The 2008 Outdoor Pursuits Centre tragedy where six students and one teacher died participating in outdoor education represents one of a school’s worst nightmares.  Every year there are news reports of school parties delayed, trapped or lost while participating in outside the classroom education (EOTC) trips.  What are schools’ responsibilities in such situations?  To what extent do they also apply within schools?  What legal or professional guidelines exist to help avoid these situations and ensure safe and enjoyable school experiences in and outside of the classroom?

Legally School Boards and their staff have a general duty to take reasonable care to prevent harm to students because they have direct responsibility for students who are legally obliged to attend school.  The duty does not mean that every possible harm must be avoided, but it does mean that reasonable care must be taken to ensure the safety of students both at school and during education outside of the classroom.  Penalties can be significant.  The Outdoor Pursuits Centre, for example, was fined $40,000 for breaching employer obligations and ordered to pay $440,000 in reparations to the survivors’ and victims’ families.

The ACC Scheme bars personal claims being brought against School Boards or their staff for student injury except in exceptional circumstances such as gross negligence or intentional harm.  In addition to that, government agencies such as OSH or the Ministry of Education can still hold the School Board or their staff accountable for any harm done to students.

Board Liability

School Boards are the most likely target of prosecution when harm to students occurs under the responsibility of a teacher, or any other individual or organisation whom the school has engaged.  If the Board can show it has acted in good faith and fulfilled its duty to take reasonable care liability may then pass onto the teacher or other individual or organisation responsible at the time of the student injury.

School Boards must act in accordance with the National Administration Guidelines (NAGs) and Health and Safety regulations. Whether at school or on camp, The Board of Trustees must take all practicable steps to ensure that:

• A safe physical and emotional environment is provided for students;
• No employee harms any student by act or omission; and
• No harm is caused to staff, students or other visitors.

Staff Liability

Teachers or other supervising staff can be personally liable and for their own negligence even face criminal charges.  This may happen if the teacher is found to have both:

1. Failed to discharge their general duty to take reasonable care; and
2. Known that their action or inaction would endanger the life or safety of another person.

Courts may set prevention standards high, especially for hazardous activities and young or novice students.  Therefore, any organiser must use reasonable knowledge, skill and care in preparing and managing activities.  This standard applied in the related case about the organiser of the 2001 Le Race held in Christchurch.  Although eventually acquitted on appeal, that organiser was originally convicted of criminal nuisance when a cyclist died during the race she had organised.

Criminal proceedings can be brought against a teacher or individual simultaneously with any proceedings brought against a School Board that is charged with not having taken reasonable care.  The Outdoor Pursuits Centre was charged because the Board had delegated responsibility to it as a specialist provider.

As for personal claims against School Boards or their staff, as said earlier these can only be made in exceptional circumstances.  The claimant must go beyond the Board’s accepted duty of care and must also show that:

1. There was harm done as a direct result of the action or inaction of the School Board or staff member; and
2. The risk of harm occurring was reasonably forseeable.

Suggested Guidelines

NAGs are available on the Ministry of Education website http://www.minedu.govt.nz/educationSectors/Schools/PolicyAndStrategy.aspx.  The Safety and EOTC guidelines issued by the Ministry of Education  are available at http://www.tki.org.nz/r/eotc/resources/safety_e.php and supplement the MoE’s Health and Safety Code and Worksafe at School publications.  Those guidelines offer safety management systems to ensure that outdoor education is effectively supervised.  Some important guidelines include:

1. Observe appropriate supervision with student and teacher ratios.
2. Establish effective student/parent complaint procedures.
3. Update safety policies in schools to check that are in line with legal obligations.
4. Establish risk assessment protocols to identify and manage potential risks before the activity occurs.
5. Provide safety management training for all staff, in conjunction with other relevant professional development.
6. Develop strategies for effectively handling untoward events that do occur, while also maintaining all legal and ethical obligations.
7. Provide for parental consent and disclaimers of liability.

Education outisde the classroom is fundamental to New Zealand’s curriculum.  Fears of harm and liability should not be used to justify dropping camps, trips and out of school activities.  Instead they should be dealt with effectively by implementing policies and strategies for operating as safely as reasonably possible.