NEGLIGENCE: A POTENTIAL SOURCE OF LIABILITY FOR PHYSICAL EDUCATION TEACHERS IN NIGERIAN SECONDARY SCHOOLS

Transcription

1 NEGLIGENCE: A POTENTIAL SOURCE OF LIABILITY FOR PHYSICAL EDUCATION TEACHERS IN NIGERIAN SECONDARY SCHOOLS By Dr. M.O. Mgbor ABSTRACT This paper examines the concept of negligence as it affects the secondary school physical education teacher in his new role of implementing the in structural programme of the physical education curriculum. A number of situations whereby the physical education teacher may be held liable for negligence are discussed as well as the premises for basing his defense should the need arise. Some recommendation are made to guide physical education teacher in the performance of his duties within the framework of the law so as to avoid the unpleasant consequences of liabilities. INTRODUCTION The history of physical education in Nigerian schools dates back to the period of early missionary activities about the year These missionaries notably the British brought their religion, western styled education and sports into Nigerian school. They were the first to Introduce such sports as cricket, football, athletics and tennis into schools and colleges in Nigeria. Before this period, however* training in physical activities had been one of the cardinal alms of traditional African education as noted by Fafunwa (1974). In 1933, there was a significant breakthrough In the teaching of physical education in Nigerian Primary schools when the British Board of Education drew up a physical education syllabus for primary school in Britain and the colonies (Laoye and Ackland, 1981). From that time till today, Physical education has remained a feature of the school curriculum in Nigeria, particularly at the primary level. In 1977, the intention of the Federal Government of Nigeria to make every child participate in meaningful programmes of physical education was concretised with a policy statement that placed emphasis on physical education at all levels of the education system in Nigeria (National Policy on Education, 1977, 1981). Consequently, Physical education has become a core course at the Junior secondary schools throughout Nigeria today. This Is indeed a very interesting development to a discipline that had been previously seen and operated as games and athletic programmes and practised in the evenings or after school hours (Fatile 1976, Ajisafe 1978, and Ojeme 1981). The shift in emphasis from a recreational physical education programme practiced in the evenings to an instructional programme definitely places additional responsibilities on the average physical education teacher. Apart from organising the evening games and athletics, he would now teach physical education under formal instructional settings like the classroom gymnasium and playgrounds. This additional role of teaching physical education as an instructional subject would surely put more pressure on the average physical education teacher, not only because of the increased number of participants under the formal classroom situation but also as a result of the scanty and often poorly maintained facilities and equipment. Under this

2 condition, where participation is mandatory, classrooms over-populated and facilities and equipment scanty, the incidence of injuries is likely to increase. This brings to mind the need to examine the issue of negligence and liability as they affect the physical education teacher in his new role. The problem: A critical analysis of the physical education teacher preparation programmes of tertiary institutions in Nigeria shows that the issue of legal liability of th physical education teacher is not given adequate emphasis. In the best of the performances, a topic is usually taught on legal liabilities in the course; "Organisation and Administration or physical education and sports programmes". This inadequacy is perphas not limited to Nigerian Institutions alone because as Resick et al. (1975) observed teachers, supervisors and coaches are not expected! to receive a legal education before assuming their responsibilities within the school system. That being the case, it is pertainent to observe that such an arrangement is clearly inadequate especially when viewed against the background of the heavy responsibilities which the physical educator bears in this area. A negligent act could cause the physical education not only serious embarrassment but also might result in the loss of job with other attendant serious consequences. Since the principle of unqualified 'action which states that one Is ignorant at one's own risk, and ignorance is not an acceptable in law is in force, it becomes necessary to highlight some of these factors which are likely to result in negligence on the part of the physical education teacher so as to enable him function more effectively within :he legal framework of his profession. The concept of Negligence Neligence has been defined as failure to take proper care of precaution (Hornby 1970). It is the unintentional breach of a legal duty causing damage reasonably foreseable without which breach the damage would not have occurred. (Snissen 1977) Rosenfield (1940) and Leibee (1979) further stated that negligence consists of the failure to act as a reasonably prudent and careful person would act under the circumstances to avoid exposing others to unreasonable danger or risk of injury or harm. In the opinion of Black (1979), negligence is the omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do. It also means the doing of something which a reasonable and prudent man would not do. Negligence is therefore, failure to use such care as a reasonably prudent and careful person would use under similar circumstances. The National Education Association (1950) in the United States of America summaries the concept of negligence as: any conduct which falls below the standard established by law for the protection of there against unreasonable risk of harm. In general, such a conduct may be of two types: (a) an act which a reasonable man would have realised involves and unreasonable risk of injury to others; and (b) failure to do an act which is necessary for the protection assistance of another and which one is under duty to do. For the successful proof of negligence, Bucher (1983) notes that the following factors are

