Chapter 3: Teacher Liability

Introduction

There is a great deal of interest in teacher liability at this time for three basic reasons.

First, many school and off-campus activities are prone to accidents and therefore to possible litigation. The number of off-campus activities has increased dramatically in the past several years, thereby increasing the potential danger of an accident that could lead to allegations of teacher negligence.

Second, in recent years the courts in Canada have awarded large sums of money to students who were seriously and permanently injured during a school activity. There is now a much greater incentive for parents whose children are injured at school to risk the high cost of litigation in the hope of obtaining a large compensation award.

Third, the public’s understanding of the concept of rights and a corresponding readiness to seek redress has increased.

We are therefore faced with the likelihood of more litigation involving teachers. This section provides the ounce of prevention that may avoid a lawsuit by informing teachers of their liability.

The Principle of in loco parentis

The concept that the teacher is acting in loco parentis has gradually evolved through legal precedent. This means that the teacher stands, in relation to the student, in the position of a caring parent, as an unofficial guardian. This concept not only allows the teacher some of the privileges of a parent but also brings with it added responsibilities for the protection of pupils. Thus, a teacher could be liable for damage caused to a pupil where the teacher’s conduct falls below the standard of care commonly accepted as being reasonable in a parent–child relationship. A teacher may even have to meet a higher standard of care where special knowledge makes the teacher aware of dangers that the normal parent might not appreciate.

This principle affects several aspects of teacher conduct and risk.

The Criminal Code

Teachers are governed by Canada’s Criminal Code, Alberta’s School Act, Alberta regulations, school board policies and regulations, and school policies and regulations.

Section 43 of the Criminal Code states, “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”

It is clear from this section that teachers are protected against conviction of an assault as a result of reasonable punishment of students under their care. This is an application of the in loco parentis concept.

In the last several years, there have been repeated proposals to remove section 43 from the Criminal Code. This stems primarily from a growing opposition to the use of corporal punishment in schools and concern about child abuse. However, loss of the principle of in loco parentis would have very serious repercussions for teachers far beyond the question of corporal punishment.

Although section 43 of the Criminal Code was recently upheld by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, many provinces have banned corporal punishment from schools altogether. This is not the case in Alberta. Therefore, for teachers in Alberta, the Supreme Court of Canada’s comments in this and other cases help to provide direction as to what would be considered a reasonable and corrective use of force on a child, pursuant to section 43, in a way that also complies with the Code of Professional Conduct.

Section 43 specifies that force can be used only by way of correction. The Court says that it must be “intended for educative or corrective purposes.” Therefore, only sober, reasoned use of force that addresses the actual behaviour of the child and that is designed to restrain, control or express some symbolic disapproval of his or her behaviour is permissible. It is also required that the child be capable of benefiting from the correction.

A second requirement in section 43 is that the force be reasonable under the circumstances. In the guidelines provided by the Court, corporal punishment using objects, a slap to the head or face, or force that is applied in a degrading, inhuman or harmful way would all be considered unreasonable.

What must be recognized is that section 43 of the Criminal Code should not be viewed as giving teachers the right to use physical force or the threat of physical force. Indeed, section 43 identifies what the Supreme Court of Canada calls a “risk zone for criminal sanction” and states that “the prudent parent or teacher will refrain from conduct that approaches those boundaries, while law enforcement officers and judges will proceed with them in mind.” Teachers are well advised to exercise caution in any physical intervention with students.

Insurance

The School Act, in section 60, deals with powers of school boards. Among other matters, this section requires that every board carry liability insurance or make equivalent arrangements to cover its exposure, including the exposure of its employees.

School Act

Section 60

60(1) A board must…
(b) in respect of its operations
(i) keep in force a policy or policies of insurance…

for the purpose of indemnifying the board and its employees and school councils in respect of claims for

(iv) damages for death or personal injury,
(v) damages to property,…

Any claims, including lawsuits, against the board and/or any of its employees would be dealt with by the insurance company (or equivalent agency) providing the coverage required by this legislation.

Negligence

Negligence comes under the broader heading of tort law. The word tort means crooked or twisted. Generally speaking, a tort is a wrong committed by one person against another. Some specific types of wrongs are assault, defamation and negligence.

