The following is taken from Guidelines for the Development of College Policy and Procedures; Duty of Care. AISWA July 2015
1. Duty of care
The term ‘duty of care’ is a legal concept that defines the duty a person has to use reasonable care towards others in order to protect them from known or reasonably foreseeable risk of harm and/or injury. The notion of duty of care is one that is contained in most College policies and procedures.
The College has a duty to take reasonable care to ensure that it employs competent teachers and provides safe premises. The College will be vicariously liable for the actions of the teachers while they are acting within the course and scope of their duties as an employee of the College (this may not be the case if the teacher acts with deliberate negligence).
A teacher owes a duty to students to take reasonable care to protect them, from a known or a reasonably foreseeable risk of harm and/or injury. Discharge of this duty requires a teacher to take such proactive measures as are reasonable to prevent harm and/or injury to a student.
2. Reasonable Care
The concept of ‘duty of care’ is based on reasonable care. It is not a duty to ensure no harm will come to a student but that reasonable care to avoid harm being suffered is taken. What is considered reasonable care varies depending on the circumstances at the time.
Listed below are some factors to consider when assessing the ‘reasonableness’ of the level of care required for a particular student. Colleges should use these factors and any other factors applicable to the particular situation to risk assess the duty of care required.
- The student’s age, experience and capabilities: The level of care will generally be greater the younger the student.
- Any physical or intellectual impairment: A student with a disability may be at greater risk of injury than a student without a disability for a particular activity. This could be due to a physical inability to safely participate in an activity or the intellectual inability to appreciate the risks involved and therefore the need to exercise caution.
- Medical condition: Particular medical conditions, including asthma, epilepsy and anaphylaxis, require special attention to ensure that students who are susceptible are not exposed to a greater risk of injury.
- Behavioural characteristics: If a student is known to behave inappropriately then the level of care increases.
- The nature of the activity and the environment in which the activity is held: College activities with a higher level of risk and held in hazardous environments require a higher level of care.
- College policy and procedures: College policies and procedures will often give guidance to the suitability of certain activities for students and the care required if they are undertaken. They must be followed.
- All activities should be risk assessed before being undertaken. Assessing the level of risk involved in any individual activity means, determining the probability of harm occurring, the degree of harm that could occur and the mitigation required to make the activity’s risks acceptable.
- The supervisor’s level of experience, attributes and skills: A supervisor should know, understand and be able to keep students safe in the particular environment the activity is taking place in.
- The supervisor’s relationship with the students: A teacher who has a ‘difficult’ relationship with a student may need a different approach to their duty of care than a teacher who has a positive relationship with a student.
While duty of care responsibilities may appear to impose onerous obligations on the Colleges and teachers, these obligations should not discourage the College from allowing students to participate in challenging or managed risk activities. Routine risk assessment and efficient mitigation can encourage teacher participation in activities that may appear at first to be too hard to bother with.