Duty of Care Policy. Ratified by the School Board: 16 April, 2011 Version: 2.0 (August 2011)

Transcription

1 Duty f Care Plicy Ratified by the Schl Bard: 16 April, 2011 Versin: 2.0 (August 2011)

2 Table f Cntents 1. Plicy Backgrund Intrductin Definitins Caring Duty f Care External Prvider Nn- Teaching Staff Schl Activity Student Teaching Staff Vlunteer Relevant Legislatin r Authrity Prcedures Reasnable Care Assessing the Risk Invlved in a Schl Activity Teaching Staff Nn- Teaching Staff, Vlunteers, External Prviders... 8 Appendix A Duty f Care Schl- Based Applicatins... 9 Appendix B Liability Versin: 2.0 Duty f Care Plicy Page 2 f 13

3 1. Plicy Teaching staff we a duty t take reasnable care fr the safety and welfare f students whilst students are invlved in schl activities r are present fr the purpses f a schl activity. The duty is t take such measures as are reasnable in all the circumstances t prtect students frm risks f harm that reasnably ught t be freseen. This requires nt nly prtectin frm knwn hazards, but als prtectin frm harm that culd freseeably arise and against which preventative measures can be taken. In discharging their duty f care respnsibilities, teaching staff must exercise their prfessinal judgement t achieve independence and maximising learning pprtunities. When nn- teaching staff, vlunteers and external prviders agree t perfrm tasks that require them persnally t care fr students (in the absence f a member f the teaching staff), they will als we a duty t take such measures as are reasnable in all the circumstances t prtect students frm risks f harm that reasnably ught t be freseen. 1.1 Backgrund Intrductin Duty f care is a legal cncept that has its rigins in the cmmn law. The cmmn law is a cllectin f legal principles that have been established ver time by the curts. The duty f care principle nt nly underpins, but t a - teaching staff, external prviders and vlunteers may we students a duty f care. 1.2 Definitins Caring Caring fr students may assume different meanings depending n the cntext. Hwever, examples include (but are by n means limited t) nt putting students at risk by ding smething r failing t d smething that culd cause the student t suffer injury r harm, taking precautins, intervening t prevent bvius hazards frm causing injury r harm, fllwing safety prcedures and prviding adequate instructins t students Duty f Care A duty impsed by the law t take care t minimise the risk f harm t anther External Prvider A business/individual paid by the schl t prvide a venue, service and/r expertise apprpriate t a particular schl activity. Examples Private music teacher, swimming instructr, Melburne Z, Melburne Sprts and Aquatic Centre Nn- Teaching Staff Emplyees f Sphia Mundi Steiner Schl wh are nt members f the teaching staff, including the Principal and the Chaplain. Examples Educatin assistants, registrars, schl fficers, farm supervisrs and assistants, librarians and library assistants, labratry assistants, exam supervisrs. Versin: 2.0 Duty f Care Plicy Page 3 f 13

4 1.2.5 Schl Activity An activity that is rganised r managed by a member f the teaching staff r nn- teaching staff as part f his r her duties. s Where an activity is nt a schl activity, it is gd practice t advise parents/guardians f that fact, and that the schl assumes n respnsibility fr the supervisin f students and fr any aspect f the activity. Schl activities may take place either n r away frm schl premises, and either during r utside f schl hurs. In sme circumstances, a duty may be wed t students wh arrive early fr the purpses f a schl activity and whse presence is knwn r ught t be knwn by schl staff (fr example, see Appendix A, Duty f Care: Schl- Based Applicatins Students n schl grunds befre schl). In sme circumstances, a duty may be wed t students wh remain at a place after participating in a schl activity and whse presence is knwn r ught t be knwn by schl staff (fr example, see Appendix A, Duty f Care: Schl- Based Applicatins Students n schl grunds after the clse f schl) Student A child wh is enrlled at Sphia Mundi Steiner Schl Teaching Staff Any persn required t be registered t undertake duties as a teacher. s Under the Educatin and Training Refrm Act 2006, a teacher is a persn wh, in a schl, undertakes duties that include the delivery f an educatinal prgram r the assessment f student participatin in an educatinal prgram Vlunteer An adult r rganisatin wh/which ffers services fr schl activities, but receives n remuneratin r reward frm the schl fr the services prvided. Examples Parents/guardians and ther relatives, cmmunity members, emplyers wh accept students n wrk placements, student teachers. 1.3 Relevant Legislatin r Authrity Educatin and Training Refrm Act 2006 Educatin and Training Refrm Regulatins 2007 Occupatinal Health and Safety Act 2004 Occupatinal Health and Safety Regulatins 2007 Wrngs and Other Acts (Public Liability Insurance Refrm) Act 2002 Wrking with Children Act 2005 Versin: 2.0 Duty f Care Plicy Page 4 f 13

