Is a failure to discipline a breach of the school’s duty of care?
We all recognise that both the school and its staff have a duty to take care of the students. The school is liable for injury to a student caused by the failure of a teacher to take reasonable care for the student’s safety. This is a vicarious liability. The school is also liable where the injury is caused by a failure in the school’s administration.
Could a failure to discipline a student constitute a breach of the duty of care to another student?
Deborah was a 15-year-old in year 10 at a co-ed school of several hundred boys and girls. During morning recess, she was standing with some friends in the off-quadrangle area, a comparatively small space next to the main quadrangle. She was standing on a grass area when a boy named Alfonso about the same age came from behind and picked her up by grasping her legs below the knees. While she struggled to free herself, he carried her a few paces and dropped her. When she fell, she landed on a corner of the concrete slab embedded in the grass striking her tail bone. There was no supervisor in the area at the time. The practice was to have a teacher there at lunchtime but not during recess.
The trial judge in the NSW Supreme Court held that a school, by failing to restrain Alfonso, was in breach of its duty to the girl. He found that, as Alfonso’s aggressive conduct occurred regularly in the school quadrangle (which was supervised by teachers), the teachers either knew or ought to have known of Alfonso’s aggressive nature. Accordingly, the judge said that Alfonso’s conduct “called for strict disciplinary measures together with careful supervision”. On appeal, the judges discussed the issue of the school’s responsibility for disciplining and supervising the boy. Glass JA said:
His antisocial conduct directed at boys and girls alike occurred in the quadrangle and should have come under the notice of the supervisor stationed there. It was of such a character as to present, if not checked, a foreseeable risk of injury to other students. To assign a teacher who would act as a permanent restraining influence on him would doubtless exceed the requirements of due care. But the precaution of detaining him in the classroom during recess unless or until his behaviour improved was practicable. If this precaution had been adopted at some stage during the eleven months of unchecked aggression, it seems probable to me that by March 1982 he would either have improved or still be detained during recess and Deborah would not have been subjected to the rough treatment which she suffered at his hands on that day.
But Samuels JA was uncomfortable with this approach, saying:
This argument was presented on the footing that it would have been reasonable for the staff to have undertaken corrective measures, including shutting Alfonso up during recesses, whose cumulative effect would probably have been to eliminate his anti-social predilections and convert him into a decent lad of conservative conduct and quiet demeanour. Hence, if Alfonso had been submitted to punishment of an appropriate kind and of adequate intensity and duration, he would have been cured of the tendency to do the things [others had noticed].
However I simply cannot see any ground for this conclusion which seems to me to be entirely speculative. It may be possible to infer that the presence of a supervisor nearby will probably deter “illegal” conduct, a proposition which does not stray beyond the confines of ordinary experience. It is by no means so plausible to adopt conclusions about the probable effect of punishment upon a fifteen year old boy, who, on the evidence, was of migrant stock and, it may be, subject to the many pressures and uncertainties which that situation not uncommonly involves.
Samuels JA concluded that he didn’t consider “that any disciplinary regime of a kind which ordinary humanity and current pedagogic standards would have permitted, would probably have deterred Alfonso from doing what he did on this occasion. Accordingly, any failure to discipline Alfonso more strictly was not an actionable breach of duty.”
Priestley JA made no comment on this aspect of the case.
So, it seems that a school’s failure to discipline students whose misconduct injures others will only give rise to liability if, on the balance of probabilities, disciplinary action would have prevented the injury. That may be hard to prove.
For more information about student discipline, see David Ford’s comprehensive paper or contact him directly.
