A perennial question educators and schools are always asking: How far does the duty of care extend?
The lawyer’s answer: Schools owe a duty of care to students to prevent reasonably foreseeable harm occurring.
Victoria’s Ministerial Order 870 (MO 870), which will be replaced with Ministerial Order 1359 in July 2022, sets out the fact that ‘school environment’ means any physical, online or virtual places made available or authorised by the school governing authority for use by a child during or outside school hours.
This means the duty of care extends to out-of-hours activities and off-campus activities such as school campsites, excursions and other events, and to the digital environment made available by the school.
Ministerial Order 1359 makes this stronger again by specifically incorporating into the school environment, the following: homestay, TAFEs, registered training organisations and non-school senior secondary providers as well as retaining previously included locations from MO 870 such as camps, excursions, sporting events, competitions or other events.
A recent decision, PCB v Geelong College [2021] VSC 633, considered whether a school was liable for an activity run by community members after school hours in an historical sexual abuse claim. In that case, the abuser knew the student from the school connection and then went on to abuse the student outside of school. The Supreme Court of Victoria found there was a foreseeable risk of child sexual abuse where the school facilitated contact between students and members of the public at an after-hours craft guild house – a building on school grounds. The foreseeable risk is the connection to the activity makes the school legally responsible, even when it wasn’t involved in the actual delivery of the activity.
Reliance on the general system of supervision by Geelong College was not a reasonable response. The school’s non-delegable duty of care was not discharged by its system of supervision, partly because the school had specific warning of the risks posed to students in the after-hours craft activity program – this was not disputed at trial.
The abuse occurred at the hands of a non-employee of the school at a building both at the building on school grounds and at a number of locations off school grounds. The Court found the school vicariously liable for the actions of the abuser, regardless of location of the abuse and awarded the plaintiff over $2.6 million in damages.
What should schools do?
Schools should be aware their non-delegable duty of care towards students may extend to external recreational activities where the school facilitates contact between the student and members of the public, as well as specifically listed activities as per MO 1359, for example outdoor education, external sports coaches or external training providers.
Schools need to remember they can be responsible for the acts of third parties, who are volunteers, or members of community groups.
How can we help?
Moores can help provide specific advice which assists in the:
- preparation of risk assessments, risk controls and risk treatments;
- review of supervision and child safety policies;
- making necessary changes to your contracts with external providers, or leases for use of school property; and
- providing training on how to identify potential risks for the children at your school, and how to respond in a manner that meets the school’s non-delegable duty of care.
Contact us
Please contact us for more detailed and tailored help.
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