5 2. Prcedures 2.1 Reasnable Care s The duty wed t students is nt a duty t ensure that n harm will ever ccur, but rather a duty t take reasnable care t avid harm being suffered. A persn suffering harm will be entitled t damages (cmpensatin) if he r she can establish that a member f the teaching staff, nn- teaching staff, vlunteer r external prvider was negligent that is, failed t take reasnable care What cnstitutes reasnable care will vary accrding t the circumstances, but the fllwing factrs, althugh nt necessarily exhau required fr a particular student: The level f care will be high where yung students are cncerned but may be less in the case f mature pst- cmpulsry students. Physical and intellectual impairment; A student with a disability is generally expsed t a higher level f risk f injury than a student withut a disability. This may be because the student with a disability suffers frm an impairment f mtr skills r physical crdinatin, a lack f inhibitin r cntrl, r it may be because the student has a limited appreciatin f the pssibility f danger. Where the physical r intellectual disability is such as t enlarge the risk inherent in undertaking a schl activity, then apprpriate precautins must be taken. Medical cnditin; Where students are afflicted by particular medical cnditins, fr example, haemphilia, asthma, a heart cnditin, brittle bnes r epilepsy, special care must be taken t prtect such students if their cnditin is knwn r ught t be knwn and expses them t a special risk f injury. Behaviural characteristics; The level f care is increased in the case f students wh are knwn t behave in a manner that increases the risk f injury. The nature f the schl activity; Increased care is required in relatin t schl activities with an inherently high level f risk f injury. The nature f the envirnment in which a schl activity is t be undertaken; Increased care is required when students are placed in hazardus envirnments in which the ptential risks f injury- related incidents are high. Any cnflicting respnsibilities that the schl r staff member may have; and Nrmal practices within the schl. Versin: 2.0 Duty f Care Plicy Page 5 f 13

6 2.2 Assessing the Risk Invlved in a Schl Activity When assessing the risk invlved in a schl activity, cnsideratin must be given t the fllwing factrs: The prbability f the risk ccurring; What is the likelihd f harm being suffered in the circumstances? Is it reasnably prbable r s imprbable as t be scarcely wrth taking int accunt? The magnitude f the risk; and Hw serius may the cnsequences be if the risk is run and harm results? Are the ptential cnsequences t great t justify running the risk? The expense, difficulty and incnvenience invlved in alleviating the risk. What is t be gained by running the risk in rder t undertake the schl activity? What is t be lst if it is nt undertaken? What alternatives are reasnably available, and with what risks r ther disadvantages are they attended? Hw easy is it t take precautins against the risk? The easier it is t take precautins, the greater the bligatin t take thse precautins. 2.3 Teaching Staff Teaching staff must care r prvide fr the care f students whilst students are invlved in schl activities r present fr the purpse f schl activities. s When is a duty wed? The duty f care wed by a member f the teaching staff t a student autmatically arises ut f the teacher- student relatinship. Such a relatinship will exist whenever and wherever a student is invlved in a schl activity r a student is present fr the purpses f a schl activity. The teacher- student relatinship is nt necessarily cnfined t students enrlled at the schl at which the member f the teaching staff is emplyed. Example A teacher wh supervises a grup f students frm a number f different schls during an inter- schl sprts carnival will we a duty t all f the students under his r her cntrl t take such measures as are reasnable in all the circumstances t prtect them frm risks f harm that reasnably ught t be freseen. What des the duty encmpass? The duty encmpasses a wide range f matters, including (but nt limited t): prvisin f adequate supervisin; ensuring grunds, premises and equipment are safe fr use by students; implementing strategies t prevent bullying frm ccurring in schl; and rendering medical assistance (if cmpetent t d s) t, r seeking assistance frm a medically trained persn fr, a student wh is injured r becmes sick at schl. Hw may the duty be discharged? In sme circumstances a member f the teaching staff may nly be able t discharge his r her duty f care by persnally and directly caring fr students whilst they are invlved in schl activities r are present fr the purpse f schl activities. Versin: 2.0 Duty f Care Plicy Page 6 f 13

