School Health and safety obligations for education outside the class: Lessons from Abbey Caves

6 May 2024
Author: Andrea Twaddle
 

Charges have now been filed in the District Court against the Whangarei Boys’ High School Board of Trustees, for an outdoor excursion to Abbey Caves that went tragically wrong. An initially intended rock climbing trip was changed to the caves when the weather forecast indicated bad weather. The trip proceeded despite forecasts turning to warnings of thunderstorms and flash floods, and when the weather rapidly worsened, a student on the trip drowned. The incident is a heartbreaking reminder of the obligations owed by School Boards for health and safety, and the necessity for conducting continuous risk assessment and mitigation when conducting activities outside the classroom.

Health and Safety at Work Act - Obligations

The School is considered a Person Conducting a Person Business or Undertaking (PCBU) under the Health and Safety at Work Act (the Act). Accordingly, it has obligations including:

  • Section 36(2): A PCBU must ensure, as far as reasonably practicable, that others (i.e. students) are not at risk due to work activities.
  • Section 36(1)(a): The PCBU must ensure the health and safety of its workers.

Worksafe has filed charges under sections 36(2), 36(1)(a), 48(1), and 2(c) of the Act. Charges are against the School Board, not individuals. Board members are protected from personal liability. 

The Act places a positive duty on officers of a PCBU to exercise due diligence to ensure that the organisation complies with its health and safety duties and obligations. This requires officers to take reasonable steps to understand the PCBUs operations and health and safety risks, and to ensure that they are managed so that the school meets its obligations. 

Most schools will have health and safety policies. Expectations within a policy may include, for example, ensuring risk analysis is carried out, information and training opportunities are provided to staff, employees and other workers are required to take reasonable care and to cooperate with procedures. 



Education outside the classroom (EOTC)

Schools are supported by Ministry of Education Guidelines when carrying out Education outside the Classroom (EOTC). The Guidelines include frameworks for EOTC safety management plans to ensure that those responsible for carrying out EOTC activities carry these out safely. 

EOTC events must be planned for, with thorough risk assessment and mitigation plans in place. Where external providers are involved, there is an obligation to engage between the PCBUs to ensure that there is clarity about how health and safety responsibilities will be shared. 

Continuous risk assessment necessary

In considering weather, there should be a continuous risk assessment. In the case of Abbey Creek, it is expected that Worksafe will assert that the school failed to plan for and deal appropriately with severe weather warnings before the trip, in breach of its duties. 

If convicted, the Board could be fined up to $1.5million, under s48(2) of the Act. However, this may reduce due to factors including guilty pleas, cooperation with Worksafe, remorse, good character and assistance after the incident.

Advice to school boards

This is not the first school trip during which tragedy has occurred. The charges are a reminder of the significant responsibility carried by those in governance and leadership for health and safety. Comprehensive risk assessments, and proactive hazard mitigation is critical to preventing tragedies such as this occurring. 

We recommend all school boards undertake a thorough assessment of their health and safety policies, together with their EOTC policies, to ensure that they are fit for purpose. This should include scenario testing for changes in circumstances.

DTI Lawyers advise many schools on matters including health and safety obligations. For assistance, you can contact our specialist team on 07 282 0174 reception@dtilawyers.co.nz.



 
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School Health and safety obligations for education outside the class: Lessons from Abbey Caves
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a member of the national Law Society Employment Law Reform Committee, a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a sought-after commentator and speaker on employment law issues at client and industry seminars. She provides specialist, strategic advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz