Duty of care

The law imposes a legal duty on teachers and schools to take care of the safety and wellbeing of pupils in their care. This duty of care arises where a teacher–pupil relationship exists.

Duty of care can be defined as “an obligation, recognised by law, to avoid conduct fraught with unreasonable risk of danger to others”. Every teacher and school authority owes a duty of care to take reasonable care to ensure that their acts or omissions do not cause reasonably foreseeable injury to their pupils.

There is no clear-cut formula to establish when a duty of care is owed between individuals. Donoghue v Stevenson [1932] AC 562 pinpointed two important factors giving rise to a duty of care:

1 reasonable foreseeability; and

2 proximity.

If the wrongdoer knows, or should have known, that their acts or omissions may cause injury or impairment of legal rights of another person who is not in a position to protect their own interests, there is a relationship of proximity giving rise to a duty of care. Duty of care is a matter of law and can be denied on public policy grounds (i.e. if in the court’s estimation, it is not fair or just that duty of care should exist).

However, in recent years, the concept of duty of care has undergone refinement at the High Court, especially in the cases of purely economic loss (see Perre v Apand Pty Ltd [1999] HCA 36). The new refinement does not affect the already established duty of care by teachers and school systems to their pupils. The High Court in Geyer v Downs [1977] HCA 64 summarises the extent of teachers’ duty of care:

Children stand in need of care and supervision and this their parents cannot effectively provide when children are attending school … those then in charge of them, their teachers … must provide it.

The commonly held view that teachers derive from parents their authority to supervise and control pupils in their care (Hole v Williams (1910) 10 SR (NSW) 638) was overturned by the High Court in Ramsay v Larsen [1964] HCA 40. The court held that in a system where the child is compulsorily removed from the parents’ protection and put in school, it is not the parent but the Crown that delegates authority to a teacher. On the question of whether a teacher should act as a “reasonable parent” or “reasonable teacher”, Chief Justice Winneke in Richards v Victoria (1969) VR 136 said:

[I]n general, a school master owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. It is not, of course, a duty of insurance against harm but a duty to take reasonable care to avoid harm being suffered … The reason underlying the imposition of the duty would appear to be need of the child of immature age for the protection against the conduct of others, or indeed himself, which may cause him injury coupled with the fact that, during school hours, the child is beyond the control and protection of his parent and is placed under the control of the school master who is in the position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury.

A higher standard of care is expected from a teacher than from a parent. The law expects a teacher to act as an “ordinary reasonable school teacher” rather than a “good and careful parent”. This view, however, has been qualified by certain conditions. In Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931, the ACT Schools Authority was not held liable for serious injuries sustained by a 15-year-old student in a play fight, as the teacher provided a standard of care of an ordinary reasonable teacher. The court was of the view that while the school had a duty to guard against behaviour that presented serious risk to physical safety of students, this duty could not be extended to protection from normal student behaviour.

In Trustees of the Roman Catholic Church for the Diocese of Canberra & Goulburn v Hadba [2005] HCA 31 (15 June 2005), a pupil who was injured by another pupil while playing on a flying fox during recess hours in school, was not allowed to recover damages for her injury because she failed to establish that constant supervision would have prevented the injury to her. In this case, the court held that the teacher acted reasonably because it is not… reasonable to have a system in which children are observed during particular activities for every single moment of time … [such a requirement] is damaging to teacher–pupil relationships [and is likely to] retard the development of responsibility in children. Moreover,

it offends the standard of reasonableness [and] amounts to the imposition of the responsibility of an insurer …

Similarly, in the earlier decision of H v Pennell & South Australia (1987) 46 SASR 158, the South Australian Supreme Court held that the degree of supervision required “a fine balance between discipline and supervision on the one hand and freedom of action and inculcation of independence on the part of students, on the other hand”.

In a more recent case reported in the media on 9 June 2011, the County Court of Victoria found a school liable for the breach of duty of care when a student was nearly blinded when a coin accidentally flicked into her eye in the school yard during lunch break.

In Withyman v New South Wales [2010] NSWDC 186, the District Court held that “a teacher who seduces a pupil she has come to know at school, even if the acts of intimacy occurred outside school, is still liable for breach of her duty of care to the student. Teacher’s duty to take reasonable care for the welfare of students is higher when a student who the teacher knew to have significant behavioural and personality problems”.

In Moran v Victorian Institute of Teaching [2007] VCAT 1311, the Victorian Civil and Administrative Tribunal (VCAT) overturned the decision of the Victorian Institute of Teaching to deregister a teacher because he failed to intervene in a school yard fight. VCAT held that it was reasonable for the teacher not to intervene in the fight, if their physical safety was under threat.

The teacher’s employer, individual school or the state may be vicariously liable for the actions or omissions of their employees. In Miller v South Australia (1980) 24 SASR 416, a school was held liable for the injuries sustained by a four-year-old boy who escaped from his class and was burnt by a barbecue in the school grounds.

