DUTY OF CARE Rose Raniolo Senior Associate Minter Ellison Lawyers Level 23 525 Collins Street MELBOURNE VIC 3000 Phone: (03) 8608 2571 Fax: (03) 8608 1223
Introduction A duty of care is a duty to take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure persons who are so closely and directly affected by your act or omission that you ought reasonably to have them in contemplation as being so affected when directing your mind to the act or omission in question. As a general rule, TAFE teachers will owe a duty of care to their students, regardless of their age. This paper examines the nature of the duty of the care owed by a TAFE teacher to a student who is a minor. Historically, the Courts have determined that certain relationships will give rise to a more demanding duty of care known as a 'non-delegable' duty of care. One such relationship is the school-student relationship. The non-delegable duty arises because of the vulnerability and special dependence which a child is perceived to have. It is a duty to ensure that reasonable care is taken in carrying out those functions that the school leaves to others to carry out for it (such as employees and independent contractors). Therefore, a relevant issue in defining the nature of the TAFE's duty of care is whether a TAFE is a 'school'. Teachers are also required to notify the Department of Human Services of any cases of physical abuse or sexual abuse in a child (a person under the age of 18 years) pursuant to the provisions of the Children and Young Person's Act 1989. Those TAFE teachers who are registered as teachers under the Victorian Institute of Teaching Act 2001 or have been granted permission to teach under that Act are subject to the mandatory reporting requirements of the Children and Young Person's Act. Negligence Claim Usually when an injury occurs to a student, a claim will be brought by that student against the TAFE in negligence. Negligence is a common law action, that is, it is a type of claim which has been developed by the courts on a case-by-case basis. By virtue of the principle of vicarious liability, any negligent act or omission committed by an employee will become the negligence of the employer, provided the employee is acting within the course of his/her employment when committing the act or omission. What this means is that the injured student will usually sue the TAFE, rather than the teacher personally, because the TAFE is vicariously liable for the conduct of the teacher whose act/omission is alleged to have caused the student's injury. However, if the teacher is acting outside the scope of his/her employment, then the teacher may find him or herself personally sued and this tends to occur in cases of assault, where there are allegations that the teacher has sexually assaulted or otherwise physically harmed a student. In order for a plaintiff to be successful in his/her claim of negligence and be awarded damages, he/she must establish: 1. That the defendant owed the plaintiff a duty of care; 2. That the duty of care was breached, ie. the standard of care delivered by the TAFE teacher is less than that which a reasonable TAFE teacher in his/her shoes would have provided; 3. That the breach has been the cause of the injury sustained by the plaintiff. Note, the breach of the duty does not have to be the sole cause of injury, but only one of the causes of injury; and
4. Damage or loss was suffered by the plaintiff. Duty of Care The Education Act 1958 is concerned with the regulation of State Schools and nongovernment schools in Victoria. The Education Act specifically excludes from its operation any post-secondary education institution within the meaning of the Tertiary Education Act 1993. Therefore, TAFE Colleges are not governed by the provisions of the Education Act. Although TAFE colleges are not 'schools' for the purposes of the Education Act, they may still be considered to be schools at common law and they may therefore owe a nondelegable duty of care to their students. One cannot be certain that this is the case because the question has not yet come before the courts for determination. When it does, the courts will examine the nature of the relationship between a TAFE college and its students and will compare and contrast this relationship to that of the typical school and its students. As there are significant similarities between a TAFE and a secondary school and a significant proportion of a TAFE's student body is comprised of minors, there is a very real risk that the duty of care owed by the TAFE will be considered to be of the same type as that owed by secondary schools to their students. The Non-Delegable Duty of Care The non-delegable duty of care owed by schools (and possibly a TAFE) to its students requires the school not only to exercise reasonable care, but to ensure that reasonable skill and care is taken in carrying out those functions that the school leaves to others to carry out for it (such as an employee or independent contractor). The duty cannot be discharged by engaging a competent person to carry out the work. It is a personal duty and if a non-delegable duty of care exists, then a breach can be established against the person that owed it, even though that person is blame-free provided there was a lack of reasonable care on the part of the person to whom the task was delegated. Example: A school engages a Judo instructor to give Judo instruction to its Year 11 PE class. The class is conducted by the Judo instructor who holds all necessary qualifications and is an expert in his field. The Judo instructor gives a demonstration using one of the students in the class and uses exceptional and unwarranted force in demonstrating a particular manoeuvre on the student, causing injury to the student. Although the school has engaged a competent and duly qualified Judo instructor and had no reason to suspect that the instructor would take such an aggressive approach, it will be liable for the negligence of the Judo instructor. Breach of the Duty of Care A breach occurs if the TAFE teacher's conduct fell below that of the 'reasonable TAFE teacher'. In other words, how a reasonable TAFE teacher would have conducted him or herself in the given circumstances is the standard of care (the content of the duty of care) required of the defendant. The standard of care expected is not one of perfection. Three considerations must be balanced in determining the relevant standard of care: 1. The seriousness of the injury likely to ensue if the risk eventuated; 2. The likelihood of the risk eventuating ie. is it reasonably foreseeable that a risk of injury will eventuate. It is not necessary that the particular risk of injury 2
