Recent cases, including the prosecution and substantial fines imposed on a Melbourne school and its travel provider following the preventable death of a student on an overseas trip, are a stark reminder of the legal and practical responsibilities schools face when facilitating high-risk activities or excursions, whether domestic or international.

Independent schools, in their efforts to offer competitive and enriching experiences, frequently engage third-party providers for excursions, camps, and extracurricular activities. However, schools are held to a high standard regarding risk assessment and risk management.

The school's duty of care is to take reasonable steps to protect the student against foreseeable risks of harm (Commonwealth v Introvigne (1982) 150 CLR 258, 280; [1982] HCA 40). This duty is non-delegable and cannot be contracted out, even when activities are run by external providers.

Our previous articles, Fishing for risk assessments – WHS lessons from a school camping tragedy and Prevention not Reaction – the importance of risk management in curricular activities, highlight two instructive cases:

• South Australian WorkSafe prosecution: A tragic drowning during a school camping trip underscored the need for thorough, activity-specific risk assessments, especially for offsite or high-risk activities like rock fishing.

• Sydney science experiment incident: Burns to students and a teacher demonstrated that risk management must be proactive, not reactive.

Key lessons from these incidents were that:

a)    Staff must have adequate WHS and risk assessment training, and will be criticised for failing to identify and address specific, reasonably foreseeable risks. 

b)    Generic, “tick-box” risk assessments are insufficient. Each activity must be scrutinised for unique hazards, and standardised controls do not replace the need for tailored risk assessments. 

c)    Comprehensive WHS policies and procedures, supported by regular staff training, are essential.

These lessons were reinforced by the recent prosecution of a Melbourne school after a student with type-1 diabetes died on an overseas tour. Despite known health risks, staff failed to act promptly, and the student was only taken to hospital after becoming unresponsive. 

A Coronial Inquest examined the school, teachers, family members of the deceased, the deceased's treating clinicians and the third party provider, ultimately finding that "the death was preventable". Media were granted full access to the examinations. Personal injury proceedings were brough by the deceased's family, which settled at Court-ordered mediation. 

WorkSafe Victoria brought a separate prosecution, and both the school and the travel company pleaded guilty to failing to ensure student health and safety. The school was fined $140,000, down from $185,000 due to an early plea. The third party provider was fined $150,000 discounted from $200,000 as part of the prosecution. The Regulator emphasised the need for schools to properly support staff, particularly when managing health conditions on trips.

Schools’ non-delegable duty of care extends to all activities, including those overseas or run by third parties. Work health and safety laws require schools to:

• Identify and assess foreseeable risks to students and staff.

• Implement and regularly review effective control measures.

• Ensure staff are adequately trained, especially in managing known health conditions.

• Maintain clear documentation and communication with all parties.

These duties are met when schools facilitate a strong risk culture. This means going beyond paperwork and checklists, and requires:

• Individualised risk assessment: Consider the specific needs and vulnerabilities of each student and staff member, especially those with medical conditions. 

• Staff training: Ensure all staff are trained and confident in responding to medical emergencies relevant to the group. 

• Clear emergency plans: Develop and rehearse plans for medical emergencies, including access to local healthcare and communication protocols. 

• Active communication: Keep parents informed and involved, and ensure all relevant information is shared with those responsible for student welfare.

It is critical that this framework is adapted for different activities, considering location, equipment, supervision ratios, communication protocols, and any other relevant factors. 

When engaging third parties, schools must conduct thorough due diligence, including reviewing contracts, insurance, risk assessments, staff qualifications, and child safety protocols. All relevant documents including risk and incident registers should be scrutinised, and providers must have their own comprehensive safety and safeguarding policies and processes. 

Often, third-party providers will present waivers for high risk activities they offer. These documents typically aim to limit the provider’s liability for injury or loss. 

The enforceability of such waivers, especially those affecting children, is uncertain. Limits include:

• Children cannot enter contracts due to lack of legal capacity. Waivers signed by children, or by others on their behalf, are generally unenforceable unless they confer a clear benefit to the child. 

• Schools remain responsible for student safety, even when activities are run by external providers. Waivers do not absolve the school of this duty.

• Statutory guarantees under the Australian Consumer Law (such as services being provided with due care and skill) cannot be excluded. 

• Under Civil Liability legislation, providers of dangerous recreational activities may be protected from liability for “obvious risks”, but not for risks arising from negligence, intentional misconduct, hidden hazards, or poor maintenance.

For a waiver to be effective, it must be clear, legible, and incorporated into the contract at the time of booking, not presented after payment or on the day of the activity. The waiver’s language must clearly cover the specific activity and not attempt to exclude liability for negligence or criminal conduct.

To meet their duties, schools should consider conducting their own risk assessment for each activity, carefully documenting each step and ensuring that all staff and students are thoroughly briefed on safety procedures. 

A strong communication plan to families about the nature and risks of each activity is critical to obtaining informed consent. If a waiver is used, families should be told of the effect of those waivers, their limitations, and the school’s ongoing duty of care. 

A waiver or indemnity becomes unacceptable when it:

• seeks to exclude liability for negligence, criminal conduct, or reckless behaviour;

• is unclear, overly broad, or presented after booking/payment;

• is intended to be signed by a minor or by a parent on their behalf, without clear legal authority; and

• attempts to indemnify the provider against “any and all” claims, including those caused by the provider’s own acts or omissions.

Bottom line: Waivers are not a substitute for risk management and do not absolve schools of their legal responsibilities. Schools retain a non-delegable duty of care to students, regardless of any waiver.

Need help? If you have upcoming excursions, tours, or extracurricular activities, seek expert advice. If you need guidance or support, please contact Insurance or Employment & Safety teams to discuss your specific situation.