In Part 1 of this series, the common law and statutory duties owed by schools to their students, staff and the wider school community was considered. In Part 2, Bridget Nunn, Special Counsel at Thomson Geer, looks at what a school must do to discharge those duties with respect to the real risks that commonly arise on school grounds.
School grounds and associated fixtures and fittings must be properly maintained to ensure risks to health and safety are eliminated, or if that is not reasonably practicable, minimised so far as is reasonably practicable.
As a minimum schools should have a system in place for regularly inspecting grounds to identify hazards and ensuring that grounds are properly maintained. In addition to scheduled inspections, schools should have a hazard reporting system and ideally engage all members of the school community who use the grounds in the hazard reporting process. However, as shown by the decision of Inspector Vierow v Catholic College Lismore Limited t/as Trinity Catholic College Lismore  NSWIRComm 128, such a system will only be effective if it is properly implemented and used.
In this case, a five-year-old was fatally injured when a school gate struck him, trapping him against the ground. At the time, the five-year-old was only visiting the school with his mother to collect his sister, a student, and his father, an employee of the school. In response, a prosecution against Catholic College was bought by NSW WorkCover Authority, alleging Catholic College had breached section 10(2) of the now repealed Occupational Health and Safety Act 2000 (NSW), (similar to the current duty under section 20 of the Work Health and Safety Act 2011 (NSW) and mirror legislation in most States and Territories placed on PCBUs with management or control of a workplace).
The Catholic College pled guilty. In the decision on sentencing, it was found that the school had an established web-based intranet system in place for students and staff to report maintenance and health and safety matters. The school also had a plant management committee which met to discuss maintenance and health and safety issues. However, despite a number of problems occurring relating to the gate, no report had ever been made through the system regarding these issues, nor had the health and safety reviews ever focussed on the gate. It was found that the school was ‘well aware the gate system was not in good working order… [and] had faults‘ and that Catholic College had not done all that it could to control risks associated with the gate. Further, it was found that obvious steps could have been taken to either eliminate or minimise the risk to prevent the fatal injury occurring.
A further example of the need to have proper processes implemented arises in Bujnowicz v Trustees Roman Catholic Church  NSWCA 45. In this case, a 14-year old student severely injured his knee after he stepped in what was described as a pothole on the school’s playing area during a game of touch football. The playing area had not been mown or examined by maintenance staff for six weeks leading up to the incident. On appeal, it was found that there was a foreseeable risk of injury from the uneven surface of the playing area and the school could have implemented a more thorough system of reporting and maintenance in order to prevent injuries from occurring.
In carrying out the hazard identification process on school grounds it is not only necessary to consider risks that are present but also those that may become present over time due to weather and other factors. In Roman Catholic Bishop of Broome v Watson  WASCA 7, a teacher was injured after she tripped and fell while walking on a gravel pathway from the staff room to a portable classroom. The path was one the teacher had frequently travelled, however, recent heavy rain had caused rocks to be unearthed and unsealed portions of the ground to move. It was found that while the hazard was not an everyday risk, it could have been easily avoided by the construction of a concrete pathway. The school was found to be in breach of its duty of care to its staff and others using the path, in failing to make it as safe as reasonably practicable.
These cases demonstrate that, as a minimum schools, should be taking the following steps to discharge their duties with respect to risks arising from school grounds:
(a) conducting regular inspections of school grounds and equipment to ensure they are maintained in a safe state;
(b) in carrying out inspections, being mindful of hazards not only that are present but which may arise given a change in conditions; and
(c) developing, properly implementing and using a hazard reporting and management system, which involves students, parents, staff and other regular visitors to the school in the reporting process;
In the next part of this series, we will examine risks arising from equipment and sporting activities in schools.
Special Counsel Bridget Nunn, Thomson Geer, advises a wide range of clients in relation to both employment and work health and safety law. Her practice includes front-end advisory work, contract and workplace policy drafting, industrial instrument interpretation and workplace training. Bridget also represents clients in a range of industrial, termination, general protections, workers compensation and discrimination disputes, as well as work health and safety prosecutions and incident investigations. Bridget has a special interest in education law as far as it relates to employment and work health and safety matters. Bridget aims to provide her clients with advice and assistance, which not only achieves legal compliance but also strategically improves their business and workplace. Contact Bridget at firstname.lastname@example.org or connect via LinkedIn .