Schools fear litigation. The number of legal cases decided by
Australian courts and tribunals each year suggests however that
this fear is ill-founded. Relatively few cases find their way to a
final determination in the court system. That said, by reflecting
on some of the cases that are commenced and settled or run to
trial, schools can take appropriate steps to minimise the risk of
finding themselves in similar situations.
This article reviews some of the cases that have been decided
during the last twelve months.
Negligence on School Camp
On 22 April 2009, the Magistrates' Court of South Australia
handed down judgment for the prosecution in the case of Markos
v Catholic Diocese of Port Pieri. [1] The case arose out of an
incident in 2004 when Year 10 school students attended a three day
trekking and camping exercise in the Flinders Ranges in South
Australia. The event had been held for 20 years. The governing
authority for the school supplied camping equipment, including
portable gas stoves and canisters. On the first night of camp a 15
year old student screwed a gas canister into a gas stove apparatus.
The canister began to release gas and covered the student in a fine
mist. The student dropped the canister and the gas ignited,
engulfing him in a ball of fire. He was hospitalised for two weeks
with serious burns.
The governing authority was prosecuted for breach of the
Occupational Health, Safety and Welfare Act 1986 and
pleaded guilty. The evidence showed that neither the student, nor
the other student with whom the injured student was to share the
camp stove, had been instructed about how to assemble the stove and
attach the gas canister. There were some printed instructions on
the packaging of the canister. No instructions had been given about
keeping the canister away from ignition sources.
Following the incident, the school developed a procedure for the
use of camp stoves and canisters and a training program for
students. Trained adults were required to supervise the assembly of
camp stoves and the installation of gas canisters. The school was
convicted and fined $19,125.00. The court allowed a 15% discount
because of the school's action in pleading guilty and taking
appropriate steps.
Lessons learned: Ensure that students are
instructed on the use of any potentially harmful equipment and
supervised by trained adults when such equipment is being installed
or used.
Death on School Camp
Due to the publicity surrounding the incident, many people will
be aware of the death of Nathan Francis, a 13 year old attending a
cadet camp with the Scotch College Cadet Unit on 29 March 2007.
Parents had been notified in writing that their sons were not to
bring food to the camp because of the large amount of time and
money that had already been devoted to the menu. Parents were also
required to advise the Cadet Unit in writing about any medical
conditions of their sons attending the camp. Mrs Francis replied in
writing that her son was severely allergic to peanuts.
Once at camp, children were provided with an army ration pack.
Different packs contained different meals. The pack provided to
Nathan contained a beef satay meal made with peanut. On the first
day of camp Nathan took a bite of his satay meal. He was
unconscious within half an hour and, by the time he reached the
Royal Children's Hospital by air ambulance helicopter, he was
dead.
Comcare took proceedings against the Commonwealth for breach of
its duty to take all reasonable practical steps to protect the
health and safety of people covered by the Occupational Health
& Safety Act 1991 (Cth) (Act). [2] The
Commonwealth admitted liability. It did not however agree on the
appropriate amount of the penalty.
Another serious incident occurred on the same cadet camp. Six
boys were lost in the bush for 18 hours. While this was a
contravention of the Act, this particular part of the case was
adjourned.
Students of Scotch College are required to participate in a
number of activities. Cadets was Nathan's third choice. Part of his
acceptance as a cadet required a medical examination. The
examination record had a response completed by Nathan's mother
which stated "use of epi pen for peanut allergy". The medical form
prepared for the purpose of the cadet camp showed that Nathan had
asthma and a peanut allergy and that all nuts were to be avoided.
Six other cadets on the trip also had allergies to peanuts.
After Nathan had ingested a mouthful of the beef satay, very
shortly after he was administered with an epi pen. Shortly
thereafter he became unconscious.
The case concerned the actions of the Commonwealth acting as the
Chief of Army. It appears that the camp was however run by staff of
Scotch College. The court was told that the Victorian WorkSafe
Authority was not taking action against the school. There remains
however the possibility for a coronial inquest and also a civil
action by Nathan's parents against the school.
