Agnes McKay is the Principal of AGNESMCKAY LAW PRACTICE. Her key areas of practice are in business, workplace relations, and health and safety law. She has combined 30 years of legal experience in both New Zealand and Western Australia. Her clients have included School Boards, Principals, Senior and Head teachers, private training establishments and industry training organisations. Between 2013 and 2015, Agnes taught and became coordinator of the Masters Unit on Health and Safety Law at Murdoch Business/Law School. She also taught an Employment Law Unit for MBA and HR Masters Level students. Agnes currently mentors under the Murdoch Student Emerging Leaders (MSEL) 2017 Mentorship Program. Her latest law book is due to be published by Thomson Reuters New Zealand at the end of this month.
We had the pleasure of sitting down with Agnes recently to discuss key challenges and opportunities facing the sector today.
You can find the full Q&A below.
Your presentation will touch on risk management plans for school sport. Can you briefly discuss some key recommendations for schools?
I recommend that schools take a proactive role in formulating and regularly revising enterprise risk management (ERM) strategies and safety procedures for their school sports both on and off school grounds. An adequate risk management system is part of the duty to act reasonably. Central to determining civil liability for failure to exercise reasonable care and skill is the identification of risk.
What’s one tip you can offer when dealing with injury in school sport?
Take proper supervision. If a sports teacher delegates a task to a volunteer (e.g. taking an injured student to seek medical attention), FOLLOW UP to ensure the action has been carried out. If an injured student convinces the volunteer to let him or her go home instead, and the delay in proper medical attention results in a more aggravated injury (e.g. concussion leading to permanent brain injury) this could become a legal issue for the school. A failure to supervise is likely to result in a court finding that the failure is a direct cause of any injuries a student sustains.
Why is duty of care such a concern for school staff?
“Duty of care” is a concern for school staff because it involves “personal” liability for any harm done to others, in certain situations. Although the school is vicariously liable for the actions of its staff that does not automatically excuse the teacher or other staff who are responsible to ensure that their acts or omissions do not harm others.
Is it possible to put a limit on duty of care for schools?
Yes, it is possible to put a limit on the duty of care for schools. School sport comes with risk and those voluntarily participating may assume those risks, if they are warned of them. However there are specific statutory exceptions to this, covered, for example, in the Civil Liability Act 2002 and in health and safety legislation.
Are there any specific issues that school lawyers should keep on their radar in 2018?
Intentional misconduct or wrongdoing is a specific issue that school lawyers should keep on their radar in 2018. The potential breadth of possible liability of schools and staff, although based on fact and circumstances, is an ever-widening net, likely to capture any close connection between the enterprise and the wrong. If a school is held to be vicariously liable for the negligence of its employees, or admits to such, any finding as to assessment of general damages in one case is not binding on another (Hand v Morris & Anor  VSC 437 at ).
You can hear more from Agnes at the School Law: Duty Under the Microscope seminar, being held on Thursday 16 November at the Parmelia Hilton Hotel, Perth.