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Education Law Articles - Duty of Care

 

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Mandatory reporting:
children's statements to teachers about abuse


Most states and territories have laws under which teachers have a duty to report to child-welfare agencies if they suspect on reasonable grounds that a child is at risk of significant harm.

(From Education Law Notes Term 4 2015)

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 No teacher contact with students outside school
- a lawful and reasonable direction?


If there is a significant connection between a teacher’s employment and their out-of-hours activity, a direction that aims to stop them being placed in a potentially compromising position will be lawful.
 

(From Education Law Notes Term 4 2015

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Historical sexual abuse claims -
What standards apply: those of today or yesteryear?


In 1962, DC was enrolled as a boarder at an Adelaide school. The same year, a man was appointed as a housemaster in the school’s boarding house. He sexually abused DC for up to eight months in 1962. The housemaster was convicted in 2007 of indecent assault of DC and two other students. In late 2008, 46 years after the abuse occurred, DC sued the school for its negligence. The Supreme Court of South Australia gave judgment in early 2015.                                                      

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School Hiking Tragedy


The events outlined in this article took place in late 1999. Litigation in the NSW Supreme Court began in 2002 and has only recently ended. The costs incurred have been enormous. The original tragedy has, in some respects, been succeeded by an even greater one. 

What happened on the hike?

A parent-child hike was organised by a school as part of its outdoor education program. The hike traversed the Yarrunga Creek catchment area.

The parents of one of the students due to take part in the weekend hike informed the teacher in charge that the student’s father was unavailable to hike that weekend and asked that one of the student’s brothers attend the hike in the father’s place. The student’s older brother was selected to accompany him on the hike.  The older brother was only 15 years old.

The two brothers were hiking together with another student and his father.  The brothers and their two companions left as a group at about 9am on a Saturday.  At 10.48am that same day, the Bureau of Meteorology issued a flood alert which warned of a risk of moderate to heavy rainfall and minor to moderate flooding.  Several more flood alerts, increasing in severity, were issued by the Bureau of Meteorology throughout the day and into the night. 

After lunch on the first day, the group crossed the Yarrunga Creek to walk to a designated overnight campsite.  However, they could not find the camp.  The group had still not reached the campsite by 7pm that day. The teacher in charge was aware of this.

At 5am on the Sunday morning, the teacher (becoming alarmed by the amount of rain and the rising water) instructed the campers to pack up and be ready to move.  They abandoned the camp by 7.30am, leaving no message for the missing group who had still not arrived at the campsite.  At about this time, the teacher asked one of his subordinates to search for the missing group.  Up to that time, there had been no notification to any emergency services that hikers were missing.

At 8am, the missing group arrived at the campsite. However, finding no one there and no message for them, they left to try to find the main group of hikers, or to head towards Griffith’s farm. At about 11.30am, the group attempted to cross a flooded tributary of Yarrunga Creek on a log crossing. Tragically, while the older of the two brothers was attempting to cross the tributary, he was swept away by a wave of floodwater and drowned.

The group was eventually found at about 1pm on the Sunday. However, emergency services were only notified at 2.40pm that a boy was lost in the water.  At 3:56pm, the boy’s father was informed that the lad was missing.  An hour and a half later, the father of the missing boy telephoned the school and was informed that his son “had been separated by water” but they did not know if he had been washed away.  The father claimed that he was unable to obtain any more information from the school so he travelled to the school campus, as did the boy’s mother.  The boy’s body was found at about 10:55am on the following Monday by the emergency rescue squad.
 
The Coronial Inquiry:

During the Coronial Inquiry, there were several areas in which the school’s policies and systems were found to be inadequate:

Response to the Weather 

The teacher in charge relied on a weather report given on the television the night before the hike.  Staff did not check subsequent weather bureau reports which were available throughout the weekend.  Given that the area they were hiking through is particularly prone to flash flooding, this reliance on one television weather report was unacceptable.

Poor Communication 

The brothers’ group had no access to radio communication.   In fact, only the last of the groups to leave and the teachers’ group had a radio. The radios at the school were only intentionally manned when the group were scheduled to call in (which was at 7pm and 9am). 

Information given to the parents of the missing boy was inadequate and misleading.

The school did not make sufficient records of critical information.  Articles of the missing boy’s clothing had been located prior to police attendance. The findings were noted by the school in a log entry, but the information was not supplied to the police immediately.  

Parent/Student Ratios 

The school should not have placed the responsibility of care for a student hiker on a boy of 15 years old.   There was only one adult in the group - effectively looking after three children whereas the ratio was meant to be one adult to one child.  

Risk Management

There were no real strategies in place by the school to address emergencies.  The school had a policy of waiting 24 hours to contact emergency services.

The Coroner’s recommendations:

Recommended to the Minister for Education & the Minister for Community Services:

  1. Independent & Catholic Schools should disseminate and implement the NSW Education Department’s bushwalking operation guideline;
  2. Audit and risk management strategies of independent schools be implemented to ensure they are of a standard at least that required by the NSW Department of Education.

Recommended to the School:

  1. Radio communication facilities be attended by experienced staff 24 hours a day;
  2. Staff guidelines be developed or incorporate the NSW Education Department’s bushwalking operation guideline;
  3. Emergency procedure guidelines and relevant contact numbers and details be developed and kept in a central location known to staff;
  4. Parents of children involved in an emergency be notified as soon as possible (and in as much detail as possible);
  5. All hike groups be equipped with radio equipment EPIRBS or equivalent;
  6. All hikes be notified to police and National Parks and Wildlife;
  7. Material supplied to parents be rewritten and include the current safety measures in place;
  8. Only have a 5 hour leeway in relation to missing groups before emergency services are contacted.

The Supreme Court proceedings:

The parents and the student’s brothers claimed damages for nervous shock suffered as a result of the boy’s death and caused by the school’s negligence. The school sensibly acknowledged that it owed a duty of care and that there had been a breach of that duty.

Of the millions of dollars the parents were claiming, the court only awarded $460,425 (including interest).

Two companies owned by the parents also joined in the court action claiming large amounts for damages for the loss of the services of the parents. One of the companies ended up with a judgment in its favour for $68,706 (including interest) while the other received nothing.

However, because the school had made various offers to the parents to settle the matter (including an offer in 2010 of approximately $8 million), the court ordered the parents to pay the school’s legal costs which the court determined as a lump sum to be $8.3 million. After offsetting the amounts the school had to pay to the parents, the parents were left owing the school $7,770,869. 

What can we learn?

Clearly, one lesson is that litigation is expensive and therefore not to be undertaken lightly.

More importantly for schools, because outdoor education is an important part of schooling today, schools must take reasonable measures to ensure the outdoor activities are conducted in a way that minimises the risk of harm to students. For more information and practical tips, go to David Ford’s paper on Managing the Risks in Off-Campus Activities.

for advice regarding outdoor education or duty of care.

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A Comprehensive Policy can Protect!


A NSW Court recently awarded a primary school teacher almost $700,000 after she was pulled over by a student while leading him by the hand to the principal’s office, inflicting her with a serious back injury.

The eight year old Sudanese refugee had been traumatised before his enrolment in the school and had a history of severe behavioural problems. Teachers had warned that the student was a danger in the classroom and had been the subject of recurring disciplinary action. Having recently returned to school following a 4 day suspension, the student used a stick to hit others in the playground. The teacher took the stick from him and led him away when the incident occurred.

While the school had policies to help children from refugee backgrounds adjust to the school environment, the Court was unimpressed with its implementation and record keeping:


"The school’s record keeping was incomplete and inadequate, which resulted in the Principal remaining incompletely aware of the history and the extent of the misbehaviour of [the student] and that the school policies on bullying control and expulsion procedures were not adequately implemented.”


The Court found that the school was in breach of the duty owed to its staff and was negligent in carrying out the basic steps to protect its staff from the risk of injury that could have been avoided by the exercise of reasonable care.

The teacher’s injury was caused by the school’s failure to act in a timely manner to protect the staff and students from the ongoing aggressive behaviour, the Court ruled. Schools that act promptly and decisively in accordance with comprehensive and up-to-date policies will be better equipped to uphold the duty owed to students and staff.

Contact us if you have questions about bullying policies and procedures.

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School Sporting Injuries


As the weather cools and the winter sport season begins, children at fields and courts across the country will again put on their boots, jerseys and shin guards (while the rest of us put on an extra layer and sip our hot coffee by the sideline). School sport is a significant part of Australian culture and its benefits are widely recognised.

While each sport has always carried its own risks, medical/scientific studies are revealing that these risks are more widespread than first thought. Where boxers were once described as being punch drunk, it is now evident that the long-term impacts of head injuries are serious and occur in a range of sports beyond the ring.

