By-laws - Queensland Law Society

school excursions & law
“Social percep tions of what is reason able in the degree
of chance of body contact and the more remote chance of
serious hurt from that body contact, in games which are
permit ted to children by those having control over them
must come into play in cases such as this. In expos ing
children to mild and even more vigor ous physi cal assaults
of this nature, there is seen to be a healthy benefit which
prepares the child for the experi ences that come with an
adult’s choice to engage in activ i ties which bear these
marks. Further, there is seen to be some psycho log i cal
benefit in the devel op ment of the child’s charac ter in a
variety of ways. So in the balance, sports and activ i ties
which carry some risks are seen as justi fied and even
desirable.”
In the Trust ees of the Roman Catho lic Church Archdi o -
cese of Sydney v Kondrajian [2001] NSWCA 308 Ipp AJA
sitting in the NSW Court of Appeal said:
“It is neither practi ca ble nor desir able to maintain a
system of educa tion that seeks to exclude every risk of
injury other wise. As Morris LJ said in Wright v Cheshire
County Council 1952 2 ALL ER 789 ‘Only inactiv ity and
inani tion could be planned’. And as McNair J observed in
Jeffrey v London County Council 1954 52 LGR 521:
‘School author i ties ... must strike some balance between
the metic u lous super vi sion of children every moment of
the time when they are under their care, and the very desir -
able object of encour ag ing the sturdy independ ence of
children as they grow up ...’.”
The cases demon strate some clear lessons for organ is -
ing safe and liabil ity free excur sions. They are:
1. Thorough planning.
2. Pre-excur sion train ing/instruc tions.
3. Adequate check ing.
4. Adequate super vi sion.
1. Thorough planning
This requires consid er ation of the follow ing factors such
as the follow ing:
• Where we are going?
• Why we are going?
• What will be done when we get there?
• How are we getting there?
• How many students are going?
• How many super vis ing teach ers will be needed?
• Are the students up to it?
• Do the teach ers or other instruc tors have the
neces sary quali fi ca tions?
• What pre-trip train ing/instruc tions are needed?
• Develop emergency proce dures.
• Should warnings be given and when?
The more detailed the planning (and it should be
documented at least in outline), the more likely it is that in
the event of mishap and claim, adverse findings against
the school and teach ers can be avoided.
Many schools now contract with special ised provid ers
for outdoor activ ity programs. Because of the
non-delegable nature of the schools’ duty of care, this will
not neces sary avoid liabil ity. However, where the school
furnishes detailed speci fi ca tion of its require ments, includ -
ing appro pri ate depart men tal or other guide lines to the
camp provider, and Educa tion Law for Schools conducts
an appro pri ate review/evalu a tion of their services and facil -
24 The Verdict Vol. 2 2006
i ties, this will go a long way to discharg ing the
non-delegable duty.
2. Pre-excur sion train ing
This is neces sary not only for the students but also for
staff and other partic i pants. The nature and extent of
pre-excur sion train ing or instruc tions will of course vary
with the activ i ties that are planned. Similarly, brief ings on
arrival or during the course of the excur sion may be
required, and on these occasions it may be appro pri ate to
provide specific risk warnings. The point here is that such
train ing sessions and brief ing sessions need to be well
thought out and planned before the excur sion, rather than
deliv ered on the run.
3. Adequate check ing
Through out the excur sion the super vis ing teach ers will
be required to aspects such as the weather, equip ment,
the children’s perfor mance or ability, trans port arrange -
ments, the terrain. Thorough planning for the excur sion
will have arranged a program with suffi cient flexi bil ity that
changes can be made where neces sary through some
adverse contingency.
4. Super vi sion
Not only must there be adequate numbers of super vis ing
teach ers depend ing on the size of the group and the
nature of the activ i ties, but the teach ers must actively
super vise through out the excur sion. The degree of super -
vi sion will depend (amongst other things) on the age of the
students. It is often consid ered that older children require
less super vi sion and broadly this is correct, but it is still
neces sary to guard against the exuber ance and
occasional folly of youth.
“ Not only must there be adequate numbers
of super vis ing teach ers depend ing on the
size of the group and the nature of the
activ i ties, but the teach ers must actively
super vise through out the excur sion.”
The balance to be struck was described by Steytler J in
the Full Court of the Supreme Court of Western Austra lian
in Gugiatti’s case rather well:
“.. while it must be recog nised that a 16-year-old school
boy cannot be taken to have attained such a degree of
maturity or judgment or experi ence as no longer to stand
in the need of the protec tion of a school mas ter against risk
of injury arising from his own conduct. It must also be
accepted that 16-year-old boys ‘are not to be treated as if
they were infants at crèches ...’” Camkin v Bishop [1941] 2
ALL ER 713 at 716 per Goddard LJ.
The courts have shown that less super vi sion will be
demanded for leader ship programs where greater
independ ence is to be fostered but the corol lary of afford -
ing less active super vi sion is that corre spond ingly greater
atten tion must be paid to pre-excur sion planning, train ing
and instruc tion.