Are Teachers & Trainers Really Guilty of Breaching Their Duty of Care if a Student is Injured in Their Class?

Many may not realise but... once upon a time, I was actually a secondary school teacher. I qualified with a double degree in Secondary and Adult teaching, majoring in Legal Studies and a minor in Health. My mainstream secondary school teaching days were limited to a couple of years but my role as an educator for non-mainstream young people and adults was far more significant and in many ways, far more rewarding.

Why do I bring this up all these years later?

I saw a headline in today's paper about a student in Perth who was disabled as a result of a classroom fight. The link to the article is below for anyone interested with the headline "Teacher bears blame, injured student gets $360,000 for classroom fight".

I reflected on an issue that, at the time of my teacher training, I recall there was absolutely no real focus on classroom behaviour management and discipline as such and raised my concerns about it as a trainee teacher. I have vivid memories of the first day of my secondary school teaching placement and having to manage a class of mixed gender Year 11 students, predominantly of a culture that I was unfamiliar with and appeared (based on my colleagues' explanations at the time) to not have to respect females or do what they said. To this day, I find such a cultural issue to be incredibly complex and learning how to navigate it without the appropriate tools would be enough to make even the most experienced afraid (for the record, I have no recollection of this being in my teacher training either).

Going back to that first day, I walked into the Year 11 Legal Studies class with the session plan and tasks I was required to implement over the next double-period. Soon after entering, I prepared to get the session started, introducing myself and explaining that I was a trainee teacher and what I was hoping to achieve out of that session. Soon, the classroom became chaotic with girls afraid and boys yelling abuse at me, spitting in my direction, being generally abusive reminding me that they didn't have to do what I said and as such, they'll do what they like. The double-period continued and at the end, I could not have been more relieved. The supervising teacher was in and out of the classroom and as a mature age student, effectively left me to my own devices. At the end of the class, the teacher commended me on my performance and I quickly responded that it was one of the worst performances of my life and I did not think I'd forget about it in a hurry. Here I am, 26 years later recalling the horror of that day.

I had developed a good rapport with the principal and so at the end of the day, I went and raised my concern with him (while crying uncontrollably), that I really did not think I was fit for that role and that I had not learned the classroom management skills required for me to manage situations such as these. The principal tried to reassure me by saying that this particular group was one of the worst in the P-12 school and that to have got through as I did was commendable. I remember at the time though thinking to myself that it shouldn't have to be that way. Not just for me but what about the other students in that class who genuinely wanted to learn but were prevented from doing so because:

a] I didn't have the skills to manage the class; and

b] they had no other option.

I finished the placement, not particularly pleased with my own performance but I did get an outstanding report from my Placement Supervisor and Principal. I was assured at the end of my placement that this was really a somewhat difficult school with a lot of students with complex needs. When you throw them all together in a public school classroom with limited funding, it's a recipe for disaster. When I returned to uni, my lecturers at the time seemed to agree.
A few years later, on my first day as a contract teacher, again, another public school in a suburb with known social problems and immediately after morning recess, I arrive to take my first Year 8 SOSE class. For those who don't know, SOSE is what used to be called Social Studies, but stands for Studies of Society and environment - basically, the curriculum body at the time decided that it would be a good idea to throw History, Geography, Legal Studies, Civics and 'everything else that didn't fit neatly' into one subject known commonly as SOSE. By the end of that day, I decided that I never wanted to work as a Secondary School Teacher again; in saying that, I did see out the year of my contract and some of the students in that class remain connected with me today on social media.

That day though...It was like a scene out of one of my favourite movies, Dangerous Minds.

I kid you not - there were chairs thrown, girls pushed, kicked and spat at, verbal abuse against other students and myself, students locking the door and barricading us all in the classroom...it was actually a terrifying experience not just for me, but for every student who was a victim of the poor classroom behaviour that day. Thankfully, at the end of the class when we were still barricaded in the classroom and the next teacher arrived to take their class, they raised the alarm and the principal and deputy principal came to our aid. Definitely not the best first day as a teacher and certainly one to remember for all the wrong reasons. I remembered that first time with the supervising teacher and the words of that Principal...I later learned that not only were these classrooms among the most difficult to manage because of the complex nature of the social issues that students were experiencing but that as a fully qualified teacher, I was horribly underprepared.

I had students who had attempted suicide, others who self-harmed through cutting, others who were in the throes of anorexia nervosa, another who was couch surfing most nights and another student who, as it turned out several years later, was having an unlawful affair with one of my colleagues at the time, a Physical Education teacher who was found guilty and served some time in prison but most of it suspended. These were just some of the issues I had to manage with my students on a daily basis.

There was nothing in my pre-teacher training that prepared me for these situations nor classroom management full stop. Likewise, as an adult educator, it didn't prepare me for some issues, quite different though that I later had to fumble my way through.