The management of concussed players has been heavily scrutinised in recent times by the media in Australia and overseas. Last year, the National Football League in the US agreed to pay $820 million to settle a claim by more than 4,500 former players suffering from concussions and related brain injuries. However, the judge refused the settlement, stating that the amount was not enough. Closer to home, the NRL introduced concussion rules for the current season and fined the Canterbury Bulldogs $20,000 for a breach. Bulldogs’ forward Josh Jackson was stunned by a tackle but was not taken from the field for assessment as required by the rules. Instead, Josh played out the remainder of the match.

The risk of concussion is not limited to those ‘high-contact’ sports, such as rugby league and union. The coach of English football club, Tottenham Hotspur, was criticised for allowing goalkeeper Hugo Lloris to return to the pitch after receiving a knock to his head and losing consciousness. Though Lloris saw out the match without further incident, the impacts of head injuries may only become evident over the long-term.

Former England and West Bromwich footballer, Jeff Astle, died from a brain disease caused by heading footballs throughout his career. Unfortunately, little research has been done to better understand the link between heading and brain injuries. As concerns about the impact of concussion and other head injuries increase, schools need to be all the more vigilant.

Teachers owe a duty of care requiring that they should take reasonable measures to prevent physical injury to their students in all circumstances. The duty is not to insure against injury but to take reasonable care to prevent it.

A school that sends home a student following a concussion may be found to be negligent even if accompanied by their parent. A NSW school was found to be negligent when a boy decided to leave school to go home rather than to the sick bay as directed by a teacher. The boy had been injured when a year 12 student on Muck Up Day threw fruit in his eye as he cycled to school. Upon arriving at school, a teacher told the boy to go to Sick Bay. Instead of accompanying the boy to Sick Bay, the teacher went to her staff room. A littler later she checked whether the boy had reported to admin but when she found out he had not done so, she did nothing further.  The Court found that the teacher had abandoned the problem and the school was negligent in the care it took of the boy after he was injured.

An American student, Zachary Alt, settled his concussion lawsuit against his school for $20,000. Zac claimed that his football coach sent him back into a game after suffering a concussion despite teammates’ warnings about his “incoherent condition”.

Zac claimed that, fearing for his health, at least two of his teammates approached the coach during the course of the game and advised him of Zac’s incoherent condition. Allegedly the coach did nothing in response to the players’ pleas.

Zac claimed that the negligence did not end on the field. The coach and the team trainer said Zac had to go in the bus back to school with the team. Then they decided that the trainer would take Zac home. Zac alleged that, “even after observing me in this vulnerable state, the trainer failed to understand the risks associated with my injuries, and suggested to my mother that she should just put me to bed.” Instead, Zac’s mother immediately took him to the emergency room at their local hospital. A doctor at the hospital told Zac’s mother that had she followed the advice of the trainer and put Zac to bed, he would most likely have fallen into a comatose state. The hospital found that Zac had suffered “a substantial closed head injury.”

By failing to provide prompt medical attention following head injuries to their students, the schools did not fulfil their duty of care. The Sydney Children’s Hospital advises that children who have been concussed should receive medical attention without delay. They should also avoid contact sports and other activities where they may sustain another head injury until all symptoms of concussion have resolved.

While some might view the advice as overcautious, it is very likely that courts will consider adherence to it reasonable for schools dealing with concussed children. Even if a student appears unaffected by a head injury, schools are urged to err on the side of caution.

Contact us regarding your policies on school sport.

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Risk Warnings


Laura, a 10 year old girl, went to an outdoor games operator to play ‘laser tag’ for her brother’s birthday party. The game involved each player using a laser ‘gun’ to ‘tag’ other players in an area that included two bunkers and an area of bushland. Shortly after the beginning of the game, Laura tripped on a tree root and fractured her elbow. She sued the operator in negligence and the District Court awarded her $280,000. It found that the operator owed Laura a duty of care and that the risk of harm from tripping and sustaining the injury was foreseeable. The operator unsuccessfully argued that the injury arose from an inherent or obvious risk and so was not liable.

The operator appealed to the Court of Appeal which overturned the District Court’s decision. It found the operator was obliged to either remove the hazard or issue a risk warning.

The operator relied on the Civil Liability Act, which removes liability where the operator of a recreational activity issues a risk warning. The Court found that the suggestion that one specific hazard should have been identified was a product of hindsight. It was satisfied that a sufficient risk warning was given in a talk by a member of the operator’s staff to the children before the game was due to start. With Laura’s father in attendance, the staff member described “certain safety aspects and the game’s rules” and gave a warning that “there’s lots of sticks and obstacles in the way, so don’t run full out, because you might fall over, and hurt yourself”.

Though the warning was succinct and spoke of general risks, it was appropriate for an audience of young children intent on playing the game, as a longer and more precise warning may simply have lost their attention.

Was the operator under a duty to remove the tree root? The burden on the operator of taking precautions is to be viewed in light of a duty to avoid similar risks of harm. The Court of Appeal found that an obligation to remove all obstacles similar to that of a tree root would change the nature of the area and the recreational activity. Such an obligation would also be an impractical and therefore unreasonable precaution.

This is a useful decision for schools providing recreational activities both at school and in the course of outdoor education and other off campus programs. Remember that a risk warning is only effective where the activity is not compulsory. The risk warning must be issued to the participants prior to the activity.

Providing children with an age appropriate risk warning before recreational activities will not only provide for a safer experience but also protect the school against liability arising from those risks the subject of the warning.

to have your risk warnings reviewed.

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$2.8 million verdict
to father for school's release of child to non-parent


In the US, a jury has awarded the father of a primary school student, who was released to an unauthorized person, $2.8 million in damages. The jury held that the School District was responsible for allowing the student to be released from school to a non-parent and kidnapped to Mexico.

When Enrique’s mother, Claudia, was deported in November 2010, the boy went to live with his father. Claudia notified the school that she’d been deported. One morning in December, 2010, the father, Manuel, dropped Enrique off at school. That day, a person identifying herself as Claudia called the school and spoke with the office manager. Claudia said Enrique had a doctor’s appointment in 15 minutes but was unable to get out of work to take him. She told the manager that she was instead sending her boyfriend to pick him up. The manager said she checked and saw that the boyfriend was not listed on the boy’s “emergency card” as an authorized person for pickup. But the manager wrote down his name and said the boyfriend could do the pickup as long as he showed identification. A school clerk was staffing the desk when the boyfriend showed up, and she let Enrique go with him upon checking the ID. Enrique appeared to recognize the boyfriend, calling him by his nickname, and looked “happy to see him”. When Manuel returned later that day to pick up Enrique, only his backpack was in the classroom. Enrique is believed to be living in Mexico with his mother.

The key to the case was the school’s policy, which states: “If a student needs to be dismissed during the day, the school will only let him or her be signed out by someone who is listed on the emergency card,” and again, “We will not release your child to anyone not listed on the emergency card.” The district argued unsuccessfully that the policy does not prohibit a parent’s verbal authorisation.

While the legal consequences of such a situation may not be the same in Australia, the case underlines the importance of monitoring who is authorised to pick up children from school, of having well thought out policies and procedures and of following them, especially when dealing with splintered families and complicated parent work schedules. It is vital that schools have at hand the most recent court orders involving children of separated parents.

According to one US commentator, family custody issues, rather than random gun violence, are “without a doubt” the biggest threat facing primary schools on a day-to-day basis.

Please for quick telephone advice if you are faced with a non-parent seeking to pick up a child or with a parent trying to get a child on a day when the other parent normally collects the child.

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Can “Duty of Care” be delegated?


For more than 40 years, Australian law has held that some legal responsibilities cannot be delegated. Recently the Queensland Court of Appeal held that the owner of a Tae Kwon Do business had a non-delegable duty of care to the children being trained in his business. Due to his non-delegable duty, the owner was held liable for the injuries suffered by a boy under the care of his instructor.

In this case, the instructor took a group of students for a run. The run involved crossing roads, during which one of the students, an 8 year old boy, was hit by a car. There is no doubt that the instructor breached his duty of care as the young boy was under his direct supervision at the time. However, the owner was not present and probably had no idea that the group was out running. Even so, the Court ruled that the owner still owed a duty of care to the boy.

A non-delegable duty of care is, as the name suggests, a duty of care that cannot be delegated. For schools, this means that you have a duty of care for your students even though your employees also have personal duties of care. The hiring of the teachers and other employees to care for the safety of students, no matter how capable they are, does not discharge the school of its duty of care. The school must continue to take precautions against risks that are reasonably foreseeable and where the probability of the risk materialising is more than insignificant.

Not every organisation has a non-delegable duty, and not every person is owed a non-delegable duty. These duties arise in situations where particular care is needed, in particular when there is an imbalance of power, maturity and experience (for example, by a teacher to a student).

The High Court of Australia has held that “the immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety”. Schools have a special responsibility or duty that goes beyond the actions of its teachers.

