Schools are complex, high-risk environments. This is particularly true when you consider the many camps, excursions and extra-curricular activities that schools offer their students which involve the potential for serious injury. Schools have a non-delegable duty of care to protect students from harm and injury during such activities, however, civil liability laws in some states and territories modify this common law duty. For example, laws in some jurisdictions state that schools do not owe a duty of care if they issue risk warnings to parents and students for recreational activities undertaken by students.

Where schools arrange for an activity to be provided by a third-party contractor, the provider will also frequently issue a risk warning for the activity and may also ask parents, students or even the school to sign a waiver and/or indemnity prior to participation in the activity to absolve themselves from liability for negligence.

This article considers the effects of both risk warnings and waivers in the school context.

The School’s Duty of Care

Schools and teachers have a common law duty to take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure students while they are involved in school activities. This duty is non-delegable. This means that the school cannot delegate their duty to another party.

Because this duty of care is non-delegable, where a teacher or third-party contractor who is engaged by the school fails to take reasonable care and a student is injured, the school will be liable for those injuries even though they were a result of the negligence of these other persons. In some circumstances, the contractor may also be held to be liable, in which case it will be up to the courts to ‘apportion’ liability between the contractor and the school. However, the contractor may attempt to rely on any waivers the school or others have signed to absolve themselves from liability.

How Do Civil Liability Laws Impact the School’s Duty of Care?

Governments around Australia have enacted civil liability laws that impact claims for damages resulting from negligence.

These laws limit liability in certain circumstances including, in broad terms:

• the School does not owe a duty of care to warn of an “obvious risk”
• the School will not be liable for harm suffered as a result of the materialisation of an “inherent risk”.

An obvious risk is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

In some jurisdictions, schools may also not owe a duty of care if they issue a risk warning with respect to a risk relating to a recreational activity. This is discussed in more detail directly below.

The important thing to note is that the existence of civil liability laws means that issues of liability for student care claims in Australia will ultimately be determined by a complex mixture of legislation and common law (judges’ decisions).

What Are “Risk Warnings”?

Although schools generally owe a duty to take care of students while they are involved in school activities, in some jurisdictions like New South Wales and Western Australia, civil liability laws state that schools will not owe a duty to students who engage in recreational activities to take care in respect of a risk of the activity if they issue a risk warning in relation to the risk.

A “recreational activity” is defined as any:

• sport (whether or not the sport is an organised activity), and
• pursuit or activity engaged in for enjoyment, relaxation or leisure, and
• pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

Risk warnings can be given orally or in writing, including in the form of a sign, and must be given by or on behalf of the school to be effective. For young students or students lacking capacity to understand a warning, it can be sufficient for the warning to be given to the parent of the student.

Risk warnings must also be given in a manner that is reasonably likely to result in someone being warned of the risk before engaging in the recreational activity. However, the school is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.

Importantly, schools can’t rely on risk warnings if a student is required to engage in the recreational activity. This means that schools cannot rely on risk warnings for compulsory school activities.

School also can’t rely on a risk warning if it is contradicted by something the school says or does (for example, if a teacher says to a student “come on, it’s perfectly safe”).

Should Schools Issue Risk Warnings to Parents and/or Students?

While risk warnings may seem like an attractive option, they will have no effect if they relate to a compulsory school activity. Furthermore, while many schools routinely issue a risk warning to parents and students prior to undertaking recreational activities, these warnings are no substitute for ensuring that the activity is safe by identifying the foreseeable risks of harm and by taking steps to reduce that potential harm. An overreliance on risk warnings will also likely send the wrong message to parents. Resultantly, schools should be more focused on student safety rather than in avoiding potential liability.