So when I read that article in the newspaper today, it brought back some of those incredible memories and reflections on teacher training today, especially in the context of a dual-qualified Secondary Teacher and Adult Educator. First, let's look at why that context is so important today in a Secondary School setting.

Secondary School Teaching

Most people, when they think of high school teaching, they have this pre-conceived idea that it looks something like the photo above. It cannot be ignored and it plays on my mind considerably that it is election time in Australia as I write this article. The Liberal Party has been at the helm since the 2013 Federal election. From the Liberal Party's own media release at the time, they touted that they would "... ensure that every Australian, no matter where they live, has access to a world-class education". However, ask any educator, early childhood, primary or secondary and they will tell you that despite the funding allocated, not enough is being done to address some of the real problems with Australia's education system. What issues do you ask? Some examples include:

• Language, Literacy and Numeracy capability continues to decline;
• Learning disorders and other mental health issues and appropriately supporting affected students and their families;
• Regional and remote classrooms continue to be disadvantaged;
• Indigenous education continues to struggle and the 'old ways' are dying out so fast that soon there will be few Indigenous people left to help retain an important part of Australia's culture and history. Future generations will not have access to their elders and the important and valuable asset they hold in education;
• Integration of technology in education is still behind other similar countries...

The list could go on. Did I ever tell the story about the student in year 11 who could barely read and write and yet I was told that I had to deem his progress as satisfactory using the pre-filled report writing software or I would be terminated because the school couldn't afford to be sued by the student's parents for failing their son? Again, another story for another day.

Complex social issues continue to rise in these classrooms and yet teacher training has not evolved to provide the knowledge and skills that these teachers need today. We see the Labour Party currently brandishing their education policy which includes $440 million for better ventilation, air purifiers, more outdoor classrooms and building upgrades (post-COVID), mental health support making classrooms safe for learning. They're offering fee-free TAFE (465,000 of which only 45,000 of those places appear to be new) and up to $20,000 new university places. None of this however would support the underlying issues of complex social problems that need to be addressed and not handballed to the school sector to manage, nor does it address the key topic of this article, pre-teacher training. As we all know, the race to the bottom for cost and making things free is a recipe for disaster that improves nothing. Fee-free this and funding that does not engage with the core issues is meaningless, an issue I found in my Master's degree in youth suicide prevention.

Adult Education and Training

What many people may not realise is that this is not what an adult education and training classroom looks like. In reality, in an adult education and training classroom, a large number of Australian adults are illiterate, innumerate or have challenges with Language, Literacy and Numeracy. Problems caused by issues, for example, described earlier, people leaving school early and/or not having equal access to education are among the leading causes of adults in our society today who cannot read or write at all or have a limited ability to read and write. This is one of the key reasons why it is up to the Vocational Education and Training (VET) sector to pick up the fallout of the sometimes incompetent school system and lack of governance (or a genuine attempt at addressing it) from both Federal government parties. They are both more than happy to talk about education because they know and understand just how much it matters to those they are elected to represent. However, sitting through Senate Estimate Committee Hearings gives some quick insight into just how much accountability there is for fixing the core issues.

Another area where there is a significant concern about adult capability is technological literacy, also known as the 'digital gap'. In 2011-2012, the Australian Bureau of Statistics presented findings of:

"an international survey coordinated by the Organisation for Economic Co-operation and Development (OECD). The results from PIAAC will assist in answering questions concerning whether Australians have the literacy skills required for meeting the increasingly complex demands of everyday life and work."

It provided information based on a range of questions to those people between the age of 15 and 74. In many States and Territories across Australia, 15 years of age is considered the youngest age at which compulsory education can be lawfully ended. Adult Learning Australia states that:

"...no surprise to people involved in teaching adults. And experts agree that this statistic is most likely higher because literacy levels in remote parts of Australia are not included in the data."

The Adult Learning Australia website tells the story of Rugby League star turned actor Ian Robert who recently confessed he had only learned to read properly at the age of 36. Being the first Rugby League player to publicly 'come out' as being a homosexual, he is quoted as saying that '...coming out as gay was a breeze in comparison to publicly admitting how much difficulty he had with reading and writing'. Sadly, he is not alone. Sadly too, there are far too many teachers and trainers and assessors out there who are ill-prepared to support students in either of those areas.

Other issues concerning adult education include technological literacy (as stated earlier) with many Australian adults not understanding how to use basic technology without aid. According to Australia's e-Safety Commissioner in 2018, approximately 34% of Australians aged 50 years and over (about 2.7 million people) either had low digital literacy levels or did not use digital devices or the intent. Therefore, not only are the VET and Adult Community Education (ACE) sector the main people now tasked with having to impart such a significant skill base in order to support adults to succeed in their learning journey, but they too are under-equipped to do so. The current qualification for becoming a trainer and assessor in Australia's VET sector is currently under review and the initial draft was released a couple of days ago. While there are many things that stand out to me regarding this new qualification, I can honestly say that the very things that students MUST complete versus what they actually do are chalk and cheese and there is already significant concern that the TAE Review is just more of the same, just a different flavour. There is not any education about how to manage classrooms, how to support students adequately and how to provide academic support and intervention to adults who have had lifelong learning issues. Nevertheless, I digress...

As an adult educator, on top of the LLN and IT skills and knowledge issue, there are plenty of other skills a trainer and assessor needs including psychology classes or a counselling course, multi-skilled and knowledge in relation to product management and commissions. More often than not, we are faced with Second Language learners, unwanted pregnancies, divorce, family violence, homelessness, addiction, mental illness, employment law and so much more. Yet, despite the complex social issues that adult learners present with, and considering that as per Maslow's Hierarchy of Needs, learning cannot occur until a learner's primary and most basic needs are met, adult educators are no different and perhaps, even more under-prepared, than secondary school educators.

Most trainers and assessors (including adult educators) in Australia's VET sector come from a vocational background and might have completed a Certificate IV in Training and Assessment or similar, some, like me, have completed higher education qualifications as well (or instead of) in adult learning but...the problem remains the same. We are all, hopelessly under-prepared to deal with these issues forced into the classroom because society doesn't have the capacity to address them elsewhere, they are often quite literally handballed to the VET sector to deal with. Don't get me wrong, I have seen plenty of trainers and assessors in my time go to the ends of the earth to support students, that's not what I'm saying. What I am saying is it is not their responsibility and even though it has become their responsibility, they are not provided with the skills and knowledge to help them succeed.

This is what takes me back to the newspaper article from this afternoon about the payout that the student received. Firstly, it will never be enough to cover the cost of what he and his family have lost or could have reasonably achieved through not experiencing this issue and what his needs are for the remainder of his life. The discussion about the value of that is another one for another day, probably by someone far more experienced in that field than I. Secondly, though, it is all too easy to blame it on the teacher...the same teacher who walks into that classroom every day trying to help make a difference in the life of others...the same teacher who is woefully underprepared for the role that they perform while the real culprits get away with it. Who are the real culprits? Well, that's also another topic for another day, and again, perhaps by someone more experienced in that field than I.

In reflecting on this though, I think it's important to consider something different.

As a dual-qualified secondary school teacher and an adult educator, I can honestly say that I have worked in some of the most challenging environments that there are for a teacher and do you know what? I was without a doubt, far more successful and my students obtained far better results than the norm. I've been a teacher in one of the toughest prisons in Australia, worked in juvenile justice centres and in specialist education programs with kids who, for whatever reason, could not survive in mainstream education. I've been caught up in hostage situations in Pentridge Prison, and I've been caught in the middle of an assault with a weapon in a juvenile justice centre. I've taught kids who come from the 'highest levels of society' whose kids are diagnosed with dual diagnosis issues of drug and alcohol abuse and mental illness, in prison because the kids got caught dealing and consuming illicit drugs who had no idea their kid was even on drugs because the family relationships had broken down beyond repair. I've taught some of the most intelligent people both in prison and in an alternative setting to mainstream schools and had the honour of teaching a man, aged 60 odd, how to read because all he wanted to do was to be able to read a bedtime story to his grandson that he'd never met when he got out of prison.

The difference? No, I wasn't trained to manage those situations differently, my training was the same. Yet, I felt safer than anywhere when I worked in these environments. There's something to be said about having well-resourced programs, specialist staff (not teachers) to support students with their complex life issues, students who value education and students who, once their primary needs are as met as they possibly can be, are more than happy to contribute what they can to learning and changing their situation. Even if that's only for 1 hour a day, they give you the best of themselves for that 1 hour and you can make a real difference to their needs at that particular time. Education is a funny thing. It doesn't have to be the typical black or whiteboard approach of a dictatorial type 'I'll tell you what you need to know and you will listen' approach. If you meet students where they are at and provide them with the tools and resources to grow, magic happens. You truly can transform a life. It's such a shame that politicians, pre-teacher education programs and TAE Reviews don't consider the importance of such valuable lessons, especially considering the cost to the system and the individual teacher when a court finds that the teacher is to blame.

I've been a fan of what Michael Emdin terms 'Pentecostal Pedagogy' for several years now. He talks about how making magic in the classroom requires teachers to go into those spaces where the magic is, in other words, the spaces where the student feels safe, engaged and the learning is completely embedded in the student's needs. I'm also a fan of Rita Pierson who says that 'Every kid needs a champion'. I would argue though, that it's not just kids that need the hero that Rita speaks of; we all need that. Certain parts of her talk resonate strongly with my experience of teaching:

"For years I watched my Mother...buy combs and brushes and peanut butter and crackers to put in her desk drawer for kids that needed to eat, and a washcloth and some soap for the kids who didn't smell so good. See, it's hard to teach kids who stink".

