Civil Liability

Duty of Care to Pupils

A teacher and the school authority generally the Board of Management has a duty of care to pupils.  This arises from the fact that they have been entrusted to the care and control of the school and the teacher.  In earlier times, and it the context of smaller schools it was said that the duty arises from the teacher-pupil relationship.

The general law of civil liability applies in the context of schools and educational institutions. Liability for negligence arises where there is a duty of care, breach of the duty, causing personal injury or property damage.  The extent of the duty is very specific to the circumstances. Reasonable care is required.  This applies both to the operation of the school and the static or physical environment.

Under general principles, a Board of Management itself may be liable for negligence.  Alternatively, or in addition, the Board of Management may be vicariously responsible for the teacher.  The teacher may be liable personally in negligence but will generally be indemnified by the Board of Management and covered by its public liability insurance policy.

Occupiers’ liability provides for liability arising from the physical state of premises.  See generally the sections on occupiers liability.  The highest duties are owed to school students.

Standard of Care

The standard of care required by the duty depends on the circumstances.  The foreseeability of the risk, the seriousness of the risk, the utility of the defendant’s conduct and the position of parties, determine the extent of the duty of care and what is reasonable in the circumstances.

In the case of children, the duty of care is higher than would be owed to adults.  Those controlling the school must take account of the age, immaturity, lack of foresight and propensity to horseplay.

The school environment requires constant care and supervision.  If an accident or incident occurs, in the absence of proper supervision, which would not otherwise have occurred, there may be liability in negligence. The degree of care is somewhat dependent on age.  A higher degree of supervision is required of primary school children.

Traditionally, the teacher and school were in loco parentis i.e. in place of the parent.  In modern times, the general test of negligence is employed.  The teachers and the Board of School must meet the standards of hypothetical reasonably competent professionals in an equivalent position.

Test of Negligence

The traditional test of a prudent and reasonably careful parent yields in larger schools and in modern times, to a more general standard of management of health and safety, on the part of the school as w whole and on the part of the teacher.

The requirements for negligence emphasise that absolute responsibility does not apply.  There may be cases where a school and teacher may not be reasonably required to supervise, particularly in the context of fast-moving playground games.

The degree of care varies with the age and maturity of students. Younger children are not capable of contributory negligence.  However, above the age of 10 or more years (and possibly younger), they may be held to be contributorily negligent, where their negligence contributes to the injury or damage.  The position will depend on the maturity of the particular child and there is no hard and fast age limit.

The general principles under the Civil Liability Act apply. Where more than one party is at fault, one party may be obliged to make a contribution and indemnify the other.

The duty may be stated to be one to prevent foreseeable risks or personal injury.  Duties may be owed to third parties  If the child escapes from school and causes an accident, there may be a breach of the duty of care to that third party.

Scope

The duty of care applies while the students are on the school premises, whether in the classroom or playground. In some cases, the courts have refused to extend the duty to a significant extent outside of school hours.  However, where children have been taken into the custody of the school and are under its control the duty is not a thoroughgoing duty as during the school day is likely to arise.

Once children are received into the care of the school, the duty is likely to apply, notwithstanding that school hours have not yet commenced.  Questions may arise as to the stopping and end points of the school day.  The duty of care, while children are under supervision prior to commencement of school hours, may be less onerous, depending on the circumstances.  The degree of control may be less in certain such contexts.

Safe System of Supervision

In common with responsibilities imposed on organisation, employers, retailers, et cetera there is an obligation to provide a safe system.  In the context of a  school, a safe system of supervision is required.  In this case, the negligence may lie at the level of a failure to have appropriate controls and policies, rather than a particular failure in a moment of time.

The degree of supervision will depend on the age of the children, maturity, the particular activity, etc.  If a sudden or unanticipated event occurs, which is not attributable to the lack of a safe system, the duty of care is unlikely to be breached.

The courts recognise that the children may be allowed to develop and interact, participating in normal school activities, notwithstanding that they entail elements of risks.  In particular, sports and games may entail risks.  No level of care can provide complete assurance from accidents occurring.

The degree of supervision at yard and playtime is relevant in many cases. In some cases, there may be negligence and failure to provide sufficient supervision.  Even if the supervision cannot be shown to have prevented the accident, it may have curbed a particular behaviour and lead to a finding that the accident might not otherwise have occurred. The school management may thereby be held to have caused the accident.

Statutory Duties

The statutory duties in the Safety, Health and Welfare at Work Act apply in the context of schools for the benefit of employees and persons in their care, namely students.  The legislation provides that employers must conduct their undertaking so as to ensure in so far as reasonably practicable that in the course of the work, individuals at the place of work are not exposed to risks to their safety, health and welfare.  The statutory duties are more absolute than the duties in negligence.

The health, safety and welfare legislation obliges employers, in this case, the Board of Management, to take steps to identify the risks in workplaces.  Preventative action must be taken.

Vicarious Liability

The principle of vicarious liability applies as between the Board of Management and the teacher.  Vicarious liability arises when one entity is responsible for the civil wrongs of another.  This will occur in the employer-employee context, but also in a wider set of contexts.

Vicarious liability applies in respect of negligence and actions within the scope of the teacher’s duty.  It does not matter that the employee or teacher is in breach of particular requirements or directions at the moment in question, as long as he is acting within the broad scope of his employment.

Once the employee/ teacher himself/herself is liable then the employer/Board is automatically liable irrespective of the particular directions it has given.  It is not necessarily liable in its capacity as such but is liable on behalf of the employee, the teacher.

Generally, in civil liability actions the Board of Management, and/or the teacher will be sued.  The Board should have public liability insurance to cover the liability of both.

Parental Consent

Where something out of the ordinary is done, it is desirable to procure parental consent.  This may arise in relation to the administration of medicines or exceptional activities such as school tours and inoculation. Parental consent or indemnity will not necessarily prevent legal proceedings.

Under the Non-Fatal Offences against the Person’s act, the consent of the parent in respect of a person under 16 is sufficient. Where parental consent is not forthcoming for certain activities, the school should comply with the restrictions.

Sports

In the case of inherently dangerous sports, the manner of teaching is relevant to the discharge of the duty of care. A higher level is duty is owed to the persons with disabilities who are injured or who are not participating willingly. Techniques should be taught for avoiding and minimising the risk of injury.  Suitable equipment and clothing may be required for particular activities.  Some games may require protective clothing and equipment.

Schools must take reasonable care to ensure that games and sports are adequately organised and supervised.  They must take care to ensure that pupils are taught and apply basic skills and proper techniques.  Pupils must not be required to take part in activities that a reasonable parent would consider carry an unreasonable or unacceptable degree of risk.

Negligent Education

In other jurisdictions, cases have been taken on the basis of negligent education.  These are cases based on the alleged failure to educate.  They may be due to incorrect placement.

They have arisen in particular in the context of failure to deal with special education needs. The possibility of a claim has been recognised in the UK  in the context of special education needs.

Duties to Third Parties

Cases have been taken against education authorities on the basis of failure to recognise or provide properly for a person with special needs.  The general principles of negligence apply.

The English courts have held that the education authorities may be liable for failure to provide the standard of care of a reasonable professional.

The courts have wished to avoid expanding the law in such a way as it might “open the floodgates”.  Where however there has been a specific identifiable failure such as failure to diagnose a condition or provide adequately for it, there may be held to be a failure to use reasonable professional care and skill in determining the educational needs of the child, with the consequent possibility of civil liability.