Legal background

'Duty of care' is an element of the tort of negligence. In broad terms, the legal position is that if a person is injured as a result of a negligent act or omission of another, the injured person should be compensated for loss and damage flowing from that negligence.

To successfully bring a compensation claim in negligence, a person must establish on the balance of probabilities, that:

• a duty of care was owed to them at the time of the injury

• the risk of injury was reasonably foreseeable

• the likelihood of the injury occurring was more than insignificant

• there was a breach of the duty of care or a failure to observe a reasonable standard of care; and

• this breach or failure caused or contributed to the injury, loss or damage suffered

The fact that a duty of care exists does not mean that a school staff member will be liable for every injury sustained by a student. 

Rationale:

At Kensington Community High School, the Principal and teachers are held to a high standard of care in relation to all students. The duty required the principal and teacher to take all reasonable steps to reduce risk, including

• ensuring the school complies with the seven Child Safe standards

• prison of suitable and safe premises

• provision of an adequate system of supervision

• implementation of strategies to prevent bullying

• ensuring that medical assistance is provided to a sick or injured student

• managing employee recruitment, conduct and performance

This duty of care is non-delegable, meaning that it cannot be assigned to another party.

Multiple staff may have a duty of care to the same student, with differing responsibilities and roles to play in relation to the school discharging its overall duty of care. The precise scope of each staff member’s duty of care may be different.

For example, a principal is not required to personally supervise every student at lunchtime to discharge their duty but instead is responsible for establishing and monitoring a system for supervision that is shared amongst staff. Another staff member may be responsible for preparing the yard duty roster and each staff member rostered onto yard duty will have a duty of care to take reasonable steps in relation to any foreseeable risks to students arising at lunchtime which may include:

• monitoring specific students where there are known risks

• generally monitoring all students and intervening where there is inappropriate student behaviour

• responding to accidents and taking appropriate measures to follow up any incidents that have occurred, which may involve ensuring that the incident is reported to another staff member with responsibility for further action

Whenever a teacher-student relationship exists, teachers have a special duty of care. This has been expressed as; “a teacher is to take such measures as are reasonable in the circumstances to protect a student under the teacher’s charge from risk of injury that the teacher should reasonably have foreseen.” (Richards v State of Victoria)

 The nature and extent of the duty will vary according to the circumstances. For example, the standard of care required will be higher when taking Year 7s to swimming lessons than when teaching a group of Year 12s in the classroom. 

In some circumstances, the duty of care owed by school staff will extend beyond school hours and outside of school grounds. Whether the duty extends outside of school hours or outside school grounds will depend on all the circumstances of each individual case, and the school staff members’ knowledge of any reasonably foreseeable risks of injury.

The important issue in all cases will be what precautions the school could reasonable be expected to have take n to prevent he injury from occurring. This will involve consideration of the following factors:

• the probability that the harm would occur if care were not taken

• the likely seriousness of the harm

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

• the social utility of the activity that creates the risk of hard

Aims:

• to ensure the staff at Kensington Community High School understand the nature of the legal duties owed by teachers and school staff towards students.

• To ensure the school complies with legislation and DET policy and guidelines

• To ensure the school has in place strategies to enhance compliance with the Child Safe Standards 1, 2, 4 and 6.

Implementation:

At Kensington Community High School, the safety and well-being of students is out highest priority. We have a zero tolerance of child abuse in any form. The principal will ensure that staff members understand their Duty of Care to students as it applies to classroom supervision, movement of students, yard duty supervision, camps and excursions, first aid and health care needs and medication.

Whilst each case regarding a teacher’s legal duty of car will be judged on the circumstances that occurred the time, the following common examples may be times when a teacher has failed to meet their legal duty of care responsibilities to their students:

• Arriving late to class or leaving class early

• Arriving late to scheduled timetabled yard duty responsibilities

• Failing to act appropriately to protect a child who claims to be bullied

• Believing that a student is being abused but failing to report the matter appropriately

• Leaving student/s unattended in the classroom

• Ignoring dangerous play

• Leaving school during time release without signing out at the office

• Inadequate supervision while on excursion

NOTE: In providing advice to students, teachers should limit their advice to areas within their professional knowledge, given in situations arising from a role specified b the principal and ensure such advice is correct and in line with the most recent available statements. Teachers must avoid giving advice in areas unrelated to their role or where they may lack expertise.

All members of staff will be informed of their Duty of Care obligations and legal requirements via this policy.

 He Policy will be provided to each member of staff at the first staff meeting at the commencement of each school year and will be placed in the school share drive. New staff members will be informed of their Duty of Care obligations and legal requirements as part of their Induction.

• Bullying Prevention Policy

• Camps and Excursion Policy

• Yard Duty Supervision Policy

• Camps and Excursion Policy

• First Aid Policy

• Anaphylaxis Policy

• Emergency Management Plan

• Child Safe Standards and Child Safe Policy

• Mandatory Reporting Policy

Evaluation

This Policy was ratified by School Council on:  _______________  

This Policy was ratified by School Council on:  _______________