The tragic events that led to the death of a 12 year old student at a Queensland school over two years ago have led to many schools reconsidering what duty of care they owe their students. So what duty do schools and teachers owe students and how far does that duty reach? The following criteria must be met for negligence to exist.
The existence of a ‘Special Relationship’
The modern doctrine of the special relationship was born when Lord Atkins observed in Donoghue v Stevenson that you must not injure ‘your neighbour.’ Neighbours were
“persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”
In much the same way as between hospital and patient or employer and employee, a special relationship exists between a school/teacher and student. The key question that needs to be asked is at what point do the duties inherent in such a relationship end?
Usually, when an incident occurs off the school grounds, the test for whether a duty exists is whether or not in the particular circumstances, the relationship of school teacher and pupil existed or not. It is obvious that once an injury occurs on campus, the duty of care is operational. This does not mean that every incident that occurs on campus is therefore due to the negligence of the school and/or teachers. So, when does a duty exist?
Duty of Care
Nobody would question that a duty of care is owed by school authorities and teachers to ensure that reasonable care of students is taken whilst they are on school premises and/or under the direct supervision of the school and its teachers. It would be hard to argue against a duty of care existing during normal school hours and for all intents and purposes, a duty of care is owed whilst the school is open for business.
The duty of care owed to students is not however confined to normal school hours. The obvious examples would be school endorsed or arranged excursions and camps that occur outside the normal school operating hours. There are examples where a duty of care has been found to exist where students have been injured before and after school, during sporting activities and travelling to and from school. Of course, each set of circumstances needs to be examined on its own merits and this leads to the next criteria. For a duty of care to be breached, it must be established whether the risk of harm was foreseeable.
The teacher or school authority can only be found negligent if the risk of harm was reasonably foreseeable. If a risk is identified, and the school or teacher takes precautions that an ordinary reasonable school or teacher would, to minimise the chances of that risk occurring, then the school/teacher will not be liable.
This sounds like a simple concept when applied to incidents that occur on campus during school hours or whilst a student is on a school sanctioned field trip or excursion, but what about outside those parameters? It is clear that a teacher who is aware that a fight is happening during a lunch or recess break could take action to prevent it going further. It is reasonably foreseeable that a fight could lead to a student sustaining an injury. Such a scenario led to a teacher being found liable in State of Victoria v Bryar  ALR 809. However, would this still be the case if the fight was to take place off campus and outside school hours? It is highly unlikely. The doctrine of foreseeability affords the school and teacher a level of protection in circumstances where injury was not foreseeable. In one example, a teacher who became aware of the use of catapults by students and oversaw the disposal of them was not liable where a student was injured by a catapult retained by one of the students.
If the risk is found to be foreseeable, it must then be proven that a negligent action caused the injury. More often than not, injured people fail to meet this test because they cannot prove that any greater supervision would have prevented the injury.
If all of the three above criteria are satisfied, the student must still prove the relevant act or omission caused the injury. The most common reason claims by students stumble and fall at this hurdle is that they cannot prove that greater supervision or an alternate intervening act would have prevented the injury.
In cases where incidents occur quickly and increased supervision would have made no difference to the outcome, schools will generally not be found liable. In the instance that acts are ongoing (bullying being the prime example) and the school or teacher had prior opportunity to act but failed to do so, the school and/or teacher are likely to be found liable.
It is worth bearing in mind that the Civil Liability Act 2003 (QLD) provides some protection to schools and teachers through sections 13 to 19. Basically, there is no liability for personal injuries suffered when an obvious risk of harm materialises. It is presumed that in the case of an obvious risk, the person who suffered harm was aware of the risk. These provisions are particularly relevant for off-campus activities, an example being a white-water rafting camp.
An emerging field of negligence against schools and teachers arising more frequently within the courts is that of ‘educational negligence’. In theory, this form of negligence is premised on a duty of care to educate existing between teacher and student and the school is held vicariously liable because the teacher is (usually) operating within the scope of their employment. Cases within the United Kingdom jurisdiction provide some guidance. They have generally been conducted on the basis that the principles of causation and foreseeability also apply, both of which have proven difficult to establish. There are no judicial precedents within the Australian courts to date apart from the very recent Canberra decision of the Federal Magistrates Court in Yee Tak On v Dr Linda Hort (ANU College)  FMCA 391 on 11 May 2012. The claimant’s case was dismissed however he expressed his intention to seek redress through the ACT Civil and Administrative Tribunal.
However, a former student of a prestigious Victorian private school has recently filed a claim in the Victorian Civil and Administrative Tribunal. She has claimed damages on the grounds that she failed to gain entry into the University course of her preference because the school provided her with inadequate support (See our previous blog on this subject). She has further claimed that the school knew that she was intelligent, having undertaken IQ testing prior to commencing at the school. She further alleges the school was aware that she struggled with mathematics but failed to provide her with the support necessary for her to “excel”. The hearing will continue in August. We will keep you posted on developments.