The unfortunate, and avoidable death of a three-year-old girl abandoned in a school bus in October last year, and the subsequent closing of the school involved, should serve as a salient lesson to those involved in the provision of school transport services. Schools must consider their potential liabilities with respect to the transport services provided to their students and ensure that the private companies they have contracted with for transport services are complying with the law.
Schools in the UAE must be aware that the organisation of school bus transport services for their students is subject to specific regulations.
- In Dubai, the Roads and Transport Authority have issued the School Transport Guiding Manual (pursuant to Order No 2 of 2008) which “establish[es] the responsibilities of school managements, operators, school bus drivers, students and parents” with respect to school transport.
- In Abu Dhabi, school transport services are regulated by the provisions set forth in Decision No 35 of 2012.
A breach of the Regulations may result in the schools and their personnel being exposed to both criminal and civil liability.
In this article we discuss:
- The obligations owed by the schools under the Regulations;
- The potential liabilities of the schools and its employees for any harm or death caused in the course of or as a result of the provision of the school bus transport services; and
- Steps schools can take to minimise the risks of being subject to criminal or/and civil liability.
Obligations on schools under the Regulations
The Regulations are designed to set the standards in carrying out the school transport services in each Emirate. The terms of the Regulations are deemed to be of public interest, and as a result, any decisions or provisions contrary to its terms will be deemed as void. The duties of the schools and operators are set forth in significant detail under the Regulations. Most notably, the Regulations impose on the schools a wide obligation to ensure that all buses and their operators comply with the safety and technical standards outlined in the Regulations. Article 11(A)(9) of the Abu Dhabi Regulation imposes on the schools a wide obligation to “continuously ensure that the buses are maintained and kept consistent with the safety standards and approved technical specifications”. In Dubai, the schools are obliged to “amend all school bus specifications to fit the school bus specifications” and must ensure that the drivers “maintain good conduct before the students”. These provisions could arguably hold the schools liable in the event other parties involved in the provision of school transport—such as a private operator, the drivers or the supervisors—are in breach of their own duties under the Regulations.
It is worthwhile to highlight that the Regulations address in considerable detail the safety standards for the following issues:
- Technical standards: From the buses’ external appearances to the equipment and features on board, the buses are subject to a very specific set of standards, which the operators must comply with in order to operate. Most recently, the Executive Committee of School Transport Services in Abu Dhabi has issued an order requiring the schools to install seat belts on all school buses.
- Qualification of personnel: Under the Regulations, school bus operators must appoint both a driver and a supervisor to accompany the students during their journey. These personnel must meet specific qualifications and undergo training approved by the Emirate’s respective department of transportation before they are permitted to work.
- Responsibilities of parents: The Regulations impose a duty on the parents to educate their children on the rules of safety and to report any offences from the driver. In Abu Dhabi, parents of the students are required to sign a letter of undertaking, which states that the parents will ensure, amongst others, that their children are aware of and will follow the safety rules; that the parents or an appointed guardian will be present to receive their children at the designated time, and that the parents will provide any update on their children’s presence/absence to the schools.
Potential liabilities of schools and their employees for breaching the Regulations
As a result of the schools’ general duty to ensure that the buses and its operators comply with all the standards set forth in the Regulations, schools are exposed to a potentially high risk of criminal and civil liability under UAE law. In the event of harm or death caused in the course of or as a result of the provision of the school transport services, schools and their employees should be mindful that that are likely to be held liable in the following circumstances:
a) Criminal liability
As raised in the trial for the death of the three-year-old girl in Abu Dhabi, those involved in causing the harm or death of an individual may be charged for exposing an individual’s life to danger. Under Articles 348-349 of Federal Law No. 3 of 1987 (as amended) (the Penal Code) the penalty for such crime, whether committed intentionally or not, is imprisonment whenever injury has resulted from such act, with the possibility of prescribing more severe punishments in certain cases.
Under Article 342 of the Penal Code, individuals who, by their fault, cause the death of another person, will be subject to criminal liability if the crime was committed as a result of the individual’s failure to perform their professional duties. In similar terms, Article 343 provides for the criminal liability of an individual in the event the person causes an “injury to the physical integrity of another person”.
The existence of fault will be evaluated in respect of any positive or passive infringement of an existing duty. Therefore, if a school becomes aware of a violation of the standards set out in the Regulations and fails to remedy it, the school, its employees and managers, would be exposed to a high risk of liability should an incident causing harm or death occur.
Sanctions include prison sentences ranging from a few months to seven years, and a prison fine. The courts have the discretion in determining the sanctions to be imposed, including the payment of any diya (blood money) or arsh (compensation for injuries).
b) Civil liability
In addition to any criminal liability, schools should be aware that pursuant to Article 269 of Federal Law No. 36 of 1992 (as amended) (the Criminal Procedure Code), findings of criminal liability will generally be binding on a civil court.
In the event of a finding of a criminal liability resulting from a breach of the provisions of the Regulation, a school and/or its employees may be held liable under the general provisions of civil (tortious) liability provided under Articles 282-284 of Federal Law No. 5 of 1985 (as amended) (the Civil Code). Under these provisions, a person causing harm to another will be liable to make good the harm. Therefore, the Courts will have the discretion to determine whether any further compensation is owed to the injured party(ies) as a result of any harm/death caused to the students.
Moreover, even if the schools have not committed any wrongdoing, it is possible that the schools could be held vicariously liable for any harm caused by its employees or even the school bus operator.
The concept of vicarious liability is recognised under Article 313(1)(b) of the Civil Code, which states in its terms:
“No person shall be liable for the act of another person. Nevertheless, a judge may, upon the request of an aggrieved party and when justified, obligate any of the persons mentioned below . . . to pay any compensation awarded against the person who causes the damage . . . (b) the person who has actual supervision and directive powers over the person who causes the damage, notwithstanding that he may not have freely chosen him, if the harmful act is committed by the said person in the course or by reason of carrying on the duties of his post”.
The UAE courts have given a broad interpretation of the concept of vicarious liability. The key criterion is that the employer has actual supervision and control over the wrongdoer. Therefore, by regulating and overseeing the school transport services, schools could arguably be considered as having an effective control over the provision of the services and could accordingly be held vicariously liable for the acts committed by the school bus drivers, the children’s supervisor, and the school bus operators.
Recommendations to minimize the school’s liability exposure
Clyde & Co has assisted a number of schools in the UAE on various issues relating to the liability of schools in the operation of school transport services, including issues arising out of the regulations imposed by the various jurisdictions. In view of the potential liability exposure highlighted in this article, schools would be well-advised to consider taking the following steps with respect to their school transportation arrangements:
- Select a government-authorized entity to provide school transport services;
- Ensure that parents of students using the school bus transport services sign a letter of undertaking as provided in the annexure of the Regulations;
- Conduct an audit of the school bus operators’ designated vehicles and drivers to ensure compliance with the terms of the Regulation. (Clyde & Co would be pleased to provide any assistance on this process);
- Report any violations of the Regulations to the school transport service operators and request that such violations be remedied forthwith; and
- If any amendments to any technical specifications are required, the schools should request that the school transport service operators apply to the Department of Transport to request that these amendments be authorised.