In Watson v Haines (1987) Aust Torts Reports 80–094, the New South Wales Supreme Court held that the state of New South Wales and the Department of Education, not the individual teacher, were liable in negligence for failing to provide appropriate neck strengthening exercises to ensure the safety of boys with long thin necks playing hooker in a school football game. (In this case, the plaintiff, with a long thin neck became a quadriplegic after sustaining a neck injury while playing hooker in a rugby scrum.)

In AB v Victoria (unreported, 2001), the Supreme Court allowed a pupil to recover damages from the Victorian Government Department of Education and Training (DET) because her school failed to detect her sexual abuse, although there was a reasonable suspicion that the pupil might be the victim of sexual abuse at home.

School systems also owe a direct duty of care to pupils independent of the acts or omissions of their employees. The High Court, in Commonwealth v Introvigne [1982] HCA 40, further expanded the concept of duty of care by imposing a direct duty on school systems to ensure that reasonable care is taken for the wellbeing and safety of pupils in their care. The court held that schools owe a non-delegable duty of care to their pupils and they cannot escape liability by delegating it further to other school authorities or individual teachers.

A recent case heard by the highest court in the United Kingdom, the Supreme Court (formerly known as the House of Lords), Woodland v Essex County Council [2013] UKSC 66, provides a useful summary of the key principles as regards schools’ non-delegable duties of care in the United Kingdom and the circumstances in which those duties may extend to the actions of third parties such as independent contractors.

The UK Supreme Court cited the Australian case law, including the Australian High Court decision in Introvigne’s case to establish a direct and non-delegable duty of schools. In Woodland’s case a 10 year old pupil at Whitmore Junior School, a government school for which Essex County Council was legally responsible, nearly drowned while having swimming lessons that were required under the national curriculum. The pupil was resuscitated, but suffered severe hypoxic brain injury.

The school had contracted the lessons out to a third party independent contractor, Direct Swimming Services. The pupil alleged that Direct Swimming Services (DSS) negligently failed to notice that she was having difficulties in the water, which led to her injury.

At first instance, and in the Court of Appeal, it was held that the education authority did not owe a duty of care to the pupil and could not be held responsible for the actions or non-actions of third parties. However, The Supreme Court of the UK unanimously overturned the earlier decisions of the lower courts and held that the school owed a non-delegable duty of care for any negligent acts of the DSS employees conducting the lessons.

However, in New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4, the High Court was not willing to extend the principle of non-delegable duty of care to the criminal conduct of teachers (such as sexual abuse of pupils by teachers).

A school’s duty of care to pupils is higher than a teacher’s duty of care. The school’s duty of care may arise under common law principles of negligence, assault or battery, or under occupational health and safety, family law, mandatory child abuse reporting, anti-discrimination legislation and other statutes requiring schools to act in a lawful manner.

For a general discussion of negligence and duty of care, see Negligence and injury.

After school hours

The duty of care exists where a “pupil–teacher” or “pupil–school” relationship is established. Such a relationship exists during school hours and could exist after school hours. For instance, the “pupil–teacher” relationship may exist:

in classrooms or specialised rooms such as science laboratories, metal workshops, photography and home economics rooms;

on school excursions, errands or other school sponsored events;

in school playgrounds either during recess periods or during sporting and other physical education activities;

before school hours when the pupils are permitted to enter the school premises;

after school hours when pupils access public transport near the school premises, and on school buses; and

at weekend sporting and fundraising activities after school hours.

In Stokes v Russell (unreported, TSC, 18 January 1983), a school was not held liable for the injury to a nine-year-old pupil (who caught the public bus each day along with 15 other pupils) when the pupil tripped while attempting to grab the handles of bus that was about 150 metres away from the school entrance. The court held that pupil–school relationship did not exist at the time of the accident because the bus stop was at a “considerable distance” from the school gate.

Courts in Australia are of the view that “when schools undertake to provide transportation to students, they owe a duty of care to passenger students during the process of embarkation, transportation and disembarkation”.

Anaphylaxis management policies

In Victoria on 14 July 2008 the Children’s Services and Education Legislation Amendment (Anaphylaxis Management) Act 2008 (Vic) (“Anaphylaxis Management Act”) came into operation. The main purposes of the Act are to amend the Children’s Services Act 1996 (Vic) (“Children’s Services Act”) and the Education and Training Reform Act 2006 (Vic) (“E&TR Act”).

The Anaphylaxis Management Act requires a proprietor of a children’s service to have in place an anaphylaxis management policy and for certain schools to have an anaphylaxis management policy as a minimum standard for registration.

A new section 26A was inserted into the Children’s Services Act that requires the children’s services proprietor to have an anaphylaxis management policy containing the prescribed matters. A breach of section 26A is a criminal offence (30 penalty units).

