'So many of the feedback forms specifically mentioned your session as a valuable highlight. I think the clarity, integrity, good humour and fundamental sensibleness of your speech were marvelous. "

- Dr Jim Elliott, ANZSSA & ISANA State Convenor


Do You Know What 'Duty of Care' Means?

For eighty five of the ninety minutes lecture I waited to address the 100 attendees.

They had been guided by the facilitator through drafting a 'Duty of Care Plan'. He was very good and the room buzzed. So good that my fifteen minutes on The Law had been whittled down to five by the time I was introduced.

They needed a leg stretch.

'Stand up if you've heard of the term 'Duty of Care,' I said.

As expected, everyone shuffled to their feet.

'Sit down if you know what it means.'

All but three of the 100 managers sat down.

There was an awkward silence in the room.

I've repeated this exercise many times since.

With executives, managers and staff from schools, universities, church groups, associations, businesses.

The response is always the same. Everyone's heard of Duty of Care.

Almost no-one knows what it means.

Your Organisation

Anyone who has worked or volunteered for activities ranging from running a company to cutting  the oranges at half time football games has been given directions with 'duty of care' included in them.

The term has entered the vocabulary of every principal, teacher, scout leader, sport coach, and investigative journalist.

Everyone knows it's an important obligation.

Few can explain what it means.

Almost no-one knows what to do to honour it.

This well-meaning ignorance has resulted in organisations taking too many unnecessary precautions and not enough necessary ones.

A semi-paralysis has set in.

Leaders and their staff are caught between the dignity of risk and the risk of liability.

Nobody is served by this.

The Confidence to Do Business

The Duty of Care Workshop eases this tension by giving participants the skills to discharge their duty of care.

From the boardroom to the canteen.

Contact Bernard to tailor the Duty of Care Workshop to your organisation's needs.

bernard@bernardhill.com




Duty of Care in Schools

Some Case Law

1.    Reynolds v Haines

15 year old student cycling to school was blinded in one eye after being hit with a piece of fruit thrown by another student when both were on a road outside the school boundaries. Evidence that fruit throwing was part of a wider Year 12 ‘Muck Up Day’ and that the Principal knew that students would engage in disruptive behaviour and the Department directed that adequate supervision was in place before and after school. There were only two staff rostered on duty and this was less than normal.

The behaviour of the Year 12s was foreseeable and therefore the school owed a duty to students and members of the public to give reasonable supervision to the students and the school failed to do this. School liable.

2.    Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman & Another.

12 year old student travelled to and from school on the school bus. While waiting for the bus, he climbed a tree near the bus stop some distance from his school, and immediately outside a high school. He verbally abused older high school students who threw sticks and stones at him up the tree, one of which seriously injured him.

The relationship between teacher and student does not begin each day when the student enters the school ground and end when the student leaves the school ground. It depends on the particular circumstances of the school’s neighbourhood. If a school is aware of younger students being habitually bullied by older students outside school grounds, the duty of care extends so far as to require the school to take preventative steps and warn parents. School liable.

3.    Graham v New South Wales

12 year old student suffered from poor eyesight and bad balance. Normally her mother escorted her across the busy street between her home and the school. The school had declined the mother’s request to provide transport for her daughter. One day her mother was not there after school and the girl crossed the street alone and had an accident.

The school’s duty of care did not extend to providing transport to the girl to and from school and had made the mother aware of this. This left the onus with her mother to take appropriate steps to escort her daughter across the street. School not liable.

4.    Bradford-Smart v West Sussex

Student suffered psychiatric harm after she was bullied on the bus to and from school and on the estate where she lived. 

A school could be in breach of duty for failing to take steps to combat bullying by one pupil against another when they were outside school.  However, a school would not be in breach of its duty if it failed to take steps which were unlikely to do much good.  If a school knows that a pupil is being bullied at home or on the way to and from school, it would not be practical let alone fair just and reasonable, to impose upon it a greater duty than to take reasonable steps to prevent that bullying spilling over into the school. School not liable.

5.    Ayoub v Downs

Student one of 50 students aged between 13 and 15 from an ESL class on an excursion to a farm accompanied by two teachers. The student suffered brain injuries when he was thrown backwards over a cliff while assisting opening a gate.

Excursions organised and controlled by a school impose on the school a duty of care to take such measures as a reasonable in the circumstances to prevent injury that can be reasonably foreseen. While it is not expected that teachers provide constant observation and supervision of 15 year-olds, two teachers were insufficient supervision for 50 students with poor language skills and the school failed to inspect the site prior to the visit. School liable.

6.    Richards v State of Victoria

16 year old student got into an argument with an 18 year old at the back of the class that escalated into a scuffle and then a fight where the 16 year old was struck by the older boy and suffered paralysis. The teacher did not intervene and continued to write on the board.

Despite the age of the injured boy being a relevant factor in determining his ability to care for himself, he had not reached full maturity in judgement and experience.  The teacher should have foreseen that the argument could escalate and have intervened earlier instead of ignoring the boys’ behaviour.

