Legal: Health and safety in the classroom: hindsight is 20/20
Queensland Teachers' Journal, Vol 123 No 6, 31 August 2018, page no.25
Sometimes it feels like everyone knows what you should have done to prevent something bad from happening after the event, and you can’t help but think “if only they’d said something before”.
Unfortunately, teachers and school leaders who find themselves the subject of a Work Health Safety investigation after a student has been injured in the classroom know this feeling all too well.
It’s true what they say, hindsight is 20/20. Unfortunately, educators don’t have the luxury of hindsight.
What they do have are statutory obligations under the Work Health and Safety Act 2011 (the act) to do everything that is “reasonably practicable” to stop an accident occurring.
Teachers who specialise in subjects such as manual arts or hospitality have the added pressure of supervising students who are using inherently dangerous equipment, often in an overcrowded classroom.
Section 18 of the act sets out the standard of care that duty holders in Queensland are required to meet. Teachers supervising the class have duties, as do school leaders.
A teacher or school leader will not have breached their duty of care merely because a student is exposed to a risk to their health or safety from the undertaking of work. A breach will occur when the teacher fails to meet the standard of care required by the duty, that standard being of “reasonable practicability”.
In practice, meeting the standard of care means considering the risks through a curriculum activity risk assessment.
“Reasonably practicable” is determined objectively by reference to the standard of behaviour expected of a reasonable person in the teacher or school leader’s position who is required to comply with the same duty. This involves consideration of what can be done in the circumstances for ensuring health and safety and whether those measures or steps are “reasonable, in the circumstances”.
To determine what is “reasonably practicable”, a judge must consider and weigh up all relevant matters, including:
- the likelihood of the relevant hazard or risk occurring
- the degree of harm that might result
- what the person knows or ought reasonably to know about the hazard or risk and the ways of eliminating or minimising the risk
- the availability and suitability of ways to eliminate or minimise the risk.
Only after taking these matters into account can a teacher or school leader consider the costs associated with eliminating or minimising the risk, and the costs must be grossly disproportionate for the measure to be regarded as not being “reasonably practicable”.
In the case of a manual arts teacher, what is “reasonably practicable” will include things like following the school and the department’s policies and procedures, making sure students are trained in the equipment they use, maintaining a suitable level of supervision and identifying hazards and implementing control measures where necessary.
Completion of risk assessment documentation accurately is the best defence for the school, school leaders and classroom teachers. A recent incident in a Queensland school in which a student injured themselves badly with a motorised saw provides a good illustration of the kind of scrutiny the school can face.
Soon after the accident, inspectors issued the school with a requirement to release documents, including:
- risk assessment for use of the saw in the classroom
- safe work procedure or similar documents
- lesson plan or written instruction setting out the plan to teach safe use of the saw
- learning plan or assessment document completed by the student, reflecting learning about safe use
- safe work procedure specific to the task
- lesson plan for the class
- written hazard identification for the task
- safe work procedures for the department and its equipment
- student’s report card for manual arts
- full qualifications of the teacher and teacher-aide
- their safety and health qualifications
- copies of the student’s written qualifications or competencies
- the student’s discipline record
- copy of the safety health management system
- copy of the previous 12 months of accident/incident reports and the corrective/preventative actions taken
- any risk assessment for the manual arts section
- copy of the emergency response document.
Once those documents are received the inspectors are likely to ask for more specific documents and will continue to do so until they are satisfied.
Teachers and school leaders should comply with health and safety risk assessment procedures carefully to prevent accidents occurring - what seems like a small lapse before the event can look like the iceberg that sank the Titanic in hindsight.