What is the duty of care in childcare or schools?
Every parent wants their child’s day at school or daycare to be safe, happy and full of learning and play. A few bumps and bruises are part of growing up, but significant injuries caused by a lack of supervision or unsafe environments can have lifelong impacts. Here we explain, what is the duty of care in childcare and duty of care in schools, who is responsible (for example, duty of care by teachers) and what are your rights. Between 2017 and 2022, 68 children have been left on buses in the heat of the day, across Australia. “It’s a real issue that is…happening more than people would believe or understand,” Gezime Vasic, Shine Victoria’s legal practice manager for public liability, said. Teachers and childcare workers owe a duty of care to children in their care. Duty of care by teachers and a duty of care in childcare settings is a legal duty and responsibility to all children in their care. This means, education providers and carers must take reasonable steps to keep your children safe while they’re under their supervision. This includes making sure classrooms, educator-provided transport, playgrounds and equipment are properly maintained, that children are supervised appropriately and that risks are addressed before harm occurs. If this duty is breached and a child is hurt as a result, it can result in childcare or school negligence claim being brought against the organisation which is liable. This could be due to an employee, servant, or agent's conduct, or to the school or childcare premises themselves. In those situations, parents or guardians may be able to seek compensation for their child’s injuries, medical expenses and any lasting effects on their well-being. In some cases, the parents could also have their own negligence claim.
Who is responsible for your children?
From the moment you drop your child off at daycare or school (or the education provider picks them up), the people in charge – teachers, carers, and support staff take on a legal responsibility to keep them safe. This doesn’t mean they have to prevent every incident from occurring (kids will be kids, after all), but they must act in a way a reasonable and careful professional would in the same situation.
In most cases, if something goes wrong, it’s not the individual teacher or carer who is held legally responsible, but their employer such as the school, childcare centre or education department. That’s because employers are generally vicariously liable for the actions of their staff while they’re performing their duties.
However, if a staff member acts in a seriously careless or reckless way, they may also face disciplinary or professional consequences.
Four‑year‑old’s injury sparks investigation into childcare conduct
Shine’s team of public liability experts in Victoria, are currently investigating a case where a childcare educator forcefully pulled the arm of a four-year-old child in a childcare centre. CCTV footage from the centre captures the young child screaming in agony whilst the childcare educator drags her between rooms.
After being medically assessed at the local hospital, it was determined the child's elbow had been dislocated. This incident has since caused the young child ongoing emotional distress, including; bedwetting, night terrors and separation anxiety. Unfortunately, this is just one of numerous reports of concerning conduct, poor supervision and health and safety issues at the centre.
It's important to note that duty of care covers all school or daycare hours, including breaks and outdoor time whilst on the premises. If a child is present outside official hours and permitted by staff, the duty of care still applies.
Once a child is under a teacher or carer’s supervision or reasonably expected to be, the law requires that child’s safety to be taken seriously and they will prevent any risk of injury (and to a more severe extent, death).
What is the duty of care in childcare or schools?
Having a duty of care does not mean that schools or childcare centres are automatically responsible for every injury that happens. Children are active and accidents can occur even when proper care is taken.
For a school liability compensation claim or childcare compensation claim (also referred to as a public liability claim) to succeed, it must be shown that the harm was reasonably foreseeable and caused by a failure to take reasonable care which could have been prevented prior. This includes maintaining safe facilities, supervising children appropriately, undertaking risk assessments, having proper policies and procedures which are enforced and managing risks during higher-risk activities such as sport, excursions, or playtime.
In some states and territories like Victoria, laws have raised the standard even further, requiring schools and early childhood services to take extra care when the risk of harm is significant. This means that schools and daycares must:
Provide safe, well-maintained grounds and equipment
Ensure children are adequately supervised at all times
Take reasonable safety measures during activities such as sport or excursions
Protect children, as far as reasonably possible, from the behaviour of other students and from risks created by their own inexperience or immaturity
This duty exists because children are considered especially vulnerable and depend on adults to make safe decisions for them. When that responsibility is not met, and a child is seriously injured as a result, the law may find the duty of care in childcare or duty of care in that school has been breached.
Over the past decade, Gezime has helped numerous everyday Australians with their public liability claims. Throughout her experience, she has observed that many child injuries occurring in childcare centres and schools were preventable. This highlights the importance of knowing your rights and making a negligence claim against the school or childcare to ensure future injuries don’t reoccur.
What are your rights?
When it comes to duty of care in a childcare or duty of care in schools, if your child has been seriously injured at school or daycare because a teacher or carer failed to take reasonable care, you may be able to make a claim for childcare or school liability compensation on their behalf.
A claim can help cover medical expenses, therapy or rehabilitation costs, pain and suffering, and the impact the injury has on your child’s life and development.
Every situation is different, and not all injuries will lead to a successful claim. The key question is whether the injury was caused by negligence, meaning the school or daycare did not act as a reasonable institution would have under the same circumstances. If you’re unsure whether you could have a claim, it’s always best to get in touch so our team of experts can make an assessment of any negligence claim against the school or childcare.
Contact Shine Lawyers today
At Shine Lawyers, our public liability legal experts understand how distressing it can be when a child is hurt while in the care of others. Our team will explain your legal options clearly and compassionately, help you gather evidence to support your case, and guide you through the claims process from start to finish.
We offer our services on a No Win No Fee* basis, which means you will not pay our legal fees unless your claim is successful. *Conditions apply.
If you believe your child’s injury could have been prevented, contact Shine Lawyers for an obligation-free and confidential consultation to discuss your rights and next steps or check your claim online here.
