Hanley, Linda; Bourke, Zoe --- "Injuries at schools: What case law says about the viability of claims" [2014] PrecedentAULA 47; (2014) 124 Precedent 32

---

INJURIES AT SCHOOLS

WHAT CASE LAW SAYS ABOUT THE VIABILITY OF CLAIMS

By Linda Hanley and Zoe Bourke

Case law can give personal injury litigators confidence in the viability of running claims against school authorities for breaching their duty of care.

There are a variety of scenarios in which a child can suffer from physical and/or psychological injuries while at school. A child can suffer from physical injuries while on or outside school premises, psychological injuries due to bullying from fellow student(s), and both physical and psychological injuries as a result of sexual assault committed by a teacher or other student(s). The case law discussed below sets out what the courts have said in relation to some of these situations.

WHAT CASE LAW SAYS ABOUT ‘DUTY OF CARE’ AND ‘FORESEEABLE RISKS’

The child plaintiff must first establish that the teacher and/or school had a duty of care to the child. It is well recognised at law that both teachers and schools owe a duty of care to students. It was held in the case of Richards v State of Victoria^[1] that the relationship of ‘schoolmasters and pupil per se’ generated a duty for a teacher to take reasonable care for the safety of any pupil who is under his or her control and supervision. Although teachers who have been found to be negligent have a personal liability to the student, generally speaking it is the school that is ultimately responsible, under the doctrine of vicarious liability, for paying for the child’s compensation for injuries. In the case of Watson v Haines,^[2] it was held that schools have a non-delegable duty to ensure that reasonable care is taken for the safety of children while at school.

Although teachers and schools have a duty of care to their students, this duty is not absolute. This duty of care extends only to the protection of students from ‘foreseeable risks’. In Warren v Haines,^[3] it was held that foreseeable risks are those that are not ‘far-fetched or fanciful’. This was later redefined by the Final Report of the Review of the Law of Negligence (2002), and later enacted in all jurisdictions in Australia (with the exception of the Northern Territory), to include any risks that are considered ‘not insignificant’. Therefore, the courts will expect that teachers and schools have a duty to take precautions against a risk of harm if the risk was foreseeable and not insignificant (which includes, but is not limited to, those that are not far-fetched or fanciful).

The scope of this duty of care is often a contentious issue. Although it is widely accepted that teachers and/or schools owe a duty of care to students during school hours on school grounds, it is questionable whether this duty of care extends to injuries that occur outside school hours and/or outside school grounds.

In the case of Geyer v Downs,^[4] the question was raised as to whether the headmaster owed a duty of care to provide adequate supervision to a child who was injured in the school playground at approximately 8.50am in the morning before school officially commenced at 9am. The child in this instance was an eight-year-old girl who was accidentally struck on the head by a softball bat held by another girl who was playing softball in a very small and relatively crowded playground. No supervision was provided by any of the teaching staff. In this case, the High Court held that the headmaster owed a duty of care to the child and other children because it had permitted children to come to the school as early as 8.15am, and he had asserted his authority over the children by providing them with instructions to not play games on the school grounds before 9am.

The issue of whether a school owes a duty of care to students after school hours was explored in the case of the Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman.^[5] In this case, the child plaintiff was a 12-year-old boy who sustained a severe injury to his left eye after having sticks and rocks thrown at him by an older boy from a nearby high school. At the time of the incident, the child was waiting to catch a bus at a bus stop that was approximately one and a half blocks away from the entrance of the defendant school. This bus stop was located outside a nearby high school. The Supreme Court held that the defendant school knew or ought to have known that a group of children from the defendant school were going to catch the bus from this particular bus stop. As a result, the defendant school breached its duty of care in failing to provide appropriate supervision of the child and other children at this bus stop. If adequate supervision had been provided, the child would not have sustained his injury.

Although in each of these two cases the defendant was found to be liable, the scope of a teacher and/or school’s duty of care will ultimately be dependent on the particular circumstances of the situation. If the child plaintiff in Koffman had sustained the injury during his bus ride home, the court might not have found against the defendant.

WHAT CASE LAW SAYS ABOUT ‘BREACH OF DUTY’

Once a duty of care is proven, it needs to the established that the teacher and/or school breached this duty of care. The crux of what needs to be established under this element is the standard of care that was expected of the teacher and/or school, and whether the teacher and/or school failed to offer that standard of care.

