1 Sports Organisers’ Conference Western NSW Region Legal Issues 13 February 2009 Sandra Butler A/Senior Legal Officer Legal Services Directorate

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Sports Organisers’ Conference

Western NSW Region Legal Issues

13 February 2009

Sandra ButlerA/Senior Legal Officer

Legal Services Directorate

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ContactContactLegal Services DirectorateLegal Services DirectorateDepartment of Education and TrainingDepartment of Education and Training

Levels 5 & 7, 35 Bridge StreetLevels 5 & 7, 35 Bridge Street

SYDNEY NSW 2000SYDNEY NSW 2000

Ph: (02) 9561 8538 Facsimile: (02) 9561 8543Ph: (02) 9561 8538 Facsimile: (02) 9561 8543

Email: Email: [email protected]@det.nsw.edu.au

Website:Website: http://detwww.det.nsw.edu.au/directorates/leglserv/http://detwww.det.nsw.edu.au/directorates/leglserv/

Sandra ButlerSandra Butler, A/Senior Legal Officer, A/Senior Legal Officer

Ph: (02) 9561 8524Ph: (02) 9561 8524 Facsimile: (02) 9561 8543Facsimile: (02) 9561 8543

Email:Email: [email protected] [email protected]

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ContentsContents Duty of CareDuty of Care Sporting Injury CasesSporting Injury Cases OH&S OH&S Risk Management PlansRisk Management Plans School Aquatic Activity MemosSchool Aquatic Activity Memos Privacy and OH&SPrivacy and OH&S Anti-Discrimination and OH&SAnti-Discrimination and OH&S QuestionsQuestions

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Duty of CareDuty of Care What is it?What is it?

The duty of care owed by the State and its The duty of care owed by the State and its teachers to pupils is a duty to take teachers to pupils is a duty to take reasonable reasonable stepssteps to protect students from risks that are to protect students from risks that are reasonably foreseeablereasonably foreseeable..

e.g. collapsing goal posts, insufficient supervision.e.g. collapsing goal posts, insufficient supervision.

It exists wherever there is a pupil teacher It exists wherever there is a pupil teacher relationship. relationship.

It is a concept developed by the courts over It is a concept developed by the courts over time.time.

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Duty of CareDuty of Care What is What is reasonablereasonable depends on the depends on the

circumstances, taking into account such things as circumstances, taking into account such things as age, maturity, ability, experience, development, age, maturity, ability, experience, development, environment, student numbers and departmental environment, student numbers and departmental policies.policies.

It is a non-delegable duty.It is a non-delegable duty.

It is necessary to assess and manage the risk of It is necessary to assess and manage the risk of any activity by acting in accordance with any any activity by acting in accordance with any established policies and procedures. established policies and procedures.

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Consequences of Breach of Consequences of Breach of Duty of CareDuty of Care

For the DepartmentFor the Department– Sued by injured partySued by injured party

For the EmployeeFor the Employee– possible allegation of misconduct possible allegation of misconduct

(section 93C Teaching Service Act 1980);(section 93C Teaching Service Act 1980);– Penalties range from caution to Penalties range from caution to

dismissal from employment (section dismissal from employment (section 93B).93B).

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Consequences of Breach of Consequences of Breach of Duty of CareDuty of Care

Can a teacher be sued personally if a student Can a teacher be sued personally if a student under his/her care is injured?under his/her care is injured?

Principle of Vicarious LiabilityPrinciple of Vicarious LiabilityThis means that if a teacher is found by a court to have acted This means that if a teacher is found by a court to have acted negligently in the course of his/her duties, the employer is negligently in the course of his/her duties, the employer is liable to pay the damages, not the teacher.liable to pay the damages, not the teacher.

This does not apply to serious and wilful misconduct. This does not apply to serious and wilful misconduct.

Employees Liability Act 1991Employees Liability Act 1991Provides that an employer must pay for any damages Provides that an employer must pay for any damages

arising from an employees negligent actions. arising from an employees negligent actions.

This does not apply to serious and wilful misconduct or This does not apply to serious and wilful misconduct or conduct not associated with employment. conduct not associated with employment.

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Sporting Injury CasesSporting Injury Cases

Horse Riding Activity – Suitability of VenueHorse Riding Activity – Suitability of Venue

A DET student was participating in an equestrian carnival attended by A DET student was participating in an equestrian carnival attended by students from government and non-government schools and held at a students from government and non-government schools and held at a council showground. The student fell from the horse, was dragged head council showground. The student fell from the horse, was dragged head first into a pole and suffered severe head injuries. The student brought first into a pole and suffered severe head injuries. The student brought proceedings against the Department, the independent school that hosted proceedings against the Department, the independent school that hosted the carnival and the Council. The matter was settled out of Court. DET was the carnival and the Council. The matter was settled out of Court. DET was joined as a defendant because it was not evident that DET had made the joined as a defendant because it was not evident that DET had made the appropriate inquiries into the safety of the showground for a horse related appropriate inquiries into the safety of the showground for a horse related activity. activity.