One matter of relevance to this later possibility is the failure
of the then School Principal to visit Mr and Mrs Francis after
their son died. This was an omission which they relayed to the
court. The Vice Principal and Chaplain had visited them and the new
School Principal visited them. It was noted in the judgment that
when the students boarded the buses from Scotch College to the army
camp under the care of their teachers and staff of Scotch College,
they were under the duty of care of Scotch College. Those same
teachers and staff then assumed army ranks in uniform once at the
camp and from that point in time the students were, for the
purposes of the Act, the responsibility at law of the
Commonwealth. It is specifically noted that "that legal
transformation explains why this proceeding had been brought
against the Commonwealth and not against Scotch College".
The judgment contained a strong recommendation that the coroner
conduct an enquiry and that the role of Scotch College in the death
be examined in public. The obvious lesson to be learned from this
decision is that schools need to make appropriate use of
information provided by students and parents regarding pre-existing
or known medical conditions and use that information to assist with
the risk of the child being exposed to allergies through the supply
of food. With severe allergies it is prudent for schools to ensure
that the products with allergens known to trigger allergic
reactions be removed from food supplies. The failure in this case
was the failure to isolate cadets with pre-existing medical
conditions and/or notified food allergies at the time of
distribution of the ration packs. A balance needs to be developed
between singling children out with medical conditions and ensuring
their health is at all times protected.
Psychological Injury from Repeated Exposure to Violent
Behaviour
On 19 December 2008, the Industrial Court of New South Wales
handed down judgment in favour of a plaintiff in the case of
Cahill v State of New South Wales (Department of Education and
Training) (No 2). [3] The New South Wales Department of
Education and Training (DET) operated a school for
detainees aged between 10 and 21. Teaching staff had personal
duress alarms to call for assistance.
In March 2004, a teacher was the subject of abuse by a detainee.
The detainee swore at and abused the teacher and repeatedly shoved
a classroom table at his stomach. The teacher thought he was going
to be hit and activated his personal alarm. There was no response
to the alarm. The student left, but returned later in the company
of another detainee and made further threats. The student took a
piece of paper from the teacher's hand and again caused the teacher
to think he was going to be physically abused. The teacher
activated his personal duress alarm and again there was no
response. There was an aid present at the time who, being female,
thought she could diffuse the situation by placing herself between
the teacher and the detainee. She did so and tried to calm the
detainee. Finally the detainee was removed. After the event, the
teacher's aid became distressed and suffered nightmares. She became
preoccupied with two other critical incidents previously
experienced by her. During the hearing it became apparent that the
non-response to the personal alarm was due to the fact that three
detainees were at the time trying to escape; two of them apparently
succeeded. Therefore, there was no one to respond to the teacher's
distress call.
Five days later another detainee became abusive during the same
teacher's class. Once again, the aid was in attendance. The student
left to go to the toilet against protocol and on return started
shouting at the teacher, threatening to kill him. A chair was
thrown, narrowly missing the teacher. The student then started to
trash the room. The aid pressed her duress alarm, and the student
was restrained and removed by a number of Juvenile Justice
Officers. The aid did not return to work.
DET was charged with breaches of the Occupational Health and
Safety Act 2000 (NSW) in relation to the injury to
the aid and another aid whose experience is not set out in this
article. DET pleaded not guilty. Medical evidence showed that both
aids suffered psychological injury from being exposed to violence
at work. Despite policy, the incident on 10 March 2004 was never
investigated. Staff had been refused permission by the school
principal to discuss the incident. DET argued that it was not
reasonably foreseeable that staff would be injured as the aids had
been. It also argued that it had not been established that a person
of normal fortitude would suffer a psychological injury from
exposure to the events in question. The court found that the
offences had been proved. In so doing, it found that the protocols
in place had not been followed.
Lessons learned: The obvious one is that your
workplace may not be so bad! On a serious note, it is of little
benefit to have protocols in place if those protocols and policies
are not followed. If anything, the existence of such protocols
creates evidence which may be used against a school should there be
a failure to adhere to a certain standard. Accordingly, schools
should ensure not only that they have policies and protocols in
place, but they have a mechanism by which they will be enforced and
reviewed.
