{"id":2436,"date":"2021-09-05T08:27:36","date_gmt":"2021-09-05T08:27:36","guid":{"rendered":"http:\/\/legalblog.ie\/?p=2436"},"modified":"2022-09-25T19:35:13","modified_gmt":"2022-09-25T19:35:13","slug":"civil-liability","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/civil-liability\/","title":{"rendered":"Civil Liability"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Duty_of_Care_to_Pupils\" title=\"Duty of Care to Pupils\">Duty of Care to Pupils<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Standard_of_Care\" title=\"Standard of Care\">Standard of Care<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Test_of_Negligence\" title=\"Test of Negligence\">Test of Negligence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Scope\" title=\"Scope\">Scope<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Safe_System_of_Supervision\" title=\"Safe System of Supervision\">Safe System of Supervision<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Statutory_Duties\" title=\"Statutory Duties\">Statutory Duties<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Vicarious_Liability\" title=\"Vicarious Liability\">Vicarious Liability<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Parental_Consent\" title=\"Parental Consent\">Parental Consent<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Sports\" title=\"Sports\">Sports<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Negligent_Education\" title=\"Negligent Education\">Negligent Education<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/civil-liability\/#Duties_to_Third_Parties\" title=\"Duties to Third Parties\">Duties to Third Parties<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Duty_of_Care_to_Pupils\"><\/span>Duty of Care to Pupils<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A teacher and the school authority generally the Board of Management has a duty of care to pupils.\u00a0 This arises from the fact that they have been entrusted to the care and control of the school and the teacher.\u00a0 In earlier times, and it the context of smaller schools it was said that the duty arises from the teacher-pupil relationship.<\/p>\n<p>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.\u00a0 The extent of the duty is very specific to the circumstances. Reasonable care is required.\u00a0 This applies both to the operation of the school and the static or physical environment.<\/p>\n<p>Under general principles, a Board of Management itself may be liable for negligence.\u00a0 Alternatively, or in addition, the Board of Management may be vicariously responsible for the teacher.\u00a0 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.<\/p>\n<p>Occupiers\u2019 liability provides for liability arising from the physical state of premises.\u00a0 See generally the sections on occupiers liability.\u00a0 The highest duties are owed to school students.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Standard_of_Care\"><\/span>Standard of Care<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The standard of care required by the duty depends on the circumstances.\u00a0 The foreseeability of the risk, the seriousness of the risk, the utility of the defendant&#8217;s conduct and the position of parties, determine the extent of the duty of care and what is reasonable in the circumstances.<\/p>\n<p>In the case of children, the duty of care is higher than would be owed to adults.\u00a0 Those controlling the school must take account of the age, immaturity, lack of foresight and propensity to horseplay.<\/p>\n<p>The school environment requires constant care and supervision.\u00a0 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.\u00a0 A higher degree of supervision is required of primary school children.<\/p>\n<p>Traditionally, the teacher and school were in loco parentis i.e. in place of the parent.\u00a0 In modern times, the general test of negligence is employed.\u00a0 The teachers and the Board of School must meet the standards of hypothetical reasonably competent professionals in an equivalent position.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Test_of_Negligence\"><\/span>Test of Negligence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>The requirements for negligence emphasise that absolute responsibility does not apply.\u00a0 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.<\/p>\n<p>The degree of care varies with the age and maturity of students. Younger children are not capable of contributory negligence.\u00a0 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.\u00a0 The position will depend on the maturity of the particular child and there is no hard and fast age limit.<\/p>\n<p>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.<\/p>\n<p>The duty may be stated to be one to prevent foreseeable risks or personal injury.\u00a0 Duties may be owed to third parties\u00a0 If the child escapes from school and causes an accident, there may be a breach of the duty of care to that third party.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Scope\"><\/span>Scope<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>Once children are received into the care of the school, the duty is likely to apply, notwithstanding that school hours have not yet commenced.\u00a0 Questions may arise as to the stopping and end points of the school day.\u00a0 The duty of care, while children are under supervision prior to commencement of school hours, may be less onerous, depending on the circumstances.\u00a0 The degree of control may be less in certain such contexts.