If my child is injured at school can I sue?

When your child is hurt, the initial reaction is fear and worry, as you rush to ensure they receive appropriate care. Hard on the heels of those emotions can come questioning and anger, especially if your child was injured as the result of negligence on the part of someone who had a duty of care.  

If your child was hurt while at school or daycare, you may have the right to sue and gain compensation for your child’s injury, including pain and suffering. 

Your child could be in harm’s way

You want to believe that your child is safe when they are at school or daycare, but there is always a risk of injury even if your child never leaves your side. If your child has been made a target of bullying at his or her school, you have even more reason to be concerned.

The facts are that your child could suffer a personal injury at school. If this happens, you should vigorously pursue an inquiry as to how the injury happened and why. It’s vital to determine if it was caused by a failure to fulfill a duty of care on the part of an educator or carer, or if the harm was deliberately inflicted as a result of bullying. 

Children can also be hurt while engaging in sports affiliated with school. Although you can help prevent your son or daughter from incurring sprains and strains by ensuring they have proper coaching, footwear and sports equipment, there is always the chance of an unsafe environment or of them being targeted.  

 Another possibility for injury exists if your child rides a school bus and is injured in an accident. If the incident was caused by negligence on the part of a school employee, this can also open the way to a claim for negligence on the part of the school. A playground accident may also be actionable if the playground was unsafe, there was negligent supervision, or your child was a target of violence. If another child injured your son or daughter, you may be able to file a claim against them as well.

 Your child might be targeted by a predator who is employed by or affiliated by the school. If the school knew that unsafe conditions existed and did nothing to inform you or protect your child, you could have grounds for a substantial compensation claim on the grounds of gross negligence. 

Defining educator negligence

All staff working with students in any capacity owe a duty of care to those students, and are required by law to take steps to reduce the risk of reasonably foreseeable harm. 

The key here is the word reasonable. Obviously the school cannot assign a personal bodyguard to each child, or wrap them in cotton wool to prevent them from tripping and stubbing their toe. However, the school can and should ensure that the school grounds are safe and free from dangers, including those stemming from children and adults who may wish to cause students harm.

When it comes to child abuse, the school is even more stringently required to take reasonable precautions to minimise the risk of abuse done by any individual associated with the institution. If there is any hint that any faculty member with access to children poses a danger, the school must take action to protect its charges. 

The requirement to prevent harm when at all possible is in effect when another party is involved, and can extend beyond school grounds and school hours. Examples would be a school trip, or a third party providing a camp venue or excursion for school students. 

The basics involved with duty of care for educators, from the top administration on down, include:

• Providing suitable and safe premises at all times for students
• Developing and maintaining an adequate system of supervision
• Performing risk assessments before all school activities and events
• Creating and implementing strategies to prevent injuries to students 
• Ensuring that appropriate medical assistance is available for sick or injured students
• Making sure that the school is in compliance with Child Safe Standards
• Minimise the risk of child abuse by any individual associated with the school
• Overseeing and managing recruitment, conduct and performance of all employees

The educator duty of care cannot be delegated or assigned to another party. Every staff member’s specific responsibility in this regard may be different, and each educator has an overarching duty of care to each student they have contact with. 

Bullying

Bullying is a significant area in which duty of care must be established. Physical or psychological trauma can arise from bullying, and bullying that originates at school can follow a student home and affect them. 

 If it can be proven that the school knew or should have known about the bullying and that there was no action taken within a reasonable time frame to address it, you may have grounds for a claim. 

The case will be carefully considered to determine if:

• The school failed to implement and/or comply with bullying policies
• After finding out about the bullying, the school failed to protect the child against further threats or harm 
• The bully is a repeat offender
• How long the bullying had been taking place and how severe it was

If your child was bullied and you can prove the school knew of it and did nothing to stop it, you can claim a breach of duty of care and file a compensation claim. It’s advisable to have an experienced personal injury attorney on your side to help you navigate the claim process and gather all evidence needed to prove your case. 

Child abuse

For child abuse claims, there is a clear presumption of liability for any and all organisations that exercise care, supervision or authority over children. This includes schools and daycare facilities. Staff will have the burden of proving that they took “reasonable precautions” to prevent child abuse by an individual associated with the school.

 Child abuse includes any instance of:

• Physical or sexual abuse 
• Grooming
• Emotional or psychological harm

Educators also have a duty of care to report suspected serious or significant neglect and family violence involving a child. The threshold for reporting is low, to ensure child abuse doesn’t take place either at school or at someplace the child spends other time. Regardless of whether the abuse is thought to be taking place within the school’s purview, educators must report if they: 

• Witness an abusive incident
• Learn of a child’s injury or abuse from another party
• Form a reasonable belief or suspicion that abuse has occured/is occuring
• Receive a disclosure  from a current or former student 

Making a successful claim

Depending on where, when and how your child’s injury occurred, you may need to bring your claim against the school for negligence on the part of an educator or employee, and/or against an individual associated with the school or another student. If you sue the school, be aware that they will have legal representation, so having your own legal team is advised.

Proving negligence can be a time consuming task and require tracking down documentation, evidence, and testimony. Your personal injury attorney can help with these steps, and also act as your solicitor if the lawsuit should go before the court.

In many cases, the private school or daycare or public school will choose to settle for public relations reasons, but they may offer a low settlement at first. You have the right to refuse this initial offer and negotiate for greater compensation, to obtain medical care for your child’s injury and to allow for pain and suffering. 

Has your child been injured at school or while under the school’s duty of care through negligence, bullying, or child abuse? Contact us for no-obligation legal advice about your claim.