Duty of Care
In Fitzgerald v Hill & Ors,
[4] the plaintiff was an eight year old child
when he took part in a Ta Kwon Do class in a local hall. The
instructor took the class to a nearby beach to train and the
plaintiff was struck by a car. The driver of the car was found to
be negligent. The owner of the Ta Kwon Do Academy was found to have
the ultimate responsibility for the conduct of the class and as
such had a non-delegable duty. It was found that he failed to
ensure reasonable care was taken in the performance of the
activities involved in the classes.
The Court of Appeal reaffirmed the law relating to non-delegable
duty of care as applying to a school authority and its enrolled
students. One of those duties is to take all reasonable care to
provide an adequate system to ensure that no child is exposed to
any unnecessary risk of injury and to take all reasonable care to
see that the system is carried out. Further, the court noted that
if policy considerations are relevant, the existence of a duty in
the present case is consistent with the public interest in ensuring
children involved in self improvement activities are not treated
negligently.
Lessons learned: This case provides a reminder that
teachers of extra curricular activities should be made aware of
their responsibilities to students, especially when students of
varying ages are involved and students are taken outside the
classroom. It is important to establish a safe system for the
supervision of young children.
Injury to Member of the Public on School Grounds
In 2008, in Rouvinetis v Varady & Ors [5] Mr
Rouvinetis brought a claim against Sydney Girls High School and the
New South Wales Department of Education and Training seeking
compensation for $1,000,000. One evening when a private function
was being held at the school, Mr Rouvinetis passed by, saw the
school open and went in to observe the function. He said he had a
duty to investigate as a good constituent. He was informed there
was a private function and asked to leave. He refused to do so
until he had seen the principal or school administrators so that he
could be assured they knew what was occurring or unless the police
were called. He claims he was assaulted by several security guards
who detained him until the police attended.
The defendants argued that any claim Mr Rouvinetis might have
was against the hirers of the school that evening, the Jewish Board
of Deputies. Mr Rouvinetis alleged that the principal failed in her
duty of care in not providing safety and security to anyone and
everyone on school grounds during the function, including him.
Interestingly, Mr Rouvinetis did not claim to have any right to be
on the school ground. Mr Rouvinetis claimed that the departmental
policy designed to give community groups access to the premises had
been breached because it was the Jewish Board of Deputies who were
given permission to use the school. He said the principal created a
dangerous environment by allowing private security guards with no
links to the school security. On 5 March 2009, the court found that
the defendants owed Mr Rouvinetis no duty of care in relation to
the observational implementation of the policy.
In relation to the actions of the security guards in assaulting
Mr Rouvinetis, the court noted that it had "long been the law
that 'the general rule is that one man is under no duty of
controlling another man to prevent his doing damage to a
third'". The court found that, on the pleadings in the case,
no reasonable cause of action had been disclosed and the
proceedings were dismissed.
Extending Time for Bringing a Claim - HWC v The Corporation of
the Synod of the Diocese of Brisbane & Ors [6]
In this case the plaintiff who was then 40 years of age sought
to extend the time in which he could bring a claim as a result of
being sexually abused by his music teacher when he was a school
student. The events occurred more than 25 years ago, the limitation
period having expired in 1989. Leave was granted by the primary
judge for the extension of the limitation period and the Court of
Appeal overturned the decision on 16 June 2009. [7]
What is interesting in this case however relates to liability
issues. The teacher in question had been employed by the State of
South Australia in 1997. There were allegations of improper conduct
against him and he was found guilty of disgraceful and improper
conduct and dismissed from the teaching service by the Minister of
Education. Shortly thereafter, the Minister advised that the
dismissal was rescinded as the teacher's resignation had been
accepted. The Minister for Education was joined as a party to the
proceedings, as was the State of South Australia, being the
operator of the school.
The teacher in question obtained a reference from the high
school he had taught at prior to 1977, as well as a reference from
the Minister of Education in his capacity as a member for Boudin in
the South Australian Parliament and his capacity as president of
the Noarluanga City Council Band. The reference was on South
Australian Parliamentary letterhead.
In 1980 the teacher taught at Brisbane Boys College
(BBC), a Brisbane private school, to obtain
registration as a teacher in Queensland. He was asked to leave that
school at the end of the year because of complaints, including
complaints of a sexual nature. He then moved to the school at which
the offending conduct took place. It was found that the headmaster
of BBC had warned the headmaster of the school at which the abuse
of the plaintiff took place of incidents surrounding the
teacher.