Negligence consists of not doing something a prudent and reasonable person would do or doing something that a prudent and reasonable person would not do. It can be the subject of a lawsuit between persons whenever there is a duty upon one person not to be negligent and when a breach of that duty occurs that causes damage to another person. Negligence exists where the activity or conduct on the part of the teacher creates an unreasonable chance of danger. When teachers ignore the danger or do not see the danger when they should, they may be held negligent if someone is injured as a result.

The law recognizes different degrees of negligence. There is slight negligence which is failure to use great care; ordinary negligence, which is failure to use reasonable care; and gross negligence, which is failure to use any care at all. It should be understood that to warn a pupil of dangerous places and actions is not an adequate defence if a suit is brought for negligence. Likewise, it is not sufficient to put up instructions regarding proper conduct to avoid accidents. Such instructions are valuable from the standpoint of reducing accidents but, when one does occur, they do not remove liability for the teacher who has been otherwise negligent.

Four elements must be present before negligence is established, namely,

  • the plaintiff has suffered some damage;
  • the damage was caused by some act or omission of the defendant;
  • the act or omission was one of which a reasonable person, behaving with ordinary prudence, would not have been guilty; and
  • in the circumstances of the case the defendant owes the plaintiff a duty to take care of that act or omission that was in breach.

The extent to which the injured party contributed to that party’s own damage would also be an issue in determining the amount of damages to be awarded.

As with punishment, the principle of in loco parentis applies; so, too, does the idea that teachers who possess “expert’’ knowledge must exhibit a higher standard of care than ordinary parents in elements of the subject matter or program that are inherently dangerous. This would apply to the use of chemicals, machinery or apparatus, for example.

Supervision

The teacher will normally be required to ensure that a system of supervision is established in the classroom or wherever an activity takes place to ensure that the warnings or instructions given to the pupils are obeyed. Of course, there is no expectation of having one supervisor for each pupil except in extremely dangerous activities. Teachers’ own experiences will normally give them a good idea of what level of supervision is required to ensure an adequate degree of safety.

Teachers and administrators should decide on the amount of supervision they deem adequate for the school. Once a schedule has been decided upon, it is the teacher’s responsibility to carry out assigned supervisory duties. Adequate supervision does not mean constant supervision of all students at all times—that is not reasonable. The teacher’s duty is to guard against dangers that could reasonably be foreseen, not to keep students under direct observation every moment.

The extent of supervision required depends on the age, mental ability and emotional stability of the students being supervised. If there is a lack of supervision, it would have to be shown that the failure to supervise caused or contributed to the injury. Negligence will be determined by a judgment of what was reasonable in a particular set of circumstances. In any event, if the teacher is performing assigned duties, the school board’s liability insurance will provide the necessary protection in the event of a lawsuit to the extent of the limits provided in the policy. Teachers at risk should check the adequacy of coverage.

Student Injury or Illness

If a child appears to be seriously ill or has suffered an injury, the teacher must take all necessary steps to secure medical attention. All decisions ought to be made, if possible, in consultation with the principal. If, in the opinion of the teacher and principal, medical treatment is required, immediate steps must be taken to secure it. Attempts ought to be made to notify the parents and to advise them of the event and the steps proposed to be taken. If the parents cannot be located or if the emergency is such that there is not time to contact them before arranging for medical aid, a physician should be called or the child taken to the hospital as quickly as possible.

The responsibility of the teacher ends as soon as the child enters the care of a qualified doctor or a hospital, and the sole remaining duty is to continue efforts to contact the parents if such had not been done before. It should be noted that teachers’ actions will not be measured by the standards applied to a medical doctor but by those of reasonable prudent parents. If you err, make sure it is on the side of getting medical attention.

Transporting Students

The Insurance Act provides coverage for teachers who transport students to and from activities conducted as part of an educational program without the necessity of specifically endorsing their own insurance policy. Such trips must be occasional and infrequent. Teachers using their automobiles to transport students should make sure that they have adequate public liability coverage in their own policy.

Some carriers of school board liability insurance do provide excess liability insurance for employees’ vehicles, provided they are transporting students on school-sponsored activities. The school board must assume liability for non-owned vehicles for this coverage to be effective. Teachers are advised to check with their employer to determine if coverage is provided. It should be noted that such coverage does not generally include parents driving students or students transporting other students—only school board employees are insured. However, a few policies may cover volunteers. The practice of students driving other students should be discouraged. A good policy to follow is never to permit students to drive other students unless the school has the written consent of the student driver, the student passengers and their parents.

