Legal Issues Bulletin

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1 Legal Issues Bulletin N. 8 reviewed May 2015 Claims fr lss f r damage t persnal prperty and use f private mtr vehicles by staff, parents and students Legal Issues Bulletin 39 - Preparatin and use f accident reprts in schls and TAFE NSW prvides details f actin t be taken by principals and institute managers when claims fr persnal injury and prperty damage incurred by students and ther visitrs t schl and institute sites are received. Principals and institute managers shuld nte different prcedures apply when claims are made fr lss r damage t persnal prperty wned by staff. The fllwing guidelines apply t all departmental premises and staff, effective frm the date f this bulletin. If staff suffer lss r damage t persnal prperty while at wrk, will they be cvered by insurance? Generally, liability will nt be accepted fr lss r damage t an emplyee's persnal effects which are used r stred n premises wned r used by the department except in specific circumstances. Staff shuld cnsider insuring persnal prperty against lss r damage, particularly if it is f significant value. Claims fr lss f r damage t staff prperty at wrk may be met by the NSW Treasury Managed Fund nly where the fllwing cnditins apply: The prperty was in the nature f "tls f trade". That means it was slely used in teaching r t perfrm a particular wrk-related task. The prperty was nt a purely persnal item. Examples f persnal items include wallets, cash, handbags, sunglasses, shes, reading glasses and mbile phnes. The supervisr had prperly authrised, in advance, the "tl f trade" being at wrk and being used fr wrk. The supervisr is respnsible, in prviding this authrity, fr advising the staff member f the cnditins applying t claims fr lss r damage. The maximum amunt payable per claim is $1,000, irrespective f the items invlved. The persn wning r having cntrl f the prperty did nt cntribute t the risk - eg leaving the prperty unattended r in an unsafe place. The lss r damage is nt claimable under wrkers' cmpensatin cverage. The lss r damage is nt claimable thrugh an insurance plicy held by the member f staff. A receipt, invice r ther satisfactry evidence f the value f the lss r damage is prvided. Any claims made shuld be directed t the principal, institute manager, schl educatin directr r state ffice supervisr in the first instance wh shuld then arrange fr all relevant evidence and receipts t be cllated. See Appendix A. The dcumentatin shuld then be frwarded t the Insurance, Risk & Claims Management Unit Miscellaneus Claims, NSW Department f Educatin and Cmmunities, Lcked Bag 5068, Parramatta NSW 2124, where the claim will be assessed and, if apprved, frwarded t the NSW Treasury Managed Fund fr payment. The Insurance, Risk & Claims Management Unit can als be cntacted n r at LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 29/05/2015

2 Claimants shuld nt be tld the claim will be met until frmal advice is received frm the Insurance, Risk & Claims Management Unit that the claim has been apprved. T minimise the risk f lss and incnvenience t staff, principals and institute managers shuld advise all staff f their bligatins t ensure the security f private prperty brught t the wrkplace. Staff shuld avid string private prperty at the wrkplace fr extended perids f time, especially ver weekends and during vacatin perids. Enquiries frm schls and institutes abut claims fr lss f r damage t staff prperty shuld be directed t the Insurance, Risk & Claims Management Unit. In additin t claims under the NSW Treasury Managed Fund, sme categries f staff may be entitled t make a claim under wrkers cmpensatin in relatin t lss r damage f persnal prperty at wrk. Staff shuld refer t the Department s Industrial Relatins website (Intranet nly) fr further infrmatin abut individual award cnditins. If my claim is declined, d I have any ther recurse? Individual industrial awards may allw sme categries f staff t make a claim fr reimbursement fr lst r damaged prperty in sme circumstances where claims under the NSW Treasury Managed Fund r Wrkers Cmpensatin have been declined. Staff shuld refer t the Department s Industrial Relatins website (Intranet nly) fr further infrmatin abut individual award cnditins. Will students, parents r cmmunity members be cvered fr lss f persnal prperty in schls and institutes? Principals and institute managers shuld ensure persns wh have cause t bring prperty nt the schl r institute site are advised they d s at their wn risk. As a general rule n respnsibility shuld be accepted fr lss r damage t private prperty brught t the schl r institute. In situatins where the schl r institute has accepted respnsibility fr safekeeping f persnal prperty, claims fr any lss r damage that may arise must be met by the schl r the institute prvided the fllwing cnditins are met: The prperty must have been lent, hired r entrusted t the schl r institute. Examples include: prperty cnfiscated frm a student which is t be returned prperty lent fr a schl r institute activity. The persn wh wns the prperty did nt cntribute t the lss. A receipt, invice r ther satisfactry evidence f the value f the lss r damage is prvided t the principal r institute manager. In relatin t schls, a number f claims are made each year in respect f lss r damage t bicycles and musical instruments which are brught t schl by students. In the absence f an apprpriate security system fr the safeguarding f bicycles, parents and students shuld be reminded n a regular basis students leaving bicycles at the schl d s at their wn risk. Similarly, students and parents frequently ask permissin t leave persnal musical instruments at the schl rather than transprt them t and frm hme n a regular basis. Unless principals can ensure any musical instruments left at the schl can be securely put away when nt in use, permissin t leave the instrument at schl shuld be denied. Alternatively, the student and parent shuld be advised n secure strage is available and if the instrument is left at the schl n respnsibility will be accepted fr its safekeeping. If principals r institute directrs receive a claim fr cmpensatin in respect f damage t persnal prperty that arises frm circumstances ther than thse described abve, the claim shuld be frwarded t the Legal Services Unit in accrdance with the prcedures utlined in Legal Issues Bulletin 39. If the persnal prperty f a student, parent r cmmunity member is cnfiscated r therwise lent t the schl r institute, what steps shuld be taken in relatin t its security? The Department is bliged t taken reasnable steps t ensure the security f items entrusted t it by thers. It is nt a duty t ensure safety merely ne t ensure reasnable steps are taken. If the persnal prperty f students r ther peple is retained by schl r institute staff, actin must be taken t securely stre the prperty until it is returned t the wner. Under n circumstances shuld persnal prperty be left in unlcked desk drawers, teachers tables, cupbards, staffrms and the LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 29/05/

