It was my pleasure to speak recently to independent and Catholic schools at the Legalwise Schools law conference.
The topic of a school’s responsibility for a student’s out of hours behaviour was a key topic of discussion.
Another speaker at the conference shared stories about her work representing aggrieved parents who have sued schools, where their child had suffered a mental or physical injury due to bullying.
It was informative and served to confirm that schools will be sued where the bullying has taken place out of school hours.
This has important ramifications for the way in which schools:
- Ensure they have set out in their documentation, the clear extent of their rights to discipline students for out of hours behaviour; and
- Brief students and parents in the lead up to “big” events, regarding expected standards of behaviour. This may need to include reminding parents of their obligations under the parent code of conduct, for example, not providing alcohol to minors and observing standards of behaviour.
Many schools have abandoned providing alternative “safe” celebrations for students, such as “movie nights” as alternatives to schools formal after-parties, due to low attendance. Clearly, the attraction to students of the after party is its distance from the school and school rules!
However, low attendance is not the measure of success. In the same way that schools cannot wrestle cameras away from parents who refuse to abide by rules regarding no photography, schools cannot always “force” students to attend school functions designed to provide an alternative to a non-endorsed function. What they can – and must – do, is take reasonable steps to create the safest and most compliant environment possible.
The law says the same thing: in the famous bus stop injury case (Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (unreported New South Wales Court of Appeal 9 August 1996), the court found a duty of care was owed because the school knew that large groups of students regularly caught the bus from that stop and knew of the risk of harm. Additionally, a teacher from the primary school witnessed the incident and did not intervene. This was the case, even though the bus stop was not near the school and students caught the bus out of school hours.
If your students are many states away and are injured, and the event is not related to the school at all, then the school is unlikely to be liable for any injury. Reputational injury would of course be a risk. A written warning to parents and students about dangerous behaviour would be warranted.
However, if students are planning parties after school functions, and the school apprehends the risk of harm, then a duty may be found. Hence, the provision of the “safe” school movie night or its equivalent is still considered best practice. I seem to remember we watched the Princess Bride at every single camp at my school for many years running!
Older students (Years 9 -12) also benefit from age-appropriate education sessions about alcohol, drugs, mental health and sexual health (including consent). These sessions need to occur well before the key events, and consistent with the school’s broader obligations regarding student wellbeing and the empowerment of children consistent with the Child Safe Standards.
How we can help
Moores assists clients in the education sector to create and amend their policy frameworks to ensure it is up-to-date and legally compliant with the duty of care owed to students both onsite and offsite.
We also conduct informative and engaging training for staff and students.
If you would like further assistance, please contact our Practice Leader
Cecelia Irvine-So on (03) 9843 2100, or fill out the enquiry form below.