article we answer some of the commonly-asked questions arising out of the webinar series on the topic of liability.
Question: Can an individual be legally liable for a breach of the duty of care? Or is it ‘the school’?
Answer: In relation to student duty of care, an individual teacher, and the school each has a duty of care towards students; where that duty has been breached then each, or both, can be held legally liable. However, in most cases the school will be held “vicariously liable” for the actions of the teacher, because as an employer they have the greater responsibility to ensure that teachers do the right thing. If it is a civil matter seeking damages, a plaintiff will seek the deeper pockets of the school rather than a teacher.
Teachers are most likely to be held liable in negligence if they have taken action (or not taken action) which to a reasonable teacher in that situation would appear to be reckless and contrary to prevailing norms, contrary to school procedures, and without mitigating circumstances. Sometimes this becomes a question of whether an employee, such as a teacher, was doing something that was within the normal course of their employment or something that was outside what was expected or what a reasonable teacher would do, in which case, they may be personally liable. However, it is very rare for a teacher to be personally liable for a breach of duty of care.
Teachers (and other school staff) as well as senior management, governing bodies and the school, can also be held legally liable for breaching workplace health and safety laws. The harmonised workplace safety laws refer to three groups – the organisation (i.e. the school), the officers of the school (i.e. board members and other senior decision-makers such as the principal and possibly deputy principals and business managers) and, lastly, the staff or employees. Once again though, the school’s and the officers’ responsibility is far greater than that of the staff to ensure that workers are adequately trained, supervised, and have all of the appropriate knowledge and equipment to perform work safely. An employee does have a duty under health and safety laws to take reasonable care for their own health and safety and that of others (such as students) who may be affected by their acts or omissions, and they must also comply with any reasonable health and safety directions, policies and procedures given by the employer.
Question: If the contract between an activity provider, for example, a camp site, and the school had a clause which stated “[The activity provider for the camp site] and its staff accept no liability or responsibility for any loss or damage to property, or, injury of or to any person and the school shall be responsible to ensure that all persons in the Group (attendees to the camp) and their guests and visitors are aware of this Disclaimer”, does this mean that if a student or staff member sustained an injury due to a hazard that was present at the camp site, then the activity provider for the camp site would not be liable for any damages claimed even if it would be reasonable to assume that the activity provider for the camp site (as an operating business) should ensure that they are providing safe grounds/facilities for their visitors?
Answer: This issue arises quite frequently in contracts with activity providers for schools and is increasingly a matter of concern. These clauses are in a category of clauses in contracts that are written to avoid the organisation providing the service from suffering financial loss or being held liable should something go wrong. Some of these clauses require the school to agree to indemnify the activity provider if the activity provider was held liable for damages as a result of injuries to a student or staff member. Others simply say that the activity provider will not be liable, and the injured party agrees not to claim damages against the activity provider. These clauses have different names depending on what the intent of the clause is and include ‘waivers’, ‘disclaimers’, ‘indemnity clauses’ and ‘exclusion clauses’.
If such clauses are upheld by the courts, they could prevent students from recovering monies for their injuries from the external provider (activity provider), and leave the school as the sole party to pay the damages. However, often these clauses fail for a variety of technical legal reasons whether under contract law, the Australian Consumer Law (ACL), the general law of negligence, or because they are poorly drafted and do not cover the type of injury or circumstances that caused the injury. As a result, it is only possible to make general comments about these types of clauses. The following general comments are not intended to be anything more than a guide or starting point for further exploration or advice on the issues involved.
- The example given is not a particularly technical example and many disclaimers, waivers and indemnity clauses are written by lawyers acting for activity providers. They may also contain risk warnings which is another area of negligence law that applies in most states to limit liability.
- Where an external provider states that they will not be liable for loss damage or injury, such an exclusion or disclaimer must form part of the contract between the school and the external provider for it to be effective. It therefore must be a term of the contract that the school is aware of (that is, it must be in the contract terms) prior to entering into the contract.
- Most organisations will not be able to exclude claims of negligence unless negligence is specifically mentioned in the disclaimer.
- Nothing in any exclusion clause can prevent a campsite or other activity provider from liability under health and safety laws by the relevant government authority.
- The Australian Consumer Law (ACL) may apply to the contract for the services being provided by the camp site/activity provider to the school if the cost of the service being provided is below the ACL threshold of $40,000. If the ACL applies to the contract, there are consumer guarantees in the ACL that any supplier of goods or services (such as the campsite) cannot limit, restrict or exclude. For example, one of the consumer guarantees is that services will be provided with acceptable care and skill or technical knowledge, and the service provider will take all necessary steps to avoid loss and damage. Therefore, any waiver or disclaimer that is inconsistent with the consumer guarantee is unenforceable.
Question: Who at the school should sign contracts with external providers?
Answer: The legal impact of exclusion clauses is a complex area of law and therefore, any contracts with suppliers of services to schools should only be signed by a person in the school with the authority to sign and who has an understanding of the legal issues involved. If the person who signs the contract does not have a good understanding of the legal issues involved, it would be wise to first obtain advice from the school’s own insurers and possibly also obtain legal advice prior to signing contracts that contain these clauses.
A teacher, whether actually or properly authorised to sign a contract on behalf of the school or not, may be held to legally bind the school when they sign a contract with an external provider on behalf of the school if, in all the circumstances, it is held that the teacher had ‘apparent authority’ to sign the contract on behalf of the school.
Question: Should staff from the school attend a school activity that is run by an external provider?
Answer: Staff attendance and supervision when an activity is run by an external provider is desirable in almost all circumstances. If staff do not attend, the school will remain liable while passing all control of the risk management of the activity to the external provider – the school’s ‘fate’ is therefore in someone else’s hands. There are circumstances however where the school may be happy with this. There are external providers that understand the requirements of duty of care in a school setting. An example may be a former teacher who is running their own sport business. Most schools would nevertheless have a policy that would require a teacher to be present in all circumstances regardless of the background and training of the external provider.
Question: Should staff from the school intervene in activities that are run by an external provider?
Answer: The answer must always be “yes” given the non-delegable duty of care that the school owes to its students. Staff should always exercise their judgment to stop or modify the activity so that it takes place in a way that is, in the opinion of the staff member, safe for the students.
The caution here is that staff must be careful to ensure that their judgments as to the safety of the activity are not clouded by their own fears of participating in the activity.
Examples of situations where a staff member may choose to intervene in the running of an activity are:
- the activity is being run during hot weather without sufficient shade or fluid intake by students
- there appears to be a lack of attention to important safety details by the external provider
- the external provider fails to enforce safety requirements previously communicated to the group (e.g. wearing of life jackets, mouthguards, shin guards)
- the external provider appears to be affected by drugs, alcohol, stimulants, lack of sleep, sickness
- the external provider appears unable to adequately instruct the students. This is especially relevant where activities can require students to immediately obey the command of an instructor to ensure their own safety
- If particular students have not been paying attention during safety briefings and it appears that they are not likely to follow the external provider’s commands during the activity then staff should consider requiring the student to sit out of the activity for the students’ own safety
- where the school has their own first aid and emergency management requirements and procedures. However, care needs to be taken to avoid conflicting instructions in emergency situations – students don’t need the added stress of conflict between the external provider and school staff
- to ensure discipline of students is appropriate. Some external providers may have limited experience in disciplining children and will not do so in an appropriate manner in line with a school’s own policies. It may be that schools decide that any type of discipline or correction of student must be undertaken by the school staff
- where support is needed for students with disability. External providers may not have the relevant experience or qualifications or knowledge of the specific needs of the relevant children.