Home' Teacher : March 2011 Contents 50 TEACHER MARCH 2011
The school and camp successfully defended
the claim. I'll address further reasons for
that decision later, but the two interesting
aspects in this case are that all witnesses had
very different versions of events and that
the basic facts of the situation are ones that
could happen in any school regardless of
how well planned a school excursion might
be. Before we look at the reasons for that
decision, though, it's worth reminding our-
selves about negligence.
An action in negligence may be brought
against a school when there has been a
breach of a duty of care. The action is a
civil claim for compensation or damages for
the inju ry suffered as a result of the breach
of duty of care.
Three fundamental points must be estab-
lished to succeed in an action in negligence
against a school or teacher:
the school or teacher must owe a duty of
care to the student
that duty of care must be breached, and
that breach must cause the student to suf-
fer loss or damage.
What does it mean to owe a duty of care?
A duty of care arises where two parties
are in a relationship of 'proximity' and
where the negligent acts or omissions of
one party detrimentally affect the other.
The duty exists in a school environment
when students are engaged in any type of
school-related activity, be it during class,
extracurricular activities, sports, camps or
excursions, or in the playground before or
There are situations where certain rela-
tionships give rise to higher levels of respon-
sibility. The relationship between teacher
and student falls into this category because,
in the eyes of the law, school authorities and
teachers are considered to be in a position
of control and students in a position of vul-
The courts have held that the responsibil-
ity includes a positive duty to act to ensure
against risk of injury. This was characterised
by Chief Justice Henry Winneke in Richards
v State of Victoria (1969) as follows:
'(It is) the need of a child of im mature
age for protection against the conduct of
others, or indeed himself' -- or indeed her-
self -- 'which may cause 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
schoolmaster who is in a position to exer-
cise authority over him and afford him, in
the exercise of reasonable care, protection
from inju ry.'
A school cannot delegate its duty of care
to any single employee. If a school is found
to be responsible for a student suffering an
anaphylactic shock, say, the school cannot
exonerate itself by passing blame onto an
Similarly, where an off-campus activ-
ity is run by an external organisation, the
school cannot delegate its responsibility
to ensure the safety of its students to that
organisation. A school will remain liable for
a student who is injured even if no school
employee was involved with running the
activity and even if the activity did not
occur on school premises.
Has the duty of care been breached?
To determine whether a school or a teacher
has breached their duty of care, a court will
consider whether the school or teacher failed
to take steps to guard against foreseeable
risks that a reasonable person would have
taken in the same circumstances, namely in
the planning and implementation of the off-
campus activity. A school or teacher will be
measured against a 'reasonable person' who,
as described by law, is a fictitious teacher who
takes appropriate safety measures against
risks that may arise in any given situation.
Has loss or damage been suffered?
A school or teacher will be liable in negli-
gence where the breach of their duty of care
caused the injury suffered by the student.
The courts recognise that accidents hap-
pen that are not necessarily anyone's fault.
Therefore, schools and teachers will not be
Three fundamental points
must be established to
succeed in an action
in negligence against a
school or teacher:
the school or teacher
must owe a duty of
care to the student
that duty of care
must be breached,
that breach must
cause the student to
suffer loss or damage.
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