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Negligence (Part 1)
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En provenance du cours de Commonwealth Education Trust
Foundations of Teaching for Learning: Being a Professional
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Legal and administrative responsibilities of a teacher
This week we will consider the roles that statute law, judge-made law and case law play in teaching and schooling. We will examine the concept of duty of care, the care that is owed to students by their teachers and school, and its implications for your professional practice. We will also consider the rights and responsibilities of students, parents, caregivers, and teachers. What is and is not reasonable for parents and students to ask for in relation to schooling? You will be encouraged to reflect upon your professional behaviour as a teacher and to consider how these issues might impact upon current practices in your classroom and in your school. You will also be encouraged to discuss these issues with your principal, colleagues, and other course participants.
Rencontrer les enseignants
Professor Stephen DinhamChair of Teacher Education and Director of Learning and Teaching
University of Melbourne, Australia
Professor John MacBeathProfessor Emeritus
University of Cambridge, UK
[MUSIC]
Welcome back everybody, to Course 7, Being a Professional.
We're in Week 3, legal and administrative responsibilities of a teacher.
And this is Lecture 2, Negligence.
Now, I have to issue a warning at this point
because, I've mentioned previously, that we are guided by case law,
in terms of how we act in schools.
And we'll demonstrate that in a moment.
However, the sorts of advice and
the sorts of implications we can draw from that case law, are only tentative.
It's very important that you check whatever we mention in
these particular sessions against the law in your particular jurisdiction, and
in your state, or local area, depending on how education's organised.
These are meant to be a guide to professional practice,
but they don't constitute legal advice as such.
Now, negligence is fundamental in terms of the duty of care.
It's commonly derived from the common law, although there is some statute law
that gives us guidance as to what we can and can't do in schools.
But as I've mentioned previously the bulk of the advice that we get,
in terms of how to act is the result of a case, that has been decided in court and
has been deemed to be significant in terms of influencing our decision making.
Negligence is considered a civil wrong, or tort as it's called.
And what this means is that it's an action against an individual or
individuals, through which damages can be sought in a civil court.
Usually, in negligence cases, there is not a criminal sentence or
imprisonment involved.
Although there are some things, which breach both civil and criminal law.
Assault being one of those, as we'll see.
The test of negligence rests upon three elements being satisfied.
The first of these is that a duty of care existed.
In the previous lecture, I asked you to consider whether,
certain circumstances, constituted a duty of care or not.
The key point in negligence to begin with is,
there was a duty of care, between the teacher and the student.
There was an official, or formal pupil teacher relationship.
The student was under the control of the teacher.
The second element in negligence, is that there was a breach of the duty of care.
In other words, the teacher did not act reasonably or
as expected from the usual behavior, of a professional teacher.
The third element that needs to be established is injury or damage resulted.
There may have been a duty of care, there may have been a breach of
the duty of care, but there may not have been injury or damage.
So, for example, a teacher was supervising their class during school time,
that would be a duty of care.
The teacher left the class unsupervised for an hour.
That would normally be considered a breach of the duty of care.
If the teacher returned and no injury or damage resulted, and
keeping in mind that damage could be emotional or mental as well as physical.
If there was no injury or damage, then a case for
negligence would not be successful.
There are a couple of other things that we need to consider
if we are going to establish a case for negligence.
The first is that there was reasonable foreseeability of injury taking place.
If we say for example, students were in a playground
a teacher was supervising those students.
And, an aeroplane flew overhead, and
a wheel fell from that aeroplane, and injured a student.
Yes, there was a duty of care, there was no breach of the duty of care,
there was injury or damage resulting however.
So, there needs to be reasonable foreseeability.
If, for example, a teacher asked a student to climb a tree to get down a ball,
there would be a reasonable foreseeability
the student could be injured by falling from that tree.
So, the issue of foreseeability is quite important.
The second thing that needs to be proven, in addition to
those three points mentioned earlier, is that there was a causal
link between the injury and the breach of the duty of care.
The breach of the duty of care led directly to the injury.
In the case of our unsupervised class, if the teacher by being absent
was not supervising those students.
And one student then assaulted, or hurt another student, it could be argued, that
would not have happened if the teacher was in the room supervising those students.
Therefore, there is a link between the breach of the duty of care, and
the injury or damage that resulted.
I have a series of hypotheticals for you.
And I'd like you to discuss these with your colleagues in your school,
through the discussion forum, or think about these deeply yourself.
In our first hypothetical, it is 8:15 in the morning,
at Shady Acres Primary School.
Lessons begin at 9:00 a.m.
and there's a brief student assembly at 8:50.
Parents have been told in writing that supervision begins at 8:20,
and students are not to enter the school prior to this.
However, students tend to arrive in dribs and
drabs, and enter the school grounds without supervision.
In our hypothetical, one student is injured, through the actions of another.