Child Abuse

A teacher who has reasonable and probable grounds for believing that a child has been physically ill-treated or is in need of protection must report the situation to a child welfare director. This requirement is set out in the Child, Youth and Family Enhancement Act. To report, call 1-800-387-KIDS. No action can be taken against a teacher for reporting suspected cases of child abuse unless such reporting is done with malice or without grounds. It should be clear that the legislation requires the teacher to report directly to the child welfare director and not to parents, counsellors or administrators. Contact with parents in cases where child abuse is a possibility should be limited to routine factual inquiries about absences or injuries. Discussions with counsellors and/or administrators are best kept to a level of generality that does not entail revealing the identity of the student. No counsellor, administrator or other person can relieve the teacher of the obligation to report to the proper authorities. In any case, repeated interviewing of the student by school authorities is to be avoided as it is likely to do more harm than good. Once a report has been made and a child welfare worker from the Department of Children’s Services has been assigned, the teacher’s subsequent conduct in the case should be guided by the worker.

Corporal Punishment

In addition to the Criminal Code provisions noted earlier, ordinary civil law recognizes the principle of in loco parentis. As a result of that legal relationship, teachers are permitted to take reasonable steps as may be required to maintain control of pupils. However, in all cases related to discipline the best protection for teachers is to follow school and board policy.

The School Act gives school boards the right to make rules and regulations regarding the operation of schools. These rules and regulations should be made in consultation with teachers. Once the rules have been established, the teacher must apply them scrupulously. If the board makes a rule that prohibits the use of physical force and a teacher disobeys, it could be grounds for employer discipline up to and including termination of contract for disobedience of a lawful order of the board. It could not be grounds for criminal or civil action unless the punishment was shown to be unreasonable.

Some Important Points

  • The student’s age should be taken into account in arranging supervision. Generally speaking, the older the student the less supervision required.
  • Students should be instructed as to the dangers inherent in a given activity, as well as on how to perform the activity.
  • If shortcomings have been detected in past practices, they should be rectified.
  • If a student is injured, the activity should be terminated.
  • In Alberta, if a teacher is assessed for damages in a suit for liability, the damages will be covered by the school board’s liability insurance, and as teachers are employees, any suit for negligence would be against the board as well as against the teacher.
  • Liability insurance does not cover acts of a teacher’s own free will.
  • The principle of in loco parentis may shield and defend teachers in the performance of duties but also adds to their “duty of care.”
  • In a matter of dispute concerning exercise of authority over pupils, the courts will judge the teacher’s behaviour in light of what they deem to be “reasonable under the circumstances.”
  • Pupils in attendance in public schools must submit themselves to the reasonable rules and regulations of the school board and to the control of teachers.
  • Negligence occurs from (a) taking any action that should not have been taken or (b) failure to do what should have been done.
  • In Alberta, a teacher may legally administer punishment if it is justified and not excessive or malicious and if it is in accordance with school board policy and school rules.
  • School boards in consultation with teachers should formulate rules and regulations governing punishment.
  • The teacher must fulfill assignments; one assigned to supervise must do so or make alternative arrangements.
  • Teachers are advised not to make a practice of transporting students in private vehicles unless (a) they are explicitly authorized to do so and (b) the board’s insurance includes non-owned automobile coverage. Insurance coverage must be ensured.
  • If an accident or injury happens, the teacher, as soon as possible after coping with the emergency itself, must make a complete record of the circumstances and what occurred. Board policy should be respected.
  • Negligence should not be admitted in an accident, even if a teacher feels responsible. Such an admission would remove all defence in a subsequent suit.

Field Trips

Teachers should be certain that the activity is school-sponsored, in which case the school board’s liability insurance will cover normal liabilities that may arise. Virtually all schools require parents to sign a permission slip. This practice serves as a useful communication device, but it does not eliminate the possibility of liability arising out of untoward events occurring during the field trip. The signed document does not give the teacher the right to commit a negligent act. Students must be instructed in advance on all aspects of safety during the field trip, and all foreseeable dangers should be brought to the students’ attention. School board policy must be followed.

More supervision should be provided on a field trip than in the classroom. Adult volunteers may be used to supplement the teacher supervision, and they would qualify for coverage under the board’s insurance policy. While on the field trip, teachers should not intentionally expose students to known dangers or even to situations where there is a strong possibility of injury.

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