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.” 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 of Sexual 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

11. What is Sexual 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…