3 necessary; (a) the defendant must owe a "duty" to the plaintiff. Physical Education teachers like other teachers as well as sports coaches are duty bound to protect their students or athletes. Teachers are generally seen as acting in place of the parents or children they teach; (b) that a tort or wrong must have been committed against the plaintiff, his property or character. His mental, physical or emotional health may have been injured in one way or another. (c) that a person having the duty may have breached" that duty either by an act of omission (inability to foresee the problem) or by an act of commission (mistake in his action); and (d) that the act of omission or commission must be directly responsible (proximate cause) for the cause of the harm or injury done to the plaintiff. Physical Activities and School Accidents Authorities generally agree that the very nature of physical activities involves some measure of risks and hazards, because of the fact that children are in the act of moving and changing positions in response to Instruction (Bucher 1983, Resick et. al. 1975). Physical education settings such as the gymnasium and the playgrounds are, therefore, often the site of more accidents than any other area in the school. A comparative study of accidents in the United States by Anderson and colleagues (1978) revealed that 43% of all accidental deaths among school age children were connected with school life. Similarly the 1972 edition of "Accident Facts" published by the National Safety Council of Chicago (based on the report of more than 35,000 cases of school jurisdiction accidents for the school year) equally showed that a majority of them occurred on the playgrounds, physical education classes as well as during intramural and interscholastic sports (Resick et al 1975). Bucher (1989) has also asserted that approximately 67% of all school jurisdiction accidents involving boys and 59% involving girls occur in physical education and recreation programmes. Although in Nigeria, records of school jurisdiction accidents are scanty and sometimes non-existent, Emenike (1986) observed that accidents have been a major problem in our educational institutions especially at the primary and secondary schools. In his assessment, the primary level appears to be more suspectible to accidents because of the tender age of the children, and some other physical and physiological factors associated with their age. Whether records of school accidents are kept or not, another factor which appears to be working in favour of the physical education teacher at present is that Nigerians are not very litigious, Infact Okeke (1988) expressed this very succinctly when the remarked that Nigerian hardly ever exercise their legal rights even in the face of provocation because they hardly ever stop to relate law to all their activities. This is definitely a welcome trend, however, it might be short lived. It is obvious that with the increased awareness by the public often associated with the increase in the number of lawyers, the situation may change sooner or later. This is because of the fact that the law court is the civilized man's avenue for seeking redress for any wrong doing. Potential Sources of Negligence By Physical Education teachers This writer has been involved in physical education teacher preparation programmes for the past twenty years. This involved, teaching, coaching, counselling, and supervision of pre-

4 services and in-service physical education teachers. During this period, the following known potential sources of negligence have been observed. Poor Selection of Activities The professionally qualified physical education teacher is assumed in law to possess adequate knowledge of both the nature of the activities and the developmental level of the children under his care. Sometime, however, the over-zealous young teacher goes out of the normal practice to select activities beyond the capabilities of his learners. The reason often given is that it is a method of providing challenges to the learners. Accidents are here likely to occur when children perform skills well above their level of development. The teacher therefore, may be liable for injuries arising from such practices. Inadequate Supervision of Learners Poor supervision of learners is another source of potential negligence. Experience has shown that sometimes, the physical education teacher may come late or be totally absent from a scheduled activity class. Meanwhile the learners may be on the designated play area either waiting idly or actually trying to practice skills with available facilities and equipment. Under such a situation where the teacher, is absent without any authorised substitute, the risk accident and injury is increased and the teacher may be found liable. Use of Faulty Equipment Facilities and equipment for physical education programme are scanty and In most cases non-existent in most schools in Nigeria. Sometimes, the available facilities or equipment for programme implementation are poorly maintained for obvious reason of inadequate funds. The physical education teacher under pressure may be tempted to manage the faulty equipment to get the programme going. This writer witnessed, an incident where some make-shift supports we provided for a faulty vaulting box which collapsed at a time a participant was using it leading to a fracture of the left humerus. Such incidents expose the teacher to liability arising from the use faulty equipment. Improper Dressing/Inadequate protection Sports requiring protective device like hockey, cricket and handball are and already popular in Nigerian secondary schools. However experience has shown that sometimes participants are allowed in these sports without wearing the appropriate protective devices. The explanation often given is that those protective are not available. There is the need to emphasise that injuries arising from such improper dressing may result in liability on the part of the teacher. Hazardous Conditions Hazardous conditions abound in the playgrounds that can be foreseen and eliminated by the teacher. It is common to see playgrounds abused by tresspasers and other unauthorised activities. Potholes, stores, broken bottles, unpadded poles are some of the hazards commonly found on the playground of the average schools in Nigeria. This is particularly the case where no form of security fencing is provided or the school is in the centre of the town. Injuries resulting from such foreseable hazards would lead to liability on the part of the physical education teacher.