And then there's this one that probably resonates more with the teachers of today:

"You won't like them all, and the tough ones show up for a reason. It's the connection. It's the relationships. So teachers become great actors and great actresses, and we come to work when we don't feel like it, and we're listening to policy that doesn't make sense, and we teach anyway. We teach anyway, because that's what we do".

Ultimately, what does all this have to do with the court finding the teacher responsible for breaching her duty of care by not managing her classroom and preventing the eye injury (lost the iris of his eye) after the student and his classmates threw computer stands at each other. What else could she have done? The teacher confiscated the items and told one of the boys to leave the room due to his aggressive behaviour. According to the newspaper article:

"She then went outside to speak with him. During this time, the victim and another boy retrieved the confiscated computer stands from Ms Davis’ desk and once again began throwing them at each other...The sharp end of the stand penetrated the victim’s left eye and left him with injuries including the loss of his iris, and limited vision".

This teacher's management of this classroom behavioural incident is repeated around the country every day, thousands of times a day. This is what we teachers learn from our seasoned colleagues, not in any pre-service teacher training. It is also as far as teachers can go in trying to control a classroom issue like this. The community reasonably has an expectation that teachers will keep their kids safe at school but how would that change if they really understood what goe on in our classrooms and what skills and knowledge teachers learn in order for them to support and deliver that expectation? The ABC raised this issue last year in relation to a teacher in Townsville:

As reported by the ABC, two attacks in 10 months on Noel Gorringe by students in 2018 and 2019 were at the centre of a $750,000-plus personal injury claim against the Queensland Department of Education, filed in a Supreme Court civil suit in Townsville.

In Western Australia, a study was completed in 2020 regarding Teacher Directed Violence ("TDV") which showed that 8,500 students were suspended in 2007 for committing TDV and that 67.9% of participants had experienced TDV at least once in the past two years. Other accounts are published online on websites such as 'School News'.

This leaves us with many unresolved issues and significant confusion about just who is responsible for breaches of a duty of care in the provision of a safe classroom. I don't propose to list them all here but here are a few I can think of immediately:

1. Teachers get sued if they don't manage their classrooms.
2. Teachers are often not taught how to manage classrooms before they qualify.
3. There is a significant increase in Teacher Directed Violence.
4. The community expects their children to be safe at school.
5. Communities are hurting with significant and often multiple types of complex issues that are not the responsibility of teachers or trainers but rather the legal and health systems.
6. It doesn't matter how good a teacher you are, you will never eliminate the issue of classroom mismanagement unless the complex social issues are resolved first

While we're not quite at the stage of Dangerous Minds and Freedom Writers, we do have some of these issues present in our classrooms (both secondary and adult) today. Until policymakers understand that for there to be better outcomes from our education system, these cases will continue. Policy-makers need to understand that a more holistic approach to classroom management is needed and that the teacher can only be responsible to a point before their own safety becomes compromised.

I wrote about my experiences in prison education intentionally. While still not perfect, those environments are well resourced and the approach to supporting each person is holistic in nature. Not only are their educational needs met but they receive assistance and support with other areas of their lives too. This doesn't mean that such approaches need to be institutionalised either. The same can be achieved in an ordinary setting too provided the support, resources, funding and access are available.

I recall being on yard duty one day in one of the high schools I taught in. I was out on the oval trying to get the 'problem kids' away from the fences where people would visit at recess and lunch with cigarettes, drugs and inevitably, luring physical fights and other gang activities. On more than one occasion I recall being concerned for my own safety because there were no other teachers in the vicinity and I was vulnerable. What saved me? Probably the good rapport I had built with the students and 'Pentecostal Pedagogy'. When you can't rely on the system to protect you and the system is so bent it can no longer see itself in the mirror, what more can you do?

Post Published Update:

If you think as an RTO this issue is not relevant to you, you might be surprised to learn that you are. Many RTOs and trainers and assessors think that to comply, all they need to do is hold a valid and current Working With Children card or similar at a bare minimum - so much more than this is required though. If you're in Victoria, the VRQA has just released today (5 May 2022) an email to subscribers regarding the commencement of the new Child Safe Standards coming into effect on 1 July 2022. The following extract on the VRQA website is particularly relevant:

"From 1 July 2022, new VRQA Guidelines for VET Providers come into effect. They add an additional key area to the 5 in the current guidelines:

RTOs that deliver, or intend to deliver, services to persons under 18 years of age are required to comply with the Child Safe Standards.To download the new guidelines, see: New VRQA Guidelines for VET Providers (docx - 2.24mb)"

Not yet sure what this means for you? Watch the short video from the Commission for Children and Young People below.

What’s your opinion on this issue?

Share below in the comments.

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