Duty_of_Care_Owed_Before_and_After_School

Research Title: The duty of care owed to students outside of school hours and when travelling to and from school. Introduction The relationship between teacher and student falls within an established category of duty of care (Richards v Victoria, 1969). The relationship is one of responsibility and control whereby teachers must protect vulnerable students against the consequences of their own immaturity (Churchill et al., 2011). Students place a reliance on teachers. This reliance creates a protective relationship and imposes upon teachers a positive duty to act. Schools and teachers have a common law duty of care to anticipate potential risks of injury to students (Tie, 2006) and are under a duty of care to take reasonable measures to protect students against reasonably foreseeable harms. The duty is not to ensure against injury, but to take reasonable steps to prevent it (O’Brien, 1998). The general rule is that the teacher has a duty to take positive action for the safety of students whenever the relationship between teacher and student exists (Verma, 2002). This research seeks to identify if duty of care is owed outside of school hours and when students are travelling to and from school' Literature Review Research context and background The liability for duty of care falls under the common law tort of negligence. The law of negligence is the result of common law, judge made law and to a lesser extent statutory law. Students must have individual responsibility for their own actions and safety, they are not entitled to expect to live in a risk free environment (Swain v Waverley, 2005). However, risks can be outside of student control due to the negligence of others. Therefore schools and teachers have a legally enforceable duty and responsibility for their students (Stewart, 1992). This legal obligation is referred to as a duty of care (Churchill et al., 2011). The law states that “when students are on school premises, in school hours, schools and teachers owe a duty of care of general supervision for students’ physical, moral, intellectual and social welfare” (Alexander, 2000, p. 1). In matters off school grounds such as excursions, sports, extra-curricular activities (Holden, 2008) a duty of care to supervise exists (Churchill et al., 2011). The duty of care demanded of teachers is not confined to school hours and can include travelling to and from school (Tie, 2006). Before and after school If a school has adopted “a practice of allowing pupils into school premises before the commencement of teaching, a duty of care to exercise supervision arises” (Richards, Ludlow, & Gibson, 2009, p. 231). In Geyer v Downs (1977) it was established that once school grounds open, a duty of care arises. In Geyer v Downs a student was seriously injured when she was struck on the head by a softball bat while crossing the schoolyard on her way to the classroom (Stewart, 1992). The accident occurred in the playground before the school day began (Luntz, Hambly, Burns, Dietirch, & Foster, 2009) and before teachers were rostered on for supervising morning playground duty. A duty of care arose between the headmaster and the student because he opened the school grounds early, knew of the presence of students on school grounds and did not ensure adequate supervision before the bell. This case established that a duty of care on school grounds is not necessarily governed by official school hours and “the duty for physical welfare can exist on school grounds before classes have officially commenced” (Stewart, 1992). In Commonwealth v Introvigne (1982) it was reaffirmed that when a school allows pupils onto the premises before the commencement of teaching, a duty to provide reasonable supervision exists (Sappideen, Vines, Grant, & Watson, 2009). Therefore, a duty is owed to students before school hours. The general rule is once students have left the school premises, the duty of care terminates. There are examples of cases where schools have been found to be liable after school hours and outside of school grounds. Therefore, a duty “extends beyond the confines of school and school hours” (Richards, Ludlow, & Gibson, 2009, p. 231). Travelling to and from school It is not well known or universally accepted that a duty of care can exist while students are travelling to and from school (Stewart, 2003). In the absence of special circumstances, it is unlikely that the relationship of teacher and student will arise in the context of travelling to and from school. Generally schools are not responsible when students are travelling to and from school on public transport. However, if the school provides the means of transport or a staff member knows of a danger to students and fails to provide a warning about it liability can arise (O’Brien, 1998). When catching a public bus the duty of care owed ceases to exist once the bus is outside of school grounds (Stokes v Russell, 1983). Schools do owe a duty of care outside of school hours when the buses are on school grounds, the duty of care relationship terminates only once the bus is outside of school grounds. Often school buses enter school property to pick up students. In such cases, there is a high legal and professional duty of care. Bus lines must be vigilantly supervised (Tie, 2006). When the school provides the means of transport they are responsible for the safety of students using it (Shrimpton v Hertfordshire Shire Council, 1911). If a school has knowledge that students are catching the school bus from a bus stop outside of the school then a duty of care can still be owed (Trustees of the Roman Catholic Church for the Diocese of Bahurst v Koffman, 1966). If a school through its staff members have knowledge of a particular danger to students’ safety, after leaving school or when travelling to and from school, the school “has a duty to take reasonable protective measures” (Richards, Ludlow, & Gibson, 2009, p. 232). The extent of the duty of care therefore includes school hours while students are on the premises, before and after school hours when the school allows pupils on school premises or allows them to remain, and when the school becomes aware of a particular danger to its pupils outside of school hours (Richards et al., 2009). Rationale A school/teacher has a duty to take reasonable care to prevent injury to students. Schools and teachers can face liability in negligence for breaching this duty even if the circumstances are outside of school hours or when students are travelling to and from school. The duty owed to prevent injury to students outside of school hours and when travelling to and from school is onerous and ambiguous. It depends on the individual circumstances. School life is dynamic. There is an inherent risk of injury in school activities. Supervision against inherent risks is commensurate with age, maturity and self reliance of