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.
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.
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.
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.
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.
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: