Duty of Care Policy December 2010 Updated June 2012 September 2013 Reviewed January 2016

Transcription

1 Duty of Care Policy December 2010 Updated June 2012 September 2013 Reviewed January 2016

2 CONTENTS 1. Duty of Care General Introduction Legal matters Duty of Care... 4 (a) Teaching staff... 5 (b) Non-Teaching Staff, Volunteers and External Providers... 5 (c) Schools Reasonable Care Negligence Vicarious Liability The Accreditation Act Classroom Activities General Academic Duty of Care Science Art/Technology/VET Physical Education Non-classroom Activities Yard Duty Travel to and from place at which School Activity is undertaken Students on school grounds before school Students on school grounds after close of school After school sport on school grounds Students leaving school grounds during school hours Excursions, Camps and Tours Legal Accountabilities Consent (a) Parents (b) Medical Consent Forms (c) Principal s Consent Planning (a) Itinerary (b) Emergency Protocol (c) Supervision (d) Equipment to be used and specialist instruction (e) Insurance Responsibilities (a) Assessing Student Capabilities (b) Qualifications of Staff/Leaders (c) External Instructors (d) Use of private vehicles (e) Use of School bus (f) Discipline Procedure (g) Student Attendance (h) Parent Involvement Safety (a) Teacher/Student Ratios (b) Safety and Risk Management (c) Students with Disabilities/Medical Needs Specific Activities Overview Establishing Activity Guidelines Managing a Critical Incident Other Considerations Page 2 of 44 Reviewed January 2016

3 Appendix Page 3 of 44 Reviewed January 2016

4 1. Duty of Care General 1.1 Introduction Schools and teachers owe a duty to take reasonable care for the safety and welfare of all students in their schools. This duty of care exists when the teacher/student relationship is established. The duty requires schools and teachers to take all reasonable steps to ensure the safety and welfare of students from both known and reasonably foreseeable risks of harm and/or injury. In particular instances, non-teaching staff, volunteers and external providers will also owe a duty of care to students. When organising activities for students to participate in, teachers needs to balance the risk involved in the activity with what the students will learn from undertaking the activity in order to fulfil their duty of care obligations. 1.2 Legal matters Schools and teachers may have a duty of care in two broad circumstances: 1. Where a duty of care is specifically prescribed in legislation in an Act of Parliament; or 2. In other circumstances recognised by the Common Law, developed in courts and capable of taking account of both foreseeable and novel circumstances. Sections of all of the following Acts may relate to Duty of Care: Education (General Provisions) Act 1989 Education (Accreditation of Non-State Schools) Act 2001 Education (Overseas Students) Act 1996 Education (Services for Overseas Students) Act 2000 Anti-Discrimination Act 1991 Civil Liability Act 2003 Disability Discrimination Act 1992 Sex Discrimination Act 1984 Racial Discrimination Act 1975 Child Protection Act 1999 Commission for Children and Young People and Child Guardian Act 2004 Education (Work Experience) Act 1996 Education (Teacher Registration) Act 1988 Workplace Health and Safety Act Duty of Care The term duty of care is a legal concept that defines the duty a person has to use reasonable care towards others in order to protect them from a known or reasonably foreseeable risk of harm and/or injury. The notion of duty of care is one that is contained in most school policies and procedures. This duty is placed on: all employers; Page 4 of 44 Reviewed January 2016

5 their employees; and any others who have an influence on the hazards in a workplace. The latter includes contractors and those who design, manufacture, import, supply or install plant, equipment or materials used in the workplace. (a) Teaching staff The teacher s duty of care responsibility is automatic, arising from the teacher/student relationship and is not limited to specific school activities such as excursions and incursions; it remains at all times whilst the student is in the teacher s care. A teacher s duty of care also includes being aware of and implementing school policies affecting students safety and welfare eg. bullying, child protection, supervision ratios, safety of equipment and grounds. Generally, the duty of care owed by teachers to students is non-delegable, however, in certain situations, the teacher may delegate this duty of care to non-teaching staff, volunteers and/or external providers (see (b) below). A teacher owes a duty to students to take reasonable care to avoid acts or omissions that could expose them to a known or a reasonably foreseeable risk of harm and/or injury. Discharge of this duty requires a teacher to take such proactive measures as are reasonable to prevent harm and/or injury to a student. (b) Non-Teaching Staff, Volunteers and External Providers Generally, non-teaching staff, volunteers (eg. parents) and/or external providers (e.g. private music teacher,) must take reasonable care to avoid doing things that could reasonably be foreseen as causing harm and/or injury to others, including students. Non-teaching staff, volunteers and/or external providers are not generally personally responsible for students and do not have the same duty of personal care to students as do teachers. However, in certain situations and under certain conditions teachers may delegate their duty of care to non-teaching staff, volunteers and/or external providers in which case they will then owe the same level of care to students as a teacher. Under the Civil Liability Act 2003 (Qld), a volunteer can no longer be sued for any act or omission done in good faith, unless the act constitutes a criminal offence, the volunteer was intoxicated or the act occurred outside the scope of the volunteers activities, authorised by the school. For this reason, it is important for the school to identify clearly the scope of authority delegated to volunteers. Schools should in delegating a duty of care responsibility (for example, yard duty) to non-teaching staff, volunteers and/or external providers, ensure that the nonteaching staff, volunteers and/or external providers: are suitable for the task being delegated; are covered by either the school s insurance or have in place their own adequate insurance cover; Page 5 of 44 Reviewed January 2016

6 agree to assume this personal duty of care for the students; and have been provided with clear instructions as to the level of care required. It is recommended that these instructions for caring for students, the level of care required and the acceptance of this responsibility be recorded in writing and signed by the non-teaching staff, volunteers and/or external providers. (c) Schools The school has the same duty of care as a teacher, but with wider responsibilities than an individual teacher or other staff member, extending to such things as ensuring adequate supervision, safe equipment and premises and meeting other requirements of workplace health and safety legislation. The school is under a duty to take reasonable care to ensure that it employs competent teachers and provides safe premises. The school will be vicariously liable for the actions of the teachers whilst they are acting in the course and scope of their duties as an employee of the school. Specific rights and duties logically flow from the duty of care schools owe. These include: provision and maintenance of safe plant and systems of work; safe systems of work in connection with plant and substances; a safe working environment and adequate welfare facilities; information and instruction on workplace hazards and supervision of employees in safe work; monitoring the health of their employees and related records keeping; providing a working environment free from sexual harassment and workplace bullying; employment of qualified persons to provide health and safety advice; nomination of a senior employer representative; and monitoring conditions at any workplace under their control and management. 1.4 Reasonable Care Teachers and other school personnel have a duty of care towards their students; and schools have a duty of care that requires everything reasonably practicable be done to protect the health and safety of all people in the school. Reasonably practicable means that the requirements of the law vary with the degree of risk in a particular activity or environment, which must be balanced against the time, trouble and cost of taking measures to control the risk. It allows the duty holder to choose the most efficient means for controlling a particular risk from the range of feasible possibilities and at the lowest cost. It also requires changes in technology and knowledge to be incorporated, but only as and when it is efficient to do so. The duty holder must show that it was not reasonably practicable to do more than what was done or that they have taken reasonable precautions and exercised due diligence. Page 6 of 44 Reviewed January 2016

7 Listed below are some factors to consider when assessing the reasonableness of the level of care required to a particular student. This list is only a sample of the factors to consider and should not be thought of as a finite list. Student s age, experience and capabilities - the level of care will generally be greater the younger the student. Physical and intellectual impairment - a student with a disability is generally at greater risk of injury than a student without a disability. This could be due to a physical inability to complete the activity without difficulty or an intellectual inability to appreciate the risks involved. Medical condition - particular medical conditions, such as asthma and epilepsy, require special attention to ensure that students are not exposed to a greater risk of injury. Behavioural characteristics - if a student is known to behave inappropriately then the level of care increases. Nature of the activity and the environment in which the activity is held - school activities with a higher level of risk and held in hazardous environments require a higher level of care. 1.5 Negligence For a student to succeed in an action in negligence against a teacher or school authority it is necessary for the student to establish: 1. that the defendant owed a duty of care to the student; 2. that the standard of care was breached; and 3. that this breach has caused the student to suffer some form of damage. The duty of care owed to a student by a teacher is that of a 'reasonable' teacher. This means that the duty of care owed is the duty one would expect from a hypothetical teacher with normal skills and attributes. This requires teachers to take reasonable care, and to avoid injuries to students which could reasonably be foreseen as possibly occurring. What is 'reasonable' and reasonably foreseeable will depend on the particular circumstances. For example, taking a primary school class on a beach excursion is completely different from taking members of a high school swimming team on a beach excursion. What will be reasonable supervision for one might be wholly inadequate for the other. In general, the court will consider the following guidelines in determining whether or not reasonable care has been taken to discharge a duty of care: 1. the greater the risk of the activity, the higher the standard of care; 2. the closer the proximity in physical circumstances, and whether or not the teacher then chooses to act; 3. the benefits of the activity; 4. whether professional standards and guidelines have been met; 5. the level of control over children and the environment; and 6. the time and place the injury occurred. Furthermore, the courts will take into account whether the student has contributed to his/her own injury. The Civil Liabilities Act 2003 (Qld) has updated the common Page 7 of 44 Reviewed January 2016

8 law related to contributory negligence so that when a person has contributed to their own injury by failing to take reasonable care for their own safety and wellbeing, the court may reduce the damages by 100%. Notwithstanding the above, courts have been reluctant to reduce a claim brought on behalf of a child unless it can be shown that the child was aware of the reckless or foolish nature of their conduct. The Civil Liabilities Act 2003 (Qld) also provides that civil liability will not arise from the materialisation of every risk. The Act does not require schools or teachers to avoid completely every conceivable risk of injury or harm, and it distinguishes between different risks such as inherent, obvious and dangerous recreational risks. This legislation is complex. Where school administrators believe an action may fall within this Act, they should seek legal advice. The Courts have set some clear guidelines with regard to duty of care. For example, in the case of The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308, the court concluded: Children, and particularly young children, need protection from their environment, from others and from themselves. Generally, reasonable steps should be taken to guard against foreseeable conduct on the part of children that may result in harm to themselves or others. Some children tend to be mischievous. They may do mischievous things deliberately, and may also be unable to comprehend fully the consequences of what they do. Children of a particularly young age may also be prone to unpredictability of behaviour. These tendencies are likely to manifest themselves when high-spirited children participate in games, and are factors that a supervising teacher must take into account. However, the Courts have also been prepared to recognise that it is not in the public interest to require schools to take an over cautious approach. In relation to the same case, the court found: The question of what amounts to reasonable care in a given case must be seen in the context that it is neither practicable nor desirable to maintain a system of education that seeks to exclude every risk of injury. Nevertheless, although student participation in games may result in breaches of discipline and irresponsible behaviour, our society recognises that that is no reason, of itself, not to encourage and teach young children to engage in such activities. Risks of serious injury while playing games of the kind to which I have referred, while real and not farfetched, are remote They can be reduced further by training and supervision, and catering for the needs of the individual child. Because the risks are unlikely to materialise when the games are properly controlled, merely to allow children to participate in them will not, in the absence of special circumstances, be regarded as negligent. It follows that the mere fact that a serious injury or even death may occur while children are playing a game at school will not automatically result in a finding of breach of the duty of care. Moreover, as I have noted, the fact that such a devastating result was foreseeable will also not necessarily mean that liability is established. It remains for the plaintiff to show that the school or teacher Page 8 of 44 Reviewed January 2016

9 involved did not take such reasonable precautions for the safety of the child as would have prevented harm. Page 9 of 44 Reviewed January 2016

10 1.6 Vicarious Liability Vicarious liability refers to the situation where one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury. For instance, a parent sometimes can be vicariously liable for the harmful acts of a child and an employer sometimes can be vicariously liable for the acts of an employee committed during the course of his or her employment. Vicarious liability in tort does not involve any element of personal blame, but arises by virtue of the relationship between the wrongdoer and the person who is vicariously liable. The person on whom vicarious liability is imposed is liable. In some circumstances, a person may incur liability for a tort committed by another person, even though the principle of vicarious liability does not apply. For example, a person may incur personal liability because a tort committed by a wrongdoer amounts to a breach of a personal or a non-delegable duty owed by that person to a person who is injured as a result of the tort. This is particularly relevant in schools as common law imposes a non-delegable duty of care upon a person who has undertaken responsibility for the person or property of another who is in a position of special vulnerability. This special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. For example, it has been held that an employer has a non-delegable duty to provide a safe system of work for employees. Hospitals have been held to owe nondelegable duties of care to their patients, and school authorities have been held to owe non-delegable duties to their students. The duty of care owed by the school authority depends in no way on the actions of the teaching staff, (it) arises directly by reason of its acceptance of a child as a pupil in the school. The duty is said to be non-delegable because it cannot be met by simply delegating the task to a competent person. The person who owes the duty cannot acquit himself by exercising reasonable care in entrusting the work to another reputable person but must actually assure that it is done and done carefully. It is a personal duty that will be breached if the task in question is performed negligently by another person. The defendant s liability is not a vicarious liability for the other person s negligence but liability for the defendant s failure to discharge his own duty. At common law, a school authority is not vicariously liable for a tort committed by a student of the school. However, recent cases have imposed vicarious liability on a school authority for the tort of the student in circumstances where injury was caused to one student by another. These cases, generally, have involved bullying of which a school was aware and the school authority did not take measures to stop. There are several cases where Australian courts have found schools and teachers negligent in failing in their duty of care to students. In one case, Copping v SA (1997) 192 LSJS 109, a 9-year-old student was injured when other students threw stones Page 10 of 44 Reviewed January 2016

11 and bark at him for a period of 5 to 10 minutes. The South Australian court determined that inadequate supervision in the playground led to the injuries and found the school liable to pay damages. A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to criminal ones. (Some acts like battery, however, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties.) Similarly, in a bullying case Warren v Haines (1986) Aust Torts Rep , a girl suffered serious injury when a known bully dropped her on a concrete slab. Because the school had failed to take adequate disciplinary measures to control the bully, the NSW Supreme Court found the school authority to be liable. It is accepted law in Australia that an employer will be vicariously liable for a tort committed by an employee in the course of his or her employment. This includes unauthorised acts if they are sufficiently connected with the employee s duties and responsibilities such that they are within the scope of the employment. The employer is not, however, responsible if the unauthorised and wrongful act could not be said to be within the scope of employment. The following recent overseas court cases help to illustrate how Courts view the connection between the acts of an employee and the employee s duties. While similar rulings have not yet been made in Australia, legal opinion in Australia is that schools should take appropriate precautions. In Bazley, the Supreme Court of Canada held that a residential care facility for emotionally troubled children was vicariously liable for the sexual assault committed by its employee. Not only were the children exceptionally vulnerable, but the Court found that the employee s duties were akin to parenting duties and included bathing the children and tucking them in at bedtime. The Court found that the employer s enterprise exacerbated the risk by the employee of sexual assault. A mere few hours after handing down its decision in Bazley, the Supreme Court of Canada in Jacobi held that a non-profit organisation which operated a recreational club for children was not liable for sexual assaults upon two children by one of its employees. The case was distinguished from Bazley on the grounds that the relationship between the employee and students was not a quasi-parental one. The relationship lacked the same degree of intimacy. Finally, in the case of Lister, the facts of which are similar to Bazley, the House of Lords found that a school was vicariously liable for the sexual abuse perpetrated on some of its students by the warden in charge of the boarding annex. As in Bazley, the duties of the warden were akin to those of a parent, particularly as the boarding annex was more like a home than a school. These three judgments suggest that the appropriate test of connection is whether the employer s enterprise and empowerment of the employee materially increased Page 11 of 44 Reviewed January 2016

12 the risk of the sexual assault and hence the harm. There is little doubt that in the education enterprise, there is a risk, albeit small, that sexual abuse may occur, given the close intimacy between adults and vulnerable children. In contrast, such a risk would not normally be introduced into the community by an engineering or accountancy enterprise. What the cases also illustrate is that although an employer cannot always escape vicarious liability for sexual assault by an employee merely because the act is intentional and criminal, the act must be sufficiently connected with the employment for liability to be found. In determining whether an act of sexual assault is sufficiently connected with employment, the Court provided the following guidelines: whether the teacher was acting in locus parenti (to the extent that the teacher s role was akin to parenting); the age and vulnerability of the students (including whether they are emotionally or mentally disturbed); whether the acts took place on the school grounds and during school hours; the number of teachers concurrently responsible for the care of the students; and the nature of circumstances of the sexual misconduct. 1.7 The Accreditation Act The Education (Accreditation of Non-State Schools) Act 2001 imposes particular criteria related to duty of care with regard to: student welfare; education program; workplace health and safety; child protection; and teacher competence as follows: Student welfare schools must provide evidence that they meet criteria related to student welfare and safety. These include providing safe classrooms and play areas; adequate amenities; access to drinking water; having behaviour management and anti-bullying policies in place; providing adequate supervision; taking into account the emotional and academic needs of students; providing for students with disabilities, complying with antidiscrimination legislation; ensuring adequate reporting and treatment of illness and injury, and so on. Education program schools must demonstrate that they provide a written educational program that promotes continuity in the learning experiences of students and is responsive to the needs of students; Workplace health and safety schools must supply evidence that they have a qualified Workplace Health and Safety Officer (if 30 or more workers are normally employed); they have risk management procedures in place; they have emergency evacuation procedures; that employees are covered by WorkCover; and that they control workplace risks, such as those related to undertaking manual tasks, dealing with hazardous substances, provision of safe plant and equipment, excessive noise, workplace environment hazards and so on; Child protection schools must comply with child protection legislation in relation to harm, inappropriate behaviour and sexual abuse; Teacher competence schools must employ registered teachers. Page 12 of 44 Reviewed January 2016

13 2. Classroom Activities As noted previously, for a student to succeed in an action in negligence against a teacher or school authority it is necessary for the student to establish that: 1. the defendant owed a duty of care to the student; 2. the standard of care was breached; and 3. this breach has caused the student to suffer some form of damage. The duty of care owed to a student by a teacher is that of a 'reasonable' teacher. This means that the duty of care owed is the duty one would expect from a hypothetical teacher with normal skills and attributes. This requires teachers to take reasonable care, and to avoid injuries to students, which could reasonably be foreseen as possibly occurring. What is 'reasonable' and reasonably foreseeable will depend on the particular circumstances. According to the National Safety Council of Australia, accidents are the leading cause of death for people between the ages of 1 and 38. The most serious school-related injuries in the classroom are likely to occur in those subjects where there are practical elements. These injuries include burns from fire, chemicals, hot vapours and electricity; soft tissue injuries from explosions, broken glass, falling objects, electric shock; and poisoning caused by radioactivity and inhaling, ingesting or touching chemicals. 2.1 General The duty of care issues within a classroom relate predominantly to behaviour management. Teachers and schools have a duty to maintain safe classrooms in which students are able to work free of physical and verbal harassment. Teachers and schools may be found negligent in circumstances where: a student is obviously upset because he/she is being verbally bullied and the teacher does not (or is unable to ) stop the bullying; a student is being physically harmed by other students and the teacher does not (or is unable to) stop the harm; there is an obvious hazard in the classroom which is not brought to the attention of the school authority; a student threatens or shows evidence of self-harm and this is not brought to the attention of the school authority; and a student reports harm or sexual abuse by a member of school staff or someone from outside the school and this is not reported as required by Child Protection legislation. To protect themselves against breaches of duty of care in the classroom teachers should: Be safety conscious and aware of possible risks in the classroom. Discuss safety issues with colleagues and students. Consider what children can cope with at particular ages. Ask themselves, 'Am I acting as the reasonable or careful teacher would in these circumstances?' Page 13 of 44 Reviewed January 2016

14 Ensure that the common practice in the classroom is safe for this particular group of students in these conditions, and is it in line with written guidelines. Regard school guidelines as a minimum safety standard and insist on higher standards if the group or conditions warrant it. Make sure that equipment used in the classroom, such a scissors/stanley knives, is safe, is used correctly and properly stored after use. Never touch a child of either sex. Apart from such inevitable circumstances as protecting a child from injury, or rendering first aid, a teacher has no right to touch a child. It is not permissible for a teacher to slap, or push, or shake a child. Ensure that they are never alone with a single child of either sex. If a situation arises where a teacher is alone with a child in the classroom before or after school, or during a recess period, the classroom door should always be kept open. Be exceptionally prudent if first aid is required. If possible, ensure that a male teacher gives first aid to a male student and a female teacher to female students. If there are no staff members of the preferred sex available, try to ensure that one or preferably two senior students are present. Be aware of legislative requirements in relation to their duties. Take seriously information about harm or self-harm that comes to their attention. Take detailed notes immediately after an incident and get witnesses' names and addresses, and a statement if possible. Report any incidents to the school authority. It should be noted that teachers and schools will not necessarily be found liable for injuries that occur as a result of classroom tomfoolery. For example, in the case of Barker v The State of South Australia (1978) 19 SASR 83, a girl was injured when she tilted her seat back and either fell or was pushed over by another student at a time when the teacher had temporarily left the classroom. The Court found no liability for negligence attached to the school even though the teacher was out of the classroom at the time it occurred. The Court found that the presence of the teacher would not have prevented the incident. Similarly, an English school escaped liability for eye injuries caused to a 15-year-old girl when a plastic ruler she was using during a mock sword fight with another student broke, causing fragments to lodge in her eye (Mullin v Richards [1998] 1 WLR 1304). The fact that the students involved in the last two mentioned cases were older was arguably a factor contributing to the education authorities escaping liability in those instances. The courts will impute a higher supervisory duty on school staff where young students are involved. It is also likely in both of these cases that the teachers involved had ordered students to desist from the unsafe activities. Schools can take precautions against staff negligence by ensuing they: Appoint registered teachers. Meticulously check staff references before appointment. Have policies in place to guard against negligence and enforce these policies. Page 14 of 44 Reviewed January 2016

15 Keep up to date with changes to legislation and policies. Provide proper training and professional development for their staff. 2.2 Academic Duty of Care Do teachers have an academic duty of care? While it is certainly true that teachers are expected to be up to date in the pedagogy of the profession, and they have a professional duty to be well prepared, competent, ethical, efficient, good classroom managers etc., their legal responsibility with regard to the academic progress of students is less clear. This is because, it is difficult to judge the success or failure of an educational process until long after it is completed. To what extent, for example, should responsibility for success or failure be divided between the student and the teacher? Can we hold an individual teacher responsible given the number of teachers a student comes into contact with? How much control do teachers actually have over what happens in schools? Teachers have less autonomy in the practice of their profession than, say, surgeons and it becomes difficult to distinguish the negligence of the teacher from that of the school board or state ministry of education. The major danger for schools seems to be in parents and students holding them legally responsible for incorrectly classifying students and directing them to inappropriate programs than for failure to educate. This might include such things as failure to diagnose a learning disability or misdiagnosing a disability; failure to properly counsel a student with regard to subject prerequisites for tertiary study; and suggesting to a student that they will receive certain subject results or a particular OP score and subsequently being found to be incorrect. Some precautions schools can take include: reviewing their professional learning programs on a regular basis to ensure that teachers are up to date in their practice; ensuring that all school staff are familiar with school policies and procedures with relation to assessment, curriculum, homework etc; ensuring that they have a comprehensive policy to identify students with disabilities(see the Policies on the ISQ website); and having clear policies and procedures in place when advising senior students about career and further study options. 2.3 Science School laboratories are areas where teachers need to be particularly aware of their duty of care. It is a teacher s professional and legal responsibility to show students how to work safely with specific chemicals and/or equipment. They must instruct students on the use of protective eye-wear and other safety equipment, and on their responsibilities in an emergency situation. Accidents also can take place due to the teacher s failure to keep the classroom clean. This means maintaining and storing chemicals correctly, ventilating the work site and monitoring the movement of chemicals from one location to another. Page 15 of 44 Reviewed January 2016

16 Another cause of accidents is poor labelling of toxic chemicals. To meet their responsibilities, science teachers must ensure: instruction, whether classroom or laboratory, is prepared well in advance of the lesson. If experiments are to be demonstrated with student participation, they should be tested beforehand to assure the proper outcome. As a part of all lessons involving chemicals, safety should be an integral part of the curriculum and the students' knowledge of it should be tested; all lessons involving experiments are documented and include reports of chemical reactions, equipment condition, safety procedures and student activities. Teacher supervision is also essential. The teacher must always be in full control inside the classroom. If an accident occurs, the teacher should calm the students and request police, fire or medical assistance; they take responsibility for administrative, housekeeping and inspection duties. When the teacher performs an experiment, it is their responsibility to make sure the equipment is safe and functions properly. If it needs repair, the teacher should immediately notify the laboratory aide and store the unsafe equipment out of students' reach. Makeshift equipment should not be used as a replacement. Rather, the experiment should be put on hold until the equipment is fixed; and that labels on chemicals remain legible and that chemicals are disposed of properly. With the proper knowledge, planning, risk identification, supervision, record keeping and documentation, teachers greatly reduce their chances of being found negligent should harm occur. The following may prove useful: Take full responsibility for student safety. Be aware of the consequences of your action - or inaction. Instruct students on safety for all activities. Plan activities. Identify experimental risks before exposing students to them. Maintain safe laboratory behaviour. Report all hazardous conditions in writing. Stay in the laboratory while students are working there. Keep timely, accurate records. 2.4 Art/Technology/VET The duty of care considerations in these subjects are similar to those related to Science in that they are likely to involve use of specialist equipment. For example, in the Art room students are likely to have access to scissors, Stanley knives, pottery kilns and electrical equipment. In technology classrooms students may use lathes, saws, power tools, electrical equipment, sewing machines and so on. In Vocational Educational classrooms students may use heavy machinery, cooking equipment, electrical equipment, power tools and so on. In all of these subjects, therefore, particular attention needs to be paid to: providing proper instruction on the safe use of plant and equipment; enforcing the of the use of protective clothing, footwear and equipment; enforcing safety rules; Page 16 of 44 Reviewed January 2016

17 providing adequate supervision; undertaking hazard identification; enforcing effective behaviour management; instituting regular maintenance of equipment; and keeping timely and accurate records. 2.5 Physical Education See Section 5 for guidelines in relation to particular physical activities. For general organisation of sport and physical education the following guidelines should be observed by teachers: Inexperienced students should be more carefully instructed and monitored than experienced students, particularly where the sport is hazardous e.g. ice skating, trampolining. Take special care with low-skilled students, e.g. do not place them in dangerous fielding positions in cricket. Do not force students to participate in activities that are beyond their capabilities. Supervise contact sports to prevent rough play. Small or younger students should not play against larger students where the disparity in size will increase the risk of injury. Proper protective clothing or equipment should be provided, e.g. mouth guards for hockey, helmets for cricket. Safety equipment must be adequate, e.g. sufficient mats for high jump and gymnastic activities. Students should be properly, instructed about the importance of warm up exercises or any safety procedures for particular sports. Highly dangerous activities, such as abseiling or kayaking, must be carried out with a very high degree of care. Do not rely on the recommended student/teacher ratio for a sport if students have a low level of skill or the weather is poor. If teachers without physical education training are supervising sport, school administrators must be sure that they can do the job. If adequate supervision or safety cannot be provided, the activity should not take place. 3. Non-classroom Activities 3.1 Yard Duty Schools have a duty of care to ensure that students are adequately supervised, protected from dangerous activities, protected from bullying and excessively rough play and have access to safe premises and equipment. This requires them to arrange for supervision of students during scheduled breaks from the classroom. Supervision rosters are the responsibility of school administrators, not teachers. The standard of care expected of teachers supervising the playground, or organising sport and other activities during lunch and recess, is determined by the factors mentioned above Page 17 of 44 Reviewed January 2016

18 under Reasonable Care. The amount of playground supervision required varies according to the age and nature of the student body. Teachers must know the school's supervision policy, and always carry out rostered supervision. Schools should investigate where bullies operate. School policies need to be flexible to accommodate special days, for example, where many students will arrive early. Courts do not expect schools to be able to guard against every unforeseen incident in the playground but they do expect adequate and vigilant supervision. In one case where a child was injured in the playground, the judge noted that the school occupied a 6.7 hectare site, had 700 students and 60 teachers, and that seven teachers were supervising the playground at the time of the accident. The judge concluded that the school, was not in breach of its duty, although 'with hindsight one extra teacher could have been engaged in the relevant area'. 3.2 Travel to and from place at which School Activity is undertaken Generally, a school has no door-to-door responsibility for students. However, a duty of care will be owed in situations where the school assumes responsibility for students, such as where a school provides transport for students to and from a school activity, or where a school assumes responsibility for escorting students across a railway line or busy highway. Schools need to have policies in place, which are widely available to parents, outlining its duty of care in relation to out of school time. There will also be grey areas with regard to duty of care. For example, if a member of staff is driving home in the rain and sees a student standing on the side of the road, what is the school s policy re offering the student a ride? Strictly speaking, the school does not have a duty of care in these circumstances, however, there would certainly be situations (e.g. if the child is very young, or has a disability) where a teacher might be unwise to ignore the student. It is important, therefore, for the school s administration to develop policies about transportation of students that comply with child protection requirements and student and staff welfare and make these available to all staff members and all parents. 3.3 Students on school grounds before school Where it is known that students arrive at school at a certain time (e.g. if buses start delivering students from a particular time) the responsibility of the school to provide adequate supervision for the students commences at that time. A refusal to acknowledge the presence of students will not provide a defence against liability. Refusing to open school gates or forcing students to remain on the street verge will not remove a school s responsibility. If students frequently arrive at school well before the commencement of classes, the school should advise, via the newsletter, that there will be no one to supervise children at school before the official start of the school day and that the school cannot accept responsibility for students delivered to the school prior to that time. Page 18 of 44 Reviewed January 2016

19 This information should be sent home to parents on a regular basis. Allowing for the fact that some parents will still ignore this notice and deliver students to school earlier than this time, these parents should be contacted individually and asked to come in to the school to discuss the matter with the principal. It should be pointed out that it is impossible for the school to provide supervision for students at these times. The parents should be requested to find some other way of occupying their children at this time. These suggestions may not remove the problem or the school s liability but, at least, if there was an accident at the earlier time and the school was required to defend itself, it would be possible to point to the newsletters and the interviews with parents to say that the school had done all that was reasonable in the circumstances to ensure the safety of the student. 3.4 Students on school grounds after close of school Where the presence of students on school grounds is known or ought to be known, the question to be asked is whether it is reasonable in the circumstances to impose responsibility on a staff member for students using the school grounds at the close of the school day. The various scenarios a school may encounter may be summarised as follows: Students who leave school grounds and return later (eg, in the evenings, weekends) to use the grounds There is no duty of care owed to students who leave the school grounds and return later to use the grounds or playground equipment (unless they return to participate in a School Activity). Students who remain on school grounds after being collected by parents The collection of students at the end of the school day by, for example, parents results in those parents or others collecting the students assuming responsibility for supervising them while on the school grounds or while using the playground equipment. Students who remain on school grounds whilst waiting for a school bus The duty of care continues to exist if students remain on school grounds and/or play on the playground equipment while waiting for a school or after-school care bus. The responsibility for providing adequate supervision extends at least until the last bus departs the premises. Students who remain on school grounds whilst waiting for parents to collect them In respect of very young students or students who are otherwise unable to care for themselves, the duty of care is likely to last until the student is collected. However, it is not reasonable to expect staff members to supervise students whose parents are regularly and significantly late in collecting their children. Some schools have gone so far as to consider reporting concerns to the Department of Child Safety and/or delivering students into the care of the police if staff members regularly have to wait for significant times with students whose parents have neglected to collect them. Page 19 of 44 Reviewed January 2016

