Academic journal article Journal of Law and Education

School Supervision of Children outside School Hours in Australia: Who's Responsible?

Academic journal article Journal of Law and Education

School Supervision of Children outside School Hours in Australia: Who's Responsible?

Article excerpt

The past decade has seen a quiet revolution in primary schools across Australia. This revolution has greatly affected both the administration and direction of schools themselves and the routines of the families of pupils attending them. The revolution is sometimes known as "outside school hours" programs, "after care," "before school care," and during school holidays - "vacation care" or "holiday programs." These programs, however they are designated, have the same feature in common - they are activities run or supervised by schools for children which take place outside of the normally scheduled school hours. These programs have multiplied exponentially in the last ten years and the figures are quite astounding. In 2002,1

* 148,040 children participated in an outside school hours care program. This is an increase of 50% from 1996/1997 figures.

* 103,560 children attended a vacation care program, compared with 30,970 in 1996/1997.

* 11,786 staff members were employed in outside school hours' services.

* 12,560 staff members were employed in vacation care services.

These programs do not consist of handing the children a crayon and some paper and letting them draw pictures while waiting for parents to appear. Activities are generally "leisure-based" and will include a diverse range of pursuits such as crafts, cooking, taekwondo, jazz ballet, photography and the like. Many of these activities are lead by nonteachers - instructors from programs which the school has outsourced (for example, a teakwondo coach from the local chapter of a taekwondo school). With all these children participating in such a varied range of activities in so many schools across Australia, the potential for children to injure themselves while pursuing such pastimes is vast. The issue of legal liability for such injuries should be one of great interest to teachers and school authorities as the potential for litigation increases with the popularity and success of these programs. This paper intends to investigate legal liability of teachers and school authorities for injured children and to focus on the specific issue of liability during outside of school hours activities.

I. DUTY OF CARE DURING "NORMAL" SCHOOL ACTIVITIES

It is well established law that schools and teachers have a duty of care to pupils whenever the school is exercising control of the pupils' actions.2 Courts in both Australia and the U.K. have made it clear that once the school asserts authority over pupils, such as setting supervision times, then the duty of care arises.3 It should be noted that the U.K. cases, while considered persuasive to the Australian jurisdiction, are not binding on Australian courts and thus the case law has developed independently in Australia.

The issue of whether a duty of care is owed during normal school hours and normal school activities is not linked to the fundamental question of whether a school child is a foreseeable victim of a careless act. Australian courts have clearly stated that the duty of care arises simply based on the relationship between the parties.4 That is, the teacher-pupil relationship has "special characteristics" which separate it from the normal "who at law is my neighbour?" question formulated by Lord Atkin in the famous U.K case of Donoghue v. Stevenson.5 Courts do not need to consider the nature of the relationship in a normal school hours teacher-pupil situation in order to determine whether a duty of care has arisen - the relationship itself creates the duty. The question of forseeability will still be relevant in these matters, but only in relation to the issue of liability.

It has been determined by the courts that the extent of the duty owed by teachers is a very wide one. It goes much further than the duty owed by the general public to each other in everyday life; this is because of the nature of the relationship between teacher and pupil. The Australian case of Richards v. …

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