Recent legal cases and teachers’ duty of care

By Denise Fairservice

There has been considerable discussion in the media about public liability cases where judges have awarded large damages to plaintiffs who have sued for negligence. NSW government schools and colleges have not escaped the increase in civil litigation.

There have been some well reported cases where judges have awarded plaintiffs considerable damages for injuries sustained in schools and colleges. The reaction of authorities is to attempt to protect themselves from excessive litigation and this may translate into a perception that closer and more vigilant supervision is required. The Department to some extent has reacted that way, issuing new policies on the preparation of accident reports and the conduct of excursions.

However, it is difficult to gauge whether a judge's decision is appropriate without hearing the evidence and all the circumstances of the case. In a recent highly publicised case a former student was awarded considerable damages for injuries he received in a school yard fight when he was a year 7 student many years before. Many thought the damages were excessive, however, the facts emerged that the fight was advertised quite clearly prior to the event, to the extent of a notice about it being placed on the notice board. The State had clearly failed to exercise its duty of care in respect to the student.

However, the liability in exercising the duty of care resides in the Department of Education and Training and the State of NSW. That responsibility is non delegable and covers the actions of all employees of DET.

In a recent case in the Court of Appeal, that liability was extended even to acts other than those the employee was engaged to do where the State was found negligent for sexual assault visited on a student by a teacher some 20 years ago.

Despite the contrary impression arising from some of the court decisions, there is not an absolute duty to avoid injury but reasonable steps must be taken to avoid foreseeable injury. In fact, in order to establish a damages claim for negligence, the following elements must be established.

1. A duty of care -- there is a special duty between school authorities and students and a higher standard of care than the neighbourhood principle.
2. A breach of that duty -- an act of omission.
3. An injury arising from that breach.
4. A connection between the breach and the injury.

In general, the court will consider the following guidelines:

1. The greater the risk of the activity, the higher standard of care.
2. The closer the proximity in physical circumstances, and whether or not the teacher then chooses to act.
3. How beneficial the activity is.
4. Professional standards and guidelines.
5. The level of control over children and the environment.
6. The time and place the injury occurred.
7. The extent to which the student contributed to the injury.

While it is understandable that the Department of Education and Training (DET) would wish to protect itself from litigation, it is not acceptable that the responsibility should be shunted to schools, principals, executive staff and teachers. That responsibility is, as the courts have established, non delegable and the risk is DET's should it decide not to employ enough staff to provide adequate supervision. The question of before and after school supervision has been settled by the Terms of Settlement of a 1998 industrial dispute. Members should not put themselves at risk by attempting unachievable tasks or by spreading themselves too thin.

Denise Fairservice is an Industrial Officer.

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September 2002 contents