These findings describe the tension between Duty of Care and Dignity of Risk.

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1 The Tension; Duty of Care and Dignity of Risk In Canberra a girl was playing on a playground flying fox when a boy pulled on her legs causing her to fall and hit her face on the platform. There were teachers supervising the students at the time but they were in a different area when the accident occurred. The family sued for negligence, but were unsuccessful. The court said it is not reasonable to have a system in which children are observed during particular activities for every single moment of time. Such a requirement is damaging to teacher pupil relationships and is likely to retard the development of responsibility in children. In an earlier decision, the South Australian Supreme Court held that there is a fine balance between discipline and supervision on the one hand and freedom of action and inculcation of independence on the part of students, on the other hand. These findings describe the tension between Duty of Care and Dignity of Risk. Duty of Care In Australia, in order to successfully bring a claim of negligence resulting in compensation for an injury, a person must establish, that: 1. A duty of care was owed at the time, to the person harmed 2. A reasonable standard of care was not observed, i.e. a breach of the duty of care occurred, 3. The breach or failure was a cause of the injury 4. The risk of injury was foreseeable and the likelihood of the injury occurring was more than insignificant 1. A duty of care owed There is no duty of care act or law passed by parliament. Duty of care comes under the legal concept of negligence in Australia, and negligence belongs to the domain of common law. Common law is also known as judge-made law. A decision about negligence is decided by a judge, using a combination of legal precedence (decisions made by judges in the past), and community attitudes and expectations.

2 Generally, the principle of negligence suggests that if a person suffers injury as a result of the negligence of another, they should be compensated for the loss and damage that arises from the negligent act or omission. When a houseparent or student supervisor is employed by any Boarding facility, a duty of care is established, because the reason for the relationship between a boarding houseparent and a student is to provide care for students. This relationship is similar to that of teacher to student, which is a distinct and recognisable situation in which the courts recognise the existence of a duty of care. 2. A reasonable standard of care A reasonable standard of care in any situation is the degree of care (watchfulness, attention, caution, and prudence) that a reasonable person or organisation should exercise under the circumstances. If a person or organisation does not meet the standard of care, he or they may be liable to a third party for negligence. A well-known finding of negligence was established in the Australian Capital Territory for a 15 year-old Woden High School boy who was seriously injured by part of a flagpole as he and other boys were swinging on it. Only one staff member was on duty at the time, when normally there were up to twenty, as all the others were attending an emergency staff meeting called as a result of the sudden death of the Principal early that morning. The court found that the Commonwealth government (the operators of the school) had been negligent in failing to: provide proper supervision; ensure that the flag pole was padlocked to prevent freedom of movement; implement a rule that the flag pole could not be used without the express authority of a teacher. Educational institutions and their staff are held to a high standard of care in relation to students, requiring that they take all reasonable steps to reduce risk, including: provision of suitable and safe premises provision of an adequate system of supervision implementation of strategies to prevent bullying ensuring that medical assistance is provided to a sick or injured student

3 managing employee recruitment, conduct and performance. 3. Assessing foreseeable risk The nature and extent of the standard of care will vary according to the circumstances: their degree of foreseeable risk of harm and its likelihood and severity. For example, the standard of care required when taking a group of students swimming at a beach will be higher than when supervising homework, because of the higher likelihood of harm occurring, and the severity of the harm that may occur. The Boarding organisation and the staff employed have a responsibility to assess the risk of harm involved in all activities and then manage the risks involved before they proceed with the activity. For example, houseparent Jake is approached by a group of six students who request to go swimming at a local beach on Saturday. Jake basically has two options; 1. He can advise the students that it is too risky and they can t go to the beach. 2. Jake can use the Residence procedures to analyse the risk, take measures to ensure that the risk is acceptable, and obtain Management and parent consent before proceeding. In analysing the risks, Jake accepts that the most significant risk is the risk of drowning. Jake follows Residence procedures and puts all measures in place to ensure the safety of the students: takes the required ratio of staff to students, checks on the students swimming abilities, checks for parental permissions, uses a safe beach that has lifeguards on duty, is qualified himself to supervise open water activities, assesses conditions on the day, gives the students complete and clear instructions, observes the students continually from the beach, intervenes immediately if anyone is seen disregarding rules, takes a flotation/rescue device. Dignity of Risk

4 Dignity of risk is a term used to describe the right of individuals to choose to take some risks in engaging in life experiences, and the right to fail when taking these risks. The Dignity of Risk acknowledges that life experiences come with risk, and that we must support young people in experiencing success and failure throughout their lives. This term was first created around the care of people with disabilities. At that time, people with intellectual or developmental disabilities were often viewed as incapable of living independently or making decisions for themselves a view which often deprived them of many typical life experiences that others take for granted. The term is now used more broadly and is applicable in the role of boarding houseparents/supervisors caring for school students. Boarding staff want to see the young people in their care develop and grow, becoming resilient and self-reliant. They want to see young people maturing and becoming independent, ready to succeed in the world after boarding. A part of this growing and developing is allowing young people to take risks and learn from their own mistakes. The tension for boarding staff is, on one hand allowing the space for a student to take risks and develop, while on the other hand providing a high standard of care that will ensure that the safety of the young person is not compromised. In considering this tension between duty of care and dignity of risk the safety of the young person should always be the first consideration. When considering a student request, or planning an activity, the supervisor should ask; Is there a risk of foreseeable injury or harm? What is the likelihood of harm occurring? (rare to almost certain) What is the magnitude of the harm likely to be? (insignificant to catastrophic) Considering dignity of risk requires the Residence and its staff to analyse the activity and environment for risk of harm or injury to the young person. If there is a risk of harm to the young person, the Residence and staff either reject the activity, change the environment, or put in place measures to reduce the risk to what a reasonable person would call an acceptable level. Note: We are not lawyers and this information is not, nor is it intended to be legal advice. Is duty of care delegable? The next Eflyer will look at a recent legal outcome that affects how we view the non delegable nature of duty of care.

5 Most of the general understanding about duty of care, standard of care and negligence comes from previous court decisions. Mostly these decisions build on previous decisions, but occasionally an outcome will be different and will have implications for our role in boarding. Such is this recent outcome.