The claim against the Minister of Education was that he breached
his duties by providing the teacher with a reference in
circumstances where it was foreseeable that he would rely upon the
reference to gain employment. The allegation is that when the
Minister wrote the reference he specifically referred to the
teacher's suitability in dealing with teenagers. The ultimate issue
of liability was not determined, as leave to extend the limitation
period was not ultimately given.
The case provides a timely reminder for any institution or
teacher providing a reference. This case repeated the law relating
to references in that the liability with respect to references is
limited to the intended recipients of such a reference, rather than
an indefinite number of potential recipients. It is necessary to
show both foreseeability and proximity.
The defendants appealed against the decision. The matter was
heard by the Supreme Court, Court of Appeal in the decision handed
down on 16 June 2009. The court found that the primary judge was
wrong in extending the time. Accordingly the plaintiff's claim was
dismissed.
Impairment Discrimination
In December 2008, Alex Walker (then 13) and his mother
instituted proceedings against the State of Victoria. The claims
included not being able to attend school fulltime, attend school
excursions and having to return home for lunch because funding was
not available for a teaching aid. He was prevented from travelling
on the school bus. Alex had a number of disabilities including
Asperger's Syndrome, Dyslexia and Attention Deficit Disorder.
A newspaper report of the action stated that Alex resorted to
swearing when under stress and teachers unfamiliar with the
disability could easily misconstrue this as bullying or controlling
behaviour. I have made inquiries with the Victorian Civil and
Administrative Tribunal and it appears the case was not pursued in
that jurisdiction.
In 2007, the Victorian Government was ordered to pay more than
$800,000.00 in compensation to Rebekah Turner when it was found
that the Education Department failed to provide classroom help for
her. The State appealed the decision of the Victorian Civil &
Administrative Tribunal. The Supreme Court handed down judgment in
March 2009, finding that VCAT erred in law in relation to some of
the remedies it awarded in favour of Ms Turner and making findings
of discrimination.
Since 1999, Ms Turner had Attention Deficit Hyper Activity
symptoms and anxiety features. At various times she had depression
and a double depressive disorder. She had severe language disorder
and a severe learning disability.
In 2005 Ms Turner, through her mother, lodged a complaint with
the then Equal Opportunity Commission of Victoria. She claimed that
the State had indirectly discriminated against Ms Turner by
limiting her access to education benefits. The discrimination
alleged with the imposition of a condition that Ms Turner "be
educated without an appropriate program of assistance", which was
said to be unreasonable. The Commission was unable to resolve the
complaint and it went to the Supreme Court.
Part of the particulars of the complaint included the fact that
the State had not ever provided Ms Turner with a teacher's aid or
an appropriately advised resource program of assistance and, in so
doing, had discriminated against her. The Supreme Court judgment is
41 pages. The court noted that the test of reasonableness is less
demanding than one of necessity, but more demanding than one of
convenience. Relevant considerations under s9(2) of the Equal
Opportunity Act include the cost of alternative conditions and the
financial circumstances of the State. In considering this, it is
appropriate to include the fact that the State does not provide
benefits to a single student in a single school, but operates
schools with many students and that the education budget each year
is not unlimited. Also, where the proceedings are a test
case, the flow-on effects are relevant to a consideration of the
issues.
Ms Turner was able to comply with the "no fulltime teacher's
aid" condition in relation to certain subjects she undertook. She
was unable however to access the State's education benefits in
Maths and English in most of her schooling. The case highlights the
complex nature of the discrimination provisions and students with
disabilities.
Summary
Considering the number of schools throughout Australia, there is
thankfully not an abundance of litigation. Every case decided by
the courts does however provide a timely reminder to schools to
consider their obligations and ensure all risk minimisation
policies are not only in place, but regularly reviewed and
implemented.
[1] [2009] SAIRC 23
[2] Comcar v Commonwealth of Australia [2009] FCA 700
[3] [2008] NSWIRComn 246
[4] [2008] QCA 283
[5] [2009] NSWSC 109
[6] [2008] QSC 212
[7] [2009] QCA 168
For more information, please contact:
Leneen Forde, Partner
Ph (direct): +61 3 9608 2243
Email:
l.forde@cornwalls.com.au