LEGAL LIABILITYLEGAL LIABILITY

Duty of Care – Be Aware…

John Handley - October 17 2008

The Legal FrameworkThe Legal Framework• Crimes Act Education and Training Reform Act• Privacy Act Children, Youth and Families Act

(Mandatory Reporting)

• Occupational Health and Safety Act• Sex Discrimination Act• Family Law Act• Equal Opportunity Act• FOI Act VIT Act• Accident Compensation Act• Workplace Relations Act / WorkChoices• ….. Plus too many others….

Underlying trends in school Underlying trends in school litigation.litigation.

• Increasing culture of blame/bullying/harassment

• Awareness of individual rights legislation

• Dysfunctional and “high need” families

• Safety in schools: recent OH&S reforms

• An “injury” now specifically includes “psychological” injury to health

The Law of NegligenceThe Law of Negligence – “I’ll sue you for that.” I’ll sue you for that.”

• Not a Crime

• Based on the notion that we all have a duty not to cause injury to others by our actions or inactions

• Judged on the test of what is reasonable

Reasonable Care TestReasonable Care Test

• Was supervision adequate?• Was it a safe environment?• Was it foreseeable or

preventable?

The answers to these 3 questions will determine whether a breach of Duty of Care has occurred.

When does a Duty of Care exist ?When does a Duty of Care exist ?

Whenever:• A Teacher/Student Relationship exists

• A service is in control of students’ actions

• Courts have moved beyond the actions of a ‘reasonable parent test’ (in loco parentis) to that of the ‘reasonable teacher.’

The Reasonable Teacher TestThe Reasonable Teacher Test

Courts have established these components in judging a teacher’s liability:

• Knowledge (but don’t rely on - “no-one told me”)

• Experience

• Common Sense

• Professional Judgement

Areas of ConcernAreas of Concern Before and After School Classroom School Yard Camps and Excursions Unsuitable Activities Unsafe Equipment Special Training >First Aid >Outdoor Education >Student Welfare >Careers Physical Contact On the sporting field

Know Department and School Know Department and School PoliciesPolicies

• Internet Usage• Sexual Harassment * (next slide..)

• Medication

• Supervising non-teaching staff

• Student travel in your car

Definition ofSexual Harassment

The legal test has three elements:

1. The behaviour must be unwelcome

2. It must be of a sexual nature

3. It must be reasonable that the person

who was harassed felt offended,

humiliated or intimidated

What isSexual Harassment?

• It can be physical, verbal or visual and

may include statements or transmissions

by phone, fax, internet and e-mail

• It is behaviour that is uninvited,

unreciprocated and unwelcome

• Even if the behaviour is not intended to be

offensive it may still be unlawful

Examples of Sexual Harassment

• Comments about a person’s private life, sex life or physical appearance

• Comments of a sexual nature

• Suggestive behaviours such as leering and ogling

• Unnecessary physical intimacy such as brushing up against a person

• Physical contact such as touching or fondling

You and the LawYou and the Law……

• Mandatory Reporting: a belief is more than a suspicion, but you don’t have to have proof or investigate…

• Freedom of Information (report writing/incident reports/diary notes)

• Family Law

• Remember you are a teacher, not a lawyer – get professional, expert help through the AEU.

Who can be Sued?Who can be Sued?

• State of Victoria

• DE&T

• School Council

• Principal

• Teacher

• SSO

• Volunteer

$$$s

Are You Indemnified?Are You Indemnified?• Not automatic• Employer will judge your actions:

Were your actions reasonable?Was there contributory negligence?

• Department Discipline procedures instigated

• Termination possible • You can be sure of one thing – when you turn around the

Department will be nowhere to be seen!

Employer’s ExpectationsEmployer’s Expectations

Discipline Procedures - Department

Unsatisfactory PerformanceManaging complaintsSerious Misconduct

• Victorian Institute of Teaching

Role of the AEURole of the AEU• Initial contact and support• Explain the process • Draft written response• Clarify issues• Discuss with DE&T/Principal/ Lawyers• Attend meetings/Investigation• Offer ongoing advice/counselling• Representation• Referral to AEU lawyers• Fund legal advice/representation

Member or Non-Member?Member or Non-Member?

• You must be a member at the time of an incident.

• You can’t insure your house after it burns down….

If you are not in the AEU you are playing with a loaded gun…