Education Information, a public service?
Education is rapidly evolving in South Africa, sadly it is not evolving in the positive direction that one would expect in a country that some 2 decades ago had amongst one of the highest standards of education in the world.
It comes as no surprise therefore, that parents are opting to choose private schooling as opposed to the chronically degenerated and confused public education system in this country. Homeschooling is becoming even more popular and I often receive telephone calls from parents, enquiring as to whether or not I would be prepared to homeschool their child.
One such call in January emanated from a lovely lady who asked if I would consider homeschooling her Grade 12 brother, who was at a specific high school and became involved with the “wrong crowd”, who used and sold drugs on the school premises. I asked her how is it that he became involved with the “wrong crowd”, what kind of peer pressure was there at this institution, and she replied “Most of the crowd is the wrong crowd”… One can only be left to ponder and interpret her statement.
Moving on, she advised me that her sister, an educator, had previously been a teacher at a private institution in KZN, and was so disenchanted and disappointed at the internal ‘politics’ and goings-on within the institution, that she felt obliged, morally, to resign and seek a post elsewhere. I am pleased to say that we have kept in touch, and wonder at the many parents out there who really don’t have any idea of what actually goes on, taking it for granted that their child is in a safe and secure, loving environment, where their education and well-being is of paramount importance, and indeed as publicly advertised, parents are assured of an environment, which is, simply put, a home away from home.
Having researched and compiled files and files of South African case law pertaining to education in both public and private institutions, it comes as no surprise when parents finally say “Enough, no more!” and turn to the Courts for relief. Parents need to bear in mind that they have a Constitutional Right to ensure that their child is in a safe, secure environment, and free from bullying, which is against the Constitution and the Education Act. Should they not be able to afford an attorney of their own choice, they may apply to the Legal Aid Board of South Africa for the appointment of counsel, to institute an action for damages.
If it were that simple – to know that the more you are required pay each month on school fees, the more likely the chances of your child being safe. It is not so. Schools and their representatives forget the simple, very important fact – their school exists because of support from the students and their families, and it is not the other way around.
They have a legal obligation to make good on their very often, publicly advertised mission statements. A failure to do so results in breach of agreement. There is South African – and international case law and reports – case law to this effect.
Parents, if your child is being bullied, or if you suspect that your child or another may be suffering at the hands of bullies, please do not let it lie. While schools will vehemently deny that bullying takes place (until they or their representatives admit publicly on their timeline in Twitter that they are trying to address the issue) do not be fooled. It happens daily, and many schools would rather risk turning a blind eye to the problem, than having their “reputation” sullied. All the denial in the world will not undo the damage that has already been caused.
Some interesting cases to read about:
Bullying is a Criminal Offence (USA site but it is an internationally recognised crime)
1. DUTY OF CARE ‘WITHIN’ THE SCHOOL
1.1 General Principles
All people owe a duty of care to other people not to injure another as a result of his or her negligent acts or omissions. This duty does not usually extend to preventing injury (a positive duty to take certain preventative steps) from occurring to another person, where one has not caused or contributed to the risk of injury. For some, however, a special duty exists giving rise to more onerous duties. The relationship between school authority and pupils gives rise to one of these special duties.
While pupils are on school premises, school authorities and teachers owe pupils a duty of care of general supervision concerning their physical safety: Richards v Victoria
[1969] VR 136 (FC); Geyer v Downs (1977) 138 CLR 91l; Commonwealth v Introvigne (1982) 150 CLR 258; Warren v Haines [1986] Aust Torts Reports 80-014 (SC NSW).The reason for this duty was discussed by Winneke J in Richards v Victoria: A child is in need of protection against the conduct of others, or indeed of himself, which may cause him injury when he is beyond the control and protection of his parent and the school master is in the position to exercise the
authority over him and afford him, in the exercise of reasonable care, protection from injury.
The duty of care of the school authority is non-delegable. In Commonwealth v Introvigne, Mason J stated that:
The duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a
duty the performance of which cannot be delegated (at 270).
1.2 Foreseeability of Risk In order to establish a duty of care, the plaintiff must prove that the defendant ought to have foreseen that the negligent action of the defendant might endanger the plaintiff. It is not enough to establish that the defendant knew or ought to have known of the potential hazard. It must be shown that a reasonable person in the position of the defendant would have foreseen that the situation constituted a real risk to the plaintiff or to a limited class of persons of which the plaintiff was a member: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47.
Below are some case examples that discuss the degree of supervision a school owes to a pupil due to the foreseeability of risk. The extent of the general duty to supervise pupils
SYD3_403464_2 (W97)2 does not extend to constant supervision: Barker v South Australia (1978) 19 SASR 83;
Johns v Minister of Education (1981) 28 SASR 206; Harvey v Pennell [1986] Aust Torts Reports 80-052 (SC SA). To a large extent, however, the question of degree of
supervision will depend on the individual facts and circumstances of a case. Most of these situations involve either actual or constructive knowledge of a potentially
dangerous situation:(a) In Johns v Minister of Education, a teacher discovered the pupils had catapults and so was thus alerted to a potentially dangerous situation. It was held that the degree of supervision which she exercised was adequate to discharge the duty of care, and so was found not to be negligent.
