EDUC4022 ASSSESSMENT 1 PROBLEM-BASED QUESTION
Facts/Issues
The case concerns a grade 5 class involved in a creative arts activity where scissors,
screwdrivers and metal straws were used. Although clear instructions were explained at the
beginning of the lesson, several students engaged in ‘horseplay’ with the materials, and in
response, Ms Duncan reprimanded and banned this behaviour. A student in the class then
started feeling sick and Ms Duncan took them to sick bay; instructing the class to continue to
work quietly. In the fifteen minutes that Ms Duncan was gone, Aiden and Brett resumed
‘horseplay’ which led to items being thrown at each other and a metal straw hit Bella in the
eye. She was taken to hospital and lost partial sight in her eye. The legal question at hand is
whether the teacher breached her of duty of care to Bella and if so, should the school be held
liable for Bella’s injury.
Rule
The tort of negligence is centred around the idea of carelessness where schools can be found
liable if a careless action by a member of staff results in harm or injury to a student (Jackson
& Varnham, 2007). Negligence is well established in common law and courts will apply the
principles that have developed from these cases to set a precedent and clarify the three
elements that must be proved to find a defendant negligible. The first element is to determine
whether the defendant owes a duty of care to the plaintiff. Case law has established that
teachers owe students a duty of care as evident in Commonwealth v Introvigne (1982) HCA
40 (as cited in Newnham, 2000), where only one teacher was on duty before school (others at
emergency meeting) and a 15-year-old student suffered serious physical injury whilst
swinging on a flagpole. The school was held liable as they owed a ‘non-delegable’ duty of
care. Similarly, the Geyer v Downs (1977) (as cited in Newnham, 2000) case found teachers
to be ultimately responsible for those in their care as school authority was again found liable
for an 8-year-old student who was injured on the playground before the start of school when
there was no teacher supervision despite permitting students to enter school early. It can
therefore be acknowledged that the duty of care exists whenever there is a teacher-student
relationship (NSW Department of Education, 2003). The second element of negligence is
then whether there was a breach of this duty of care. It seeks to establish if the teacher or
school failed to take reasonable measures to reduce risks that were reasonably foreseeable.
The reasonable test comes under common law where the court must consider the standard of
teaching and skill that a ‘normal’, reasonable teacher should exercise. Both cases mentioned
provide an example of a breach of duty by the schools as they failed to provide adequate
supervision of students before school started. If a diligent, aware teacher was on duty that is
not to say the incidents wouldn’t have occurred, but the risk of injury could have been
minimised had a teacher been supervising. In order to meet the final element of negligence, a
causal link must be made between actions of the defendant and the injury of the plaintiff
(Newnham, 2000). In Shaw v. Commonwealth (1992) 110 FLR 379 (as cited in Newnham,
2000) a 12-year-old student injured her knee while on a trampoline unsupervised during a
school camp. The plaintiff informed the teacher, but no action was taken, and she joined the
rest of the students on a hike while still injured. The risk of injury on a trampoline is
reasonably foreseeable and as the teachers did not ensure satisfactory supervision thus
breaching the duty of care, their inaction was clearly linked to the student’s injury and are
therefore liable to negligence. The Civil Liability Act 2002 (NSW) also outlines the principles
of negligence. Section 5B of the Act specifies the conditions that must be satisfied before a
person can be found negligent in failing to take precautions against a risk of harm that a
reasonable person would normally do.
Application
In the primary case, the Liability Act and Common Law are used to establish if the school is
liable for the injury sustained by Bella. It must first be assessed whether Ms Duncan owes a
duty of care to Bella and as outlined in case law, the teacher is responsible for the safety and
wellbeing of those under their care and as Bella was a student in Ms Duncan’s class, it is
clear that a duty of care was owed. To determine if there was a breach of said duty of care,
Ms Duncan’s actions come under question as to whether she took precautions to prevent risk
of injury that was reasonably foreseeable. Prior to Ms Duncan leaving the classroom, students
had already engaged in ‘horseplay’ with materials. Although she reprimanded this behaviour,
it is not sufficient to trust 25-30 eight-year-old students to continue to work quietly without
supervision and while using potentially dangerous materials. In terms of testing for
reasonableness, a vigilant teacher would acknowledge these risks that would arise if they
were to leave the classroom and instead send another student to accompany the other to sick
bay or call/email an office lady to see if they could come. It is therefore palpable that Bella’s
injury is directly linked to Ms Duncan’s absence from the classroom as if she had been there,
the risk of harm would have been minimised as the ‘horseplay’ would have been stopped
straight away. The failure to take reasonable precautions for a reasonable risk results in a
breach of duty of care and injury – holding the teacher to be negligent.
Conclusion
Schools and their teaching staff have a duty of care to the students and must ensure their
safety and wellbeing are a first priority. In the primary case, the teacher breached her duty of
care to the student as she did not take the correct measures to prevent an injury that could
reasonably have been foreseen and the school is thereby liable for the injury sustained.
Reference List
Civil Liability Act 2002 (NSW). Retrieved from
https://www.legislation.nsw.gov.au/view/html/inforce/current/act-2002-022#sec.5B.
Jackson, J., & Varnham, S. (2007). Law for Educators: School and University Law in
Australia. LexisNexis Butterworths.
Legal Responsibilities of Teachers. https://education.nsw.gov.au/content/dam/maineducation/industrial-relations/media/documents/handbooks/teachers-handbook--interim/handbook_ch5.pdf.
Newnham, H. (2000). When is a teacher or school liable in negligence? Australian Journal of
Teacher Education, 25(1). http://dx.doi.org/10.14221/ajte.2000v25n1.5
NSW Department of Education. (2003). Teachers Handbook Chapter 5: Professional and