By Jack H. Berryman
Although accidents, fights, and other incidents that cause injury
or harm will always happen, it is imperative that the cause not be the negligence of
school staff. Teachers, along with principals and supervisory officers, have a duty of
care, and they can be held liable if they fail to meet it.
Ontario law requires teachers to perform various duties from a parental perspective.
For example, teachers must be positive role models for their students and must act as
kind, firm and judicious parents when disciplining students.
Under the common law, teachers also have a duty of care to protect their students from
all reasonable foreseeable risks of injury or harm. The standard of care is that of the
careful or prudent parent.
The application of this standard of care varies from activity to activity and depends
on several factors, including the nature of the activity, the number of students being
supervised, their age, and the degree of skill or training that the students have received
in connection with the activity.
The concept of foreseeability is central to providing proper care. To foresee is to
plan ahead, to anticipate potential risks and to take the necessary steps to address them.
The test of foreseeability of injury or harm is what is possible rather than what is
probable.
Regulation 298 under the Education Act says that it is the duty of a teacher to
"carry out the supervisory duties and instructional program assigned to the teacher
by the principal." Teachers must "ensure that all reasonable safety procedures
are carried out in courses and activities for which the teacher is responsible."
The Act and regulations do not specify what degree of supervision is required. Such
decisions are made by supervisory officers, principals, teachers, and boards. Although it
is not the duty of school authorities to keep students under supervision during every
moment, common sense must prevail.
The following principles should be considered:
- the poorer the condition of the equipment and the greater its unsuitability, the greater
the risk of injury and therefore the closer the supervision.
LIABILITY
Negligence or legal liability is acting without proper care. Negligence can result from
action or inaction. The teacher’s obligation is not to act in a negligent fashion.
Some activities may have an element of inherent danger. Allowing students to
participate is not negligence. However, the teacher responsible for such an activity must
exercise a high duty of care.
School boards are vicariously liable for the negligent acts of employees while on duty.
The Education Act requires a board to insure its employees and volunteers against claims
arising from accidents.
Proof of negligence is based on proof that the harm was reasonably foreseeable.
Teachers are unlikely to be held liable if the incident was not reasonably foreseeable.
However, a court will likely find the teacher negligent if there is evidence that the
student under the teacher’s care has been injured or harmed, that a breach of duty
has occurred, and that a causal connection exists between the breach of duty and the
injury or harm.
A court may find that there is contributory negligence; namely, that the student and
the teacher have a shared responsibility for the injury. The court will assess a
percentage of the damages to each of the parties based on how negligent each is.
A teacher’s duty of care also relates to the quality of instruction or training
provided to the students. Regulation 298 requires teachers to "be responsible for
effective instruction, training and evaluation of the progress of pupils in the subjects
assigned to the teacher."
Ineffective instruction and training can cause serious harm to students, especially to
those participating in activities that have the potential to place them at risk.
EDUCATIONAL MALPRACTICE
The medical profession is not the only one that needs to think about malpractice.
Educational malpractice has been defined as "institutional or educator
incompetence which results in non-physical harm such as student failure to attain that
level of learning he or she would probably have attained if he or she had received a
reasonable, competent education; had not been misinformed as to the level of his or her
abilities or achievements; had been properly diagnosed and informed of his or her special
educational needs; and the like."
So far, Canadian courts have not imposed liability on teachers for malpractice.
But in the United Kingdom, courts have recognized that, in special education settings,
educators may be liable for educational malpractice. In 1995, one court said, when talking
about the duty of care to be exercised by principals: "[A] school which accepts a
pupil assumes responsibility not only for his physical well being but also for his
educational needs. The education of a pupil is the very purpose for which the child goes
to the school. The head teacher being responsible for the school himself comes under a
duty of care to exercise the reasonable skills of a headmaster in relation to such
educational needs. If it comes to the attention of the headmaster that a pupil is
underperforming, he owes a duty of care to take such steps as a reasonable teacher would
consider appropriate to try and deal with such underperformance."
In a different case in 1994, another court said that the failure to deal properly with
a student’s disability may constitute malpractice. The court stated: "the
failure to treat or the delayed treatment of dyslexia does arguably give rise to a form of
injury which can support a claim for damages for negligence in tort. It follows from this
that the school teacher’s duty to exercise reasonable skill and care to safeguard the
pupil from injury includes a duty to be aware of symptoms which a reasonable careful
parent or a reasonably skilled and careful teacher would regard as a symptom either of
dyslexia or, more generally, of a need for specialist advice."
REDUCING LIABILITY
When planning courses and activities for students, educators should consider what needs
to be done to reduce risks of liability. Teachers must make every effort to address such
crucial issues as the degree of supervision required, the instruction and training needed
to permit the students to function properly, and the condition of the equipment to be
used.
Parents expect their children to be educated in safe, caring learning environments.
When you plan, ask yourself, "If the students were my children, what would I, as a
careful or prudent parent, do to fulfill my duty of care?"
Jack Berryman is an education officer in the School Governance Branch of the
Ontario Ministry of Education and Training and a member of the College of Teachers.