3 like. The prperty must as a minimum be lcked away. Failure t d s will render the schl r institute liable in the event f lss. What is the psitin in relatin t mtr vehicles damaged while parked n schl r TAFE NSW premises? All persns wh park their vehicles n schl r institute premises d s at their wn risk. This applies t staff, students, parents and members f the public. Principals and institute managers shuld ensure all persns wh park their cars n site are advised accrdingly. Any claims made fr damage t mtr vehicles parked n sites will nt be met by the NSW Treasury Managed Fund. Principals and institute managers must meet the csts f repairs fr damaged vehicles prvided the fllwing cnditins are met: The damage was caused in circumstances ver which the department r TAFE NSW had sme cntrl. Examples include: staff mwing lawns in clse prximity t cars nt attending t decaying tree branches lcated near r within car park areas. The persn wning r having cntrl f the vehicle did nt cntribute t the risk f damage. Examples include: failing t mve the vehicle after being asked t d s because f lawn mwing failing t take heed f warnings abut the prpensity f trees t drp branches. At least tw qutes are btained and prvided t the principal r institute manager r where the damage has been rectified, a receipt fr the repair bill is prvided. The maximum amunt that may be reimbursed is the "nrmal excess" prescribed by the insurer at the time that the vehicle is damaged. "Punitive" excess charges impsed by an insurer because f pr driving recrd r the type f vehicle insured shall nt be reimbursed. The additinal excess impsed by sme insurers n inexperienced drivers (r thse under 25) is nt cnsidered t be "punitive" excess and will be reimbursed. If a claim n the insurer is nt made, eg t avid lss f a n-claim bnus etc, the maximum reimbursement is the prescribed excess that wuld have been paid had a claim been made r the actual cst f repair, whichever is the lesser. T minimise the risk f mtr vehicles parked n departmental sites being damaged, principals and institute managers shuld ensure all lawn mwing activities undertaken in r near parking areas ccur at times when vehicles are nt present. If this is nt pssible, persns using the area shuld be asked t mve their vehicles until the area has been mwed. Regular checks shuld be made f trees in and arund car park areas t ensure that the trees are nt in any state f decay which may lead t a greater risk f falling limbs. If trees have a prpensity t drp limbs irrespective f their health, persns using the car park area shuld either be warned r prhibited frm parking under the trees. What else shuld be dne if a tree limb drps frm a tree n the schl site? Principals shuld refer t the Department s Tree Management Guidelines and take any further actin required cnsistent with thse Guidelines. The Guidelines can be accessed at: 2/tree_management_in_schls_-_dn (Intranet nly). What if the tree is nt n the schl site? Any area f the playgrund verhung by the tree shuld be placed in an ut f bunds area. Prmpt cntact shuld be made with the wner f the prperty in which the tree is planted. Where can I get further advice abut the actin t take after a tree limb falls? Schls shuld cntact their lcal Asset Management Unit fr advice. If legal issues arise cntact can als be made with Legal Services. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 29/05/

