1. LEGAL LIABILITY Duty of Care – Be Aware… John Handley - October 17 2008

2. The 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….

3. Underlying trends in school 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

4. The Law of Negligence–“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

5. Reasonable 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.

6. 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.’

7. The 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

8. Areas 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

9. Know Department and School Policies • Internet Usage • Sexual Harassment * (next slide..) • Medication • Supervising non-teaching staff • Student travel in your car

10. Definition ofSexual Harassment The legal test has three elements: • The behaviour must be unwelcome • It must be of a sexual nature 3. It must be reasonable that the person who was harassed felt offended, humiliated or intimidated

11. 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

12. 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

13. You 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.

14. Who can be Sued? • State of Victoria • DE&T • School Council • Principal • Teacher • SSO • Volunteer $$$s

15. 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!

16. Employer’s Expectations Discipline Procedures - Department • Unsatisfactory Performance • Managing complaints • Serious Misconduct • Victorian Institute of Teaching

17. Role 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

18. 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…