5 Negligence in athletic participation Unequal competition is another source of injuries in physical education programmes. This happens when children are grouped together for activities with out proper consideration for their age, sex and level of skill. It is assumed that the physical education teacher knows the implications of these differences and should consider them when grouping children for purposes of competition so as to avoid injuries. Defence against Negligence There are a number of premises on which the physical educator may base his defence if accused of negligence. These are: 1. Proximate cause: For a case of negligence to be established, the act of omission or commission must be direct or proximate cause of the plaintiff's injury or damage. An example was the case involving Ohmon versus the Board of Education of the City of New York in In that case, it was declared that when a 13 year Old pupil in a public school was injured in the eye by a pencil thrown in the classroom by another pupil to a third pupil who stepped aside, the proximate cause was an unforeseen act of the pupil who threw the pencil and the absence of the teacher from the classroom was not the proximate cause of the injury. The teacher was- therefore not found liable (Bucher 1983). An Act of God Accidents resulting in injuries or damage could occur due to certain conditions beyond the control of human beings for example a flash or lightning and thunder could result in injuries. It is assumed that those factors are beyond the control of man. This assumption is however, applicable only when all necessary prudent measures have been taken to avoid injuries. Assumption of Risks It is assumed that an individual takes a measure of risk 'when engaging in physical activities where there is body contact and where apparatus and balls are used. This premise for defence further underscores the importance of physical activities to the wellbeing of the individual. Although, participation in activities involves a measure of risks, the benefits derived outweigh these risks if all prudent measures are taken to avoid injuries. Contributory Negligence A person may contribute to the negligent act if he does not act as a normal individual of similar age and nature and injuries result therefore. Individuals may expose themselves unnecessarily to dangers. Contributory negligence is a conduct on the part of the injured person which falls below the standard to which he should conform for his own protection and which Is legally contributing cause cooperating with the negligence of the defendant In bringing about the plaintiff's harm. In the case of contributory negligence, teachers in elementary schools have more responsibility than those in secondary or tertiary Institutions because of the age or the children. Sudden Emergency Sudden emergency is pertinent in a case where the exigency of a particular situation require immediate action on the part of the teacher. An example is a situation where a student is drowning in the pool and the teacher in an attempt to rescue him knocks down another student resulting in some injuries. The teacher could base his defence against negligence on the fact that

6 the situation was an emergency that required such an urgent action and so any injuries arising from that action could not be due to negligence. CONCLUSION Physical Education teachers in secondary schools in Nigeria are facing new challenges in the implementation of the instructional physical education programme. This new role also exposes the average physical education teacher to a number of instances where he could be found negligent in the performance of his duties. If the physical education teacher is to avoid the unpleasant consequencies of liability, there is the need to demonstrate a high sense of responsibility in the performance of his duties. RECOMMENDATIONS To avoid the unpleasant consequences of liability, the following recommendations are made: 1. Activities should be selected strictly to suit the age, sex and developmental level of the learners. These factors should also be considered when grouping learners for competition after teaching the skills. 2. The physical education teacher must be present and punctual for all practical classes where items of equipment are to be used by students. If he has any reason to be absent, the class could be rescheduled or he should make sure there is another qualified physical education teacher to handle the class. 3. All faulty items of equipment must be removed from the play ground and properly stored under lock and key. 4. Facilities such as play-grounds and swimming pools should be inspected before they are put to use by the learner so as to remove any foreseable hazards likely to cause injuries to participants. REFERENCES Ajisafe, M.O. (1978). The Quality and level of development of Physical Education for Nigerian Secondary Schools. Jonapher, Vol. 1, No. 1. Anderson, C.L. (1978). School Health Practice, St. Louis. C,V. Mosby Company, Black, H. C. (1979). Black Law Dictionary, St. Paul West Publishing Company. Bucher, C.A. (1983). Administration of Physical Education and Athletic Programmes. The C.V. Mosby Company, St. Louis. Emenike, E.U.I. (1989). Safety Measures associated with outdoor swimming pools, Physical and Health Education Journals. Vol. 3, No. 1. Fafunwa, A. B. (1974). History of Education in Nigeria, George Allen and Unwin. Fatile, A. O. (1976. An Exploratory study of problems of physical Education in Secondary Schools. Nigerian Education Forum, Vol. 2, No. 2. Hornby, A. S. (1974). Oxford Advanced Learners Dictionary of Current English. London: Oxford University press. Laoye, J. A. and Ackland. J. W. (1981). Principles of Physical Education for Nigerian Teachers Colleges, Ibadan : University Press ltd. Leibee, B. C. (1976). Tort Liability for Injuries to pupils. Daughtrey G. and Woods, J. B. Physical

7 Education and Intramural programmes. Organisation and Administration. Philadelphia W.B. Saunders Company. National Policy on Education (1981), Lagos: Nigerian Educational Research Council Press. Ojeme, E. O. (1982), Secondary School Physical Education in Nigeria; Its past, Present and Future. Okeke, C.N. (1988). Some Legal aspects of Sports. A paper resented at a two day conference organised by the National Sports Commission, Enugu.