7 Example than a member f the teaching staff. In ther circumstances hwever, it may be sufficient fr a member f the teaching staff t entrust the care f students t a member f the nn- teaching staff, a vlunteer, an external prvider r a member f the teaching staff frm anther schl. When deciding whether a member f the nn- teaching staff, an external prvider r a vlunteer might persnally care fr students (withut a member f the teaching staff als being present), teaching staff must satisfy themselves that the persn is suitable fr the task being assigned. s Teaching staff may breach their duty f care if reasnable care is nt exercised in chsing an apprpriate persn t care fr students. RTO lecturers, trainers and assessrs als we a duty f care t students attending their prgrams. When making this assessment, teaching staff must cnsider factrs such as the: number f students invlved; age, experience, capabilities and behaviur f the students; nature f the envirnment, premises and f the activity t be undertaken; and age, ability, experience and general suitability f the prpsed carer. Vlunteers wh perfrm Wrking with Children Act 2005 and wh are nt eligible fr an exemptin, must prvide a current Wrking with Children Check. External prviders must als prvide a current Wrking with Children Check. s Peple exempt frm having a Wrking with Children Check include: peple under the age f 18 years; parent vlunteers whse child rdinarily participates in that activity; Mre detailed infrmatin n the Wrking with Children Check is available by cntacting the Wrking with Children Check Unit at the Department f Justice Victria n r by visiting the website lcated at Nn- teaching staff, external prviders and vlunteers are nt generally respnsible fr persnally caring fr students. Cnsequently, befre entrusting these persns with the care f students, teaching staff must first btain the agreement f the persn t care fr students (withut a member f the teaching staff als being present). Teaching staff must allw nn- teaching staff, external prviders and vlunteers an pprtunity t By reasn f their Jb Descriptin, hwever, sme members f the nn- teaching staff may be required t persnally care fr students as part f their nrmal duties. When nn- teaching staff, external prviders and vlunteers agree t persnally care fr students (withut a member f the teaching staff als being present), teaching staff must prvide them with clear instructins as t the level f care required. Examples A Class 4 teacher is satisfied, having taken int cnsideratin factrs such as thse mentined abve, that a parent vlunteer is a suitably qualified and experienced persn t supervise her class whilst she leaves the classrm fr a few minutes. The teacher has briefed the parent vlunteer abut the methd f supervisin and has instructed her t request assistance frm the teacher in the adjining classrm in the event f an Versin: 2.0 Duty f Care Plicy Page 7 f 13

