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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…