Andrew Knott Special Counsel Tresscox Lawyers
We have been requested to make some comments in relation to the issue, understandably of concern to both decision-making staff and implementing staff, of how many staff need to be on duty in different situations. Unfortunately, this question, as with the meaning in particular circumstances of ‘what is reasonable’, cannot be answered with great precision, but there are a number of things we can say which may be of assistance.
First, in applying the general duty of care it is important to remember that it is about taking the steps that are reasonable to minimise the risk of foreseeable injury. In determining what is appropriate, one looks at a vast range of issues such as the details of the situation, risk factors, the age, maturity, and behaviour patterns of the students in question, the resources that are available, and balancing the two considerations of risk minimisation and giving students, particularly as they become older, the opportunity to accept responsibility for themselves (in a manner consistent with the duty of care being implemented). From the supervisor’s perspective, there is a need to consider what resources should be made available. This can be a difficult decision to make in the context of the operation of a boarding house, but if the supervising decision- maker feels that the resources are in- adequate, there will clearly be a duty to alert the management to whom the supervisor reports so that the matter can be reviewed. Similarly, staff at the ‘pointy end’ who are implementing the relevant supervision should raise with their supervisor or with management concerns that they have. The provi- sion of information, when there may be unacceptable risks, is an obvious duty which can be discharged with minimum time and effort but may have significant impact.
Secondly, consultation and collegiate decision-making can produce (and demonstrate) careful, informed out- comes.
Thirdly, there are a number of contexts in which there may be specific provisions. For example, there may be provisions in relation to transport regarding maximum number of persons who can be in a vehicle (which goes to staff/student ratio as, if a second vehicle is needed, for that reason then obviously a second staff member is needed to be in the second vehicle). Workplace health and safety legislation, particularly codes of practice, may have some specific requirements which are imposed by law. That is a matter which will vary across jurisdictions. Fire and emergency laws may be relevant. Sporting association protocols may assist.
In many States and Territories, there already exist mandated standards. These should be examined, not only to ascertain whether numbers are included, but as to whether the mandated standards are relevant to assessing what staff ratio is appropriate. Simi-
larly, the draft boarding standard (accessible on the ABSA website) has relevant principles, such as 3.4(e) relating to the need for ‘an accredited and capable person available at all times who can administer and manage’ certain medical issues.
Finally, (and somewhat sadly), numbers are sometimes recommended by Coroners in inquests resulting out of tragic situations, such as drownings in pools or on excursions.
It is important in such situations to err on the side of caution and to be part of ‘the mainstream’. Conversations with peers in other boarding schools or at conferences of boarding school staff and discussion within the school boarding house are all of assistance in developing approaches which will be supportable in the event of criticism in that the person who has made a decision about numbers can show that they have considered the issues, and consulted appropriately, and that their general approach is consistent with that of the boarding school community generally.