8 emergency. The parent vlunteer feels cmfrtable t accept the respnsibility fr supervising the class fr a shrt perid in these circumstances. A LOTE teacher is satisfied, having taken int cnsideratin factrs such as thse mentined abve, that a teacher frm anther schl is a suitably qualified and experienced persn t accmpany a grup f language students frm varius schls n a cultural excursin t France. The LOTE teacher has briefed the accmpanying teacher abut the level f care required fr her students. The LOTE teacher has als made enquiries t satisfy herself that the French families, with whm her students will be billeted, are fit and prper persns. 2.4 Nn- Teaching Staff, Vlunteers, External Prviders Nn- teaching staff, vlunteers and external prviders (and indeed, all members f the cmmunity) must take reasnable care t avid ding r nt ding things that culd reasnably be cntemplated as causing injury t thers (including students). Examples A schl fficer shuld nt leave a rubbish bin in the middle f the hallway because it is reasnably freseeable that smene culd trip ver it and suffer an injury. A labratry assistant shuld nt leave dangerus chemicals lying arund the science labratry. Nn- teaching staff, vlunteers and external prviders d nt have the same special duty relatinship with students as d teaching staff, and unless requested and agree t d s, are nt respnsible fr persnally caring fr students. By reasn f their Jb Descriptin, hwever, sme members f the nn- teaching staff may be required t persnally care fr students as part f their nrmal duties. Nn- teaching staff, vlunteers and external prviders have a right t refuse a request t persnally care fr students and t have their decisin respected by members f the teaching staff. A member f the nn- teaching staff may have limited scpe t refuse a request frm a member f the teaching staff t persnally care fr students if, by reasn f their Jb Descriptin, the request relates t a task he r she is required t perfrm as part f his r her nrmal duties. If nn- teaching staff, vlunteers and external prviders agree t perfrm tasks that require them t persnally care fr students (e.g. supervise students withut a member f the teaching staff als being present), they will we the same duty f care t thse students as the duty wed by teaching staff. In ther wrds, they will be required t take such measures as are reasnable in all the circumstances t prtect students frm risks f harm that reasnably ught t be freseen. Versin: 2.0 Duty f Care Plicy Page 8 f 13

9 Appendix A Duty f Care Schl- Based Applicatins JOURNEY TO AND FROM PLACE AT WHICH SCHOOL ACTIVITY IS UNDERTAKEN - t- ever, a duty f care will be wed in situatins where the schl assumes respnsibility fr students, such as where a schl prvides transprt fr students t and frm a schl activity, r where a schl assumes respnsibility fr escrting students acrss a railway line r busy highway. STUDENTS ON SCHOOL GROUNDS BEFORE SCHOOL Where it is knwn that students arrive at schl at a certain time (e.g. if buses start delivering students frm a particular time) the respnsibility f the schl t prvide adequate supervisin fr the students cmmences at that time. A refusal t acknwledge the presence f students will nt prvide a defence against liability. Refusing t pen schl gates r frcing students t remain n the street verge will nt remve a sc If students frequently arrive at schl well befre the cmmencement f classes, the schl shuld cnsider develping a rster system whereby teachers are requested t be n duty at a particular time befre the start f the schl day. This shuld be wrked ut in cnjunctin with the staff member invlved and the schl cmmunity, all f whm will have t wrk tgether in this area. Once a suitable time has been determined fr it t be viable fr staff members t be n the premises t supervise students, that time shuld be widely circulated amngst the parents f the students by way f newsletter. The advice in the newsletter shuld state that there will be n ne t supervise children at schl befre the set time and that the schl cannt accept respnsibility fr students delivered t the schl prir t that time. The number f supervisrs that will be required fr this rster system will depend upn the age and number f students wh are knwn t arrive prir t the cmmencement f the schl day and upn the area t which they are directed. Students wh arrive at schl early shuld be directed t a particular area t enable the supervisr t be able t bserve exactly what is ccurring. Hw the students shuld be ccupied at this time is als anther factr that will have t be determined by the schl and the cmmunity. Allwing fr the fact that sme parents will still ignre this recmmendatin and deliver students t schl earlier than this time, these parents shuld be cntacted individually and asked t cme in t the schl t discuss the matter with the Principal. It shuld be pinted ut that it is impssible fr the schl t prvide supervisin fr students at these times. The parents shuld be requested t find sme ther way f ccupying their children at this time. These suggestins may nt remve the prblem but at least if there was then an accident at the earlier time and the schl was required t defend itself, it culd be pssible t pint t the newsletters and the interviews with parents t say that the schl had dne all that was reasnable in the circumstances t ensure the safety f the students. STUDENTS ON SCHOOL GROUNDS AFTER THE CLOSE OF SCHOOL Where the presence f students n schl grunds is knwn r ught t be knwn, the questin t be asked is whether it is reasnable in the circumstances t impse respnsibility n a staff member fr students using the schl grunds at the clse f the schl day. The varius scenaris a schl may encunter may be summarised as fllws: Students wh leave schl grunds and return later (e.g. in the evenings, weekends) t use the grunds There will be n duty f care wed t students wh leave the schl grunds and return later t use the grunds r playgrund equipment (unless they return t participate in a schl activity). Students wh remain n schl grunds after being cllected by parents The cllectin f students at the end f the schl day by, fr example, parents will result in thse parents r thers cllecting the students assuming respnsibility fr supervising them while n the schl grunds r while using the playgrund equipment. Versin: 2.0 Duty f Care Plicy Page 9 f 13