which actually eventuates is foreseeable, but that injury of some nature was foreseeable as a consequence of the conduct in question. 3. The expense, difficulty and inconvenience involved in taking preventative measures. Where the plaintiff belongs to a class of persons who are particularly vulnerable to injury, such as minors, then this vulnerability or dependence will influence the standard of care, ie. the younger the child, the higher the standard of care required to discharge the duty. In 2003 the Victorian Government amended the Wrongs Act 1958 as a response to the so-called 'insurance crisis'. The Wrongs Act was amended so as to change the law of negligence and common law principles of duty of care. The changes to the duty of care concept appear to be minimal, however, it has yet to be seen what particular impact, if any, these amendments will have on the common law duty of care principle. Section 48 of the Wrongs Act applies to any failure to take precautions against a risk of harm. Section 48 provides: A person is not negligent in failing to take precautions against a risk of harm unless:- the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and the risk was not insignificant; in the circumstances, a reasonable person in the person's position would have taken those precautions. In determining whether a reasonable person would have taken precautions against a risk of harm, section 48 of the Wrongs Act requires the court to consider the following (amongst other relevant things):- (iv) the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; the social utility of the activity that creates the risk of harm. What is the Standard of Care required of TAFE Colleges? This question can only be answered by applying the 'reasonable TAFE college' test, the considerations found in section 48 of the Wrongs Act and the considerations bearing on reasonable care referred to above. The following case studies are examples of this exercise. Case Study 1 A fifteen year old female student confides in her English teacher at TAFE that she is having a sexual relationship with a 30 year old TAFE student. The teacher decides 3
against taking any action, preferring not to become involved. After a few months, the relationship comes to an end. The 15 year old student develops psychological problems as a result of the break-up and drops out of school. Has their been a breach of the Duty of Care/Negligence? Magnitude of the risk: Significant unwanted pregnancy; sexually transmitted diseases; significant psychological problems due to child's immaturity. Likelihood or probability of risk of injury: possible/likely/not remote. Expense, difficulty and inconvenience of preventative measures: minimal: phone call to the child's parents or if the child's parents are unlikely to protect her from further harm of this type, then a phone call to the Department of Human Services. (iv) Forseeability of risk: the risks are of a type which ought to have been known to the teacher. (v) The social utility of the activity that creates the risk of harm: no social utility to be served at all by allowing the illicit relationship to continue. Case Study 2 A fight breaks out between three or four male students aged 15-17 years on campus during the lunch break. The fight attracts a great deal of attention from other students who huddle around the group of fighting boys. The fight continues for approximately five minutes. During the fight, one of the boys is kicked repeatedly in the head and is brain damaged. Approximately 90% of the TAFE's student body is made up of minors. During the lunch break, there are approximately 200 students on campus. The TAFE does not have any yard duty supervision in place during the lunch break. Has there been a breach of the Duty of Care/Negligence? Magnitude of risk: significant children can fall victim to a wide range of serious injuries if left to their own devices; examples: bullying, drug use, injuries inflicted by trespassers. Likelihood or probability of risk extenuating 4
possible/likely/not remote Expense, difficulty and inconvenience of preventative measures minimal: develop a roster for yard duty supervision and maintain a teacher presence in the yard during the lunch break; (iv) Forseeability of Risk the risks are of a type which ought to have been known to the teacher; (v) Social Utility of activity: Mandatory reporting no social utility to be served by allowing children to fight.. Under s64 of the Children and Young Person's Act 1989 a person who is registered as a teacher under the Victorian Institute of Teaching Act 2001 or has been granted permission to teach under the Act must notify the Department of Human Services where: in the course of practising his or her profession or the duties of his/her employment; he/she forms a belief; on reasonable grounds; that a child is in need of protection; on the ground that: (b) the child has suffered or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected or are unlikely to protect the child from harm of that type; or the child has suffered or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected or are unlikely to protect the child from harm of that type. What must you notify the Department of Human Services of? the belief held; and the reasonable grounds for holding the belief. When must you notify the Department? As soon as practicable - (b) after forming the belief; and after each occasion on which you become aware of any further reasonable grounds for the belief. What can be the grounds for a belief? matters of which a person has become aware; and 5
(b) any opinions based on those matters. Protection of person making the report A notification of a belief to the Department of Human Services under the Children and Young Person's Act - does not for any purpose constitute unprofessional conduct or a breach of professional ethics on the part of the person by whom it is made; and if made in good faith, does not make the person by whom it is made subject to any liability in respect of it (Section 64(3)). Evidence that identifies the person who made a notification or is likely to lead to the identification of that person is only admissible in a proceeding if the Court grants leave for the evidence to be given or if the notifier consents in writing to the admission of that evidence. (Section 64 (3A)) A witness must not be asked and if asked, is entitled to refuse to answer any question to which the answer would or might identify the person who made a notification under the Act unless the Court grants leave for the question to be asked or the notifier has consented in writing to the question being asked. (Section 64(3B)). A Court will only grant leave under section 64(3A) or (3B) if - (b) it is satisfied that it is necessary for the evidence to be given to ensure the safety and well being of the child; in any other case, it is satisfied that the interests of justice require that the evidence be given. A person to whom a notification is made under the Act must not disclose to any person, the name of the person who made the notification or any information that is likely to lead to the identification of that person. (Section 64(4)). Penalty for Breach of Mandatory Reporting Requirement? Fine of $1,000. 6