Summary - Schools should check insurances of third party service providers before excursions or sporting activities.
We have previously discussed the case of Harris. But to recap, Mr Harris sustained a back injury in the course of a school excursion to the snow. Students who were "beginners" were placed in learn to ski classes which were conducted by ski instructors employed by Perisher Blue at Smiggins Hole. The teachers from the school took no part in supervising the classes. Mr Harris was a beginner. He sustained a back injury when he lost control going over a mound while descending a gentle slope, during the learn to ski class. He landed in a ditch.
Mr Harris sued the school and later joined Perisher Blue. He succeeded in establishing that it was negligent to conduct a beginners' class in an area where there was a mound and a ditch.
The District Court Judge who heard the case attributed the negligence wholly to Perisher Blue and found that the school and its teachers had not been negligent. However, relying on section 5Q of the NSW Civil Liability Act, the Judge found that the school was vicariously liable for the negligence of Perisher Blue and therefore entered judgment against both the school and Perisher Blue. However, the Judge ordered Perisher Blue to indemnify the school for its liability to the plaintiff.
Perisher Blue has filed an appeal.
A school can be vicariously liable for the negligent actions of an independent contractor to whom it has entrusted its students, even if the negligence occurs wholly within the scope of the task which the independent contractor has been retained to perform.
On a practical level, schools must ensure that persons or organisations to whom they entrust their students have insurance or the financial capacity to meet any potential liability. Otherwise, the indemnity which a school might obtain from an independent contractor might be worthless in which case the school would be left to pay the judgment.
Schools should check the insurances of such persons/organisations, whether they be external coaches, venue operators, transport providers, excursion providers, etc before entrusting their students to their care.
