Guards in Schools: Who Has the Duty of Care?

The funding of security guards in some Australian schools raises liability issues, writes TGB’s Mal Byrne. 

The Federal Minister for Justice’s announcement that the Commonwealth Government will fund security guards for selected schools who have applied for the funding raises issues about who is liable for any failures of care that occur at school and to what extent.  Currently, the school provider, whether it would be a State Government or Religious Body, has a primary duty of care to adequately look after all children while they are at school.  If your child is injured or bullied, it is the proprietor of the school who has a duty of care and is potentially liable where negligence occurs.  However, where at least part of the responsibility for safety at school is contracted out to a private security company, the boundaries of responsibility could blur. 

The reason for bringing in security companies has been the increased threat of terrorism where the school is run by a particular religious order.  The threat that has initiated the response is that of a “lone wolf” or small group of adults or children launching a violent attack on pupils, property or both.  The threat is a specific threat and not one that schools have previously encountered in Australia.  However, what happens if a security guard witnesses a child being bullied by another child or sees a group of children using a piece of playground equipment in an unsafe manner?  If a child gets injured in these circumstances, who is liable? 

The contracting out of security at schools has the potential to allow the provider to offset some or all of its liability on to the security company.  It is not unlike the situation that I encounter for example in supermarket fall cases where shopping centre owners offset liability on to cleaning contractors or in Commonwealth Detention Centres where the Commonwealth offset liability on to the detention centre provider. 

If I was a parent where my child’s school brings in a security company, I would certainly want to be satisfied that the security company is viable and has up to date liability insurance.  I would also like to see the contract between the school and the security company to see where responsibility begins and ends for both the school and company.  Even if you argue that the responsibility of the security company extends only to preventing serious violence, it is inevitable that security guards are going to be confronted with more low level violence such as bullying or reckless playground behaviour and be expected to take action. 

In relation to playground incidents, the law requires schools to provide an adequate level of supervision of students at playtimes to minimise the risk of accident.  Is the new security company going to be responsible for that supervision?  What about bullying?  If the security guard intervenes to stop bullying occurring, who then takes responsibility for dealing with the perpetrator and helping the victim after the incident? 

In my view, both entities should be responsible and any apportionment of liability should be fought out between the two on a case by case basis. 

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