In determining these factors, the court in Introvigne v Commonwealth^[6] held that the standard of care is one that is to be expected of an ordinary teacher and/or school in the same situation as the defendant in the proceedings.

It must be established that an ordinary or reasonable teacher and/or school in the same situation as the defendant would have taken precautions against the risk of harm in the current circumstances. In determining this, the court will consider, among other things, the following:

• the probability that harm would occur if care was not taken;

• the likely seriousness of that harm should it occur;

• the burden of taking precautions to avoid the risk of harm; and

• the social utility of the activity that creates the risk of harm.

In the case of Introvigne, the High Court was asked whether the school should be held liable for a head injury sustained by a 15-year-old school boy. The boy had injured himself while skylarking with his friends on a halyard of the school’s flagpole a few minutes before school officially commenced at 8.30am. The High Court held that the school was liable in this instance as it did not provide safe premises and failed to adequately supervise the children on the school grounds. The High Court in particular emphasised that flagpoles and halyards are inherently attractive and luring to students, and were therefore considered obvious and latent hazards. The school was therefore required to take into account the ‘well-known mischievous propensities of children’ in providing a system that would ensure that children were not exposed to unnecessary risk of injury. The High Court held that the school failed to provide this system in not padlocking the halyard of the flagpole.

WHAT CASE LAW SAYS ABOUT ‘CONTRIBUTORY NEGLIGENCE’

Once negligence is established, it is commonly argued by school defendants that the child plaintiff contributed to the negligence by way of their behaviour. If contributory negligence is found, the child plaintiff’s award of damages will be reduced in a manner that is proportionate to the percentage of contributory negligence found against them. This was the case in Coppin v State of South Australia.^[7]

In Coppin, the child plaintiff was a nine-year-old boy who suffered a left eye injury after being struck by a stone on school grounds during recess. The child and his friends initiated the throwing of stones and bark at a group of senior students sitting on a lawn adjacent to the defendant school. Although it was held that both the defendant school and the defendant who threw the stone were liable for the injury sustained by the child, it was held that the child in this case had contributed to the negligence. The child plaintiff was held to have foreseen that throwing stones and bark at senior students would have attracted retaliation of a kind that may have caused injury to him.

A defence that may also be sought by teacher and/or school defendants in negligence cases is the defence of ‘voluntary assumption of risk’. This defence can apply if it can be established that the child plaintiff willingly assumed the risk. In the context of child plaintiffs, this defence has been very narrowly interpreted by the courts and therefore is unlikely to be successful.

WHAT CASE LAW SAYS ABOUT INJURIES CAUSED BY BULLYING AT SCHOOL

The recent case of Oyston v St Patrick’s College^[8] highlights the issue of the duty of care required by a school in the context of bullying. In this case, the child plaintiff alleged that she had been physically and verbally bullied on a daily basis in the years of 2002–05 by her fellow students at the school. The bullying was not limited to the schoolyard, but extended to after-school venues such as the local shopping centre and Facebook. As a result of this bullying, the child sustained significant psychiatric injuries that continued into adulthood. The Court of Appeal held that the school could reasonably foresee that this child plaintiff was vulnerable to psychiatric injury from bullying, based on the following:

• the child plaintiff had made complaints to the school about bullying;

• the school was aware that she would be susceptible to psychiatric injury as she had a difficult home life; and

• the school was also aware that there was a bullying culture in the school based on a bullying survey conducted by the school in 2004.

As well as the injury being reasonably foreseeable, the child plaintiff had to establish that the school breached its duty of care. The school had a Bullying Policy which stipulated the steps that needed to be taken with respect to bullying, including writing incidents on a Bullying Register. The school conceded that not only had it not followed the Bullying Policy with respect to the child plaintiff’s complaints, but that it had never followed through with the creation of a Bullying Register.

In the decision at first instance, Justice Schmidt stated that the school was under an obligation not only to meet its legal duty, but also to educate and support students through adolescence. While the Court of Appeal agreed that the school was not required to ensure that the child did not get bullied, the duty of care extended to ensuring that the child was protected from bullying. This concept is supported by the findings in Introvigne, whereby a responsibility to take reasonable care, or see that reasonable care is taken, for the safety of another, is substantially different from an obligation to prevent any kind of harm. The Court of Appeal held that merely having a Bullying Policy was not sufficient for the school to meet its duty of care to take reasonable steps to prevent injury. The school was obligated to follow through with the policies and procedures set out in the Bullying Policy. It failed to do this, and this was causally linked to the child plaintiff sustaining an injury.

