Friday, August 31, 2012

Banning Cartwheels: School Litigation Fears are Unfounded

Child play
Child play (Photo credit: i-on)
by Professor Prue Vines, Professor, Law Faculty at University of New South Wales, The Conversation:

A few schools have hit the headlines recently for banning traditional playground activities like cartwheels, handstands, ball games and even high fives.

Parents are rightly objecting to the bans, and pointing to the increasingly litigious society we live in. They say the schools are fearful of being sued, and even more fearful they might be sued successfully. But are schools' fears well-founded?

No lawyer could ever give a 100% guarantee of not being sued. But the perceptions that we live in an increasingly litigious society have no foundation in reality.

Harder than you might think

For the past ten years, since tort reforms came into force, rates of litigation have dropped in all Australian jurisdictions. Even before the reforms, litigation rates were steady rather than increasing, and had been so for some years.

To add to the confusion the tort reform legislation - called different names in different jurisdictions - added significantly to the difficulty of suing for personal injury.

In NSW in particular, suing schools became much more difficult especially when a recreational activity was involved that is not compulsory - like running, jumping and doing a headstand in the playground. Under the Act, it’s very easy to give a warning which exempts the school from liability. If this provision doesn’t apply there are other sections which make it harder to sue.

Tour of duty

The big problem for schools has traditionally been the rule that schools owe a non-delegable duty to their students to see that reasonable care is taken, which may (but probably does not) import a higher standard of care. Even this has been affected in NSW and Victoria by the new rule that non-delegable duty has to be treated like vicarious liability.

Vicarious liability arises when an employee (or other agent) does something wrong which is connected to their work. In such cases the employer would have to pay their damages - that is they are vicariously liable for their employee.

In the other jurisdictions the difficulties are not quite so great, but the tort reform process significantly reduced the ability of plaintiffs to sue in all jurisdictions.

It is worth repeating that even before these reforms had come into play the rates of litigation were steady and success for plaintiffs had been reduced for some time. This was because the High Court had decided that what is “reasonable” should be given greater scope.

Negligence is established when the defendant did not act like a “reasonable person” in the circumstances. The courts have often rejected liability in cases where students have been injured in the playground - recognising that it is impossible to watch every child every moment.

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