4 Can parents, students and ther cmmunity members use their private mtr vehicles fr department activities? If students are required t attend departmental activities away frm the schl r institute site, parents, cmmunity members r ther students may prvide transprt t and frm the activity subject t the fllwing cnditins: Written permissin frm the parent(s) f the student being transprted is btained. If students are transprting ther students, written permissin frm the parent(s) f the driver must als be btained t nt nly use the vehicle but als t transprt ther students. The driver must be licensed. The mtr vehicle must be registered. The number f passengers in the vehicle must nt exceed the number f seat belts r in the case f larger vehicles, the number f passengers that the vehicle may be licensed t carry. Current driver's license and car registratin details must be sighted prir t giving permissin fr students t be transprted in the vehicle. Cmprehensive car insurance f any kind is nt required. Transprting students in parents' r ther students' vehicles shuld nly ccur in thse circumstances where there is n ther feasible ptin available t prvide the transprtatin. It is acknwledged these guidelines may have limited applicatin t TAFE NSW staff having regard t the character f the student chrt wh attend TAFE NSW premises fr educatinal purpses. Any financial assistance ffered t parents fr the use f their cars shuld be limited t reimbursement fr actual csts incurred fr items such as petrl and tlls. The payment f any flat fee r ther sum ther than fr actual expenses shuld be avided. What is the psitin in relatin t staff wh use their private mtr vehicles t transprt students r undertake ther fficial duties? Staff using private mtr vehicles fr fficial business purpses need nt have cmprehensive third party insurance unless they want t claim mileage csts as a result f using the vehicle. If staff use their private mtr vehicle n a regular basis fr wrk related duties and the car is insured fr private use nly, it is suggested that cnfirmatin be btained frm the insurance cmpany that the vehicle will be cvered in the event f an accident. Staff may smetimes transprt students in a private mtr vehicle. This might arise, either in the event f an emergency, r because n ther viable ptins are available t transprt the student(s) t a particular department activity. In nn-emergency situatins, the same requirements as utlined in respect f parents and students transprting students must be cmplied with. Staff transprting students by private mtr vehicle shuld always adpt relevant cmmn sense strategies t minimise the risk f child prtectin issues being raised. Examples f these strategies include anther adult being present, ther students being present, having students sit in the rear f the vehicle and advising senir fficers f the travel arrangements. Staff shuld als refer t Legal Issues Bulletin 24 Use f cars at wrk fr further infrmatin Mtr vehicles damaged while being used n fficial business Any claims f this nature will nt be met by the NSW Treasury Managed Fund. They are the respnsibility f the relevant schl, institute, directrate r ffice which apprves the use f the vehicle fr fficial business purpses. Principals and institute, directrate and ffice managers may meet any claims made prvided the fllwing cnditins are met: The vehicle was being used fr departmental business and this use. Had been apprved by the schl, institute, directrate r ffice. The damage ccurred while n departmental business. The damage was nt the fault f a third party. At least tw qutes are btained and prvided t the principal, institute manager, district ffice r state ffice manager r in cases where the damage has been rectified, a receipt fr the repairs is prvided. The cnditins set ut in this bulletin regarding the maximum reimbursement that apply t vehicles damaged while n departmental premises als apply t vehicles damaged while being used n fficial business. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 29/05/

5 In cases where staff use their vehicle t attend prgrams such as training curses r cnferences rganised by an institute r state r district ffice, apprval t use the vehicle fr fficial business shuld be btained frm, and any claims directed t, the relevant institute, state ffice directrate r district ffice which has respnsibility fr the prgram. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 29/05/

6 Appendix A Prcedures fr making a claim fr staff persnal prperty The fllwing dcumentatin is required: Statement f claim frm the staff member, supprted by the Principal r Institute Manager. Receipts / invices / qutes f items being claimed fr. A cpy f the breach f security reprt. Any ther supprting dcumentatin. In accrdance with NSW Treasury Managed Fund requirements, principals and institute managers are respnsible fr assessing and, where apprpriate, paying claims which are less than $300. Fr claims greater than $300, the cmpleted dcumentatin shuld be frwarded t the Insurance, Risk & Claims Management Unit Miscellaneus Claims, NSW Department f Educatin and Cmmunities, Lcked Bag 5068, Parramatta NSW The Insurance, Risk & Claims Management Unit will review the claim and, if apprved, refer the dcumentatin t the NSW Treasury Managed Fund, fr payment. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 29/05/

7 Abut Legal Services Directrate Legal Services Directrate prvides legal supprt and advice t staff in schls, clleges, state ffice directrates, senir staff and specialist bards and authrities. It arranges fr the Department and TAFE NSW t be represented befre a range f curts and tribunals and assists with the preparatin f legal dcuments. It is als available t prvide legal advice in respect f any departmental plicies r prcedures that may have a legal cmplexin. The Legal Services Directrate can prvide legal advice t departmental staff nly. It is nt able t prvide legal advice r assistance t parents, students r members f the public. The Legal Services Directrate psts a large amunt f infrmatin n the Department s intranet. This includes: all current Legal Issues Bulletins questins the Legal Services Directrate mst frequently encunters annuncements abut what s new guidelines abut family law and the schl infrmatin abut the Gvernment Infrmatin (Public Access) Act infrmatin cncerning the peratin f NSW Privacy legislatin, including Privacy Bulletins infrmatin abut cpyright links t ther related legal web-sites ther infrmatin fr the use f schls and TAFE The Legal Services Directrate cntinues t ffer its telephne advice service t DEC and TAFE NSW persnnel. The service is available between 9.00am t 5.00pm weekdays. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 29/05/

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