Waivers Signed by Parents or Students

In addition to also issuing risk warnings themselves, third-party contractors, such as a provider of school outdoor education activities, will sometimes ask a parent or a student to sign a waiver and/or indemnity prior to students participating in the activity. The terms of the waiver and indemnity will usually involve the parent or student agreeing to waive their rights to sue in the event of an injury caused by the negligence of the third-party contractor and also to indemnify the contractor in the event that they are sued and are ordered to pay damages for injuries that occur as a result of their negligence. Third-party contractors also often ask schools to sign waivers and indemnities as part of the contract between the provider and the school.

Not all waivers will be effective in preventing a third-party contractor from liability. Waivers that are improperly drafted may not be legally enforceable. This means, for example, that a waiver that uses unclear or imprecise language to explain what liability is being excluded would most likely be deemed to be unenforceable by a court.

There is also some doubt over whether any waiver signed by a student aged under 18 years or by a parent on their behalf will be enforceable. Generally, contracts signed by children under the age of 18 are not legally enforceable, with some exceptions, for example, if they are for the child’s necessities of life, or if the contract is for the benefit of the child. It is unclear how the courts would interpret a waiver signed by a child or a child’s parents if it excluded the child from recovering damages. It is hard to conceive of a situation where the signing of a waiver by or on behalf of a child might be interpreted by the courts as something that was for the child’s benefit or be related to the provision of the necessities of life.

Should Schools Sign a Waiver or Indemnity and Should They Allow Third Party Contractors to Require Parents and/or Students to Sign Them

Due to the non-delegable duty of care owed by teachers and the school, if a provider does not take reasonable care to ensure that the activity is undertaken safely, this may result in the school being liable for the negligence of the provider. This is particularly the case where a school signs a waiver absolving the provider of any liability. For this reason, schools should generally avoid signing waivers and indemnities that third party contractors include in contracts with a school.

Many government departments have realised this danger and have expressly prohibited government schools from signing such waivers or indemnities or even allowing parents and students to sign them. For instance, the Victorian Department of Education states that “schools must not agree to give a ‘waiver and indemnity’ where the provider seeks to absolve itself and its personnel from liability for negligence” during an excursion. The Department also states that schools must not sign a waiver or indemnity on behalf of a student or permit a student to sign one.

Conclusion

This is a complex area of law that involves an intersection between long-standing common law duty of care legal principles, the law surrounding risk warnings, waivers and indemnities and the law related to minors and contracts. Given this complexity, schools should ‘tread carefully’ and ensure that they obtain detailed legal advice as to the effects of risk warnings and whether they should sign waivers and indemnities with third parties or allow parents and students to sign them with third parties.

The priority for schools should be on ensuring that any activity undertaken by students is safe by identifying the foreseeable risks of harm and by taking steps to reduce that potential harm. Part of this involves schools doing their due diligence when engaging third-parties to provide activities for their students to ensure that the contractor is capable and qualified to undertake the activity safely.

Disclaimer

The contents of this article are generic in nature and do not represent advice that can be relied on. This article has been prepared without taking account of any person’s individual objectives, situation or particular needs. You should seek professional advice based on your own personal circumstances. The author and any other parties involved in the preparation or distribution of this article expressly disclaim any form of liability to any person in respect of this article and any consequences arising from its use by any person in reliance in whole or any part of the contents of this article.

 

Jonathan Oliver

Jonathan Oliver has been a lawyer in NSW since 1986 and worked in private practice (initially in general practice, and later as a specialist family lawyer) and then in community legal centres. More recently he spent 10 years as a business manager at an independent school in Sydney. He has been with Ideagen CompliSpace since 2016 and is the principal consultant in governance risk and compliance (GRC). He assists schools, commercial and financial services clients and the not-for-profit sector in all areas of risk and compliance, governance and policy management. He frequently presents to governing bodies and executive teams on GRC issues including facilitating workshops and strategic planning activities. He has presented at many education law webinars on risk and compliance and related topics.

 

 

Filip Manganaro

Filip Manganaro is a Senior Legal Content Associate at Ideagen CompliSpace. He has a law degree from the University of New South Wales.