10 Students wh remain n schl grunds whilst waiting fr parents t cllect them In respect f very yung students r students wh are therwise unable t care fr themselves, the duty f care is likely t last until the student is cllected. Hwever, it is nt reasnable t expect staff members t supervise students whse parents are regularly and significantly late in cllecting their children. Schls shuld cnsider reprting cncerns t the Department f Human Services and/r delivering students int the care f the plice if staff members regularly have t wait fr significant times with students whse parents have neglected t cllect them. Students wh therwise remain n schl grunds at the clse f schl There shuld be a teacher n duty fr a reasnable amunt f time after the clse f schl t ensure that the majrity f students are n lnger present. Once a suitable time has been determined fr it t n lnger be viable fr teachers t remain n the premises after schl t supervise children, then that time shuld be widely circulated arund the parents f the students by way f newsletter. The advice in the newsletter shuld state that there will be n ne t supervise students at schl after the set time and that the schl cannt accept respnsibility fr students remaining n schl premises after that time. The number f supervisrs wh will be required fr this rster system will depend upn the age and number f students wh are knwn t remain n schl premises after schl and the area t which they are directed. Students shuld be directed t a particular area t enable the supervisr(s) t be able t bserve exactly what is ccurring. The Principal culd als prhibit students frm using the grunds and equipment after schl hurs. This wuld be fr the purpses f managing and cntrlling the schl and persns n the schl premises, and maintaining the safety and welfare f persns n the schl premises. Allwing fr the fact that sme parents will still ignre all f this and allw children t stay at schl beynd this time, these parents shuld be cntacted individually and asked t cme in t the schl t discuss the matter with the Principal. It shuld be pinted ut that it is impssible fr the schl t prvide supervisin fr students at these times. The parents shuld be requested t find sme ther way f ccupying their children at this time. This may nt remve the prblem but at least if there was an accident after schl and the schl was required t defend itself it wuld be pssible t pint t the newsletters and the interviews with parents t say that the schl had dne all that was reasnable in the circumstances t ensure the safety f the students. AFTER- SCHOOL SPORT ON SCHOOL GROUNDS A staff member wh caches a sprting team utside schl hurs will we a duty t take reasnable care fr the safety f the participating students if the sprting activity is an authrised schl activity. If an activity is nt an authrised schl activity, the staff member will be acting in a private capacity and the principle f vicarius liability (see Append nt extend t privately arranged sprting activities. The wearing f a schl unifrm by members f a team cmprised f students f a particular schl and the naming f the team by reference t a schl will nt necessarily cnvert the sprting activity t an authrised schl activity. It may, hwever, be the case that parents and guardians may be led t believe that the activity is being rganised and cnducted by the schl. Where the sprting activity is nt an authrised schl activity, the Principal shuld advise parents and guardians that the schl assumes n respnsibility fr the supervisin f students and fr any aspect f the activity such as caching. STUDENTS LEAVING SCHOOL GROUNDS DURING SCHOOL HOURS As a general rule, a schl shuld nt allw students t leave schl premises during the schl day in circumstances where there is n parental permissin. If a student is permitted t leave in these circumstances, the schl must be satisfied that n freseeable harm will cme t him r her. A schl may release a student where parental permissin has been given. The frm f the permissin shuld clearly state the terms upn which parents are giving permissin fr the student t leave premises, including the purpse fr which the permissin is given, the times during which the student may absent themselves (fr example daily r n a specified day each week) and the perid fr which the permissin is given (fr example a term). The parent must als prvide a written acknwledgement that the schl cannt be held respnsible fr any injury that befalls the student away frm the schl premises r fr any miscnduct n the part f the student. Versin: 2.0 Duty f Care Plicy Page 10 f 13