Martial Arts Activity with AIS Instructor -SupervisionMartial Arts Activity with AIS Instructor -Supervision

Students from a government school were on an excursion to the AIS where Students from a government school were on an excursion to the AIS where they participated in a variety of activities. One student undertaking a they participated in a variety of activities. One student undertaking a martial arts move with an AIS instructor suffered a complex fracture of his martial arts move with an AIS instructor suffered a complex fracture of his arm. DET was joined as a defendant because there was no supervision of arm. DET was joined as a defendant because there was no supervision of the activity by a DET employee at the time the injury occurred. the activity by a DET employee at the time the injury occurred.

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Sporting Injury CasesSporting Injury Cases Supervision Supervision

A student from a government high school who suffered minor learning and A student from a government high school who suffered minor learning and developmental disabilities was walking to a Pitch and Putt Golf venue for developmental disabilities was walking to a Pitch and Putt Golf venue for school sport when he was hit by a car and suffered severe head injuries. school sport when he was hit by a car and suffered severe head injuries. The student had stepped through a hole in a council fence and climbed The student had stepped through a hole in a council fence and climbed down a steep embankment to the road where the accident occurred. The down a steep embankment to the road where the accident occurred. The student made a claim against DET, the driver of the car and the council. student made a claim against DET, the driver of the car and the council. The student claimed that DET failed to supervise students to ensure they The student claimed that DET failed to supervise students to ensure they were safe and took a safe route to the venue. In the alternative it was were safe and took a safe route to the venue. In the alternative it was claimed that DET failed to provide a bus to transport students. The student claimed that DET failed to provide a bus to transport students. The student also claimed that DET’s duty of care towards the student was higher in the also claimed that DET’s duty of care towards the student was higher in the circumstances because of the student’s disabilities.circumstances because of the student’s disabilities.

SupervisionSupervisionA student from a government high school was returning home after A student from a government high school was returning home after recreational cycling which was part of the school curriculum when he was recreational cycling which was part of the school curriculum when he was struck by motor vehicle and suffered brain damage. The student brought a struck by motor vehicle and suffered brain damage. The student brought a claim against DET and the driver of the motor vehicle. It was claimed that claim against DET and the driver of the motor vehicle. It was claimed that DET was negligent because it allowed students to be dismissed to find their DET was negligent because it allowed students to be dismissed to find their own way back to school or home without assessing the risk involved for the own way back to school or home without assessing the risk involved for the student in the circumstances. student in the circumstances.

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Sporting Injury CasesSporting Injury Cases Foreseeable RiskForeseeable Risk

A student at a government high school was participating in soccer A student at a government high school was participating in soccer training aftertraining after school. An Industrial Arts teacher was coaching the team. school. An Industrial Arts teacher was coaching the team. The field was unmarked and the teacher decided to use a flammable The field was unmarked and the teacher decided to use a flammable liquid to burn markings into the grass. The liquid was poured onto the liquid to burn markings into the grass. The liquid was poured onto the grass, lit and then jumped on to put out the fire. A student picked up grass, lit and then jumped on to put out the fire. A student picked up the container of flammable liquid and it exploded. The student suffered the container of flammable liquid and it exploded. The student suffered severe burns to a large percentage of his body. The student claimed severe burns to a large percentage of his body. The student claimed against DET. WorkCover commenced action against DET but this was against DET. WorkCover commenced action against DET but this was discontinued. discontinued.

Foreseeable RiskForeseeable RiskStudents from a government high school were playing golf for school Students from a government high school were playing golf for school sport. A student drove the golf ball, it ricocheted off a tree and hit sport. A student drove the golf ball, it ricocheted off a tree and hit another student in the eye. The injured student was standing behind another student in the eye. The injured student was standing behind the student who struck the ball. The injured student claimed against the student who struck the ball. The injured student claimed against DET. The court found that it was reasonably foreseeable that a golf ball DET. The court found that it was reasonably foreseeable that a golf ball would hit a tree and rebound onto a student causing injury. would hit a tree and rebound onto a student causing injury.