Although the recent Queensland case did not involve a school, it did concern the non-delegable duty of an owner of a business to the children participating in the activities of the business. The same principle applies to activities run by schools, even if those activities are off campus or outside of normal school hours. A school’s duty is not discharged simply by appointing competent teaching staff and leaving it to them to take appropriate steps for the care of the students. It is a duty to ensure that reasonable steps are taken for the students’ safety. The school's duty requires it to ensure that reasonable care is taken, not to take reasonable care to ensure that reasonable care is taken.
 


Duty of Care?
Parents v Teachers


Let’s face it, when you are caring for children (whether you are a parent or a teacher) accidents will happen. So when an accident happens at your school - is a parent ever liable?
A 9 year old boy fell from a balustrade at school in Western Sydney and suffered significant injuries. He sued the school. The school said that the boy’s father was responsible as he had left the child on the premises before school hours knowing that there would be no formal supervision.

Australian law does not recognise any principle of parental immunity. The school was permitted to bring a cross claim against the father.

The main issues in the case were the common practices relating to before school care at the time of the accident and whether or not the parents and teachers should have foreseen this accident occurring. It was common practice at this school for students to begin arriving well before any formal supervision by teachers began. There had been no formal policy for before school care made known to the parents.

The court was clear: the father did owe a duty of care to his son. However, the father was not in breach of his duty because (a) when he dropped the boy at school, he could see that teachers’ cars were there meaning that the teachers were already at school, (b) he had given his son directions concerning his behaviour, and (c) there was no indication based on past experience that the boy would climb onto a balustrade railing. The father also thought that it was in his son’s best interests to spend the brief time before school with his friends.
Unfortunately for the school, it was found that its negligence caused the boy’s damage.

Also, the boy was found to have been negligent as well and so the school’s liability was reduced by 10%. In this age of the recognition of personal responsibility, not even 9 year old children are exempt!

Bringing up children cannot be made risk-free, and exposure from time to time to risks of harm is “inherent in the process of growing up, new experiences and maturing in an appropriate way”. Our role as parents and/or teachers is to minimise the risks. So who bears the duty of care for our children - we all do!
 


The cost of bullying ...


Obsessive washing with hospital grade disinfectant, the cutting of forearms and legs with razor blades, panic attacks, agoraphobia, nightmares ... yes ... bullying can cost the victim dearly in terms of mental health. But what can it cost a school?

On 19 June 2009, in the case of David Gregory v State of New South Wales, the Court ordered the School to pay David Gregory $468,736.00 (not inclusive of his past out-of-pocket expenses and future therapeutic/medical costs) for the bullying he experienced at the school.

During David’s years at the school a document entitled “The Fair Discipline Code”, in which bullying was described as unacceptable behaviour, was distributed to the students at assembly. David dismissed the document as “just words on paper” since his personal experience was that the staff had done nothing over many years to address the fact that he was being systematically bullied despite his repeated complaints. It is ironic that the school should endorse a publication acknowledging the inappropriateness of bullying and then admit a breach of its duty of care in:

  1. failing to exercise due and proper care in relation to David’s welfare;
  2. failing to have in place a system of supervision whereby its teachers could have prevented students at the school from mistreating David;
  3. failing to exercise adequate control over its students to prevent mistreatment of David;
  4. allowing a system known as the SACK system to operate whereby older boys exert power over younger boys and engage in bullying as a means of control;
  5. allowing students at the school the opportunity to mistreat David;
  6. failing to have installed procedures which would adequately deal with the mistreatment of David by other students.

The school administration also appear to have fostered a bullying culture at the school by allowing inappropriate comments about David to be published in the school magazine and also by the Principal reading aloud a poem at a school function, part of which referred to David in a way which humiliated and embarrassed him. It appears that “The Fair Discipline Code” at the School was a document that both teachers and students largely ignored.

Does your school have appropriate anti-bullying policies in place? Is your school’s policy just “words on paper” or does your school take a zero-tolerance approach to bullying? The fact is that the cost of bullying can be very high on the school as well as the victim.
 


Educational Negligence


In a recent English case, Anthony, a young man of 24 with schizophrenia, claimed damages for “educational negligence” by Mr Adams, an educational psychologist employed by the school authority. Anthony said that, when he was aged between 5 and 11:

  1. Mr Adams failed to carry out a full and appropriate psychometric test on Anthony;
  2. Mr Adams failed to advise that Anthony required intensive in-class specialist support for his language and learning difficulties;
  3. Mr Adams’ assessments of Anthony failed to take account of the overwhelming evidence which pointed to language processing difficulties and to investigate accordingly;
  4. Mr Adams failed to form the view that Anthony had speech and language difficulties that required a specialist placement in a school for children with speech and language difficulties.

After a detailed review of voluminous evidence, the Court found that these assertions couldn’t be sustained. The Court noted that Mr Adams had done his professional best within the structures created by the difficult circumstances of the late 80s and early 90s.

While the Court was sympathetic to the fact that Anthony had “slipped through the educational net”, this wasn’t the test for determining whether he could be compensated for negligence. There was no breach of duty. Further, even if Anthony had received some appropriate and active intervention, the Court said it could not be satisfied that this would have made the kind of difference that would lead to an award of damages. The evidence was that he was always going to develop schizophrenia and there was no proof that any “better” education than he received would have changed that.

So far, Australian courts have had limited opportunity to deal with an educational negligence claim like this one. A possible reason for this is that there are substantial problems of proof in educational negligence that are not dealt with in other kinds of professional negligence.

For an Australian court to find educational negligence, it will need to decide whether the law will allow such a claim, whether the standard of care and its breach are proven and, importantly, whether there is sufficient evidence that the breach caused some quantifiable and particular loss so as to decide precisely what damages flow from the inadequate teaching.

Nevertheless, schools must be mindful of the possibility and should implement appropriate procedures to reduce the risk of an educational negligence claim. 


Risky Windsurfing


A recent South Australian case is a good reminder that a school does not have an absolute duty to prevent any and all reasonably foreseeable injuries. Rather, schools have a duty to take reasonable care. In this case, a group of students with four of their teachers attended a camp at an aquatic centre on the Murray River. One of the activities was windsurfing. A 16-year-old year 10 student was injured when she fell off her wind surfer in shallow water and fractured her cervical spine. In alleging negligence by the staff at the centre, she said that they should not have permitted racing on the day in question because of the wind conditions and that the staff should have ensured that the racing was in water of sufficient depth to provide a suitable cushion to avoid the risk of spinal injury. However, the court found that what the girl called a race was in truth a competition as to who could best exercise the skills that the group had been taught – to remain on their board without over balancing and to steer their board.

The foreseeable risk of injury in this case was a student jumping or falling off a sailboard in shallow water in such a way as to cause serious spinal injury. The court found that reasonable precautions were taken to avoid that risk by the requirement to wear appropriate safety equipment, the general safety instruction given at the commencement of the camp and at the commencement of each of the instruction sessions, and the instruction in the operation and stopping of the sailboard. Past experience with many thousands of students in this and other similar aquatic centres demonstrated that, with the taking of those precautions, students were unlikely to suffer serious cervical spine injuries. In other words, although there was a foreseeable risk, the probability of it eventuating was slight. Accordingly, while the court had great sympathy for the girl with a devastating injury, it found that there was no breach of the duty of care to her.
 


Early release of young students


Joseph was a third grader at South Main Street School in Pleasantville, New Jersey. Joseph's father or one of his older brothers normally met him at school when classes ended and escorted him home. One day, the students were released early. When Joseph's brother arrived at school at the usual time, he learned students had been let out early. Later that afternoon, when Joseph ran on to the street, he was struck by a car and left quadriplegic.

In a case against the school for negligently failing to carry out its duty to provide reasonable supervision, the appeal court concluded that the risk of harm to Joseph was foreseeable given his age and the fact no one was on hand to supervise his trip home. It dismissed the trial court's reliance on the fact that the accident occurred several hours after Joseph was released, finding it predictable that the person responsible for supervising the child would not look for him until the regular dismissal time and that the child consequently would remain unsupervised "for hours and could be injured by an accident of the sort that occurred here." The court observed that leaving a young child (who is unable to appreciate the danger of running on to a busy street) unsupervised creates a substantial risk of harm.

The court found that it would not be "unduly burdensome" for school officials to determine if the student had been met by an adult or other responsible person before dismissing the student. Finally, the court said that "imposing a duty upon school districts to ensure that younger students are not dismissed from school without proper supervision is entirely consistent with the school's well-established responsibility to protect students from foreseeable dangers."

