ANZ Law Assn Conference

It’s safe to go out in the playground now

Speech by the Honourable Chief Justice Peter Underwood AO to the Australian and New Zealand Law Association Conference in Hobart.

5 October 2006

Thank you for asking me to open this 2006 Australian and New Zealand Education Law Association Conference. If I may for a moment put on my Lieutenant Governor’s hat, my wife, Frances, and I would like to extend a warm welcome to all the visitors to our island State. A considerable number of you have travelled from overseas and to you I extend a specially warm welcome, although I have to say that if you have a conference in Tasmania, it is inevitable that most people will be overseas visitors. So I say welcome to you all. I hope that our visitors will have time after the conference to have a look around the island which is looking particularly beautiful this Spring – oh, and don’t forget to spend up big as we need all the tourist dollars we can get.

The theme of this conference is “Keeping people and property safe in the education environment.” I am not exactly sure what the term “education environment” means, but it is clear from the topics listed in your busy conference programme that bullying, child abuse and discipline are matters of concern to this gathering of lawyers and experts in the field of education. I was talking to someone the other day about experts and lawyers and was told that:

“Experts are people who know a great deal about very little and who go along learning more and more about less and less until they know practically everything about nothing.

Lawyers, on the other hand, are people who know very little about many things, and who keep learning less and less about more and more until they know practically nothing about everything.

Judges are people who start out knowing everything about everything, but end up knowing nothing about anything, due to their constant association with experts and lawyers.”

Your conference theme appears to concentrate on the civil law and, of course, will no doubt touch on the civil liability of teachers for harm suffered by their students, be that by way of bullying, by way of accidents on school premises, by child abuse and, more recently in this country, perhaps by a failure to achieve the standard of education that the school promised a child would achieve. It is my experience from being a lawyer who acted for schools and teachers for many years, and from being married to a school principal for many years (no further particulars of this will be delivered), that teachers, generally, are afraid of the law, particularly the law of negligence. I have found that there is a widespread belief that if a claim is made it will follow that the courts will find that the teacher has breached the duty of care owed to the child and the teacher will be found to have been negligent. Although insurance may remove the risk of financial ruin, there remains the fear that the teacher’s reputation will be destroyed.

I think that there was some justification for these fears. Although in order to succeed, the claimant had to satisfy the court that the defendant teacher failed to do what a reasonable teacher in the same situation as the defendant teacher would have done to avert the injury to the child, it became pretty easy to satisfy. It has been said that in order to avoid being found negligent you had to carry out your duties as a teacher with the cautionary habits of a maiden aunt, the reflexes of Michael Schumaker, and the skills of a heart surgeon and all the while, maintain 20/20 hindsight vision.

There is no doubt that since Donoghue v Stevenson[1]was decided in 1932, great expansionary strides have been taken in what the Chief Justice of New South Wales has described as “the imperial march of negligence.”[2] I will not detain you this evening with the cases that marked the significant steps in this imperial march[3]; suffice to say that it reached the stage where the welfare state had spawned a culture of blame, and personal responsibility no longer appeared to exist. The United Kingdom Better Regulation Taskforce[4] said:

“… an exaggerated fear of litigation, regardless of fault can be debilitating. The fear of litigation can make organisations over cautious in their behaviour. Local communities and local authorities unnecessarily cancel events and ban activities which until recently would have been considered routine. Businesses may be in danger of becoming less innovative – and without innovation there will be no progress.”

I think that by the start of the millennium the fear of litigation had become debilitating for teachers. This was understandable in the light of some of the decisions in the courts. In 1993 a council was held to be liable for injuries sustained by a young man who dived off a rock into water because there were no warning signs, even though the young man could have avoided injury had he bothered to look before he dived into the water.[5] In 1998, three teachers supervised three areas of a school ground at lunch and recess. On one occasion there was a 10-minute meeting before the end of the break that left only one teacher on duty. During this time a boy was banging a stick against a pole. The stick broke and a bit flew into the eye of a nearby student. The school was found to have been negligent.[6]

However, the start of a new millennium saw three things happen at the same time that have led to change and, hopefully, will give teachers heart. First there was the crisis in the professional indemnity insurance. The events of September 11 had just occurred. Do you remember those days? Doctors were said to be on the verge of leaving the profession in droves because of the high cost of getting insurance. By about the middle of 2002 newspaper stories such as “Blue Light discos is [sic] under a cloud because insurance premiums to run the monthly dance parties have soared by more than 1000 per cent,”[7] and “Fun goes out of summer: Village fete cancelled”[8] were daily fare at the breakfast table. Insurance premiums for local authorities were doubled, tripled or even quadrupled. Second, the federal government guaranteed a medical professional indemnity society that was in danger of going broke and the giant indemnity insurer HIH collapsed. All of this led to an urgent review of the law of negligence, with all the States pulling together with a view to legislative intervention to cut back the imperial march of negligence. The report was handed down on 30 September 2002.[9]

It led to the passage of legislation in all jurisdictions effecting wide-ranging changes in the law of negligence. The laws differed slightly from State to State and I’m certainly not going to delay your main course by examining them in detail but, generally speaking, they attacked the culture of blame and increased personal responsibility. In particular, so far as concerns the liability of teachers, the legislation altered the test by providing that there is no breach of the duty to take care unless the risk of injury is not insignificant. The common law used to require action to guard against all risks of injury unless they were far-fetched or fanciful. The legislation also removed any obligation to warn people of obvious risks, so had the diver in 1993 been diving 10 years later, the outcome of his case would have been quite different. And as you all know, caps were put in place to substantially restrict the amount of damages which an injured plaintiff can recover.

Was all this frantic legislative activity necessary? I doubt it, because the courts were already facing the proposition that the standard of care that had in been imposed in the past was far too high and the wheel started to turn the other way. There are a number of these cases, all decided in the last year or two[10] but time only permits me to refer to one. Last year the High Court of Australia held that there was no breach of a teacher’s duty of care by failing to provide constant supervision when one child injured another while playing on a flying fox.[11] The majority judgment contained this passage:

“… it [is not] reasonable to have a system in which children are observed during particular activities for every single moment of time – it is damaging to teacher-pupil relationships by removing even the slightest element of trust; it is likely to retard the development of responsibility in children, and it is likely to call for a great increase in the number of supervising teachers and in the costs of providing them.”[12]

So I hope that these words, plus the legislative changes, lift the spirits of all teachers and make them feel that it is safe for them to go out into the playground. Well, I had better stop before I hear Ms O’Donnell muttering that she only asked me to open your conference, not to deliver a long and boring lecture before it had even started.

So, I wish your conference every success, and I trust that each of you will go back to your work, be it education or the law, refreshed and inspired as a result of the next two days. It gives me great pleasure to declare the 2006 Australian and New Zealand Education Law Association Conference open.

Peter Underwood AO

Chief Justice of Tasmania.