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|Appendix A Duty of care - school-based applications|
|Appendix B Liability|
|Appendix C History of Changes|
Liability in negligence depends upon the application of a standard of reasonableness in all the circumstances. Each case will therefore be different, turning on its own particular set of facts. The examples provided in this document are therefore to be used as a guide only.
Journey to and from place at which school activity is undertaken
As a general rule, 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.
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 consider developing a roster system whereby teachers are requested to be on duty at a particular time before the start of the school day. This should be worked out in conjunction with the staff involved and P&C groups, all of whom will have to work together in this area. Once a suitable time has been determined for it to be viable for staff to be on the premises to supervise students, that time should be widely circulated amongst the parents of the students by way of newsletter. The advice in the newsletter should state that there will be no one to supervise children at school before the set time and that the school cannot accept responsibility for students delivered to the school prior to that time. The number of supervisors that will be required for this roster system will depend upon the age and number of students who are known to arrive prior to the commencement of the school day and upon the area to which they are directed.
Students who arrive at school early should be directed to a particular area to enable the supervisor to be able to observe exactly what is occurring. How the students should be occupied at this time is also another factor that will have to be determined by the school and the community.
Allowing for the fact that some parents will still ignore this recommendation 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 but at least if there was then an accident at the earlier time and the school was required to defend itself, it could 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.
Students on school grounds after the 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 (e.g. in the evenings, weekends) to use the grounds
There will be 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 will result 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 or after-school care bus
The duty of care would continue 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 will extend 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. Schools should consider reporting concerns to the Department for Child Protection. After making all attempts to contact a parent or guardian to collect the child after school, the school should contact the local district office of the Department for Child Protection for support (during business hours). For concerns after hours, contact Crisis Care on (08) 9223 1111 or country free call: 1800 199 008.
Students who otherwise remain on school grounds at the close of school
There should be a teacher on duty for a reasonable amount of time after the close of school to ensure that the majority of students are no longer present. Once a suitable time has been determined for it to no longer be viable for teachers to remain on the premises after school to supervise children, then that time should be widely circulated around the parents of the students by way of newsletter.
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. 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 be able to observe exactly what is occurring. The principal could also issue an order under regulation 69 of the School Education Regulations 2000, prohibiting students from using the grounds and equipment after school hours. Such an order would be for the purposes of managing and controlling the school and persons on the school premises, and maintaining the safety and welfare of persons on the school premises. Allowing for the fact that some parents will still ignore all of this and allow children to stay at school beyond 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.
This may not remove the problem 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.
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 (see Appendix B) will not apply. Further, the Department's public liability insurance cover will 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.
Students leaving school grounds during school hours
As a general 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 the student may absent themselves (for example daily or on a specified day each week) and the period for which the permission is given (for example a term).
The parent must 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 (assuming the student is under the age of 18) has been given. The situation would, of course, 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 will no longer be owed once the student leaves the premises during a free period/break or for other non-school activities, such as a doctor's appointment.
Page last updated 15 July 2013