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Occupational Health & Safety in SchoolsOccupational Health & Safety in Schools

Legislative ContextLegislative ContextOccupational Health and Safety Act 2000Occupational Health and Safety Act 2000 and and Occupational Health Occupational Health and Safety Regulation 2001and Safety Regulation 2001

Policy context:Policy context:BulletinsBulletinsGuidelines for Safe Working and LearningGuidelines for Safe Working and LearningProformas (eg risk management plans )Proformas (eg risk management plans )Forms (eg employee incident notification form)Forms (eg employee incident notification form)Risk management plans for venues used by DETRisk management plans for venues used by DEThttps://detwww.det.nsw.edu.au/adminandmanage/ohands/https://detwww.det.nsw.edu.au/adminandmanage/ohands/excursions/index.htmexcursions/index.htm

OH&S websiteOH&S websitehttp://detwww.det.nsw.edu.au/adminandmanage/ohands/index.htmhttp://detwww.det.nsw.edu.au/adminandmanage/ohands/index.htm

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The Department’s duty as an Employer includes:The Department’s duty as an Employer includes:

- - Ensure that non-employees (eg students and Ensure that non-employees (eg students and visitors) visitors) are not exposed to risks to their health and are not exposed to risks to their health and safety safety arising from the conduct of the employer’s arising from the conduct of the employer’s undertaking while they are a the employer’s place of undertaking while they are a the employer’s place of work.work.

- - to inform and consult employees.to inform and consult employees.

- - ensure the health, safety and welfare of employees ensure the health, safety and welfare of employees at at work by providing and maintaining systems of work work by providing and maintaining systems of work

and working environments that are safe and without and working environments that are safe and without risk to healthrisk to health

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Duties of Employees include:Duties of Employees include:

-- Taking reasonable care for the health and safety of Taking reasonable care for the health and safety of persons who may be affected by their acts or persons who may be affected by their acts or

omissions at work.omissions at work.

-- Co-operating with their employer to enable Co-operating with their employer to enable compliance compliance with any requirement imposed on the with any requirement imposed on the employer by the employer by the legislation (eg assist in risk legislation (eg assist in risk assessments and assessments and management plans, follow direction management plans, follow direction and policy in and policy in relation to safety matters.) relation to safety matters.)

- - Failure to comply with relevant policy or procedure is Failure to comply with relevant policy or procedure is a a serious issue and may result in disciplinary action serious issue and may result in disciplinary action

against a teacheragainst a teacher

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Risk Assessments and Risk Management PlansRisk Assessments and Risk Management Plans

A Risk Management Plan must be undertaken for all A Risk Management Plan must be undertaken for all sporting events in which students participate. The potential sporting events in which students participate. The potential hazards of each activity need to be identified, the level of hazards of each activity need to be identified, the level of risk assessed and ways of controlling or eliminating the risk risk assessed and ways of controlling or eliminating the risk established. (See appendix C of Guidelines for Safe Conduct established. (See appendix C of Guidelines for Safe Conduct of Sport and Physical Activity in Schools (the Guidelines)) of Sport and Physical Activity in Schools (the Guidelines))

Where sporting activities are conducted in collaboration Where sporting activities are conducted in collaboration with other organisations and under the auspices of the with other organisations and under the auspices of the school the risk management plan of the other school the risk management plan of the other organisation/s should be assessed as part of the school’s organisation/s should be assessed as part of the school’s risk assessment and management. (see the Guidelines, risk assessment and management. (see the Guidelines, Welfare of Students While Engaged in Activities Conducted Welfare of Students While Engaged in Activities Conducted Under the Auspices of the School 97/138, Excursion Policy Under the Auspices of the School 97/138, Excursion Policy PD/2004/0010 & Incident Reporting Policy PD/2007/0362) PD/2004/0010 & Incident Reporting Policy PD/2007/0362)

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Risk Assessment and Risk Risk Assessment and Risk Management PlansManagement Plans

Need to take into consideration all foreseeable risks and Need to take into consideration all foreseeable risks and their management. These include:their management. These include:

- student needs; - student needs; - accommodation of students with a disability; - accommodation of students with a disability; - supervision; - supervision; - child protection issues; - child protection issues;

- skills, experience and expertise required by coaches etc; - skills, experience and expertise required by coaches etc; - industry standards;- industry standards;

- nature of the activity;- nature of the activity;- venue;- venue;- equipment;- equipment;- environmental issues;- environmental issues;- travel/transport- travel/transport

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School Aquatic Activity and Water School Aquatic Activity and Water SafetySafety

Following the inquest into the death of a student at a public Following the inquest into the death of a student at a public swimming pool in December 2006, the Department has swimming pool in December 2006, the Department has issued the following memoranda to Principals. They address issued the following memoranda to Principals. They address the issues of unstructured aquatic activity or “free the issues of unstructured aquatic activity or “free swimming” and recommend that schools replace this type swimming” and recommend that schools replace this type of activity with a range of structured novelty events that of activity with a range of structured novelty events that will enable swimmers and beginning swimmers to will enable swimmers and beginning swimmers to participate. participate.

https://detwww.det.nsw.edu.au/inprincipal/assets/https://detwww.det.nsw.edu.au/inprincipal/assets/common_media/20081114/common_media/20081114/dn0800356SchlsAquaticActivities.pdfdn0800356SchlsAquaticActivities.pdf

https://detwww.det.nsw.edu.au/inprincipal/state_office/https://detwww.det.nsw.edu.au/inprincipal/state_office/2009-02-06/DN0900043SchlAquaticActivity.htm2009-02-06/DN0900043SchlAquaticActivity.htm

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Privacy and OH&S IssuesPrivacy and OH&S Issues

Privacy LegislationPrivacy Legislation-- The Privacy and Personal Information Protection Act The Privacy and Personal Information Protection Act

19981998 and the and the Health Records and Information Health Records and Information Privacy Privacy Act 2002Act 2002 apply to government schools and apply to government schools and agencies. agencies.