In a similar English case, children were released from school at 3:30 pm every afternoon, to be met by a parent at the school gate. The children were instructed that if no-one was there to meet them they were to return to the teacher. On one occasion, the children were let out five minutes early. A little girl of five did not find her mother waiting. She continued homewards and was injured when struck by a lorry travelling on the main street some 250 metres from the gates. The court held that this early release amounted to negligence. Five minutes was not a trivial amount of time, given that a child could, even if walking slowly, reach the main road from the gates in less than three minutes. This case also underlines the importance of looking at all the circumstances. Here the child was a mere five years old and there was a busy main street running by the school. Both these factors present at the same time require a degree of care and skill which is very high indeed.
 


Careless Cycling Supervision


The school cycling group was having a recreational cycling excursion. Neil was a year 9 boy in the group. He was not particularly athletic, but he did enjoy bike riding. He had only been on one or two previous excursions before this one. He wasn’t experienced in cycling on busy city streets. While he rode to school each day, this was on a route that only required him to cross one busy street which he could do by using a patrolled level crossing. He had never been on a bike trip lasting more than an hour. Neil had received only minimal instruction from the teachers supervising the activity. There had been no orientation session, no instruction on group formation, speed or the road rules. No enquiry had been made as to the experience or capability of the participants in riding bicycles. Neil’s only recollection of any instruction was that he should always brake first, using the back brakes to avoid going over the handlebars.

A group of more than five boys and two teachers left the school at about 1:30 p.m. They rode through the city of Albury to the Murray River and then on to Wodonga, a trip of more than 16 km which took about an hour. After a short break at Wodonga, they rode back to Albury, stopping at the bridge near the river where the teachers told them that they were dismissed and could go home. One group of boys, including Neil, set out for North Albury together. At first they all kept together but, after a while, because Neil was tired and puffed, he fell behind the other boys. Neil came to an intersection at which he was required to give way to traffic on the cross street. For some unknown reason, he rode through the give-way sign without pausing, into the path of a vehicle driven by a Mrs Beveridge. Neil suffered severe injury and brought proceedings in negligence against Mrs Beveridge and the school authority.

The court found that Mrs Beveridge was not negligent. It also found that the teachers responsible for the excursion were negligent in their failure to supervise the excursion and that this failure was a direct cause of Neil’s injuries. However, the court found that Neil was guilty of contributory negligence, considered to be 40%.
 


Are your children supervised at all times?


One afternoon in 2003, 12 children were in the playground at a Victorian childcare centre, being cared for by three staff. One of the staff went to the toilet, leaving the children in the care of the other two. These two staff had a clear and uninterrupted view of the playground area. One of the children contrived, however, to climb over the playground fence and leave the centre, unaccompanied and unsupervised.

The proprietor of the childcare centre was charged with an offence under a provision of the relevant Victorian legislation which read:

The proprietor of a children’s service must ensure that all children being cared for or educated by the service are adequately supervised at all times that children are on the premises where the service operates or in the care of that service.

The comparable provision in NSW is Clause 66(2) of the Children’s Services Regulation 2004 which reads:

The licensee and authorised supervisor of a children’s service must ensure that children at the service are supervised at all times (including while they are asleep) having regard to their ages and physical and intellectual development and to the activities in which they are engaged.

In the Victorian case, the Magistrate found as a fact that the two staff members had failed to ensure that all children in their care were adequately supervised. He found that they had failed to observe the child in question moving a blue foam block to a position adjacent to the fence, from a point some 12 metres from it. The child had then climbed on top of the cube and from there over the fence.

After a trial lasting two days, the Magistrate found the charge of inadequate supervision proved. The Magistrate fined the childcare centre $200 without conviction. The childcare centre appealed to the Victorian Supreme Court but that appeal was dismissed. It then appealed to the Victorian Court of Appeal.

The Court of Appeal noted that the statutory offence had all the same characteristics as similar provisions in occupational health and safety legislation. It was accepted that the offence was expressed in terms of a mandatory standard for the protection and supervision of children enforced by a penalty for breach. Intention to breach the expressed standard was not an element of the offence. The offence was committed by the objective failure of the person to meet the specified standard whether the failure was deliberate or inadvertent. The proprietor of the childcare centre has a duty to ensure (that is, make certain) that a certain state of affairs exists; namely, the adequate supervision of all children. Unless there is adequate supervision, the proprietor is in breach. Liability does not depend upon any failure by the people who make up or who are employed by the proprietor. If it is proved that there was not adequate supervision, it is immaterial where in the proprietor’s organisation the failure occurred.

In NSW, the Regulation does not refer to “adequate supervision” but to supervision which has regard to the ages and physical and intellectual development of the children and to the activities in which they are engaged. As in Victoria, this is a question of fact in each case. In practice, the supervision of children in will be wholly or very largely the responsibility of the staff of the child-care centre, rather than of management. Whether a lapse in supervision by a staff member will or will not constitute a failure by the proprietor to ensure adequate supervision will depend on the court’s view of what the proprietor’s duty required in the circumstances.
 


Liability for a student’s mischief


A Year 3 girl in Louisiana fell in the girls’ toilets. She was playing a “sliding game” in which the children would run and see who could slide the furthest on the wet floor. She was holding a pencil in her hand and, when she tried to break her fall, the pencil pierced the area immediately below her right eye. The courts apportioned 75% of the fault to the school and 25% to the student, noting that the school was aware of the dangerous wet floor, the bathroom monitor appointed by the teacher was a Year 3 child who was unlikely to dob in her mates for breaking rules, and the girl agreed she had broken three rules (playing in the bathroom, failing to give the pencil to the monitor and/or keeping it on the restroom sink, and failing to promptly leave the restroom after washing her hands).

In recent Australian cases, the courts have been far more willing to apportion some blame to injured students. However, when the students are young, it will be difficult to apportion much of the blame to them. For example, the NSW Supreme Court was faced with a claim for contributory negligence against a 9 year old boy who fell from a first-floor balustrade at his school, suffering significant injuries. The boy had climbed the stairs to the first floor before school, going up with another student. While on the verandah, he put his foot on the lower rung of the balustrade and was “egged on” but didn’t go any further. When “egged on” again, he climbed up on and sat straddling the balustrade. He then slipped, caught his foot causing him to tip forward, and landed on the dirt below. The court took into account the boy’s age, his awareness of the risk, and the school’s duty of care. The court then reduced the liability of the school by 10%.
 


Warnings and release forms


An Indiana school boy died as a result of heat-related injuries suffered during football practice. His parents argued that the football coaches negligently performed their duties.

The school argued that the parents had signed a release form acknowledging their understanding of the risks involved with playing football and that they would incur such risks so that their son could be part of the team.

Australian parents can’t normally give away their children’s rights to sue for personal injury by signing a release form. However, if the form clearly explains the risks involved with playing football, giving it to the parents will in some circumstances prevent a school from being liable for injury to a student as a result of the risks materialising.
 


Reasonable Coaching


An American high school football player sued his school for damages for injuries allegedly caused by the negligence of coaches who allowed him to re-enter a game in which he suffered a head injury and to participate in a contact drill in practice several days later. The court found no negligence by the school. The standard of care coaches were required to meet was that of a reasonably prudent person holding appropriate coaching qualifications. There was evidence that what the coaches did would have been done by a reasonable, properly qualified football coach under similar circumstances.
 


Liability for a student’s mischief


While playing floor hockey in a school gym, a New York student was injured when he tripped over a hockey stick another student had thrown towards the ball. The student sued the school for negligent supervision. The court said that schools have a duty to adequately supervise their students and will be liable for foreseeable injuries caused by a failure to supervise properly. However, to find that a school has breached its duty where the injury was caused by the acts of other students, an injured student must show that the school had sufficient, specific knowledge or notice of the dangerous conduct that caused the injury and that such acts could be reasonably anticipated. Where an accident occurs in such a short space of time that even the most intense supervision could not have prevented it, any lack of supervision is not the cause of the injury.
 


How flat is your playground?


14 year old Shane was playing touch football on the school grass playground. As he ran with the ball, his left foot went down a hole in the ground, twisting his leg and injuring his knee.

New soil and grass had been laid on the ground during the previous year. The ground was then not used until school began at the end of January. During the summer, the ground had flooded to waist height. There was no systematic method for checking the surface of the ground, but staff on lunch duty would report anything they noticed and occasionally, after rain, students on detention were required to collect rocks which rose to the surface of the ground.

The trial judge found that the risk of injury to students was reasonably foreseeable and that the way to prevent such risks was to have the playground inspected regularly section by section. However, he said that, as this would be time consuming and perhaps expensive, and no complaints had been made prior to the injury, it was not reasonable to require the school to do this. The judge concluded that the school had not breached its duty of care to Shane.

Shane appealed to the NSW Court of Appeal which found that the ad hoc system of examining the state of the playground was inadequate to identify potholes and indentations such as those which caused Shane’s injury. There was no evidence that regular checking of the playground was beyond the school’s resources and the fact that there had been no prior complaints was not relevant to determining the reasonable response to the risks. There was a high risk of injury from a depression in the ground due to the types of activities played there. The Court also noted that the students couldn’t be expected to notice and avoid any holes as they were playing sport. The Court said that the school should have implemented a system of regular, close inspection of the condition of the surface of the playing area before sports were played on it. The school had therefore breached its duty to Shane by not doing this and damages were awarded to him.
This case is a reminder to schools that risk management needs to be thorough and systematic. Identifying and addressing potential hazards must be done regularly and proactively, not just after accidents have happened.
 


