Duty of Care – does it apply to support staff as well?
Reprinted with permission – original article appeared in IE Magazine, Issue 3, Vol 50, 2020.
Education support staff are increasingly aware there can be legal consequences for the things that happen in the course of doing their jobs.
Students get hurt. Parents get angry. People get sued. Senior IEU Victoria Tasmania Industrial Officer Denis Matson explains what you need to know as a member of the support staff, and your obligations.
Parents and students are more aware of their rights and the world is becoming more litigious. Parents see their children as consumers with contractual rights. All of us are more conscious of discrimination, bullying, health and safety laws and breaches of the ‘duty of care’. Add in the intensification of work and the ever-increasing dangers of trying to do too much in too little time and it’s clear why we are seeing more litigation. While there is a lot of case law about teachers and schools, there is not much about support staff.
The river has many tributaries
Support staff need to be aware of the many sources of their obligations. The legal framework you work within includes your contract of employment, the Award or Agreement that covers you and the employer’s policies. It also includes a plethora of legislation covering equal opportunity, discrimination, occupational health and safety, privacy and so on. However, with all this documented legality, it’s actually the common law of negligence that is the source of most of the cases that go to court. The extent of support staff ‘duty of care’, how that duty might be breached, and the consequences are not written into any Act of parliament. As a common law concept, negligence is set out in case law determined by courts. Support staff need to understand what courts think is ‘negligent’, as opposed to what a ‘reasonable person’ would have done.
Duty of care and negligence
If you are told to do something that you consider might be dangerous or inappropriate, you should apply the ‘lawful and reasonable’ test. You do not have to comply with any employer instruction which is either unlawful or unreasonable. When an employee was instructed to back up a truck that he was not licensed to drive, he could have (and should have) refused – the direction was unlawful. He backed over and killed another employee. While he was initially held liable for negligence, on appeal the court found the employer liable. The instruction should never have been given. But in many cases support staff are not acting on explicit instructions: they are required to exercise their own judgement and make decisions on the run. For support staff to be found negligent, the plaintiff (usually a parent) must show that:
- the student was owed a duty of care
- the duty of care was breached
- the breach caused the injury
- the injury was not too ‘remote’ and
- the usual defences to negligence do not
Duty of care
It is unarguable that schools generally owe students a duty of care and that staff are responsible for carrying this out. Readers may have heard of the ‘non- delegable duty of care’. While some schools try to scare staff with the ‘non- delegable’ bit, it is actually the school that cannot delegate. That is, while the school must employ competent staff to care for students, it cannot escape liability by saying “we employed skilled people to do that”. Barring a quasi- criminal level of negligence, the school will always be liable for injuries resulting from the actions of its staff. What you need to do is what a reasonable person would do.
Where it gets messy is how far that duty extends – beyond the school grounds and into what sort of events? First the courts apply the test of ‘proximity’. In Bathurst v Koffman a 12 year old student walked about 400 metres to the bus stop after school. Students from another school threw stones and injured his eye. The court found the school liable and said: “… if it is plain to the school that, immediately outside the school premises, there is a busy and therefore dangerous road, the school will ordinarily have an obligation to shepherd pupils of a young age across the road. But if, in the course of walking from school to home, the student has reason to cross a busy road two kilometres from the school, it does not follow that the obligation of the school to take precautions for the safety of the student will involve that it shepherd the student across the road.”
Proximity can relate to time as well as physical distance. In Geyer v Downes a student was badly injured by a baseball bat while she was crossing the schoolyard before school. The playground was open but the accident happened before it was supervised. The principal claimed in his defence that no duty of care was owed until school had officially started but the High Court rejected his claim. It was held that allowing children onto the school grounds before 9am was an acceptance of the duty. Apparently the known presence of children on the school grounds is sufficient to establish proximity.
