Balancing duties of care: Navigating wellbeing of students & teaching professionals

June 25, 2024

In 2019, the tragic death of Lachlan Cook, following diabetes-related complications which manifested during a school trip to Vietnam, highlighted that a school's duty of care to students extends to overseas trips and cannot be delegated to a third party.

WorkSafe Victoria is now criminally prosecuting Melbourne private school Kilvington Grammar and World Challenge, an educational school travel company, for failing to ensure that 16-year-old Lachlan was not exposed to health and safety risks.

Schools not only owe a duty of care towards students. Schools must also, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health for workers. The legal implications of failing to meet this required duty are significant.

Owing duties to multiple stakeholders, where interests do not always neatly align, can adversely impact the mental health of teaching professionals, in particular school leaders. One in five school leaders reported moderate to severe depression, compared with 1.5% of the general population, with others reporting serious mental health concerns including anxiety, burnout, stress, and trouble sleeping, according to a 2024 study by the Australian Catholic University.

Schools have the very difficult job of balancing these duties.

Duty of care towards students - overseas trips

In 2023 Victorian Coroner's Court found that Lachlan Cook's death was preventable. The Court derided Kilvington Grammar for its "laissez-faire" attitude towards its responsibility for the students on the trip. Lachlan had been self-managing his diabetes when he fell ill after consuming street food, developed high glucose levels, and eventually suffered a cardiac arrest and brain damage leading to his death. The two teachers and World Challenge leader on Kilvington Grammar's trip to Vietnam were not trained to support students with diabetes, and did not have access to Lachlan's diabetes management and action plans.

In April, WorkSafe charged both Kilvington Grammar and World Challenge under section 23(1) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act), which states that employers owe a duty, as far as reasonably practicable, to people other than employees to ensure they are not exposed to risk to health and safety. The proceedings are ongoing.

While this case lies on the extreme end of the spectrum of failure, it is clearly established that schools and teachers owe a duty to their students, both under legislation and at common law. The duty is based on the fact that the school stands in for the guardian of the child while they are at school.

The outer limits of the duty have been tested in cases which held that this duty extends beyond the physical confines of the school, and the temporal limits of regular school hours. In practical terms, this means the duty may apply to students at a bus stop after school or where a student is dropped at school before school starts. The duty does not 'clock on' when the first bell rings, and end when the students depart the classroom for the day.

Principal burnout

Managing the at-times murky boundaries of the duty of care can have psychosocial implications.

Schools are increasingly stretching already-thin resources to cover risk management and supervision responsibilities, compounding the day-to-day stress that is faced by principals in dealing with negative behaviour and challenging situations in the school environment.

The annual Australian Principal Occupational Health, Safety and Wellbeing Survey from Australian Catholic University (ACU), published March 2024 and involving over 2,300 principals, has revealed the 'worst recorded levels of physical violence, threats of violence, and bullying' against principals in the history of the survey, according to a media release by the ACU. Principals report stress due to heavy workloads, a lack of time to focus on teaching and learning, mental health of students and mental health of staff.

In the United Kingdom, there is also growing discourse on whether overworked principals could initiate legal action for "moral injury", a psychological condition historically reserved for active soldiers. Moral injury is the intense psychological distress done to a person's conscience when they perpetrate, witness, or fail to prevent acts that transgress their own ethical code.

Headrest, the 2023 Annual Wellbeing Report on headteachers in England from the Brown Collective, suggests that school leaders are regularly faced with having to make the 'least bad choice' due to budget limitations, staff shortages or other constraints, in decisions that can go against deeply held beliefs and principles. Moral injury can arise from balancing the competing interests of various stakeholders (students, parents, teachers and the community) or witnessing or being unable to prevent harm to students.

Limits on mental health injury claims

A Victorian Auditor-General's Office report from June 2023 shows that mental injury was consistently the highest cause of principals' workers compensation claims between 2015 and 2021, making up almost half of all claims. Principals took a median of 34.5 workers compensation leave days a year during this period, more than triple other teaching staff, and double non-teaching staff.

The rise in mental health claims has resulted in 'increasing financial pressure on the WorkCover Scheme', with the Government claiming that mental injuries represented 'around 50 per cent of the costs to the Scheme'.

In response, Victoria has tightened criteria for mental injury workers' compensation claims. The changes started on 31 March 2024 and include, but are not limited to:

• exclusion for stress and burnout: claims will not be accepted if the mental injury is predominantly caused by stress or burnout as a result of events that are considered typical and are reasonably expected to occur in the course of workers' duties. There is an exception for jobs involving traumatic events on a regular basis (such as ambulance officers and other front line workers); and
• a new and stricter definition of mental injury, meaning compensation is now only available for mental injuries that cause significant behavioural, cognitive, or physiological disfunction, and must be diagnosed by a medical practitioner (not including a psychologist).

The changes have sparked debate and union backlash over the potential abandonment of workers in need, with the Independent Education Union of Victoria and Tasmania calling them 'regressive', and saying they would leave education workers 'high and dry'.

The impact of the more stringent criteria for workers compensation, and whether this will motivate claims for "moral injury", is yet to be seen.

Conclusion

Schools are generally well aware of the duty of care they owe to students. However, schools should consider whether staff adequately understand this duty, and that the duty does not 'clock on' when the first bell rings, and end when the students depart the classroom for the day. Leaders and staff should be trained in what the duty looks like and how it may apply in practice.

Schools are also generally aware of the duty they owe to workers while at work. However, schools may not be aware of this developing area of law in relation to "moral injury". With workers' compensation claims being narrowed in Victoria, and principals finding themselves 'being asked to do more with less', leading to a looming mass exodus of even the most experienced and battle-hardened educators, this is an area which may develop further over the coming years.