Do students drive your car? 


A Year 12 boy was talking to a teacher in class before lunch. She told him she was thinking of selling her manual car. She asked the boy what sort of money she could get for it. He told her that if she cleaned and detailed the vehicle she would get more money. The teacher then asked the boy to take the car and get it detailed. He agreed. She then asked him “Could you buy new hub caps from K-mart? I will give you $150 to do it.” He said that he would detail the vehicle at his house. She said “The car is not insured.” He said “I do not want to do it if that is the case.” She said “Why?” He said “I am worried that something might happen.” He went back outside for lunch and then returned to the classroom and had a further conversation with the teacher. He said that he could do it and she asked to see his licence. He said he showed her his licence which was a provisional licence endorsed only to permit the driving of an automatic transmission vehicle. The teacher said “Be careful as my job is on the line. If you have an accident, get out of the car and make a run for it. I will blame somebody else for the accident. I will say the car was stolen.” The teacher then handed the boy the keys to her car. Another boy drove it out from the teachers’ car park. A third boy went with them and they drove in the direction of this boy’s house. The first boy was now driving the car. He lost control of the car when he panicked and put his foot on the accelerator. The car went out of control, entered a grass verge and flipped over, resulting in the boy breaking his leg.

The student claimed that negligent supervision caused his injury. However, he brought his claim out of time. The District Court in NSW would not extend the time. On appeal, the Court of Appeal said that the boy had an arguable case, especially as the teacher had not only asked the boy to drive her car but also encouraged him to do so.

The matter was ultimately settled. Nevertheless, the lesson for teachers is that to allow students to drive their vehicles is to ask for trouble!


Check you grandstand!


Four fourth-grade students in the US were told by their teacher to go to a “stand” when they had finished taking part in a softball throwing event. The students climbed to the top of the stand, which toppled over under the weight of the students. One student was injured and claimed the cause was the school’s negligence in failing to secure the stand and/or to properly supervise the students. 


A Pointed Story from the USA


After participating in an activity in front of his classroom, a grade 7 boy returned to his desk. As he was about to sit down, the student who was sitting next to him held a pencil, with the point facing up, in the boy’s seat. When the boy sat down, he sat on the pencil and was injured. The boy’s mother sued the school on the basis of negligent supervision by her son's teacher. The court said that the teacher’s evidence established that the fellow student’s actions were both sudden and totally unexpected. 


Playground Supervision


Farrah Hadba was 8 and in Year 3 at an ACT primary school. The playground had a flying fox: a metal apparatus consisting of a platform and vertical pole at each end linked by a horizontal pole to which a sliding triangle was attached. Children got on to the platform at one end, grasped the triangle, stepped off the platform and slid to the other end. The school had a “hands off rule”: the children were not to touch each other during play in the playground. It told the children of this in class, in assembly and by posters. It often selected the hands off rule as the “rule of the week”. In that way, the children were reminded of it by the principal in assembly, by the teachers in their classrooms, and by display on whiteboards. Farrah’s teacher told the class that no-one was to touch another child while that child was using the flying fox. The hands off rule was enforced, and children seen touching other children were told to stop. Farrah’s class was told how to use the flying fox by their teacher, who told them that, while a child was on the platform, the others had to be in a line behind, had to take turns, and had to avoid being on the ground between the vertical poles. The school also required the flying fox to be used by particular years only at rostered times.

One morning recess, Year 3 was rostered on the flying fox. Farrah got up on the platform and took hold of the triangle, ready to ride across to the other platform. There were about 40 children in the area. A boy and a girl, in breach of the hands off rule, each grabbed one of Farrah’s legs. There was no evidence that they had created any disciplinary problems in the past, or had any tendency to behave dangerously. Farrah struggled to free herself and called on the other children to stop. Although the girl complied, the boy did not. Farrah was pulled off the flying fox and her face struck the platform as she fell to the ground. Her injuries were caused not by any defect in the flying fox but by the two other children breaking the hands off rule.

The events leading to the accident were not seen and prevented by the playground duty teacher for the following reasons. The children had been behaving appropriately on the flying fox. Nothing gave her any warning of what was to happen. While moving about her playground area, and while no child was misbehaving on the flying fox, she looked away from the flying fox to survey the bubblers and the toilet block. As she looked at the toilet block, she saw children in the Year 6 classrooms. This was against school policy. She tried to call them out of the classrooms. Farrah’s accident happened in the 20 or 30 seconds which elapsed between the moment when the teacher left a point in the playground where she could see the flying fox to the moment when she was informed by two pupils of Farrah’s accident.

The majority of High Court judges said that it is not reasonable to have a system in which children are observed during particular activities for every single moment of time: “…it is damaging to teacher-pupil relationships by removing even the slightest element of trust; it is likely to retard the development of responsibility in children, and it is likely to call for a great increase in the number of supervising teachers and in the costs of providing them.”
The Court also doubted whether any other system of supervision would have avoided the injury as the period between the moment when Farrah’s legs were grabbed and the moment when she fell was likely to have been only a few seconds.
 


What is obvious to a 14 yr old?


The Civil Liability Act 2002 (NSW) and similar laws in other states say that there is no duty to warn people of obvious risks. What is obvious must be considered in light of the age of the person encountering the risk: what is obvious to an adult is not necessarily obvious to a child. The NSW Supreme Court has now considered this issue.

When Phillip Dederer was 14½ years old, he dived off the Forster/Tuncurry Bridge. As a result, he became partially paraplegic. He sued the RTA and the local Council for failing to fulfil their duty of care to him, in particular because of a failure to provide adequate warnings signs telling of the danger of diving off the bridge.

There was a sign at both ends of the bridge with a pictogram indicating 'no diving'. However, the signs were clearly disregarded as people of all ages continued to jump and dive from the bridge. The sign did not make it clear that the sands constantly were shifting and that the depth of the water was therefore variable. The Court said the sign indicated that diving was not allowed, but not that it was dangerous.

As Phillip had seen many people diving from the bridge for many years without any attempt by police to stop them, given his age and lack of maturity, and given that he judged the water to be deep as he could not see the bottom, the Court decided that the risk was not obvious to a reasonable person in Phillip's position. Though he may have known of the risk, Phillip didn't fully comprehend the nature and extent of the risk. The Court commented that, although an obvious risk refers to the risk of harm, the precise injury (paraplegia) doesn't have to be obvious.

The Court decided that the Council failed to provide adequate warning signs regarding the danger of diving. However, because Phillip, although only 14, was also negligent, the Court reduced his damages payment by 25%.

The lesson for schools is that clear warnings should be given to students even where teachers think the risks are obvious.
 


Reasonable Supervision


Steven was a Year 9 student at a NSW High School. Steven and his friends met behind the school canteen at morning recess. A water fight took place. Steven's friend, Kurt, suddenly approached Steven and threatened to give him a "dead-arm". Steven ran away to avoid Kurt, ultimately injuring his right knee when he leapt a fence separating the school quadrangle from a walkway some 2.5 m below.

Was the school liable for lack of proper supervision of the students at recess? The NSW Court of Appeal noted that the school's duty required no more than the taking of reasonable steps to protect Steven against risk of injury which could reasonably have been foreseen. A school is not absolutely liable for injuries sustained by students while under supervision. The nature of the supervision required depends upon the particular activity to be supervised as well as the maturity of the children involved.

The court found that there was a teacher on duty who said that she did not observe the incident occur. She also said that it was her practice to stop students from running in the quadrangle when she saw that happening. She added that she never left the area she was rostered to supervise and that it was her practice to walk around the quadrangle. In the circumstances, the court said that Steven had not demonstrated a failure by the school to take reasonable care by way of supervision in the fleeting moments in which the events took place. The teacher did not detect Steven running in the 20 seconds or so she had to do so, when he was moving as fast as he could in an area which was the size of half a football field and where there were some 250 boys. The court said one could not infer from this that there had been a failure to exercise reasonable supervision.

Interestingly, the court also observed that, if it had found the school to be negligent, it would have also found that Steven was 85% responsible for what happened.
 


Leadership Retreats


About 30 Year 11 students from a WA College attended a retreat near Logue Brook Dam to assist staff to choose potential Year 12 leaders. There were three teachers present. They went for a walk to the dam, despite the threat of rain. They arrived at a shallow creek. A teacher told them that they had to cross the creek, but left it to them to work out how to do this. While some decided to build a "bridge", others wandered upstream and found a narrow part of the creek where they could jump across. A little later, it began to rain and it was decided to return to camp. Because it was cold and wet, many students ran back. They were stopped by the creek. Some students began to rebuild their "bridge". Others decided to jump the creek at the narrow point. One boy decided to do so at a somewhat wider point than that previously jumped by him. The creek was about 2.5 metres wide. He took a running start, made his leap and landed awkwardly in mud on the opposite bank, causing him to wrench his knee and suffer a significant injury.

