Educators' Negligence and Liability

• Author: Theresa Shanahan
• Pages: 151-186

151

CHAPTER 6

Educators’ Negligence and Liability

Theresa Shanahan1

A. INTRODUCTION

Accidents in school s can result in neg ligence lawsuit s agains t educators.

Educators are respon sible for taking all re asonable steps to provide a safe

and positive lear ning envi ronment for students. School safet y and the

duty to superv ise student s underpin educ ators’ liability for negligence.

The legal concept of ri sk management and the law of tor t shape educators’

duties in thi s area.

School accidents fa ll under tort l aw. A “tort” is a wrong th at is com-

pensable in da mages. Tort law allows a cour t to hold liable someone who is

found legally re sponsible for another’s loss or injury. The object ive of tort

law is to restore the i njured party to t he position they would have enjoyed

had the wrong not occ urred. Ther e are two ki nds of torts. An intent ional

tort is delibe rate harm to a nother person, such as assault or defa mation.

Intentional tor ts result i n crimi nal proceedi ngs. An unintentional tort is

the uninte ntional harm to anot her person caused by a person’s actions or

failure to ac t. Unintentiona l torts result i n civil proceedi ngs. Negligence is

an uninte ntional tort. Thi s chapter is concerned wit h unintentional tor ts;

specical ly, this chapter wil l address educators’ liabi lity for negligence in

1 This ch apter draws upon my unp ublished teach ing materia ls — in part icular,

my curric ulum and cour se material s on negligence and l iability of e ducators

for various c ourses I have creat ed and taught — inc luding the “Et hics and Lega l

Studies in E ducation” online t utorial whic h I created at the Fac ulty of Educat ion,

York University, for the ba chelor of education st udents study ing to become

teachers, a nd also curr iculum mate rial I created f or the Principa l’s Qualica-

tions cours e.

152 / Theresa Shanahan

their care a nd supervision of t heir students. The f ocus of this ch apter is on

educators’ liabil ity for accidents leadin g to student injury.

B. WHAT IS NEGLIGENCE? THE LEGAL ELEMENTS OF

NEGLIGENCE

Negligence is un intentional h arm caused by the failure to elimi nate un-

reasonable risk s of injury. A risk i s “unreasonable” if it could have been

reduced or elimi nated by common sense. Negligent act ions in education

can involve civi l lawsuits against te achers, principals, and sc hool boards.

The legal elements of neg ligence include the followi ng:

1) a duty of care owed, a s in educators havi ng a duty of care to their stu-

dents

2) a standard of care, in t his case, the “educator’s standa rd of care,” to pre-

vent reasonably foreseea ble risks of harm

3) a breach of the standard of care, namely, conduct that fa lls below the

standard of care

4) damage, or quantiable ha rm, to the plainti  as a result of the breach

5) causation — t hat is, the ha rm or damages d one must ow from the

breach of the duty2

C. THE EDUCATOR’S DUTY OF CARE

Teachers and principa ls have a duty of care towards t heir students. Educa-

tors’ duties towards t heir students are set out and gover ned by legal stat-

utes as well as i n the common law. Supervising a nd keeping students sa fe

is one of an educator’s most import ant duties. Th is duty includes m ain-

taini ng order and disc ipline in the sc hool environment. Educ ators are

thus responsible for t he health, com fort, and wel fare of student s. Super-

vision requir es that educators watch and d irect student act ivities.

In Canada , an educator’s duty to super vise under pins the law of neg-

ligence and lia bility of educator s. It is established a nd dened in bot h

statute (legis lation) and common law (caselaw). Every provi nce in Canada

has an ar ray of education statutes th at organize the educat ion system and

set out the duties and res ponsibilit ies of teachers, princ ipals, and scho ol

boards, and t he minis ter responsible for educat ion. For example, the On-

2 See Hussack v Chilliwack School D istrict No 33, 201 1 BCCA 258 at para 33 [Hussack],

citing Mus tapha v Culligan of Canada Ltd, 2008 SCC 27 at pa ra 3.

Educators’ Negligence and Liability / 153

tario Education Act,3 and its regulat ions, organi zes the education sy stem

and sets out numerou s duties of teachers under section 264(1) and numer-

ous duties of principa ls under section 265(1). Similar sta tutory provisions

can be found in each provincia l education statute. In Ontario, t he educa-

tor’s duty to supervi se is articul ated under the Education Act in t his way:

Duties of teache r

264. (1) It is the duty of a tea cher and a temporar y teacher,

discipline

(e) to maintai n, under the d irection of t he principa l, proper order

and discipl ine in the teache r’s classroom and wh ile on duty in the sc hool

and on the school g round;4

Further, und er Regulation 298 of the Onta rio Education Act:

20. In addition to t he duties assigned to t he teacher under t he Act and by

the board, a te acher shall,

(a) be responsible for e ective in struct ion, training and e valuation of

the progress of pupi ls in the subjec ts assigned to the te acher and for

the mana gement of the class or class es, and report to the prin cipal

on the progress of pupi ls on request;

(b) c arry out t he superv isory duties a nd inst ructiona l program a s-

signed to the te acher by the principal a nd supply such inform ation

related ther eto as the princip al may require;

(c) where the board has appoi nted teacher s under sect ion 14 or 17,

co-operate f ully wit h such teacher s and with t he principa l in all

matters re lated to the inst ruction of pupil s;

(d) unless otherw ise assigned by the pri ncipal, be prese nt in the cla ss-

room or teachi ng area and en sure that t he classr oom or teachin g

area is ready f or the reception of pu pils at least  fteen minutes be-

fore the commence ment of classes in t he school in the morn ing and,

where applicable, ve m inutes before the comm encement of classes

in the school i n the afterno on;

(e) assi st the principal i n maintain ing close co-operat ion with the com-

munity;

(f) prepare for use i n the teacher’s class or cla sses such teaching pl ans

and outli nes as are requ ired by the pr incipal a nd the appropria te

supervi sory ocer and s ubmit the pla ns and outl ines to the pri n-

cipal or the appr opriate super visory ocer, as the case m ay be, on

request;

3 RSO 1990, c E.2.

4 Ibid, s 264(1)(e).