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Safe_System_of_Supervision\"><\/span>Safe System of Supervision<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In common with responsibilities imposed on organisation, employers, retailers, et cetera there is an obligation to provide a safe system.\u00a0 In the context of a \u00a0school, a safe system of supervision is required.\u00a0 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.<\/p>\n<p>The degree of supervision will depend on the age of the children, maturity, the particular activity, etc.\u00a0 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.<\/p>\n<p>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.\u00a0 In particular, sports and games may entail risks.\u00a0 No level of care can provide complete assurance from accidents occurring.<\/p>\n<p>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.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Statutory_Duties\"><\/span>Statutory Duties<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.\u00a0 The statutory duties are more absolute than the duties in negligence.<\/p>\n<p>The health, safety and welfare legislation obliges employers, in this case, the Board of Management, to take steps to identify the risks in workplaces.\u00a0 Preventative action must be taken.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Vicarious_Liability\"><\/span>Vicarious Liability<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The principle of vicarious liability applies as between the Board of Management and the teacher.\u00a0 Vicarious liability arises when one entity is responsible for the civil wrongs of another.\u00a0 This will occur in the employer-employee context, but also in a wider set of contexts.<\/p>\n<p>Vicarious liability applies in respect of negligence and actions within the scope of the teacher\u2019s duty.\u00a0 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.<\/p>\n<p>Once the employee\/ teacher himself\/herself is liable then the employer\/Board is automatically liable irrespective of the particular directions it has given.\u00a0 It is not necessarily liable in its capacity as such but is liable on behalf of the employee, the teacher.<\/p>\n<p>Generally, in civil liability actions the Board of Management, and\/or the teacher will be sued.\u00a0 The Board should have public liability insurance to cover the liability of both.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Parental_Consent\"><\/span>Parental Consent<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where something out of the ordinary is done, it is desirable to procure parental consent.\u00a0 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.<\/p>\n<p>Under the Non-Fatal Offences against the Person\u2019s 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Sports\"><\/span>Sports<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 Suitable equipment and clothing may be required for particular activities.\u00a0 Some games may require protective clothing and equipment.<\/p>\n<p>Schools must take reasonable care to ensure that games and sports are adequately organised and supervised.\u00a0 They must take care to ensure that pupils are taught and apply basic skills and proper techniques.\u00a0 Pupils must not be required to take part in activities that a reasonable parent would consider carry an unreasonable or unacceptable degree of risk.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Negligent_Education\"><\/span>Negligent Education<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In other jurisdictions, cases have been taken on the basis of negligent education.\u00a0 These are cases based on the alleged failure to educate.\u00a0 They may be due to incorrect placement.<\/p>\n<p>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 \u00a0in the context of special education needs.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Duties_to_Third_Parties\"><\/span>Duties to Third Parties<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Cases have been taken against education authorities on the basis of failure to recognise or provide properly for a person with special needs.\u00a0 The general principles of negligence apply.<\/p>\n<p>The English courts have held that the education authorities may be liable for failure to provide the standard of care of a reasonable professional.<\/p>\n<p>The courts have wished to avoid expanding the law in such a way as it might \u201copen the floodgates\u201d.\u00a0 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.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-2436\" data-postid=\"2436\" class=\"themify_builder_content themify_builder_content-2436 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Duty of Care to Pupils A teacher and the school authority generally the Board of Management has a duty of care to pupils.\u00a0 This arises from the fact that they have been entrusted to the care and control of the school and the teacher.\u00a0 In earlier times, and it the context of smaller schools it [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[83],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2436"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=2436"}],"version-history":[{"count":5,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2436\/revisions"}],"predecessor-version":[{"id":2553,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/2436\/revisions\/2553"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=2436"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=2436"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=2436"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}