Education Law Articles - Risk Management

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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.
 

Check your insurance policy! 

A New York school district's primary liability insurer asked the court for a declaration that it had no duty to defend an insured school board under a general liability policy in an underlying action where the board was charged with negligent hiring and supervision that resulted in alleged intentional sexual assaults by an employee. The insurer claimed that the policy only covered accidents, which included "continuous or repeated exposure to substantially the same harmful conditions" and that negligent hiring and supervision were not covered. The court agreed, holding that the general liability policy did not provide coverage with regard to claims of negligent hiring and supervision that resulted in alleged intentional sexual assaults. However, the court noted that, to the extent that the board had been charged with negligence in its hiring, it was covered although the policy did not cover intentional sexual assaults.

As Australian schools may now in some situations be liable for intentional assaults by teachers on students, it is very important to check that your insurance policies cover this possibility.
 

Risks of Pumping Iron

A former wrestler at a public university in North Carolina injured himself while lifting weights at the Student Recreation Centre on campus.

A loose cable on a weight machine caused a weight bar to fall on his head. The student successfully sued the university in negligence.

Recent tort law reform in most Australian states suggests that a well-worded risk warning in the Recreation Centre could have avoided liability.

Volunteers

Schools often use the services of volunteers such as parents, former students and friends to assist with reading, in libraries, on excursions, at fundraising events and by serving on school councils or parents and friends' associations. The recent civil liability reforms in all states and territories have removed any doubt about the potential liability of such people for their negligence while engaged in their voluntary activities. A volunteer does not incur any personal civil liability for any act or omission done or made by the volunteer in good faith when doing work organised by a school or as an office holder of a school organisation.

The protection conferred by the Act does not extend to situations where the volunteer engages in criminal conduct, is intoxicated or acts outside the scope of the school's activities or contrary to the school's instructions.

While the Act removes liability from the volunteer, the school may be vicariously liable for the volunteer's negligence and so should continue to insure against the risk of being found liable in this way. 

Professional Indemnity Insurance

Schools commonly and wisely take out professional indemnity insurance to transfer the risk of a claim being made against them following a breach by them or their teachers of their duty of care to their students. But how long is it since a senior school staff member with a sound knowledge of school operations has read your policy document? A recent case decided in the Supreme Court of the Northern Territory illustrates the dangers of relying on an insurance policy, the provisions of which have not been checked carefully.

A religious centre conducted a preschool on its premises. Two children who attended the preschool made a claim against the Centre alleging a failure by the Centre to supervise them properly as a result of which they were sexually assaulted at the Centre's premises by an aboriginal youth who was resident at the premises. The Centre sought indemnity from its insurer under a professional indemnity policy. That policy contained an endorsement which stated that it would not cover any claims arising from molestation. The Court found that molestation had a meaning wide enough to include sexual assault. Accordingly, it was held that the Centre was not entitled to be indemnified by its insurer.

UK News: Liability for a student injury before school

A 14 year old boy was struck in the eye by a fullsize leather football at 8.40 am in the lower playground prior to the beginning of the school day and before active supervision of students. He lost all useful vision in his left eye.

The students were expected to be at school at about 8.40 am. At that time between 30 and 40 teachers would be in the staffroom preparing for lessons. There was no supervision of the two playgrounds before school. The school was aware of other accidents involving leather footballs before the boy’s injury and steps were taken to ban full-size leather footballs. However, there was little enforcement of the ban. Leather footballs were occasionally confiscated during recess and lunch break but never during the before school period. Notice of the ban was merely circulated to staff and students were reminded at assembly once or twice a year.

The trial judge felt that staff should have visited the lower playground and said that, if spot checks had taken place, the students would have been more likely to have complied with the ban. He felt there were reasonable steps to discharge the duty of care which the school didn’t take. The Court of Appeal agreed.

Schools must do what is reasonable in all the circumstances. Carry out a risk assessment of the before school situation considering the age of students, their maturity, the activities they are undertaking, and staffing resources. Then, decide what level of supervision is required.

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