7.    State of Victoria v Bryar and Another

Boy lost sight in one eye from a pellet fired at him in the classroom by another boy. Students had been firing pellets for over half an hour and the teacher had not intervened.

The evidence showed that had the teacher intervened, the boys would have stopped firing pellets. Teachers are trained in classroom management and are therefore expected to use this training to manage behaviour that could lead to injury. School liable.

8.    Syme v Syme

Year 1 student hit in the eye and blinded by a toy glider launched at him by another student in the classroom. Principal had previously banned gliders from being used in classrooms or quadrangle but permitted on the oval under supervision. Teacher had confiscated gliders from students in classrooms and both the Principal’s directive and teacher’s action had appeared to have been effective until the accident. Teacher had been writing at her desk when the accident occurred.

Principal’s ban had been effective and injury arose from the disobedience of a student. There was no evidence that a total ban would have prevented the disobedience. A principal could not foresee a deliberate assault of a toy any more than he could foresee a deliberate assault with a cricket ball or spinning top. It is unreasonable to expect a teacher to have constant attention on students and should be expected to turn their attention to the whiteboard or work on the desk. School not liable.

9.     Barker v State of South Australia

12 year old student damaged her spine when she tilted back on the two legs of her chair and fell backwards. The teacher had left the class for a few minutes after leaving the students with work on the board to carry on with.

It is reasonable to expect teachers to have to leave classrooms for short periods and it is not reasonable to expect a school to put in place a system where they can be replaced during their absence.  There was no evidence to show that the student would not have disobeyed directions no to tilt backwards even if the teacher had been present. School not liable.

10.    Gray v State of New South Wales

Year 6 student injured playing handball inside a classroom during the teacher’s absence. Students were kept inside classrooms during wet weather. If a teacher had to have a break, the routine was for the teacher in the adjacent classroom to alternate supervision between both classrooms until the other teacher returned. Classrooms separated by a flight of stairs and corridor. Teacher had been absent for long enough for a ‘knockout’ system in the game to have eliminated two students.

Teachers are of course entitled to a break, however they had to assess the risks in all the circumstances. Students left indoors during lunch time unsupervised were potentially mischievous and therefore the behaviour that led to the injury was foreseeable. School liable.

11.    Geyer v Downs

8 year old student received severe injuries when accidentally struck on the head by a softball bat in the playground before the formal commencement of school hours. The principal opened the school gates half an hour before school started to accommodate students whose parents both worked and teachers arriving early. The playground was small and crowded and no staff members were rostered to supervise. The principal had told students that they were to sit and read or talk and were not to play, although he knew that some students did play contrary to his directions.

The duty of care owed by the principal was to take such measures as are reasonable to prevent foreseeable injury to a student. The principal opened the gates early for commendable reasons, and with full knowledge of the risks associated with children playing games unsupervised. School liable.

12.    Ramsay v Appel

6 year old blinded in one eye when struck by a ball of slaked lime made by another boy from bags left lying on the school grounds. The substance was corrosive and burned his cornea. The boy was a student at the school but the accident happened when he returned to play on the grounds after hours with the permission of the deputy principal.

The negligence was not in the failure to supervise, but in leaving open a dangerous substance that was attractive to curious young boys who the school knew played there. School liable.

13.    Commonwealth v Introvigne

Boy was swinging on the halyard attached to the school flagpole when a piece of the pole broke off, fell and struck him on the head and severely injured him. The accident occurred before school commenced. All staff members were at an unscheduled meeting called to announced that the principal had died overnight. Only one staff member was made available to supervise the 900 students.

Students were known to swing on the flagpole and use it to hoist objects including other students. It was therefore foreseeable that such behaviour would occur, and to leave only one staff member to supervise was not reasonable, even in the unforeseeable circumstances that led to the staff meeting. School liable.

14.    Kretschmar v State of Queensland

13 year old student received a head injury when he collided with the knee of another student while playing a supervised game in the classroom. The aim of the game was for one of the four teams to be the first to accumulate three bean bags from the centre and by ‘robbing’ other teams. The classroom had been cleared of furniture and the students were closely supervised.

The risk to students was not an unreasonable one and no greater than that involved in ordinary schoolyard games like soccer, cricket etc. It is not in the interest of society to impose artificial standards that would encourage the rearing of a greenhouse generation. School not liable.

15.    Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney

Year 9 student suffered facial injuries when he fell three metres from a water slide onto a concrete wall. He was one of about 15 students participating in an off-site excursion. The students wore life jackets and were being supervised by two teachers. The student used the slide five or six times before the accident. He overbalanced at the top of the slide and fell three metres into the water.

While the accident was foreseeable, taking into account the degree of supervision, the student’s age, the size of the group of which he was a member, the inherent degree of danger of the activity in which he was involved, whether he was adequately warned of such danger, the school had done everything reasonable to prevent it. A handrail may have reduced the risk of injury but it would not have been reasonable for such a rail to be provided. The risk of an accident such as that which befell the student was extremely remote. It was also not reasonable for the school to have been required to provide mouthguards or helmets. School not liable.