ASTI - Ireland's main second level teachers union

A teacher acting as a supervisor under the Department of Education and Science supervision and substitution scheme is acting within the scope of his/her employment and is covered by legal indemnities to which an employee is entitled.

The measure of the duty of care owed by school authorities to students is based on the Law of Negligence as interpreted by the courts in cases that have come before them for decision. The degree of care and supervision which must be exercised by those in charge of schools has been described in a number of cases as a duty to exercise the care which a careful parent would exercise for the protection of his/ her own children in the circumstances in which teachers find themselves (in loco parentis rule). This duty of care subsists while the students are under the control of the school on the school premises or elsewhere. Failure on the part of a school authority to fulfil its duty of care may render the school legally liable to compensate a student who suffers injury as a result of an accident.

Whether or not there has been a breach of the required duty of care depends on the facts or circumstances of each particular case. In the final analysis it is the courts that will decide whether or not any legal liability exists. The absence or the scope of a school authority’s Insurance Policy is not a consideration in deciding whether or not any legal liability exists.

In every case it is a matter for the Plaintiff to prove that the Defendant, directly or through its servants (teachers) has been negligent. However serious a mishap, unless there has been a failure on the part of the Defendant to take proper care, the injured party has no right to compensation in law.

[Link to http://www.allianz.ie/]

The Allianz Ireland publication A Guide to Insurance, Safety and Security in the School serves as a guide in relation to issues pertaining to the supervision of pupils.

Supervision of Pupils

Supervision of pupils is by far the most difficult challenge facing schools and teachers and, it has to be said, is the single largest source of claims. The source of the liability of the Board of Management and the teacher is incurred under Common Law, which is based upon judicial decision and precedents in previous cases.  The primary liability attaches to the person or persons in breach of that duty of care which is, in the main, the teacher.

Legal liability for accidental injury or damage incurred by the teacher is covered by the Custodian School Protection policy issued to the Board of Management.

What is the extent of the teacher’s duty of care?

The measure of duty placed on the teacher is ‘to take such care of his/her pupils as a careful parent would of his/her children’. This legal principle is known as “in loco parentis” (in the place of the parent). The degree of supervision required of the teacher will vary with the circumstances and especially the age of the child.

In other words, the nature of the activity being supervised and the age of the pupil will dictate the extent of the teacher’s duty of care.

A higher standard of care is required for very young children and the law holds children of very tender years incapable of contributory negligence.

What have the courts said? Some judicial comments:

1. If every teacher is to take precautions to see that there is never ragging or horseplay among his pupils, his school would indeed be too awful a place to contemplate.
2. If a school teacher knows, or ought to know, that a game is being played in a dangerous manner, or in an unsuitable place likely to make it dangerous he is negligent if he does not take proper steps to prevent danger.
3. Careful supervision is essential and the persons having charge of the school are bound to see that there is supervision of the playground during play intervals. It is the duty of the principal teacher to see that the playground is clear and not a source of danger to children playing there.

Does the law require constant supervision?

The courts have held that constant and individual supervision is not necessary and the responsibility of the teacher is that of reasonable care.

The proper level of supervision in any particular instance will be a matter for the Board of Management and/or teaching staff. In considering the proper level of supervision, the person responsible will have to consider the age, maturity and number of pupils under his/her control as well as the topography of the area in which supervision takes place.

How do the courts interpret the law?

The courts have, in recent years, imposed on the teacher a duty of care which is, in the view of many, in excess of the duty of care attributable to a parent.

Who should supervise?

It is essential that supervision is undertaken by a person trained to supervise in large numbers. This will in most cases mean a teacher. Parents, generally, have experience only in a small family unit and should not be used in either a teaching or supervisory capacity unless accompanied by and under the direction of a member of the teaching staff.  Pupils, too, should never be left to supervise.

What then is the correct level of supervision?

In considering the correct level of supervision the age, maturity and number of pupils must be considered as well as the topography of the area in which supervision takes place.

The most common types of accidents, under this heading, are as follows:

• One pupil injures another while a teacher is out of the room for a few seconds or minutes.
• A pupil is injured whilst using a piece of equipment (woodworking or metalwork) whilst the teacher is not watching him/her. (In this regard explicit instructions must be given for the use of such equipment).
• A pupil is injured whilst ‘playing’ in the school playground during break or lunch time. Either the game is too robust and dangerous or there are not enough teachers to provide an adequate level of supervision. Supervising through a window inside the school is inadequate and indefensible in a legal action.
• On wet days when pupils are confined to their classrooms, supervision should not be carried out on a random basis. Each classroom requires supervision.
• Pupils should never be left unsupervised in a gymnasium or sports hall, particularly where there is equipment such as trampolines, trampetts and vaulting horses available. Strict instruction must be given to all students in relation to how and when such equipment should be used.

What about children leaving the school during lunch or on other occasions?

The general rule is that school authorities should know where all the children are at all times. If children go home for lunch, the parents should be asked to sign an authorisation note and the following wording is recommended:

“This is to acknowledge that we have requested the Manager and Teachers to allow our child (or children) (… name(s)…) to leave the school premises at lunch time.  We are aware that some accident may befall the child on their way from or on their return to the school and we hereby absolve and release the Manager and Teachers from all claims of every nature and kind in respect of any injury or loss or accident which may be suffered by the child during lunch time.”

The form should be addressed to the school, indicate the names of the child or children, signed by the parents and dated.

What about games?

