QIEU Chapter Resources: Information Sheet 11
Duty of Care
It is important to stress that a duty of care will always be found between the school, teacher or school officer, and a student whenever the student is in care or custody of the school. Therefore, a duty of care will be owed in the following situations: (1)
During school hours when the child is in the classroom or on the kindergarten grounds
(2)
On excursions
(3)
When a child is undertaking errands or reporting to the office to be reprimanded
(4)
At potentially any other time the school or teacher or school officer attempts to exercise control over the students action
The duty owed by schools, teachers and school officer is to take reasonable steps to protect students from reasonably foreseeable harm. It is not a duty to ensure that no injury will ever be suffered by students. Given that a duty exists, it is necessary to look at the standard of care which will be expected of the school and its teachers and school officers in the circumstance. Such matters which must be considered are as follows: (a) (b) (c)
age; hazard; disability.
Breach of Duty of Care Once it is established that a duty is owed, it needs to be determined whether a breach of the duty of care has occurred. A breach will most often occur from: (1)
Failing to provide adequate supervision. Although teachers owe a duty to supervise, the duty may not be breached if an injury occurs in the absence of supervision where
Last Updated: 06/11/2008
there is evidence of a reasonable attempt to install a supervisory system to guard against injury ie teacher on patrol. (2)
Failing to provide adequate instruction. Whether this results in a breach of duty will depend largely on the age and capacity of the students and the risks involved.
(3)
Failing to intervene in a situation. Eg. You know that elastic bands are being thrown around the room but you fail to intervene. However, employees are not expected to put themselves at risk eg Knife wielding student. Where such a risk is involved, employees should inform the Principal.
(4)
A deliberate act eg Pushing a student down stairs.
Who will be Liable? The Employer will generally be liable for the registration licence of a teacher. However as all employees have a contractual duty to their employer to exercise reasonable care and skill, the legal position is that the, employer/employee’s insurer may seek reimbursement from the employee of payments made as a result of the employee’s proven negligence. An employee will usually only be liable to pay damages where: (1)
the employee has acted outside the scope of their authority or
(2)
wilful or serious misconduct is found on the part of the employee. eg. refusal to undertake a lawful direction
Defences in an Action for Negligence The following defences may be raised by a School or a teacher or a school officer in an action of negligence: (1)
Voluntary assumption of risk For this defence to succeed, it must be shown that the student understood the risk of injury and voluntarily incurred the risk. This may be rare incidence in the cases of very young children.
(2)
Contributory negligence This may be raised where the student is found to have contributed to their own injury, depending on their age and any disability.
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Protection from Potential Liability in Negligence Schools and teachers and school officers can minimise their potential liability by: (1)
Maintaining appropriate guidelines for activities and ensuring these are followed;
(2)
Acting promptly and intervening as early as possible when a potentially dangerous situation arises;
(3)
Properly maintaining equipment and confiscating dangerous implements;
(4)
Erring on the side of caution to accommodate potential explosive situations, particularly in supervising students;
(5)
Reporting dangers or potential dangers to the Principal;
(6)
Assisting injuries as soon as possible and making notes and obtaining statements from witnesses regarding the circumstances of any accident.
Liability Insurance The law relating to liability to pay damages for negligence will arise where three elements are established. (1)
There is a duty of care in the situation.
(2)
There has been a breach of this duty – a failure to take reasonable care.
(3)
Damage or injury has been caused or contributed to by the breach of duty.
Usually, initially the school is liable. However, employees have a contractual duty to their employer to exercise reasonable care and skill, the legal position is that the employer/employer’s insurance may seek reimbursement from the employee, as a result of the employee’s proven negligence. QIEU has an indemnity policy which covers members for amounts to which they become liable by way of compensation for claims arising out of any negligent act, error or omission occurring within Australia. It also covers costs and expenses incurred in depending or settling any claim that may be made. Like all insurance, eg Home and Contents there are always areas where particular circumstances will need to be investigated by the insurer prior to paying.
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Claims which have been brought about or contributed to by dishonesty, fraud or criminal or malicious acts are excluded. Primarily, the person involved should be provided with indemnity by their employer. However, there could be a number of reasons which result in the person not having their employer indemnify him/her. This could occur if the incident arose some time ago, and the School/College/Kindergarten had since closed, or where there was a serious rift between the teacher and the School/College/Kindergarten. The cover is one of “Contingent� Liability, and is not intended as a Primary Liability cover. Each member should ensure they have an adequate householder’s policy which should include a personal liability extension, for their activities other than at school. The union member cover is only for protection against claims arising out of your employment. The amount of this coverage for 2007 is:
SECTION
LIMIT
Primary Liability
$ 10,000,000.00
Actions relating to Molestation Umbrella Liability
$5,000,000.00
Professional Indemnity
$10,000,000.00 **
EXCESS/ DEDUCTIBILITY (T.P.P.D. only) $2,500.00 each claim $50,000.00 each claim
$95,000,000.00
$10,000.00 each and every claim ** This cover is for $20,000,000.00 in the aggregate (i.e. total value of claims in any one year)
Legal Assistance As another service, the Union offers 3 forms of legal assistance to members. 1.
2.
(a)
Free legal assistance may be provided to members in matters, both civil and criminal, arising directly from their employment. (b) (i) If a charge is brought against a member for a matter arising directly from the employment situation, the Union is able to provide legal representation for the member. (ii) The Union Council reserves the right to make a determination to meet no costs or a proportion of costs based on the particular circumstances of the matter. Subsidised legal assistance may be provided to members in relation to matters not arising directly from employment, but which could have a bearing on employment.
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3.
This assistance can be provided for criminal matters which do not arise from the employment situation, but for which a conviction may lead to dismissal. The extent of the Union subsidy would be 30% of legal costs. The Union’s solicitor would provide a 25% discount on fees as well. Extended legal assistance be provided to members for matters which do not fall within the two categories above. In such matters, the Union would arrange a free half hour consultation with the Union’s solicitors. The solicitors currently provide a 25% discount on their fees charged for performing work for the member arising from this consultation.
General (a) Legal assistance will not generally be provided, however, where one member is in dispute with another member. The Union will arrange legal representation, if necessary, through the Union’s solicitors. The Union is not responsible for any costs incurred privately by a member. (b) The Union will not meet legal costs where the member seeks advice without the Union’s approval. (c) Legal advice is provided only by the nominated firm of solicitors or their nominated agents.
Additional Information? If you would like to know more about Duty of Care, please contact your union organiser or your union office: Brisbane Office Townsville Office Bundaberg Office
Last Updated: 06/11/2008
(07) 3839 7020 (07) 4772 6277 (07) 4132 8455