The Act requires that the anaphylaxis management policy for schools should include plans and procedures for anaphylaxis management and training for relevant staff. (See the “Anaphylaxis Management in Schools” webpage at www.education.vic.gov.au.) The Anaphylaxis Management Act is available to download at www.legislation.vic.gov.au.

Since July 2010, there have been further amendments to the Children’s Services Act and Children’s Services Regulations 2009 (Vic). Information on the new legislation and regulations is available at www.education.vic.gov.au.

The E&TR Act now makes mandatory for all schools applying for registration, and for already registered schools in Victoria, to have anaphylaxis management policy. From 22 April 2014, the Ministerial Order No. 706: Anaphylaxis Management in Victorian schools comes into operation. The order sets out clearly what steps schools must or should take to ensure the safety of students at risk of anaphylaxis in their care.

The requirements mentioned in the order are “minimum standards for school registration” under part IV of the E&TR Act. The law applies to all schools in Victoria: government, non-government and independent schools.

For further information search on “anaphylaxis management” at www.education.vic.gov.au for state schools, and at www.is.vic.edu.au for independent schools.

Protecting the intellectual wellbeing of pupils

While it is clear that teachers and schools have a legal duty to protect the physical wellbeing of pupils in their supervision and control, it is not clear whether they also have a legal duty to protect pupil’s intellectual and emotional wellbeing.

Apart from few out-of-court settlements, there is little useful case law on this subject in Australia.

However, courts in the USA and the UK have considered two categories of suggested liability by teachers and school systems:

educational malpractice (negligent performance of teaching function leading to functional illiteracy of pupils); and

educational negligence (failure by school systems to diagnose and attend to pupils’ special needs, especially those with special needs or a disability).

USA courts have so far rejected all educational malpractice/negligence cases showing no reasonable cause of action, and state that:

the teaching profession should not be overburdened by the recognition of a general duty to educate as there are many different and conflicting views of how and what a child should be taught;

the alleged damage may not be readily assessed or quantified because there is a host of factors which affect the pupil outside the formal teaching process and beyond the control of teachers or a school; and

educational malpractice/negligence cases would open the floodgates of litigation.

The response of UK courts in educational negligence cases has been somewhat more positive. In X v Bedfordshire County Council [1995] 3 WLR 152, the court suggested that the local education authorities (schools) could be vicariously liable for the acts or omissions of educational psychologists and teachers in relation to matters such as detection of learning disabilities and child abuse of pupils.

In Phelps v London Borough of Hillingdon [2000] 4 All ER 504, the House of Lords further confirmed that common law action in negligence, separate from the duties by legislation, may be actionable and compensation may be sought if it could be established that the education authority failed to undertake duties correctly, thus resulting in harm to the pupil. The court indicated that claims of educational negligence were likely to be considered as personal injury claims.

Instances of educational negligence similar to those considered in the USA and UK have also occurred in Australia. These instances involved the failure of educational authorities to diagnose (or the misdiagnosis of) the special needs or characteristics of students, failure to provide appropriate instructions, or the provision of instructions that were outdated and wrong (e.g. teaching a wrong syllabus). These cases were mainly dealt under state disability or anti-discrimination legislation, and have been settled out of court.

However, in 2008, a parent made a complaint to the Victorian Civil and Administrative Tribunal (VCAT) against an elite private school that her child had not been “taught properly at school”. The case was settled for an undisclosed amount. In the same year, a parent of year 12 twin boys filed a case in the County Court against the same exclusive private school that his boys did not achieve the academic results that are expected of the students. He claimed that the school charged excessive fees and did not provide proper education to students, which resulted in poor results for the whole of the year 12 class. He sought a refund of the fees he had paid for his twin boys from kindergarten to year 12 (amounting approximately to $400,000). The case was settled out of court for an undisclosed amount.

In Weir v Geelong Grammar School (Civil Claims) [2012] VCAT 1736, a mother of a student brought a case against the school that it had “failed to provide support to her daughter” and, as a result, she was not able to study law at the University of Sydney. VCAT rejected the parent’s claim stating a distinction between an obligation to “cause the student to achieve a result … from providing the student with the opportunity and resources to achieve the result”.

Though there is no legal guidance from the higher courts in Australia for a school’s liability for causing intellectual harm to pupils, the unreported cases, out of court settlements and VCAT decisions all indicate that schools should be mindful of protecting students from intellectual injury or psychological harm that results from incompetent or careless teaching.

In Victoria, the main legislation governing claims for damages for personal injury (excluding injuries resulting from transport accident and work related injuries) is the Wrongs Act 1958 (Vic) (“Wrongs Act”). Section 48 of the Wrongs Act applies to “any failure to take precautions against a risk of harm”. However, the section contains certain qualifications where a failure to take precautions does not necessarily constitute negligence.

The Wrongs Act has had two major amendments: the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic), and the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic). Both Acts have substantially affected claims for damages in personal injury. For further information about the Acts, see Negligence and injury.