-- The Commonwealth The Commonwealth Privacy Act 1988Privacy Act 1988 and and Health Health Records Information Privacy Act 2002Records Information Privacy Act 2002 apply to non- apply to non- government schools.government schools.

-- The legislation deals with the collection, storage, The legislation deals with the collection, storage, accuracy, use and disclosure personal and health accuracy, use and disclosure personal and health

information of individuals.information of individuals.

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Personal Information: Personal Information: is information or an opinion about an individual whose identity is is information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or apparent or can reasonably be ascertained from the information or opinionopinion. .

Health Information:Health Information:is personal information that is information or opinion about the is personal information that is information or opinion about the physical or mental health or disability of an individual or physical or mental health or disability of an individual or information about health services relating to an individualinformation about health services relating to an individual..

Privacy legislation provides that an organisation does not need to Privacy legislation provides that an organisation does not need to comply with the legislation if non-compliance is authorised or comply with the legislation if non-compliance is authorised or required by another Act or law eg the OH&S Act.required by another Act or law eg the OH&S Act.

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All consent forms should contain a privacy notice informing All consent forms should contain a privacy notice informing parents/caregivers or the intended use and disclosure of the parents/caregivers or the intended use and disclosure of the information collected.information collected.

Examples of consent forms are in the Guidelines atExamples of consent forms are in the Guidelines athttp://www.sports.det.nsw.edu.au/spguide/appendia.htmhttp://www.sports.det.nsw.edu.au/spguide/appendia.htm

An example of a privacy notice is found at appendix 4 of the An example of a privacy notice is found at appendix 4 of the excursions policy excursions policy

https://detwww.det.nsw.edu.au/policies/student_admin/https://detwww.det.nsw.edu.au/policies/student_admin/excursions/excursion_pol/PD20040010_i.shtml?level=excursions/excursion_pol/PD20040010_i.shtml?level=

A further example of a privacy notice is found at the DET Privacy A further example of a privacy notice is found at the DET Privacy intranet websiteintranet website

https://detwww.det.nsw.edu.au/directorates/leglserv/https://detwww.det.nsw.edu.au/directorates/leglserv/privacy2/privacy%20notice.htmprivacy2/privacy%20notice.htm

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Anti-Discrimination and OH&SAnti-Discrimination and OH&S

Anti-Discrimination LegislationAnti-Discrimination Legislation-- Anti-Discrimination Act 1977Anti-Discrimination Act 1977-- Disability Discrimination Act 1992 (Cth)Disability Discrimination Act 1992 (Cth)-- Sex Discrimination Act 1984 (Cth)Sex Discrimination Act 1984 (Cth)- - Racial Discrimination Act 1975 (Cth)Racial Discrimination Act 1975 (Cth)-- Human Rights and Equal Opportunity Act 1986 (Cth)Human Rights and Equal Opportunity Act 1986 (Cth)-- Age Discrimination Act 2004 (Cth)Age Discrimination Act 2004 (Cth)-- Disability Standards 2005 (Cth)Disability Standards 2005 (Cth)

The legislation makes it unlawful to discriminate against The legislation makes it unlawful to discriminate against students on particular grounds including disability.students on particular grounds including disability.

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Anti-Discrimination and OH&SAnti-Discrimination and OH&S

Anti-Discrimination legislation requires schools to make Anti-Discrimination legislation requires schools to make reasonable adjustment to ensure students with a disability reasonable adjustment to ensure students with a disability are able to access and participate in education without are able to access and participate in education without experiencing discrimination. experiencing discrimination.

It is not unlawful to discriminate against a student with It is not unlawful to discriminate against a student with disability if it would cause unjustifiable hardship to provide disability if it would cause unjustifiable hardship to provide the student with access to a benefit provided by DET. the student with access to a benefit provided by DET.

It is not unlawful to discriminate against a person if it is It is not unlawful to discriminate against a person if it is necessary to do so to comply with a requirement of another necessary to do so to comply with a requirement of another Act (eg OH&S Act) Act (eg OH&S Act)

Documents

1 Sports Organisers’ Conference Western NSW Region Legal Issues 13 February 2009 Sandra Butler A/Senior Legal Officer Legal Services Directorate