I want you to read the hypothetical and see whether, in this particular case,
there was a duty of care, there was a breach of the duty of care,
injury or damage resulted,
There was reasonable foreseeability, of that injury or damage,
and there was a link between the breach of the duty of care and the injury or
damage that resulted.
[MUSIC]
When considering the factors in the duty of care, a number of things are important.
For example, a teacher may supervise very young students.
Generally speaking, the younger the child,
the greater the duty of care, although capacity is also important.
For example, a student with certain disabilities
may well be owed a greater duty of care because of this.
[MUSIC]
Potential hazards is another factor in the duty of care.
Science laboratories, for example, can be more dangerous than a regular classroom
with Bunsen burners, chemicals, equipment and so forth.
Sport can be more dangerous potentially than a regular classroom.
Therefore, we need to be more vigilant
as a result of these extra potential hazards in situations such as
science laboratories and sporting fields and workshops and so forth.
There is another factor in the duty of care when we are assessing the level of
supervision we need to apply, and this is past experience.
We may, for example, have a class, which is well known for bad behavior,
ill discipline, not following teacher's directions, and so forth.
Because that is known, we would expect therefore
a higher duty of care needed to supervise those students.
Conversely, a class with a good reputation for
working diligently without problems, without the need for
overt discipline, may well have a lesser duty of care than the previous example.
It is most important to foresee potential problems.
The law, and we're talking about here civil law, case law,
common law, expects teachers to act as a better than good parent.
The key thing here is, to think before you ask students to do things.
Think about whether you're putting them at potential risk.
For example, asking a student to leave the school, to go to a local store to
buy you something, would be putting students at risk unnecessarily.
There is a foreseeability of injury occurring.
We've mentioned the issue of a teacher asking a student to climb a tree.
Likewise, a good teacher, a reasonable teacher, would see the potential there for
injury or damage as a result of that.
We need to step back before we ask students to do things, and
ask ourselves is it safe?
We need to think about the consequences of acting, or not acting.
For example, if we are out in the playground at the school, and
we see students engaging in potentially hazardous behavior.
They may be fighting with sticks, having a boxing match, climbing a fence.
We need to intervene,
whether we are formally on duty in that playground or not.
We are expected to intervene in the
actions of students we may not actually teach.
The other thing is to not be led astray by overconfidence.
Just because something's always gone well, doesn't mean it will go well every time.
We need to continually remind the students, of the standards we expect of
behaviour when using the equipment, scientific apparatus and so forth.
Overall, it's better to be safe than sorry.
There are a number of categories where the teachers put students at risk, and
some of these are quite reasonable.
Because we want to build resilience, we want to build independence.
But there are limits to what is reasonable.
One of the things that teachers can get into trouble for, is not reading or
adhering to safety procedures when using equipment.
Imprecise directions are another problem.
We need to make sure that students understand precisely what it is we
are asking them to do,
and precisely what it is we don't want them to do.
The "wonders of science" demonstrations can be quite dangerous.
The exploding volcano, for example.
Incorrect use of equipment.
Equipment that's designed for one particular purpose being used for another.
And, particularly where the teacher is physically larger and
stronger than the students, physically demonstrating how to tackle for
example, or some other physical action, could lead to injury or damage.
Going beyond your own qualifications and expertise is another one.
We shouldn't be engaging in things such as training people in gymnastics, for
example, unless we have formal qualifications in that area.
And finally, showing off with the big hit at baseball or
cricket or some other game can be dangerous.
In all of this, the court expects, you to act as a better than reasonable parent.
The question will be asked,
is this a reasonable behaviour on the part of the teacher, or not?
This is not about limiting what you can do,
wrapping students in cotton wool, and not taking any risk whatsoever.
But we need to be foreseeing the potential for
some of these things to go wrong.
Something that occupies our thinking is when do school hours begin and end?
Some schools will publicise the fact that there is no supervision before a certain
hour, and no supervision after a certain hour.
What does the civil law say?
What does common law say?
What do case law tell us about this?
School hours are not just the formal classes,
the formal activities associated during the school day.
After school activities such as sporting visits, excursions, visits to galleries,
museums, and so forth, do constitute the pupil teacher relationship.
They do constitute the duty of care.
So, school hours are slightly less precise than some schools would attempt to convey.
If students are allowed on the premises out of school hours, the law believes, and
states that there is an invitation to be on those grounds,
if the students are not told to leave, and therefore a duty of care will exist.
It's very, very important that you communicate to parents and to students
the times and circumstances at which the supervision of students will take place.
And the times that they will be allowed on the grounds and
not allowed on the grounds, and that this be enforced.
If students are only on the school grounds, for example, after school,
keeping in mind they need a reasonable time to leave the school.
They should be asked to leave.
In the second part of Lecture 2,
we will continue our examination of the very important concept of negligence.
[MUSIC]
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