Now that another school year has begun, it is timely to consider the rights and responsibilities of schools and teaching staff when it comes to the safety of our children. Cases involving injuries sustained at school have regularly come before the courts. Of late, injuries caused by bullying activities at school appear to be gaining increased attention.

Liability for injuries suffered at school, including those injuries incurred through bullying behaviour, is based on the law of negligence. If a student is injured, the questions that need to be addressed are:

* Did the school or teacher have a duty of care to the student?
* Was that duty breached? And, if so,
* Did the breach give rise to the injuries that occurred?

That a school and its teaching staff owe a duty of care to its students is beyond doubt. Schools and teachers have a duty to provide safe and suitable school premises and equipment and to provide adequate supervision of students while they are under their care. What is usually in issue in school injury cases is whether or not the school and its teachers breached the duty of care by failing to adequately supervise students and control their behaviour in the classroom or schoolyard. What amounts to adequate supervision is determined on the facts of each case and the court applies the test of reasonableness to the circumstances of the injury.

There are several cases where the courts have found schools and teachers negligent in failing in their duty of care to students. In one case, Copping v SA (1997) 192 LSJS 109, a 9-year-old student was injured when other students threw stones and bark at him for a period of 5 to 10 minutes. The South Australian court determined that inadequate supervision in the playground led to the injuries and found the school liable to pay damages.

Similarly, in a bullying case Warren v Haines (1986) Aust Torts Rep. 80-104, a girl suffered serious injury when a known bully dropped her on a concrete slab. Because the school had failed to take adequate disciplinary measures to control the bully, the NSW Supreme Court found the school authority to be liable.

These cases can be compared to others where the courts have found no liability in negligence for injuries occurring as a result of classroom tomfoolery. In one case, Barker v The State of South Australia (1978) 19 SASR 83, a girl was injured when she tilted her seat back and either fell or was pushed over by another student at a time when the teacher had temporarily left the classroom. The Court found no liability for negligence attached to the school even though the teacher was out of the classroom at the time it occurred. The Court found that the presence of the teacher would not have prevented the incident.

Similarly, an English school escaped liability for eye injuries caused to a 15-year-old girl when a plastic ruler she was using during a mock sword fight with another student broke, causing fragments to lodge in her eye (Mullin v Richards [1998] 1 WLR 1304).

The fact that the students involved in the last two mentioned cases were older was arguably a factor contributing to the education authorities escaping liability in those instances. The courts will impute a higher supervisory duty on school staff where young students are involved.

While courts will readily attach a duty of care to schools and teachers, it does not necessarily follow that every injury that occurs at school is a result of a breach of that duty. The test of reasonableness may result in some injuries being judged as simply “accidents” - those unavoidable mishaps that invariably occur at school.