students. Teachers have a legal obligation to protect and safeguard students from reasonably foreseeable risks of injury and harm. The obligation does not extend to preventing injury to pupils when they are under the control and supervision of their parents and guardians at home. But it can extend to matters outside of official school hours and in certain situations when the students are travelling to and from school. The purpose of this inquiry is to establish what these matters and situations are. Research question (s) The major question(s) to be address are: When do teachers and schools owe a duty of care to Year 7-10 students outside of official school hours' Is a duty of care owed to Year 7-10 students when travelling to and from school' Data collection and methodological procedures This research aims to identify policies and practices related to the duty of care for students outside of official school hours, and when travelling to and from school. The research will focus on evaluating legal risk management policies and practices to ensure the safest possible conditions for students are realised outside of school hours and when travelling to and from school. Research can be descriptive, explanatory and evaluative in its purpose (Weihen, Chapman, Duggan, & Wood, 2005). These characteristics are what this research inquiry will focus on. Qualitative research is commonly used to gather information and research social issues and human aspects as it assesses opinions or feelings about a situation (Weihen et al., 2005). The nature of this research is suited to qualitative methodologies. The most suitable qualitative methods to collect data for this task are direct observations and policy review. If necessary, qualitative surveys in the form of unstructured questionaries will be used for a conversational style of interaction with teachers and head of school. If the research was concerning measurements, numbers and comparisons then quantitative research would be conducted in the form of surveys, questionaries and structured interviews (Weihen et al., 2005). Qualitative methods run the risk of being subjective because they are more likely to be biased by a researchers own values and interpretation skills, therefore the research much be approached objectively. Anticipated analysis approach This research will draw on authors in the field of duty of care in the education context, specifically authors who examine the duty of care before and after school hours and when travelling to and from school for students in Year 7-10. For the purpose of the methodology, this research will draw on a variety of sources including government reports, common law, statutory law, school policies, procedures, government policies, journal articles, books and case studies. The research will analyse supervision policies in place and how duties are organised and delegated. School policies and procedures that will be observed and reviewed may include: * Department of Education and Training Policies and Codes of Conduct (specific to the jurisdiction) * School Policies * Playground Supervision Policy (before and after school) * Bus Supervision – Is it vigilant and closely supervised' Reasonable precautions in place to ensure students are safe' * What type of bus service do the students use to travel to and from school' (Public/provide by the school) * Do students catch the bus outside of school grounds' * Drop off and Pick Up * Bell times * The ratios of teacher supervisors to pupils' How is it determined' * Is close supervision provided when dangerous activity is carried out by young, less mature, experience and skilful pupils' Does it change with Year 7-8 or 9-10' * What situations give rise to a duty of care outside of school hours' * How is supervision and risk assessed and addressed' * Are parents and students notified of the policies and any changes made' School and departmental policies and procedures will be critiqued according to their consistency with the current law. Based on my observations and policy review I will be able to interpret, explain and report on my findings from my rationale. Potential limitations for research/problems Research is guided by ethics, that is, the most socially responsible and moral way of proceeding (Minichiello, Aroni, & Hays, 2008). When conducting a research project such as this, strict ethical procedures must be followed. Privacy is a major consideration in completing this type of study and the anonymity and confidentiality of schools will be ensured. My supervisor will be aware of the research. The purpose, what the research is about and why I am doing it will be made clear. Research always presents the possibility of being influenced by personal values. It is important that observation and policy review remains as objective as possible in method, interpretation and presentation of results. Anticipated problems are school policies not being consistent with current law and observation of practices that conflict with school policy. For example the school bus timetable states that a bus arrives at the school before 8:00am, but school policy states that supervision is provided in the morning from 8:20am and school starts at 8:45am. If the school grounds are open when the students arrive on this bus, a duty of care to exercise supervision could arise. If either of these situations eventuated, as a student on placement this could create a conflict, as I would be out of line if I openly commented on the school procedures. References Alexander, C. (2000, July). The Duty of Care of Schools. Paper presented at National Council of Independent Schools Associations Conference. Retrieved from http://www.ais.sa.edu.au/resources/Duty%20of%20Care%20of%20Schools.pdf Churchill, R., Ferguson, P., Godinho, S., Johnson, N., Keddie, A., Letts, W., ..., Vick, M. (2011). 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Torts: Commentary and Materials (10th ed.). Australia: Thomson Reuters (Professional) Australia, Ltd. Shrimpton v Hertfordshire Shire Council (1911) 75 JP 201. Stewart, D. (1992). Legal risk management in Australian schools. Unicorn, 18 (4), 39-45. Stewart, D. (2003). Travel to and from school. A school’s duty of care. The Practicing Administrator, 2, 7-9. Stokes v Russell (1983) Unreported TSC. Swain v Waverley Municipal Council [2005] HCA 4. Tie, F.H. (2006, July). The Right to a Safe Learning Environment in Schools. Paper presented at the Australian and New Zealand Education Law Association Conference. Retrieved from http://www.cdesign.com.au/proceedings%5Fanzela2006/papers%20(pdf)/thur_3a.pdf Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1966) NSWSC 346. Verma, R. (2002). Safe and sound' Schools, students and physical injury. Educare News, 128, 20-22. Weihen, L., Chapman, S., Duggan, B., & Wood, B. (2005). Community and Family Studies (4th ed.). 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