20 Individual schools need to formulate their own responses to this problem, taking into accounts the rights of staff and the safety of the child. Students who otherwise remain on school grounds at the close of school There should be a teacher on duty for a reasonable period of time after the close of school to ensure that the majority of students are no longer present. The number of supervisors who will be required for this roster system will depend upon the age and number of students who are known to remain on school premises after school and the area to which they are directed. Students should be directed to a particular area to enable the supervisor(s) to observe exactly what is occurring. Once a suitable time has been determined when it is no longer viable for teachers to remain on the premises after school to supervise children, then that time should be widely circulated in the school newsletter to the parents of the students. The advice in the newsletter should state that there will be no one to supervise students at school after the set time and that the school cannot accept responsibility for students remaining on school premises after that time. Allowing for the fact that some parents will allow children to stay at school beyond this set time, these parents should be contacted individually and asked to come in to the school to discuss the matter with the principal. It should be pointed out that it is impossible for the school to provide supervision for students at these times. The parents should be requested to find some other way of occupying their children at this time. This may not remove the problem or the school s liability but, at least, if there was an accident after school and the school was required to defend itself it would be possible to point to the newsletters and the interviews with parents to say that the school had done all that was reasonable in the circumstances to ensure the safety of the students. A word of caution: There will always be times when a situation arises which is not covered by school policy. It is, therefore, critical that school staff have practice in devising responses to particular situations before they arise. Professional judgment will need to be applied when, for example, a young child is seen standing on the side of the road well after school hours are officially over. What should the teacher s response be in such a situation? School administrators should discuss the appropriate response with staff, and notify the school community of the school s policy. 3.5 After school sport on school grounds A staff member who coaches a sporting team outside school hours will owe a duty to take reasonable care for the safety of the participating students if the sporting activity is an authorised school activity. If an activity is not an authorised school activity, the staff member will be acting in a private capacity and the principle of vicarious liability will not apply. Page 20 of 44 Reviewed January 2016

21 Further, the school s public liability insurance cover may not extend to privately arranged sporting activities. The wearing of a school uniform by members of a team comprised of students of a particular school and the naming of the team by reference to a school will not necessarily convert the sporting activity to an authorised school activity. It may, however, be the case that parents and guardians may be led to believe that the activity is being organised and conducted by the school. Where the sporting activity is not an authorised school activity, the principal should advise parents and guardians that the school assumes no responsibility for the supervision of students and for any aspect of the activity such as coaching. 3.6 Students leaving school grounds during school hours As a rule, a school should not allow students to leave school premises during the school day in circumstances where there is no parental permission. If a student is permitted to leave in these circumstances, the school must be satisfied that no foreseeable harm will come to him or her. A school may release a student where parental permission has been given. The form of the permission should clearly state the terms upon which parents are giving permission for the student to leave premises, including the purpose for which the permission is given, the times during which students may absent themselves and the period for which the permission is given. Parents should also provide a written acknowledgement that the school cannot be held responsible for any injury that befalls the student away from the school premises or for any misconduct on the part of the student. Having said this, the school must be satisfied that the parent is giving informed permission by advising the parent of any concerns it has for the student's safety. Moreover, if the school, having assessed the situation, considers that the student may be placed at risk if allowed to leave the school premises, then permission to leave should be refused notwithstanding that parental permission has been given. If, for example, the school becomes aware of unsatisfactory behaviour, risk related behaviour or other circumstances likely to affect the health, safety or welfare of the student, it will be justified in withdrawing permission, and should discuss these concerns with the student's parent or guardian. The situation will be directly influenced by the age of the student. There is probably no reason why a school could not accede to a request by a mature post-compulsory student to leave the premises during free periods and breaks, provided written authority by the student's parent has been given. The situation would be somewhat different if the permission related to a 6-year-old student leaving school premises to buy lunch at the local shopping centre, a situation in which the prudence of the parent could be held in question. Provided that the school is satisfied on reasonable grounds that no foreseeable harm will come to a student, the student-teacher relationship will end and a duty of care Page 21 of 44 Reviewed January 2016