The boy said that the College and its teachers were negligent. The WA Court of Appeal noted that teachers owe a duty of care to take such measures as in all the circumstances are reasonable to prevent physical injury to students. The court agreed with the trial judge that there was adequate supervision and that negligence was not established simply because no instructions were given as to how the stream should be crossed and because nothing was done to prevent the students from jumping across the creek. The court said it was a small shallow creek and gave rise to no particular danger.

It is difficult to imagine that any serious harm, as distinct from, for example, a twisted ankle, could have come of the act of jumping a 2.5 metre wide shallow creek. If 16-year-old boys are to be prevented from engaging in even such ordinarily harmless pursuits, school life will soon become intolerable for both pupils and teachers. Also, while it must be recognised that a 16-year-old school boy cannot be taken to have attained such a degree of maturity or judgment or experience as no longer to stand in the need of the protection of a schoolmaster against risk of injury arising from his own conduct, it must also be accepted that 16-year-old boys ‘are not to be treated as if they were infants at creches...'.

The court concluded that it would not be reasonable to expect a teacher, or a school, to take steps to prevent 16-year-old boys from engaging in the kind of activity that led to the injury. The court also agreed with the trial judge that there was no need for the teachers to have prescribed a safe method for crossing the stream or to have intervened in the events which occurred. One of the very purposes of the excursion was the reasonable purpose of encouraging and assessing leadership skills. It would have been inimical to that purpose for the teachers to have told the children how to undertake so simple a task as crossing a stream.


This case underlines the many recent statements by judges which emphasise the social utility of outdoor activities and sport in the education context as a significant factor to consider when negligence claims are brought.
 


Thank God for judges!


“It would be fallacious to reason on the basis that every action that increases a risk of injury is unreasonable and negligent. On such logic, cars would be garaged permanently and school children would never be let away from their desks into the playground. Life is full of risks worth taking that do not betoken negligence.”

Justice Keith Mason, President of the NSW Court of Appeal in The Local Spiritual Assembly of the Baha'is of Parramatta Ltd & Anor v Babak Haghighat.


Contributory Negligence


The NSW Court of Appeal has made it clear that it will never be easy to prove that younger students are even partly to blame for injuries they suffer when a school has failed to exercise proper supervision.

David, aged 13, and another boy had been seen arguing in class early in the day. The class started talking about a fight between these two at recess. Someone wrote on the whiteboard that there would be a fight. The class informed other students that there would be a fight at recess. At recess, both boys went to a playground area where David began swinging punches first. Joshua hit David in the head. David fell to the ground, unconscious, and suffered brain injury.

The school admitted that it had breached its duty of care but argued that David failed to exercise due care for his own safety by fighting when he knew that this was wrong and against the school rules, and he knew that there was a real risk that he might be hurt.

The Court said that this submission was divorced from reality. There was an excited expectation amongst the students that the fight would take place. The belief that the fight would occur spread throughout the school. Peer pressure on David must have been very strong. Justice Ipp said: “The proposition that in those circumstances [David] should not have turned up to fight the other boy is, in my view, quite unreasonable. Had he taken this course he would have had to face the charge of cowardice and he would have become notorious throughout the school. In my view the standard of conduct suggested bears no relationship with what should be expected of a 13 year old boy. [David's] conduct was part of 'the foreseeable folly of youthful exuberance'. The dangers attendant on boys fighting in the playground were precisely the dangers against which the [school] was bound to take reasonable steps to protect [David].” 


A School’s Duty When Sending a Student Out of the Classroom


Eugene Olive fell three metres from a walkway onto concrete after being sent out of the class room for misbehaviour. Eleven years later, Mr Olive successfully sued the NSW Department of Education and Training for breach of its duty to properly supervise him while he was at school.

There was some confusion as to whether Mr Olive was directed out of the classroom onto the walkway or whether he was directed into a room known as the "hat room." The "hat room" would have enabled the teacher to observe and supervise Mr Olive. Although this confusion was not resolved, the judge found the Department in breach of its duty by sending Mr Olive to a "place in proximity to an attraction to an active nine-year-old boy of the bars on the balcony."

The assessment of damages was difficult given the events and conduct of Mr Olive's life between falling off the walkway and the conclusion of the case. The judge accepted that Mr Olive had been spoiled by his mother after the accident. Mr Olive had also used marijuana and speed. The Department argued that the drug use was the sole cause of Mr Olive's behavioural problems. Further complicating the matter was the fact that Mr Olive did not experience any major difficulties at school until seven years after the accident.

Despite these difficulties, the judge was persuaded that Mr Olive's depression, anger, and antisocial behaviour were a result of the head injury sustained after falling off the walkway. Accordingly, Mr Olive was awarded $840,212 for general damages, future medical expenses, past loss of earnings, future loss of earnings, past care, future care and legal costs in criminal matters which Mr Olive claimed were a result of his behavioural problems after the fall.

The message for schools is to ensure that, when students are sent out of a classroom, they are sent to a place where they can be observed and supervised and a place which is not in proximity to potential dangers or attractions such as the bars on a balcony. 


Ipp Report reform impacts schools


The Ipp Report, commissioned by the Federal Government in response to concerns about the availability of public liability insurance, produced its final report in late 2002. Most states have begun to introduce new legislation based on the Report’s recommendations. In NSW, the Civil Liability Amendment (Personal Responsibility) Act 2002 became law on 6 December 2002. It makes individuals take greater responsibility for their actions. In some situations, parents assume this responsibility on behalf of their children.

The main issues for schools involve liability for personal injury occurring in recreational and sporting activities, changes to the time in which claims must be commenced and limits on claims that arise out of an inherent or obvious risk or from a student’s own negligence.

In NSW, schools no longer owe a duty to students who engage in a non-compulsory “recreational activity” to take care in respect of a risk of the activity where a risk warning has been given. A “recreational activity” includes any sport or any pursuit or activity engaged in for enjoyment, relaxation or leisure. The risk warning may be provided to parents if students are of such a young age or under a physical or mental disability or otherwise lack the capacity to understand the risk warning.

There is also no liability for harm suffered from obvious risks of dangerous recreational activities. For example, if a student was injured as a consequence of taking part in a hang-gliding, there would be no liability for any harm suffered because the risk is obvious with such a dangerous activity.

With regard to usual sporting activities such as cricket, netball or football, as long as a risk warning has been provided to a parent or student with the capacity to understand the warning, no duty of care for that activity exists. A risk warning can be given orally or in writing including by means of a sign. The risk warning must be given in a manner which is reasonably likely to result in students being warned of the risk, before engaging in the activity. Schools aren’t required to establish that the person received or understood the risk warning for it to be valid.

Schools aren’t allowed to rely on a risk warning if the warning is contradicted by any representation as to the risk made by the school or on its behalf. Schools therefore need to be sure that staff are advised as to the effect of their representations when supervising students in recreational activities. 


Learning Difficulties create difficulties in the UK


Ian Liennard (aged 29) sued for damages for the failure of his teachers between 1986 and 1989 to assess his learning difficulties and to refer him to specialist services.
In adulthood, a variety of doctors and psychologists diagnosed Ian with a number of disorders ranging from autistic spectrum disorder, attention deficit, bi-polar disorder to Asperger’s syndrome. Early academic reports noted a bright student who was gifted in many subjects but who was very disorganised. Initially at the school, he achieved excellent results in subjects as diverse as Technical Drawing, Maths, Science and Religious Studies. However, he was accumulating detentions for being late or for unacceptable classroom behaviour. In his second year, he achieved some good results at exam time but did little work in between exam periods. Teachers began commenting that Ian was lazy, silly and disruptive. His results in his final year were disappointing and teachers felt he had potential that he did not utilise.
The judge held that the teachers were not unsympathetic to Ian, that they acted as competent teachers would and that they were not negligent. Nevertheless, this case highlights the need to accurately review students and to make professional recommendations where necessary. 


Acceptable Risks in Dangerous Activities


The NSW Court of Appeal has noted that there are inherent risks in children engaging in activities such as hockey, cricket, soccer, rugby and gymnastics. However, the Court said that despite the risks the community regards it as appropriate, under properly supervised conditions, for these games to be played by children. Thus, where an injury is caused by an unfortunate concurrence of circumstances that reasonable precautions could not have prevented, no breach of the school’s duty of care will have occurred.

