When push comes to (expensive) shove

Daniel and Edward, two Canadian schoolboys, were playing in the playground at recess one morning. They would often play a ‘game’ where Daniel would sneak up and kneel behind an unaware student and Edward would push the student over, causing the student to trip and fall. What Daniel and Edward didn’t know was that this game would be extremely costly for them, their parents and the board of the school that they attended.

In 2015 whilst playing this ‘game’, Daniel and Edward caused another student, Frank, to break his arm. Frank suffered ‘great pain’ as a result and his mother had to take time off work and pay for extra child care and medical expenses.

Daniel and Edward’s parents thought their sons were just roughhousing and did not intend to cause any harm. Frank’s parents clearly thought otherwise. Eight months later, they filed a lawsuit for $600,000 for damages and costs against both the school and the two schoolboys.

The claim against Daniel and Edward was eventually discontinued. However, the school board’s insurer filed a cross-claim against Daniel and Edward arguing that the school, principal and its board should not be held responsible for the injury Frank suffered. In its view, Daniel and Edward were negligent and did not respect the school’s ‘hands-off’ policy when they shoved Frank.

The case also raises the question of insurance. In Canada, children who live at home with parents who have purchased standard home and tenant policies would usually be covered by these policies, except where the child commits an act that injures another and where there is an intention to injure. Where the child is not covered by insurance, plaintiffs in Canada and America have joined the child’s parents to the lawsuit and argued that their failure to supervise their child was negligent.

Although Australians aren’t nearly as litigious as our North American friends, this case is a timely reminder to Australian schools. If a similar situation happened in Australia, Frank would need to show that Daniel’s and Edward’s parents owed him a duty of care. As in Canada, schools in Australia have a duty of care to their students. In Australia, schools must take reasonable steps to protect students from risks of harm that are foreseeable and where the likelihood of them occurring is more than insignificant.

In Australia, parents would not normally owe such a duty to a peer of their child, unless, for example, the children were all playing together away from school while under the care of the parents of one of them and the parents had been delegated some control or responsibility over the child. Australian schools might also be liable if a similar situation occurred in the school playground but there was a lack of adequate supervision at the time.

If you have questions about your school’s potential liability or duty of care to its students, please contact %98%BB%DB%DD%B5%AAT%C0%90%B5%A7d.