Next the court looks at ‘foreseeability’. In Watson v Haines a 15 year old boy with an unusually long neck was paralysed playing rugby league. The Department of Education was held liable. The court said that the student should not have been in a forward position because of his long neck which was broken during a scrum. This emphasised the need to be extraordinarily careful in exercising your duty of care; that a breach can arise from any ‘foreseeable injury’. The risk was not ‘fanciful’ and the type of injury was foreseeable and proportionate. In Giliauskas v Minister for Education an 8 year-old was mauled by a bear on a zoo visit. The court looked at the age of the children, the cost to the school of providing more supervision and like factors to determine that the injury was foreseeable and held the Department of Education liable.
Whether there has been a breach of the duty of care comes down to the ‘reasonable person’ test. The court may consider factors like the likelihood of injury; the seriousness of the injury; the effort required to remove the risk and the utility of the conduct. In Rich v London City Council the court observed that “You can supervise as much as you like, but you will not·stop a boy being mischievous when your back is turned. That, of course, is the moment that they choose for being mischievous.” That is, if a reasonable effort would not have prevented the injury then there is no breach.
There have been cases dealing with application of first aid and breaking up fights that indicate that the courts consider the experience of the employee and take a fairly pragmatic view of whether there was something that the employee should have thought of or done that would have changed the outcome.
It is unarguable that schools generally owe students a duty of care and that staff are responsible for carrying this out.
The court asked in Geyer v Downes (above) whether appropriate supervision would have prevented the injury: would rostering teachers in the playground before school have prevented the girl being hit by the bat? The court found that it would have, because the girls had been instructed not to play ball games before school, so supervision would probably have meant no ball games, so no injury. By contrast in Getani v The Trustee of the Christian Brothers a pupil was injured when, running through the corridor, he tripped over a school bag. The school had instructed students to leave bags on top of lockers and not in the corridor, and pupils were instructed not to run. Disciplinary measures were taken when pupils breached these instructions. The court held that the accident was foreseeable, but the plaintiff failed to prove that taking preventative steps (like better supervision or alternative storage facilities) would have prevented the risk of his injury. Likewise in Warren v Haines a known bully picked up a 15 year old girl and dropped her on her tail bone in an unsupervised area in school. While the court accepted that the school had a duty to provide adequate supervision it found that the injury occurred quickly, so there was no opportunity for a teacher to intervene.
Here the court asks whether the kind of damage that was done was reasonably foreseeable or could not have been anticipated (was ‘remote’). In the long-neck rugby case (Watson v Haines) the court found that the broken neck was a foreseeable injury. In Warren v Haines (the girl dropped by a bully) the court decided that the type of injury was foreseeable if it was not ‘far-fetched or fanciful’. It said that if the type of injury is not foreseeable then there can be no duty of care to guard against it.
The usual defences to a negligence claim are unlikely to have much application in schools. Typically, a court will consider whether the injured person contributed to their own injury, or whether they voluntarily assumed responsibility for the risk. Because the school has the ‘non-delegable duty of care’ and has authority over the students these defences are not of much assistance.
Who gets sued?
Plaintiffs have to consider not just who is at fault, but who can pay if they win. Schools hold the ‘non- delegable duty’ and are required to hold professional indemnity insurance. Schools are also required to indemnify their staff against legal suits against them arising from the performance of their duties: In short, if someone is going to sue for an injury they will sue the school. Individual staff may be joined to the action but will generally be covered by the school’s insurance. The IEU in many states (including Victoria and Tasmania) also takes out professional indemnity insurance to protect its members.
So what do you do?
Don’t panic. The chances of you being sued are very slight, especially if you follow your school’s policies. Identify risks and raise your concerns in writing. Report hazards and record incidents.
Print out and keep records (if you are stood down, the first thing you lose is access to work emails).
Request appropriate training. All of these actions go to proving that you acted like the proverbial ‘reasonable person’. If you feel ‘uneasy’ about it, don’t do it. Ask yourself whether you would be happy to tell your principal what you are doing. If not, don’t do it. If you are happy to, then tell him/her – in writing. Then, if there is any doubt, you have taken the first giant leap towards proving your actions were reasonable.
If you have any concerns or need advice, please contact the IEU(SA) office on 8410 0122 or firstname.lastname@example.org
New members cannot join the union with an issue so be sure to share this article with non-members and encourage them to join the IEU before they have a problem.