Duty of Care in Off-Campus Activities
A 10-year-old girl, who lives with cerebral palsy, severe global developmental delay and autism, sustained a right femoral neck fracture when she fell from a horse in 2019 at an equestrian complex owned by Riding for the Disabled Association (NSW) (RDA). At the time, she was a student at a NSW Department of Education school which provided specialised care and teaching for children with complex disabilities. The girl sued RDA and the Department.
The claim against RDA in negligence succeeded because the NSW Supreme Court found that its failure to provide two side walkers at all times close to the girl while she was on the horse constituted a failure to take reasonable precautions against a foreseeable and likely risk of harm.
In the claim against the Department, the girl alleged that RDA’s riding program for disabled persons was conducted in conjunction with the school and that the school provided staff to supervise her while she took part in the horse riding activity. However, the Court found that there was no evidence to support these allegations. Rather, RDA’s conduct of the horse riding was entirely independent of the school. The Court found that in no sense did the school play any part in conducting the activity. Rather, the school was an intermediary through which disabled children were introduced to RDA to participate in its activities. The school did not provide staff to supervise the girl. The two teachers who accompanied the children to the equestrian centre on the bus had the care of them until they were passed over to the control of RDA’s employee coach and volunteers. During the riding session, the teachers accompanied the group through the paddock and along the trail. They were therefore on hand to resume care of the children when the riding session ended and, apparently, to assist in managing and communicating with the children if required by the coach. The Court found that teachers did not have any authority to direct or intervene in the riding activity while it was in progress. The Court found that the school’s duty of care ended when the teachers passed the children into the hands of the coach and volunteers for the duration of the riding session.
There was no mention in the judgment of a 2009 NSW Supreme Court case in which, in not dissimilar circumstances, the Department accepted liability for an injury to a student attending a school camp conducted by Outdoor Education Australia which had been engaged to provide the camp at which the injury occurred when the student received an electrical shock on picking up a power board that did not have a back cover. In an English case of more than 50 years ago, the provider of Outward Bound type confidence courses for school students was found liable for an injury to a student who was injured after a cable broke on a flying fox apparatus but the school which had engaged the provider was found to have fulfilled its duty of care by properly investigating the experience and competence of the provider and its staff.
It is interesting that, in the girl’s case, the Court made no mention of the Department’s duty of care to take reasonable steps to ensure that RDA’s coach and volunteers had the experience and competence to conduct horse riding activities for children with disabilities. Rather, the Court focused on whether there was a duty of care in existence at the time of the incident. It is not clear from the judgement if this was because the girl did not allege any negligence by the school in recommending RDA.
Nevertheless, it remains important that schools fulfil their duty of care to their students when they use the services of an external provider by checking that:
a) the site and equipment are apparently safe; and
b) the staff are competent and careful people who have undergone relevant training as well as child protection screening.
Schools should also carefully check the terms of the contracts/releases/waivers that many providers ask schools and parents to sign before these are sent to parents. Most are unfair and unreasonable.
For assistance in preparing for your off-campus activities or in pushing back against questionable releases, please contact David Ford or Stephanie McLuckie.