11 Having said this, the schl must be satisfied that the parent is giving infrmed permissin by advising the parent f any cncerns it has fr the student's safety. Mrever, if the schl, having assessed the situatin, cnsiders that the student may be placed at risk if allwed t leave the schl premises, then permissin t leave shuld be refused ntwithstanding that parental permissin has been given. If, fr example, the schl becmes aware f unsatisfactry behaviur, risk related behaviur r ther circumstances likely t affect the health, safety r welfare f the student, it will be justified in withdrawing permissin, and shuld discuss these cncerns with the student's parent r guardian. The situatin will be directly influenced by the age f the student. There is prbably n reasn why a schl culd nt accede t a request by a mature pst- cmpulsry schl age student (mre than 17 years ld) t leave the premises during free perids and breaks, prvided written authrity by the student's parent (assuming the student is under the age f 18) has been given. The situatin wuld, f curse, be smewhat different if the permissin related t a 6 year ld student leaving schl premises t buy lunch at the lcal shpping centre, a situatin in which the prudence f the parent culd be held in questin. Prvided that the schl is satisfied n reasnable grunds that n freseeable harm will cme t a student, the student- teacher relatinship will end and a duty f care will n lnger be wed nce the student leaves the premises during a free perid/break r fr ther nn- Versin: 2.0 Duty f Care Plicy Page 11 f 13

12 Appendix B Liability GENERAL Liability in negligence may arise if an injured student can establish, n the balance f prbabilities, that: at the time his r her injury was sustained, the persn wh was respnsible fr his r her safety wed the student a duty f care; s Members f the teaching staff will we a duty f care whenever a student is invlved in a schl activity r present fr the purpses f a schl activity. A duty f care will be wed by a member f the nn- teaching staff, vlunteer r external prvider whenever that persn agrees t perfrm tasks which require him r her t persnally care fr students. the persn wh was respnsible reasnable care fr the safety and welfare f the student; and The level f care is determined by balancing factrs such as t determine whether the cnduct f the persn as a result f the breach, the student suffered an injury which was reasnably freseeable. s If the injury wuld have been sustained regardless f whether an act was dne r neglected t be dne, a claim in negligence is likely t fail. It wuld need t be demnstrated that, but fr the failure t take due care, the injury wuld nt have ccurred. In general, it is necessary t identify the nature f the step which the persn wh was respnsible fr the than nt, the taking f that step wuld have prevented r minimised the injury which was in fact suffered. EMPLOYEES Injured persns may sue the schl, which, as emplyer, is vicariusly liable fr the acts f negligence f teaching staff and nn- teaching staff cmmitted in the curse f their emplyment. The cncept f vicarius liability des nt mean that injured persns cannt sue the emplyee wh was respnsible fr their safety, althugh this wuld be unlikely. incurred (e.g. damages) if the cnduct f the emplyee was in gd faith and reasnable and in the discharge f fficial respnsibilities. There is n guarantee, hwever, that an indemnity will be ffered; each case will be assessed n its merits. It is legally pssible fr the schl, if its liability in negligence is established, t bring a claim fr cntributin r indemnity against an emplyee if a student was injured as a result f that emplyee acting utside the scpe f his/her emplyment. Such actin wuld ccur nly where there had been a deliberate act by the emplyee in ttal disregard f all instructin. VOLUNTEERS The Wrngs and Other Acts (Public Liability Insurance Refrm) Act 2002 prvides persnal liability claim prtectin t vlunteers, such as parent helpers, wh, in gd faith, undertake cmmunity wrk rganised by the schl where the vlunteer acted in gd faith and within the bundaries f their rles and respnsibilities. Versin: 2.0 Duty f Care Plicy Page 12 f 13

13 Vlunteers will nt be prtected under the legislatin in the fllwing circumstances: if they act utside the scpe f the cmmunity wrk rganised by the schl; if they act cntrary t the instructins given by the schl in relatin t the service they were prviding; r if their ability t prvide the service in a prper manner was, at the relevant time, significantly impaired by drugs r alchl. In additin t the prtectin affrded t vlunteers by the Wrngs and Other Acts (Public Liability Insurance Refrm) Act 2002t insurance arrangements als extend t vlunteers. Versin: 2.0 Duty f Care Plicy Page 13 f 13