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 apply.
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.