(b) Johns case was distinguished from Victoria v Bryar (1970) 44 ALJR 1745. In this case, the teacher actually knew that a fight was in progress and this knowledge made the duty more onerous. The fight involved the discharge of pipe pellets fired by elastic bands. The danger was clear and the teacher failed
to stop the fight. The teacher was found to have breached her duty of care.
(c) In Vandescheur v State of NSW [1999] NSWCA 212 (1 July 1999), a 13 year old boy was injured whilst playing schoolyard cricket during recess. The pitch was a concrete path, the wickets were garbage bins, and the crease was a drain with a metal grille over it across the path. The plaintiff was seriously injured by the jagged handle at the end of the grille when the bottom of his bat was caught in the gap of the grille. The court found that:
(i) the bottom of the bat being caught in the grille was an ‘obvious risk’;
(ii) the activity was known to and approved by teachers;
(iii) a teacher was watching the game when the plaintiff was injured;
(iv) ‘the teachers had a duty to take reasonable care for the safety of the appellant, which required them to take precautions against the foreseeable risk of injury commensurate with the degree of risk’;
(v) ‘there was a substantial risk associated with the activity, and… the teachers breached their duty of care to the appellant when they permitted him to continue.’
(d) An additional element of danger also increases the onus of supervisory duty. In Bills v South Australia (1982) 32 SASR 312, a teacher was found to have breached her supervisory duty by failing to ensure that trampolining equipment
was put away after instructions to put the equipment away were given and for failure to supervise any trampolining after that point….
In a report published by South African Council of Educators, it was stated:
Due to children spending approximately half of their hours at school, schools can serve as the second most important socialising mechanism after the home. From a holistic perspective, Burton (2008*) contends that schools are important environments in which children not only gain knowledge but also learn about themselves, how to behave as well as how to interact with other children. In such a way, children who are exposed to violence in this context will tend to model this behaviour. Schools therefore have the potential of being a negative or positive reinforcing agent (Burton, 2008). For example, Ward (2007) argues that children who perform poorly, who drop out, who have low standards in terms of
educational achievement and who change schools frequently are more likely to take part in violent behaviour. On the other hand, attachment to the school and the valuing of education acts as a protective factor against school-based violence. It can therefore be argued that the high levels of violence and crime taking place within South African schools is robbing children/learners of the opportunity of being able to reach their optimal academic and educational potential. Secondly, as stressed in international studies there is a strong correlation between the amount of education as well as academic success a learner achieves and their decision to choose crime or not. This therefore implies that, “a lack of safety at schools may serve to perpetuate crime and violence in society at large” (Jefthas & Artz, 2007:46).
One can therefore argue that schools, teachers, the Department of Education and other government bodies have the potential of playing a vital role in influencing or preventing the rates of violence in South African society.
The World Health Organisation (WHO, 2002) defines violence as,
the intentional use of physical force or power, threatened or actual against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation.
Looking specifically at the issue of school violence, popular discourse encapsulates all forms of, “intentional harm or discomfort inflicted on learners, including incidents such as schoolyard fights, bullying and drugs abuse” (Burton, 2008:19).
The problem with this definition as argued by Burton (2008) is that it fails to capture the complexity of the problem as well as less overt forms of violence that are silenced such as violence against women and girls.
Further interesting reading is the Liability for Bullying at Schools DA Butler (2006)
Despite the implementation of a wide variety of intervention initiatives, the experience of bullying is common for children in schools in Western societies, whether experienced as a victim, bully, onlooker or combination of the three. Bullying behaviour has been seen as occurring in a broad range of socio-economic groups and across urban and rural settings.
In addition, bullying may be experienced irrespective of the child‟s age, physical attractiveness, or socio-economic status.
Although prevalence estimates may vary according to the data collection methods used, a study by Nolin suggests that between 80 to 90 percent of preadolescents and adolescents encounter physical and/or psychological bullying at some time during their school life. Such figures show that bullying is a problem worldwide that creates negative lifelong consequences for both bullies and victims.
Like the United Kingdom, Australia is becoming a more litigious society. This includes a greater willingness on the part of persons who have sustained injury to seek to attribute legal responsibility for that injury to another, particularly where that other is perceived to be well resourced, including government entities or organisations supported by liability insurance, such as school authorities. Adverse effects resulting from bullying have therefore been framed as damage resulting from a breach of duty by the school in failing to prevent such bullying.
Citation:
CONCLUSION
All of the above legal principles and exceptions to these principles could understandably leave a teacher confused at best and clinically neurotic at worst. This is particularly so considering that in some cases, a teacher may have a duty of care which is higher than a parent’s duty of care. However, if schools and their teachers act in a careful and diligent manner, then the school authority should be able to successfully defend a negligence claim as he or she would probably have done more than a reasonable teacher would have done in a particular set of circumstances. Neurosis is not necessary – only astuteness and responsiveness to dangers and always providing the appropriate supervision.
“Special thanks and acknowledgements: research and works of Charles Alexander, Amanda Greenfield, and Matthew Darke”
Donnette Fry (nè Davis)
Donnette #Randomness 