Is your educational institution offering extra-curricular school activities to students outside of school hours? Is your school authorizing students to use school grounds and equipment for certain activities outside of school hours? If so, has sufficient consideration been given to the risks and liabilities which could arise?
Recently, we have been asked to advise on a particular client school’s gym use agreement. In a generous initiative, the school provided its students with the opportunity to become a member of the school gym, which gave the student use of and access before and after school hours.
Whilst a tremendous act of good will and undoubtedly a welcomed gesture by those students with a keen interest on strengthening and conditioning or those wanting to improve fitness, we gave particular consideration to issues of liability where injury and harm are suffered as a result.
Your school may be offering similar arrangements, gym, gymnastics equipment, dance halls, film and tv sets, hospitality equipment etc. It may be worthwhile to pause and reflect on whether or not the school is adequately protected in those offerings.
In a gym setting, we considered some particular scenarios such as:
A freak incident
For example, after an intense round in a group exercise class, a student enters into cardiac arrest. As in cases of medical negligence, it may not be the fault of the surgery or procedure that results in the complication, but that the failure to warn of the risk of such a complication, which if omitted, results in a patient being successful. Informed consent is the key in these situations and our solution was to draft acknowledgment clauses into the gym agreement which constitute forewarning. Of course, full disclosure of any previous medical history is important. However, the school must ensure that the person processing membership forms give full consideration to the declared conditions and where uncertain, refuse the membership and ask for a medical clearance.
Unauthorised/incorrect use of equipment
In a normal commercial gym agreement, the gym would ordinarily pass the risk to the gym-user and argue that the user’s negligence were the cause of his/her own injuries. In the case of school and student, there is a question whether such an argument can be effective. Like the relationship between employer and employee and doctor and patient, to name a few, the relationship between a school and student contains a degree of responsibility and control the law commonly recognizes as greater than the norm between 2 ordinary persons. For example, perhaps a PE teacher may be required to be present to pull-up on anyone who may hurt themselves in the way they use a particular machine and if the person fails to follow the correction, formally prohibit further use. A clear induction and detailed diagrams on the gym equipment will also be a must.
Injury to third parties
Example: Johnny is working out on the lat-pull down. His friends think its funny to change his weights mid-workout and places the pin 5 plates down. Unbeknownst to Johnny, he starts the next set and injuries himself as a result. Whilst the friends will likely face serious discipline by the school, it may expose the school to issues of supervision.
Certain students may be habitual troublemakers or class clowns and may pose more of a risk. It may be prudent for the school to have a system of dealing with the ‘naughty kids’.
As in any scenario, the need to balance commerciality with risk is the key. Schools must continue to carry on their role and facilitate educational and extra-curricular pursuits without always being under the shadow of ‘liability’. On the other hand, if there are systems and protocols that can be better implemented to reduce the risks associated at little cost or expense, then they ought to be considered and applied.
For more information regarding managin risk for extra-curricular school activities
Please contact our Business Development Team or call us on (07) 3252 0011 to book an appointment with one of our specialist Education Lawyers today.