The Court was dealing with a particularly unfortunate concurrence of circumstances when it made these observations. An 11 year old boy in year 6 was fatally injured when struck in the throat by the crook of a hockey stick during a game of minkey, a modified form of hockey. The victim was hit as he ran past an 8 year old boy who swung his hockey stick over his shoulder unexpectedly and contrary to the safety instructions given by the teacher. The Court found that the teacher did not breach his duty of care. 


Causation is vital


Apparently unaware that after-school band practice had been cancelled and unable to reach their parents to get rides home, two female high school students in the US accepted a ride from four male students, all of whom allegedly repeatedly raped the two female students. In a negligence action against the school district, the appellate court held that while the district had a duty to reasonably and competently supervise its students in school-sponsored activities after school, the district's alleged failure to properly notify the victims that band practice had been cancelled was not the cause of the rape. Instead, the court reasoned that, because the female students willingly accepted the ride, the injuries would have occurred with or without reasonably competent supervision.

In a case in the Australian Capital Territory, Student "A" kicked Student "B" in what was described as a “play fight that got serious”. There was only one teacher on duty on an oval where some 80 to 100 high school students played. The teacher was near the spot where the fight broke out and she intervened promptly. Student "A" argued that proper supervision demanded at least two teachers on duty. The Court said it would not have mattered how many were on duty as the cause of the damage suffered was not a failure to supervise. The teacher there was as close as any teacher could have been and yet could have done nothing to prevent the incident. 


Student’s thumb guillotined


Year 7 boys and girls were having their first metalwork class using the equipment in the metalwork workshop. They had to make metal pencil cases. This task involved using a guillotine to cut sheet metal. The students had been issued with safety sheets and the teacher had instructed them how to use the guillotine. He also demonstrated how to measure the metal, insert it into the guillotine and use the lever to cut it.

Shane was the first to use the guillotine. His efforts were not altogether successful. In his words, he had "stuffed up my bit of metal". Shane then went behind the machine and began skylarking with other students. When Melanie started to use the machine, Shane tried to make her incorrectly cut her piece of metal by moving it from the back of the machine. Unfortunately, as his hand moved forward, Melanie pulled the lever to operate the guillotine and a portion of his right thumb was amputated. The Court considered that Shane's injury was caused by the teacher's breach of his duty to take reasonable care to protect Shane from a foreseeable risk of injury because:

  • the machine was unguarded at the back and placed in such a position that allowed ready access by the students to its rear;
  • the teacher was not closely supervising the operation of the machine. 

The School sought to argue that Shane was guilty of contributory negligence. The Court found that Shane had been misbehaving but said that misbehaviour and contributory negligence are not the same thing. A finding of contributory negligence could be justified only if there was evidence that Shane had failed to take reasonable care for his own safety and that failure could properly be regarded as a contributory cause of the accident. The Court said there was no evidence that Shane was aware of the risk of being injured in the way he was and, having regard to his age and the fact that he had not used the machine before, there was no reason to assume such awareness. The Court noted that the standard of care that may be expected of a child is not that of an adult but of a child. This was relevant here when considering the issue of contributory negligence. 


USA Cases


Dangerous Donuts
 

A kindergarten teacher's conduct in using a frying pan to make donuts in her classroom as part of a lesson on the letter "d" was within the scope of her employment. Thus, the teacher enjoyed statutory immunity from the negligence action by parents of a 5 year old boy who stepped on the frying pan's cord, causing the pan to topple and splatter hot grease on his face, neck and back. A similar result could be expected in NSW but the school could still be liable.


Exchange Students
 

In an American case, a female foreign exchange student and her parents brought an action against the sponsor organisation to recover damages resulting from the student's improper relations, including sexual intercourse, with the husband of the host family. The case raised issues of whether the sponsor organisation had failed to adequately monitor the student's school attendance and to follow up with sufficient personal visits, telephone calls and supervision. Another issue was whether the sponsor organisation had failed to properly screen and investigate the host family. The result in the US was affected by laws not relevant here. In Australia, it is likely that a court would have said that the sponsor organisation had a duty of care to the student. Whether there had been a breach of that duty would depend on a greater knowledge of the facts. 


Are the rule makers liable? 


In Education Law Notes, we reported on a case in which two young men, aged 18 and 19, were injured playing rugby union. Both were playing hooker in different games when opposing packs "charged" their scrum before it was properly formed. Both suffered severe neck injuries and quadriplegia. Both brought action against the opposing clubs, the match referee, the local rugby authority and the state and national authorities. They also tried to join the members of the International Rugby Football Board (IRFB) as defendants to their action. The NSW Court of Appeal said that there was a "good arguable case" against the IRFB.

However, the High Court has now said that the individual members of the IRFB do not have a duty of care to each of the thousands of people around the world who play rugby under the rules laid down by the IRFB. This decision is of some comfort to schools and their sporting associations which often make special rules for the children playing sport at school level. 


Duty of Care – Skiing


In a recent NSW care, a student was injured on a school excursion to the snowfields. While on a beginners’ slope, the student lost control of his skis and subsequently crashed into a ditch. The injury occurred during a beginners’ lesson which was run by the ski resort. Who was liable for the incident?

Failure by the ski resort to identify the risk posed by the presence of a ditch on a beginners’ run and to put in place precautions meant that the Court found its negligence caused the injury.

The Court held that had precautions such as constructing a barrier, filling in the ditch, or simply not conducting lessons in close proximity been implemented, the injury would have been less severe.

Liability does not arise from harm suffered from an obvious risk of a dangerous recreational activity. The Court found that skiing was a dangerous recreational activity. However, the Court did not accept that the risk of going into a ditch was obvious. Therefore, the ski resort was liable.

Because schools have a non-delegable duty of care to their students, the school couldn’t delegate its duty of care to another, such as an employee or an independent contractor. The Court held that because the activities of the ski resort did not fall outside of the scope of the arrangement with the school, any negligence committed by the ski resort meant that the school was also vicariously liable. However, the Court found that as between the school and the ski resort, the resort was 100% liable. Nevertheless, schools should still be vigilant when arranging for third parties to run lessons or activities.

The Court stressed the importance of conducting risk assessments which are aimed at preventing risks from occurring in the first place. The school created a document in preparation for the excursion. However, the Court viewed this as only addressing ‘what to do if a risk eventuates’. The value then, of carefully considering how both to prevent and respond to risk, cannot be understated.  


Contractor’s employee attacked: Who has duty of care?


Anne, a cafeteria worker, was attacked by a man while walking along a narrow, poorly lit path across the Deakin University campus to the car park. Anne was employed by the operator of the cafeteria who was contracted by the University.
On the night of the attack:

  • Anne was required to lock up the cafeteria on closing (which was a regular part of her duties);
  • the University had installed barricades on the cafeteria forecourt for a student function which meant that Anne could not use her usual, well lit route to the car park and she needed to use a narrower, darker route;
  • substandard lighting highlighted in a report of the previous year had not been upgraded at the time of the attack;
  • security officers were aware of the presence of a man loitering on the campus.

So, does the University owe a Duty of Care to a person such as Anne, who is not a student or an employee of the University? She argued that there was a special relationship between her and the University, like the duty owed by an employer to an employee to ensure a safe working environment.

Mere foreseeability of a criminal attack being made by a third party on its premises is not a sufficient basis to impose a duty on the University to take reasonable care to prevent harm.
The Court observed the nature of the relationship between Anne and the University. The Court noted that the University exercised exclusive management and control over the campus, including where cafeteria workers should park their cars. Moreover, it held that the University’s knowledge of sub-standard campus lighting, Anne’s responsibility to lock up the cafeteria after dark, and the knowledge of the presence of a man loitering on the premises, contributed to a duty owed to guard Anne against the risk of criminal attack.

Schools do not have a duty of care to guard all entrants to their grounds against the risk of criminal attacks by a third party. However, this case is a useful reminder for schools to consider the nature of their relationships with those on school grounds. Even if a person is not an employee or student of the school, they may still be owed a duty to be protected against third party attacks. Particular attention should be given to those with employment-like relationships as it may not be immediately obvious whether any duty arises. 


Educational Negligence


In a recent English case, Anthony, a young man of 24 with schizophrenia, claimed damages for “educational negligence” by Mr Adams, an educational psychologist employed by the school authority. Anthony said that, when he was aged between 5 and 11:

  1. Mr Adams failed to carry out a full and appropriate psychometric test on Anthony;
  2. Mr Adams failed to advise that Anthony required intensive in-class specialist support for his language and learning difficulties;
  3. Mr Adams’ assessments of Anthony failed to take account of the overwhelming evidence which pointed to language processing difficulties and to investigate accordingly;
  4. Mr Adams failed to form the view that Anthony had speech and language difficulties that required a specialist placement in a school for children with speech and language difficulties.

