legal liability
DESCRIPTION
LEGAL LIABILITY. Duty of Care – Be Aware…. John Handley - October 17 2008. 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 - PowerPoint PPT PresentationTRANSCRIPT
![Page 1: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/1.jpg)
LEGAL LIABILITYLEGAL LIABILITY
Duty of Care – Be Aware…
John Handley - October 17 2008
![Page 2: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/2.jpg)
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….
![Page 3: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/3.jpg)
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
![Page 4: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/4.jpg)
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
![Page 5: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/5.jpg)
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.
![Page 6: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/6.jpg)
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.’
![Page 7: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/7.jpg)
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
![Page 8: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/8.jpg)
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
![Page 9: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/9.jpg)
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
![Page 10: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/10.jpg)
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
![Page 11: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/11.jpg)
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
![Page 12: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/12.jpg)
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
![Page 13: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/13.jpg)
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.
![Page 14: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/14.jpg)
Who can be Sued?Who can be Sued?
• State of Victoria
• DE&T
• School Council
• Principal
• Teacher
• SSO
• Volunteer
$$$s
![Page 15: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/15.jpg)
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!
![Page 16: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/16.jpg)
Employer’s ExpectationsEmployer’s Expectations
Discipline Procedures - Department
Unsatisfactory PerformanceManaging complaintsSerious Misconduct
• Victorian Institute of Teaching
![Page 17: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/17.jpg)
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
![Page 18: LEGAL LIABILITY](https://reader033.vdocument.in/reader033/viewer/2022061507/56815937550346895dc671b4/html5/thumbnails/18.jpg)
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…