Children on site – a heightened duty of care

Risk to Children

Young children are at higher risk of injuries as they are often incapable of having the necessary foresight of the consequences of their conduct and need to be protected from injuring themselves.

The purpose of this paper is to show how the law of negligence operates within a school environment.

General principles

A child is to be judged, not by the standards of an adult, but according to what could be reasonably expected of a child of their age.

The cases establish that the law employs a sliding scale of responsibility where the safety and well being of children is involved, sliding down according to their age:

It is obvious that a child is less capable of taking care of its own safety than a normal adult and the younger the child the less the capacity until a stage is reached at which there is none.[1]

The relationship between the school authority, teachers and students give rise to a duty of care of general supervision to the students concerning their physical safety.  The High Court of Australia has summarised the extent of teachers’ duty of care to students:

Children stand in need of care and supervision and this their parents cannot effectively provide when children are attending school; instead it is those then in charge of them, their teachers, who must provide it.[2]

The duty of the school authority to its students is a duty to ensure that reasonable care is taken of them whilst they are on school premises during hours when the school is open for attendance.  The duty was expressed by the High Court as follows:

…the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children.  It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated.[3]

Negligence

To be successful in a negligence claim, it must be established, on the balance of probabilities, that:

  • a duty of care was owed to the person at the time of the injury;
  • the risk of injury was reasonably foreseeable;
  • the likelihood of the injury occurring was more than insignificant;
  • there was a breach of the duty of care or a failure to observe a reasonable standard of care; and
  • this breach or failure caused or contributed to the injury, loss or damage suffered.

The fact that a duty of care exists does not mean that a school authority will be liable for an injury sustained by a student.  In order for the student to succeed in a negligence claim, all of these elements must be established.

Foreseeability of risk

To establish a duty of care, the student must prove that the school authority or teacher ought to have foreseen that the negligent act or omission of the school authority or teacher might endanger the student.  It is not enough to establish that the school authority or teacher knew or ought to have known of the potential hazard.  It must be shown that a reasonable person in the position of the school authority or teacher would have foreseen that the situation constituted a real risk to the student.

This duty of care is not absolute and only extends to protection from harm where the risk of injury is reasonably foreseeable.  The higher the risk or potential for harm, the greater the duty imposed on the school authority and the teacher.

In many cases where a student has failed to prove their case, the school authority or teacher have acted reasonably in the circumstances rather than the injury not being foreseeable.

Breach of duty

In the Australian Capital Territory for a student to establish a breach of duty of care, three elements need to be satisfied:

  • the school authority or teacher knew or ought to have known of the risk – sometimes called ‘reasonable foreseeability’;
  • the risk was not insignificant; and
  • a reasonable person in the person’s position would have taken precautions against the risk.[4]

The court in determining the liability of a school or teacher establishes whether the risk of injury was foreseeable, what the school or teacher could have done to reduce that risk being mindful of factors such as the magnitude of the risk, the age and experience of the student, and the cost of eliminating the risk.

Causation

To establish negligence, you must show that the act or omission caused the injury.  The High Court has noted:

“…it is of course necessary that the breach of duty of care must be causally related to the injury received…[students] have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question.[5]

Once the breach of duty of care has been established, it is often relatively easy to find that the breach caused the injury suffered by the student so long as the risk of injury is ‘not insignificant’.

The student may suffer physical, psychological (nervous shock or other recognisable psychiatric disorder) injury or financial damage.

Conclusion

Teachers and school authorities need to recognise their legal responsibilities to students.  Whether as a teacher in the classroom, on the playing field or on a school excursion, a duty of care is owed to students.  This manifests itself as a duty to protect students from injuries that are reasonably foreseeable.  To avoid injuries that are reasonably foreseeable, teachers and school authorities should at all times maintain an acceptable standard of care given the circumstances.  The consequences for failing to meet this standard and in the event a student suffers injury, the teacher and/or school authority could face an action in negligence.

[1] Cotton v Commissioner for Road Transport (1942) 43 SR (NSW) 66; Jordan CJ at 69

[2] Geyer v Downs (1977) 138 CLR 91 at 93;

[3] Commonwealth v Introvigne (1981) 150 CLR 258; at 270

[4] Section 43, Civil Law (Wrongs) Act 2002 (ACT)

[5] Geyer v Downs (1977) at p102

For more information about negligence and duty of care with children on site, please contact Bill McCarthy.