Teacher Negligence (Vic)

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Both a school and its teachers have a legal duty of care towards enrolled students. The scope of this duty is to take reasonable steps to reduce the risk of foreseeable harm. When either the school or its teachers are remiss in this duty, and a student suffers harm as a consequence, a negligence claim can be brought against the teacher and/or the school.

Teacher duty of care in Victoria

A duty of care often arises in situations when one person has control over another person. A teacher has to take particular care to avoid causing harm to their students because they have authority over students, and the children are forced to rely on their teachers.

To discharge this duty of care, teachers in Victoria must take reasonable actions to minimise the risk of foreseeable injury.

Teachers must:

• provide adequate supervision in the classroom, playground, sports field and on an excursion;
• undertake risk assessments for all school and extra-curricular activities;
• implement strategies to avoid reasonably foreseeable harm to students, whether psychological or physical;
• provide appropriate medical care for sick or injured students;
• comply with the Child Safe Standards;
• take precautions to minimise the risk of child abuse; and
• implement Department of Education and school policies for the protection of students.

Student injured as a result of teacher negligence Victoria

If a student is injured as the result of a teacher’s negligent act or omission, the student should be compensated for any damage or loss that flows from that negligence. However, just because a teacher has a duty of care does not mean that a teacher is liable for every injury that a student sustains.

In order to successfully bring a claim for compensation in negligence, a student must establish on the balance of probability that:

• the teacher owed a duty of care to the student at the time the injury was sustained;
• the teacher breached their duty of care;
• the teacher should have reasonably foreseen the risk of injury;
• the risk of injury was not insignificant; and
• the breach of duty at least contributed to the student’s loss, damage or injury.

A student can only succeed in a compensation claim when they can establish all the above elements.

As outlined above, foreseeability is an essential element of a negligence claim. As the court found in Warren v Haines (1986), a risk of injury is foreseeable if it is not far-fetched or fanciful. It should be noted that in high-risk situations, such as when conducting chemistry experiments, a teacher has a higher duty of care to closely supervise the activities of students and provide proper guidance.

In some cases, a school’s duty of care extends beyond school hours. Whether the duty applies in a particular instance depends on the circumstances of the individual case and the teacher’s knowledge of any foreseeable risk.

In Geyer v Downs (1977), the High Court found a school authority liable when a student sustained an injury in the playground 15 minutes before school started. In that case, the school principal was aware that children were present on the grounds before school and had given instructions that children who were present should talk quietly or read. The High Court found that by giving this instruction, the principal had extended the scope of the school’s duty of care to include providing adequate supervision on school grounds before school hours. 

School duty of care Victoria

A school has a duty to its students that is in addition to a teacher’s duty. A school’s duty of care to its students is non-delegable, which means that the school’s legal responsibility to take care cannot be assigned to a third party (such as a teacher). For instance, a school may be found to have breached this duty if school grounds or equipment is unsafe and the student consequently suffers an injury. In fact, under the vicarious liability doctrine, a school authority is liable for the negligence of a teacher. However, in Victoria, the existence of this doctrine does not preclude the teacher from also carrying personal liability for their failure to fulfil their duty of care to students. As part of discharging their duty of care, a teacher must follow all Department and school policies designed to protect students.

This includes any health policies, yard duty and supervision, anti-bullying and student well-being policies. Following these policies would be considered reasonable steps taken to prevent foreseeable harm.

In Victoria, any organisation that exercises supervision, care or authority over children has a duty to help protect children from abuse. As such, a school and its teachers must prove that they took reasonable precautions to prevent child abuse by any person associated with a school. This underscores the existing duty of care that teachers have to take reasonable precautions to minimise the risk of child harm.

Go To Court Lawyers can answer any questions you have about teacher negligence in Victoria. Please contact our civil law solicitors on 1300 636 846 for any legal representation or guidance.