JUNE 2013
Schools walk liability tightrope
There are challenging times ahead for schools. They must walk the tightrope of letting children grow through new experiences and safeguarding them from abuse or unreasonable risk.
Teachers are expected to minimise the risk of students being injured by their own conduct, or that of other students, and take reasonable measures to prevent injury. That includes protecting students against the consequences of their own immaturity and lack of experience.
Previously, physical harm has been the main focus of claims, but that is slowly changing as more claims involve non-physical injury, often arising from abuse, bullying or discrimination, directly or through social media, or potentially getting bad marks.
Bullying is a major issue for schools. A 2011 NSW Supreme Court case, Oyston v St Patrick's College, was a negligence claim against the college for psychiatric harm after a former student alleged bullying and harassment by classmates over three years.
She allegedly reported the bullying on numerous occasions to the year coordinator, deputy principal, school counsellor and multiple teachers. She eventually left the college.
The college recognised the risk of bullying and had anti-bullying policies in place at the time. Steps had been taken to deal with the bullying and the college referred the former student to counselling. However, Justice Monika Schmidt found the college's response was ad hoc, not systematic. Despite developing policies and training staff and students, its response was ineffective.
Courts will scrutinise policies’ effectiveness and whether they are being effectively implemented. A clear system of documenting complaints, actions taken in accordance with policies, and outcomes needs to be in place.
Australia's superior courts have not considered the issue of whether a school owes a duty to pupils to advance their educational needs. The Victorian Administrative Tribunal last year heard a complaint from a disgruntled former Geelong Grammar School student who was not accepted into Sydney University's law school.
The student emphasised the school’s marketing material, which used adjectives like "exceptional", and argued the high school fees implied some level of excellence in its teaching. She sued the school for breach of contract, arguing it made misrepresentations.
The tribunal said the school was contracted to provide its resources to educate the student, not to get her into law or create a special curriculum for her.The tribunal found the school's brochure was mere puffery and did not amount to any representations that were breached.
That rather silly claim was quickly dismissed but, interestingly, the tribunal did not discuss if schools had any immunity against such claims. Time will tell whether a superior court will be prepared to entertain such a claim.
While schools' duties are onerous, it does not mean they are strictly liable any time a student is injured. Children do not need to be wrapped in cottonwool and schools are not their pupils’ insurers. Often the issue confronting a trial judge is where to strike a balance.
In a 2001 NSW Appeal Court case, Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian, a child was killed when struck in the neck with a hockey stick during a mini hockey game. The child's mother brought a claim for psychiatric injury.
The trial judge found the teacher was experienced and properly supervised the game; had prepared a good lesson plan; and enforced safety requirements. But he was negligent in allowing three grade 3 students to play with grade 6 students.
However, on appeal, Justice David Ipp found merely allowing children to participate in games was not, in the absence of special circumstances, negligent. He said once the game was suitable for eight-year -olds, the fact they played with 11-year-olds did not introduce an additional risk factor.
If accidents occur during school-based activities, schools must prove:
Otherwise, a school may be exposed to a negligence claim or found vicariously liable for a teacher’s negligence.
This article is an edited excerpt from a paper by David Jesser, a principal at McInnes Wilson Lawyers.
