My Child Was Injured At School – Can I Sue?
Mal Byrne writes about the legal rights for parents if their child is injured at school, either through an accident or bullying.
Children are precious. When a child starts school, they spend most of the next 10 to 12 years of their life at school and out of the care of their parents. Nothing frightens a parent more than the thought that their child is not safe. Nothing upsets or angers a parent more than when their child is injured at school and they consider that it was due to the school’s negligence.
The courts have ruled that schools do owe an implicit duty of care to their students. That duty applies whilst students are on the school premises. It would also extend beyond the school grounds where the children are under the care and control of staff at the school, such as on excursions, camps or sporting activities organised by the school.
However, if a child is injured either at or outside of their school whilst under the care and control of school staff, they do not have the automatic right to sue. The claimant must prove that the injury occurred due to the school’s negligence.
Where injuries have occurred in the playground, the courts have not found the school liable in all circumstances. Kids will be kids. They like to play. Playground accidents are common. The courts do not expect schools to have eyes in the back of their head and to stop all playground accidents occurring. When assessing the standard of care of the school, the courts will look at the level of supervision provided by the school of playground areas during recess and lunchtime. The courts will expect the schools to have a minimum number of staff supervising the grounds during these periods. Most schools are aware of this as a matter of policy and generally will have staff patrolling play areas during recess and lunchtime.
But proving that an insufficient number of supervisors were on duty during the break where the accident occurred is not necessarily sufficient to get a claim over the line. The claimant would also have to establish that the playground incident, on the balance of probabilities, could have been prevented if an adequate number of supervisors had been on duty.
The facts of the incident will be critical. A school is less likely to be found liable for a random playground accident for which there is little forewarning as compared with incidents that represent a protracted breach of discipline such as a rock fight. In short, if the incident was going to happen in any event and could not have been stopped by adequate supervision, the courts will not find the school liable.
The school’s duty of care would be at its highest when children are in a classroom. The courts would expect teachers to have the capacity to supervise that area. Children should not be left unattended by school staff in a classroom. If that occurs, the school is likely to be held liable for any injury that occurs once that classroom is unattended, if the accident could have been prevented by adequate supervision.
The courts are also less likely to hold the school liable where the child is injured because of their own foolishness. The Civil Liability Act enacted on 1 April 2004 states that defendants will not be held liable where the injured person is injured whilst engaging in an activity where there is an obvious risk of injury inherent in the activity. Any claimant engaging in an activity where there is an obvious risk is presumed to be aware of the risk. Hence, a child swinging inappropriately on monkey bars is less likely to get compensation even if the school did not provide adequate supervision. A child participating in a rock fight who gets injured is much less likely to obtain compensation than a child not engaging in the rock fight who gets hit by a stray rock.
The obvious risk defence also makes it difficult to sue where a child is injured in an organised sporting activity. If a child breaks an arm playing football, the Courts would accept that there is an obvious risk of fractures occurring during a game of football.
There are a couple of limited circumstances where it might be possible to sue for a sporting injury. For example, if the school is officiating in a game and the umpire/referee allows the game to get completely out of control and an injury occurs. Another situation would be if the child is injured because the physical education teacher asks the child to do something (e.g. gymnastic vault, springboard dive) that the teacher knows, or ought to know, is way beyond the child’s capacity and an injury follows.
What about the schoolyard bully? Can a parent sue the school if their child is being bullied at school and gets injured? Maybe. Of course, at the first instance, if your child has been injured as a result of criminal assault, your child has been a victim of a crime. Your child will be entitled to pursue compensation under the Victims of Crime Act 2001, but there are a number of restrictions in that legislation both on liability and on the compensation available. The victim must be able to prove that they were injured as a result of the offence and the Police will require the victim to fully cooperate with any prosecution. This means providing statements and going to court if necessary, to assist Police in proving the charge.
The compensation available is also limited. There is a threshold of damage that the victim must suffer first before they can obtain compensation. A black eye and even a broken nose is not sufficient. A broken jaw is. Of course, many victims of bullying suffer psychiatric injury such as Post Traumatic Stress Disorder or an Adjustment Disorder or even in the worst cases, Major Depression. This is particularly so when the bullying and harassment occurs over an extended period of time, rather than just one isolated incident.
To be able to sue a school for bullying, a claimant will have to show that the school knew or ought to have known about the bullying and did not take sufficient action within a reasonable timeframe to address the problem. Schools, like workplaces, need to have policies with respect to dealing with bullies. If a child is being bullied and the school is notified either by the child directly or by the parents, the courts will expect the school to implement steps required under the policy to protect this child. However, the courts will only expect the school to do what is reasonable under the circumstances to protect the child. Once again, any case will turn on its own facts. Depending on the severity of the bullying, courts may expect the school to exclude the bully or even expel the bully when misconduct is ongoing. Courts might also expect the school to separate the victim and the bully as much as possible. The courts would probably not expect the school to effectively act as the victim’s bodyguard.
In short, there is no firm and fast rule about when you can sue a school if your child is injured. The facts of the case will be critical. Schools need to provide adequate supervision and need to act promptly when confronted with bullying allegations. However, the courts recognise that schools are not army barracks or prisons. Kids will push boundaries and some accidents are just accidents.
TGB is South Australia’s largest injury law firm. For legal assistance or further information contact Mal Byrne for a free first interview.
CASE STUDY: Bullying victim awarded compensation