School staff entitled to safety at work

A decision of the District Court of New South Wales serves as a reminder that people working in schools are entitled to protection against a real risk of injury or accident.

The obligations imposed on employers (and others) can arise from a statutory regime such as workplace health and safety legislation or from the common law, that is, the general principle that in those areas recognised by the law, there is a duty to take reasonable steps to minimise the risk of foreseeable injury to others.

A teacher at a government school in south western Sydney was injured by an 8-year-old student who was an East African refugee. He had been traumatised before his enrolment in the school and had a history of severe behaviour problems in respect of which there was substantial school documentation and there had been attempts at remediation and disciplinary action by the school authorities. Of particular significance, he had a significant history of displaying aggression and violence towards others.

The teacher in question was called to intervene in a playground altercation in which the student was behaving aggressively, including using a stick to assault other students. After dealing with the altercation, the plaintiff teacher led the student gently by the hand to the office of the school principal in accordance with applicable school procedures. However, on the way to the principal’s office, unexpectedly so far as the plaintiff teacher was concerned, the student propped and braced himself in a doorway in the corridor with his free hand and with his feet and then violently pulled the plaintiff backwards with some force. This caused her to fall and she sustained serious injuries which, in effect, brought an end to her career. Ultimately, she recovered damages of approximately $689,000, of which $161,900 was for past economic loss and $425,000 for future economic loss, the balance primarily being for past and future superannuation loss (many of her medical expenses had been covered by workers' compensation).

It is, of course, well known that it can be very challenging in school environments to both “support” the student and at the same time protect the staff and other students. Nonetheless, it was held that negligence was established.

The judge had little difficulty in determining that a reasonable person in the position of the defendant employer would have foreseen the risk of injury. Turning to the question of what might have been done but was not, the following were of particular significance.

“Nothing of significance was done to address the risks that were actually identified” at the time of an earlier risk assessment.

“The filing of student records at the school appeared to be deficient so that the records were not well coordinated and amenable to ready review to determine whether a pattern of behaviour was emerging that required a protective response.”

“The response to the risk assessment was to put the problem off, and seek more support for (the student)”, but “that did not address his uncontrolled behaviour”.

“The response of the school lacked immediacy for such a serious problem where students and staff remained at risk of serious injury in circumstances where the slightest trigger could precipitate the behaviours in question.”

There are interesting observations on the issue of whether this student should have been removed from “a mainstream school”. That, of course, is always a very big call to make, but the judge was of the view that the circumstances here made that appropriate.
Accordingly, negligence was established.

The case is a reminder of the importance of ensuring that assessments are not only made, but acted upon, and also that documented information is distributed to everybody in the school where that is necessary in relation to the discharge of the duty of care. Obviously, confidentiality and sensitivity are appropriate to an extent consistent with the protection of staff and students.

This case is a reminder of the need to review systems and attitudes and practices to ensure that risks are minimised. They cannot be eliminated, but there is a duty to take the steps which can be taken.

The case, Sticker v NSW Department of Education & Communities (17 April 2014), is accessible at www.austlii.edu.au/

Andrew Knott
TressCox

Queensland Teachers' Journal, Vol 119 No 4, 23 May 2014, p31