Duty of care: direct liability for schools and students

In brief: The duty of care a school owes to its students is a dynamic concept; in what situations does a school owe a duty of care to its students, and what exactly is that duty of care?

Background

For the sake of completeness, schools owe a duty of care to exercise reasonable care to avoid or prevent things that could foreseeably cause injury to the pupils under their control and supervision (Richards v State of Victoria [1969] V.R. 136). 

This is not a duty to prevent all harm, but to take reasonable care to prevent harm where it is reasonably foreseeable (Commonwealth v Introvigne [1982] HCA 40). The reason for this duty is uncontroversial, given a child is beyond the protection and control of their guardian whilst attending school, and in the ordinary course the school inherits a duty to exercise reasonable care to protect that student from injury. 

Injuries occasioned to a student typically fall into one of two categories: situations where the unsafe condition of the school causes injury, or alternatively where the conduct of another student, teacher, or third party causes that harm. In New South Wales v Lepore [2003] 77 AJLR 558, the Court held a school's duty extends to protecting them from the conduct of other students.

Whilst the imposition of the duty to exercise reasonable care is appropriate, the duty of care is quite onerous. A school needs to control its own conduct, the conduct of the student to whom the duty is owed, as well as having the oversight and responsibility for the conduct of other students and teachers, and in some cases, third parties. 

A school can be held:

1. liable in negligence (ie, where a duty of care is owed, that duty is breached, and then a student suffers injury by reason of that school's breach of duty);

2. liable vicariously (ie, liable for the acts or omissions of their employees, and potentially, third parties); and

3. directly liable for the conduct of certain employees who act as the "mind and will" of the school (such as negligent acts committed by a principal, see Erlich v Leifer & Anor [2015] VSC 499). 

When Does the Direct Duty Arise?

Focussing on direct liability only in the context of negligence, the duty of care owed by a school arises from the creation of a teacher-student relationship, this relationship crystallises upon the students enrolment at the school, and will extend to circumstances where that teacher-student relationship exists.  

Geyer v Downs [1977] 138 CLR 91 is authority for the proposition that a teacher-student relationship exists wherever there is:

1. a permitted student presence; and

2. exercise of authority by a teacher. 

This, of course, requires a case-by-case consideration of the circumstances in which the student's injury was sustained. 

What about situations where an injury is occasioned on the way to or from school? Schools clearly have a right to impose punishment upon students for conduct that occurs between home and school, so does this extend their duty of care? 

In Geyer v Downs, the Court held that the school owed a duty of care even before its first teacher arrived on campus for morning playground duty. This was the case given students were allowed to congregate on or around the campus with the knowledge of the principal.

A school will even owe its students a duty of care after school hours in situations where it knows, or ought to know, of a foreseeable risk of harm to its students, and where it is reasonable for the school to take appropriate steps to prevent that foreseeable risk of harm. See for example the case of The Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman and Anor [1996] NSWSC 346 where a school was found liable for injuries sustained by one of its students at a bus stop after school following an assault perpetrated by students of another school. 

Where a student suffers injury off campus, or outside school hours, the teacher-student relationship will only exist in circumstances where that injury was occasioned as a result of a "school activity". Whilst this term has escaped judicial definition, taking a common sense approach this should capture any activity that is arranged or authorised by a school, which clearly canvasses the likes of excursions, camps, and co-curricular activities such as sport.

In Victoria, Ministerial Order 1359, operational from July 2022, embeds the Child Safe Standards and provides that a "school environment" includes any physical, online or virtual places made available or authorised by the school governing authority for use by a child during or outside school hours, including by third party providers.

It is also important to note that a school cannot discharge its duty of care by delegating that authority to its teachers (see Commonwealth of Australia v Introvigne [1982] 56 ALJR 749). Simply put, a school cannot suggest their duty to a student has been "handed off" to say another entity and/or its teachers, or even their own teachers for that matter, and by doing so suggest it does not owe that student the same duty of care. 

This is important to consider when looking at things such as overseas study tours, camps or perhaps homestay accommodation. Schools should keep this in mind and consider their ability to ensure any duty they owe to their students can still be discharged. This can be particularly difficult when their ability to practically influence the day-to-day wellbeing of a student is limited due to these sorts of geographical considerations or arrangements. 

Schools need to pay close attention to the activities they directly or indirectly authorise their students to engage in, and ensure that they accordingly consider the extent of any duties they owe to their students by reason of that authorisation.