When considering indoor games such as indoor football etc., the number of players involved must be carefully considered so that pupils are not placed at any risk over and above the normal hazards of the sport.

Teachers must encourage all pupils to acquire and use relevant safety equipment in all sports, e.g. helmets should be worn when hurling and cycling, gum shields should be used when playing football, hurling or rugby.

Any other equipment which may reduce the likelihood or severity of injury must be recommended and used.

When considering swimming or any games played away from the school, ensure that you have provided transport for all the pupils to and from the venue. Your responsibilities to supervise do not diminish because pupils are elsewhere than on home ground unless the person to whom they are assigned accepts the responsibility (preferably in writing).

When does the school accept responsibility to supervise?

The school and teachers have a duty to supervise at all times when pupils are in their charge. If the school allows access to the school before official opening hours then the duty to supervise applies.

Likewise, whilst pupils are on the premises after hours a similar duty applies.

But surely the school cannot be responsible for pupils left by their parents early morning or after finish of school?

Yes it can. It is accepted that some parents drop their children at the school some time before school starts, and similarly collect them some time after school finishes, but that does not wholly absolve the school/teachers of their responsibility to supervise.

This legal obligation produces a dilemma for school management. Do we lock the gates and refuse entry until 10 minutes before school starts? To do so could expose children to the danger of passing traffic or to the inclement weather.

It is, alas, a dilemma which holds little sway with the courts who will argue that it is a practice known to the school for parents to leave pupils before hours and to collect them after hours, and in that acceptable is the obligation to provide supervision.

Can the school do anything about it?

As we have said, this is a dilemma which offers little relief for the school. However, there is some mitigation which can be made.

We recommend that a note is sent to all parents at the beginning of term advising them of the hours at which the school can accept responsibility for their children. A recommended wording is as follows:

Circular

“The school will open to receive pupils at the hour of 8.45am.  No responsibility is accepted for pupils arriving before that time. Classes will commence each day at 9.15a.m. No pupils should arrive later than 9.10a.m.

Classes will end each day at 3.30p.m. Parents who wish to have their children escorted home should make their own arrangements to have them met at the school gate and the person to escort them should be at the school not later than 3.30p.m. as the school cannot accept responsibility for looking after the children after that time.”

NOTE: The times shown are for the purposes of example only.  When issuing such a circular you should insert the actual times which are in operation for your school.

What about the School Transport System?

Schools are not party to the School Transport System and the fact that the children are conveyed to or from school by bus does not impose any additional obligations on the school or teachers.

As we have stated, it is important that parents are aware that no arrangement exists for the supervision of their children who arrive at the school, whether by school bus or otherwise, before the official opening time. A similar situation arises in respect of children who remain after school hours awaiting collection by the school bus.

In situations where teachers voluntarily adopt the practice of escorting pupils to and from school or the bus, they could be held to be liable if, having established the practice, they miss out for some reason or another or fail to do so in a careful manner.

In the interests of both children and the school, a letter along the lines as suggested above and adapted as appropriate to meet particular circumstances, should be sent to all parents at the beginning of each term. In respect of the School Transport System it is suggested that the letter should include the following paragraph:

“In the case of children travelling by the School Bus, the school cannot accept responsibility for escorting them from the bus to the school or from the school to the bus. Parents who feel that their children may need to be escorted in these circumstances should make arrangements to ensure that some escort is provided.”

What about school trips and tours?

In recent years we have seen tragic accidents involving death or injury to pupils on school trips and tours. The level of supervision required is the same as for other activities, in and out of school.

Parents (or others) assisting with supervision should always be accompanied by a teacher.

When arranging a school trip always obtain from the parents or guardians a signed form indicating their consent to the pupil going on the trip, and also giving the teacher the right to authorise any medical or surgical procedure necessary.

What about bullying and pupil to pupil assaults?

Unfortunately these are all too common. It emphasises the necessity for proper supervision, but it must be conceded that even with a reasonable level of supervision such assaults will still occur.

There are certain cases where the teacher can take action to prevent such aggression:

1. Where obvious animosity exists between particular students, every effort must be made to keep them apart. This cannot, of course, be done on a permanent basis. However, if evidence can be produced that every effort has been made, then it may assist in the defence of a claim which may be brought against the teacher or Board of Management for injury suffered.
2. If at any time a student is found to be in possession of any item that could be considered to be an offensive weapon then it must be taken from him/her. In addition, it is essential that it be placed in an area where it cannot be easily retrieved.
3. If, in any game, there is an undue level of violence or very rough play, the game should be discontinued on the basis that if it is allowed to continue serous injury could result. There have, in recent times, been some high profile cases where a student has suffered injury, and the teacher/referee has been found to be negligent in not halting dangerous play.
4. The bully has, alas, been always with us, but bullying has received much attention in recent times. If it comes to your attention by word or sight, that a pupil is being bullied it is essential that early action is taken.

Are there any restrictions on class numbers?

Allianz does not seek to advise Boards of Management on what can and cannot be done in the educational process.

It is responsibility of the Board of Management to maintain classes at a level that allows effective supervision by a teacher.

What about children with disabilities?

It is considered that children with disabilities benefit from schooling with able-bodied students. There is no difference in the legal requirements for them but the Board of Management and the teachers should be aware that the duty of care to disabled children may be increased as a result of their disability.

Reproduced by kind permission of Allianz Ireland

The publication A Guide to Insurance, Safety and Security in the School can be viewed by visiting www.allianz.ie/allscoil.