After a detailed review of voluminous evidence, the Court found that these assertions couldn’t be sustained. The Court noted that Mr Adams had done his professional best within the structures created by the difficult circumstances of the late 80s and early 90s.
While the Court was sympathetic to the fact that Anthony had “slipped through the educational net”, this wasn’t the test for determining whether he could be compensated for negligence. There was no breach of duty. Further, even if Anthony had received some appropriate and active intervention, the Court said it could not be satisfied that this would have made the kind of difference that would lead to an award of damages. The evidence was that he was always going to develop schizophrenia and there was no proof that any “better” education than he received would have changed that.

So far, Australian courts have had limited opportunity to deal with an educational negligence claim like this one. A possible reason for this is that there are substantial problems of proof in educational negligence that are not dealt with in other kinds of professional negligence. For an Australian court to find educational negligence, it will need to decide whether the law will allow such a claim, whether the standard of care and its breach are proven and, importantly, whether there is sufficient evidence that the breach caused some quantifiable and particular loss so as to decide precisely what damages flow from the inadequate teaching.

Nevertheless, schools must be mindful of the possibility and should implement appropriate procedures to reduce the risk of an educational negligence claim. 


Playground Supervision


During lunch recess, an 11 year-old New York student was injured in the school playground when he jumped off a swing in mid-air. His parents claimed against the school for damages for the boy’s personal injuries, alleging that the accident was caused by negligent supervision on the part of those supervising the playground.

The teacher testified that she was monitoring the children who were using the swings in the school playground from a distance of only about two car lengths when the student, who had been swinging back and forth without incident, suddenly “flew off the swing”.

The court found where, as here, an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not a proximate cause of the injury.

The court found that the fact that the student had successfully jumped off the swing at the bottom of its arc approximately five minutes before the accident, apparently without being seen, was not enough, in itself, to require consideration as to whether he had been engaging in a prohibited activity for an extended period of time and whether more intense supervision may have prevented the accident.

This is the same conclusion as has been reached in a number of Australian cases which have dealt with incidents in the playground. For example, the High Court considered a situation in which a primary girl was injured when she was pulled from the platform of a flying fox apparatus just as she was about to take off. The teacher on duty was not far away but was focussed on some other children who had gone inside the school buildings – something which was against the rules during recess. The High Court found that there was nothing she could have done to prevent what happened in a matter of seconds.


Stranger in Danger


Imagine this: A school allowed an organisation, with which it was not otherwise associated, to hold a function on the school grounds. The organisation hired its own security guards for the night. During the function a man, who was not connected with the school or the organisation, entered the school grounds claiming he was doing so “in concern for the public institution and safety as a caring constituent”. The man was not invited onto the grounds and was asked to leave by the organisation’s hired security guards. When he refused to leave, the security guards detained him until the police could arrive and in the process injured him. The man sued the school’s principal and the Department of Education and Training.

The Court found that the school was not liable in these circumstances.

There is a general rule that a person does not have a duty to control another person to prevent his or her doing damage to a third person. There are well established exceptions to this rule. However, none of the exceptions arose in this case. The High Court of Australia has ruled that, without a legal relationship establishing a duty of care, the mere presence of a person on another person’s property does not create a duty to prevent harm by a third party.

The outcome of this case may have been different if the facts were a little different. Some examples where the school may have been liable are:

  • If the man was a school employee or a parent of a student, the school may have had a duty to prevent the harm.
  • If the security guards were hired by the school, the school may have been vicariously liable.
  • If the man suffered damage due to a falling tree branch or tripping on a hazard, the school may have had a duty to prevent such harm.

In many ways, the facts in this case are unique. However, schools can be reassured that they do not have liability for matters that are out of their control.


Can “Duty of Care” be delegated?


For more than 40 years, Australian law has held that some legal responsibilities cannot be delegated. Recently the Queensland Court of Appeal held that the owner of a Tae Kwon Do business had a non-delegable duty of care to the children being trained in his business. Due to his non-delegable duty, the owner was held liable for the injuries suffered by a boy under the care of his instructor.

In this case, the instructor took a group of students for a run. The run involved crossing roads, during which one of the students, an 8 year old boy, was hit by a car. There is no doubt that the instructor breached his duty of care as the young boy was under his direct supervision at the time. However, the owner was not present and probably had no idea that the group was out running. Even so, the Court ruled that the owner still owed a duty of care to the boy.

A non-delegable duty of care is, as the name suggests, a duty of care that cannot be delegated. For schools, this means that you have a duty of care for your students even though your employees also have personal duties of care. The hiring of the teachers and other employees to care for the safety of students, no matter how capable they are, does not discharge the school of its duty of care. The school must continue to take precautions against risks that are reasonably foreseeable and where the probability of the risk materialising is more than insignificant.

Not every organisation has a non-delegable duty, and not every person is owed a non-delegable duty. These duties arise in situations where particular care is needed, in particular when there is an imbalance of power, maturity and experience (for example, by a teacher to a student).

The High Court of Australia has held that “the immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety”. Schools have a special responsibility or duty that goes beyond the actions of its teachers.

Although the recent Queensland case did not involve a school, it did concern the non-delegable duty of an owner of a business to the children participating in the activities of the business. The same principle applies to activities run by schools, even if those activities are off campus or outside of normal school hours. A school’s duty is not discharged simply by appointing competent teaching staff and leaving it to them to take appropriate steps for the care of the students. It is a duty to ensure that reasonable steps are taken for the students’ safety. The school's duty requires it to ensure that reasonable care is taken, not to take reasonable care to ensure that reasonable care is taken. 


Duty of Care?
Parents v Teachers


Let’s face it, when you are caring for children (whether you are a parent or a teacher) accidents will happen. So when an accident happens at your school - is a parent ever liable?

A 9 year old boy fell from a balustrade at school in Western Sydney and suffered significant injuries. He sued the school. The school said that the boy’s father was responsible as he had left the child on the premises before school hours knowing that there would be no formal supervision.

Australian law does not recognise any principle of parental immunity. The school was permitted to bring a cross claim against the father.

The main issues in the case were the common practices relating to before school care at the time of the accident and whether or not the parents and teachers should have foreseen this accident occurring. It was common practice at this school for students to begin arriving well before any formal supervision by teachers began. There had been no formal policy for before school care made known to the parents.

The court was clear: the father did owe a duty of care to his son. However, the father was not in breach of his duty because (a) when he dropped the boy at school, he could see that teachers’ cars were there meaning that the teachers were already at school, (b) he had given his son directions concerning his behaviour, and (c) there was no indication based on past experience that the boy would climb onto a balustrade railing. The father also thought that it was in his son’s best interests to spend the brief time before school with his friends.

Unfortunately for the school, it was found that its negligence caused the boy’s damage. Also, the boy was found to have been negligent as well and so the school’s liability was reduced by 10%. In this age of the recognition of personal responsibility, not even 9 year old children are exempt!

Bringing up children cannot be made risk-free, and exposure from time to time to risks of harm is “inherent in the process of growing up, new experiences and maturing in an appropriate way”. Our role as parents and/or teachers is to minimise the risks. So who bears the duty of care for our children - we all do! 


The cost of bullying ...


Obsessive washing with hospital grade disinfectant, the cutting of forearms and legs with razor blades, panic attacks, agoraphobia, nightmares ... yes ... bullying can cost the victim dearly in terms of mental health. But what can it cost a school?

On 19 June 2009, in the case of David Gregory v State of New South Wales, the Court ordered the School to pay David Gregory $468,736.00 (not inclusive of his past out-of-pocket expenses and future therapeutic/medical costs) for the bullying he experienced at the school.

During David’s years at the school a document entitled “The Fair Discipline Code”, in which bullying was described as unacceptable behaviour, was distributed to the students at assembly. David dismissed the document as “just words on paper” since his personal experience was that the staff had done nothing over many years to address the fact that he was being systematically bullied despite his repeated complaints. It is ironic that the school should endorse a publication acknowledging the inappropriateness of bullying and then admit a breach of its duty of care in:

  1. failing to exercise due and proper care in relation to David’s welfare;
  2. failing to have in place a system of supervision whereby its teachers could have prevented students at the school from mistreating David;
  3. failing to exercise adequate control over its students to prevent mistreatment of David;
  4. allowing a system known as the SACK system to operate whereby older boys exert power over younger boys and engage in bullying as a means of control;
  5. allowing students at the school the opportunity to mistreat David;
  6. failing to have installed procedures which would adequately deal with the mistreatment of David by other students.

The school administration also appear to have fostered a bullying culture at the school by allowing inappropriate comments about David to be published in the school magazine and also by the Principal reading aloud a poem at a school function, part of which referred to David in a way which humiliated and embarrassed him. It appears that “The Fair Discipline Code” at the School was a document that both teachers and students largely ignored.

Does your school have appropriate anti-bullying policies in place? Is your school’s policy just “words on paper” or does your school take a zero-tolerance approach to bullying? The fact is that the cost of bullying can be very high on the school as well as the victim.


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