The child plaintiff in this recent case was awarded approximately $160,000 in damages.

WHAT CASE LAW SAYS ABOUT INJURIES CAUSED BY SEXUAL ASSAULT AT SCHOOL

The High Court judgment in New South Wales v Lepore & Anor^[9] highlights a contentious issue for legal practitioners with respect to the liability of a school when a child plaintiff has been sexually assaulted by a teacher. The facts of this case involve a teacher who, in the 1970s, as part of punishment, assaulted and indecently touched a student. Although in this instance the school was found vicariously liable for the sexual assault, the High Court found that school authorities are not automatically vicariously liable for sexual assaults carried out on students by their employees.

A school authority can be found vicariously liable for the sexual assault of a student by its employee where it has breached its duty of care in:

• employing someone who is a risk of committing assault;

• failing to supervise someone;

• failing to respond to complaints; or

• failing to act on potentially at-risk situations.

Where it can be found that a school is at fault in managing its staff, and this fault is causally related to the harm suffered by the student, the school will be found liable for the injuries sustained.

Further to the elements of fault, case law has established that a school will be found vicariously liable for the actions of a teacher only where intimacy and a high degree of power and vulnerability in the relationship between the teacher and the student is established, and where this intimacy and vulnerability occurred in the course of, or closely connected with, school duties. This can be difficult to establish because not everything that an employee does during work hours is connected with the duties and responsibilities that arise in the course of employment.

The decision of the House of Lords in the case of Lister v Hesley Hall Ltd^[10] was that the sexual assault by a warden of children who were staying at a boarding house annexed to the school sufficiently demonstrated a relationship of power and intimacy in the course of the teacher’s duties. Lord Millett summarised the position of vicarious liability:

‘It is not enough to say that teaching involves care. So it does, but it is necessary to be more precise about the nature and extent of care in question. Teaching may simply involve the care for the academic development and progress of a student. In these circumstances, it may be that ... the school context provides a mere opportunity for the commission of an assault. However, where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment.’^[11]

In order for plaintiff litigators to establish that a school authority is vicariously liable for injuries sustained by students through sexual assault, their pleadings must particularise, among other things, the following:

• that the teacher had a position of power and an intimate relationship to the student in the course of their employment; and

• that the school authority breached its duty of care in its employment, management, supervision or complaint-handling capacity.

Examples of scenarios where such a relationship, and the school’s negligence, could potentially be established are:

• a sexual assault suffered by a female high school student who is known by other teaching staff to have been driven home from time to time by a young male teacher. This relationship is one where intimacy and power can be established, and where the school ought to have intervened as it ought to have suspected that a sexual relationship could be developing.

• a student being groomed for a sexual relationship by a teacher/coach who was known to stay on at after-school sports parties without other teachers being present.

CONCLUSION

Relatively few school injury cases proceed to judgment so there are few judgments to give us contemporary guidance on how courts will deal with such claims. However, the older cases, as well as some new ones, are generally encouraging about bringing a claim for a child plaintiff who has been injured at school. The key is proving that the school knew of the risk of injury and did not take sufficient steps to protect the child in its care.

Linda Hanley is a lawyer at Adviceline Injury Lawyers (a division of Holding Redlich) and practises exclusively in WorkCover, Medical Negligence and Public Liability matters. EMAIL [e-mail].

Zoe Bourke is a Graduate at Adviceline Injury Lawyers (a division of Holding Redlich). EMAIL [e-mail].

---

^[1] (1969) VR 136.

^[2] (1987) Australian Torts Reports (ATR) 80-094.

^[3] (1986) ATR 80-014.

^[4] (1977) HCA 64; (1977) 138 CLR 91.

^[5] (1996) NSWSC 346.

^[6] (1982) HCA 40; (1982) 150 CLR 258.

^[7] (1997) SADC 3632.

^[8] (2013) NSWCA 135.

^[9] (S108 of 2002) – (2003) 195 ALR 412.

^[10] (2002) 1 AC 215.

^[11] Ibid at [250].