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

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

2. Contact Legal Services Directorate Department of Education and Training Levels 5 & 7, 35 Bridge Street SYDNEY NSW 2000 Ph: (02) 9561 8538 Facsimile: (02) 9561 8543 Email: legal@det.nsw.edu.au Website:http://detwww.det.nsw.edu.au/directorates/leglserv/ Sandra Butler, A/Senior Legal Officer Ph: (02) 9561 8524 Facsimile: (02) 9561 8543 Email: sandra.butler@det.nsw.edu.au

3. Contents • Duty of Care • Sporting Injury Cases • OH&S • Risk Management Plans • School Aquatic Activity Memos • Privacy and OH&S • Anti-Discrimination and OH&S • Questions

4. Duty of Care • What is it? • The duty of care owed by the State and its teachers to pupils is a duty to take reasonable steps to protect students from risks that are reasonably foreseeable. e.g. collapsing goal posts, insufficient supervision. • It exists wherever there is a pupil teacher relationship. • It is a concept developed by the courts over time.

5. Duty of Care • What is reasonable depends on the circumstances, taking into account such things as age, maturity, ability, experience, development, environment, student numbers and departmental policies. • It is a non-delegable duty. • It is necessary to assess and manage the risk of any activity by acting in accordance with any established policies and procedures.

6. Consequences of Breach of Duty of Care • For the Department • Sued by injured party • For the Employee • possible allegation of misconduct (section 93C Teaching Service Act 1980); • Penalties range from caution to dismissal from employment (section 93B).

7. Consequences of Breach of Duty of Care • Can a teacher be sued personally if a student under his/her care is injured? • Principle of Vicarious Liability 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 liable to pay the damages, not the teacher. This does not apply to serious and wilful misconduct. • Employees Liability Act 1991 Provides that an employer must pay for any damages arising from an employees negligent actions. This does not apply to serious and wilful misconduct or conduct not associated with employment.

8. Sporting Injury Cases • Horse Riding Activity – Suitability of Venue A DET student was participating in an equestrian carnival attended by students from government and non-government schools and held at a council showground. The student fell from the horse, was dragged head first into a pole and suffered severe head injuries. The student brought proceedings against the Department, the independent school that hosted 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 appropriate inquiries into the safety of the showground for a horse related activity. • Martial Arts Activity with AIS Instructor -Supervision Students from a government school were on an excursion to the AIS where they participated in a variety of activities. One student undertaking a 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 the activity by a DET employee at the time the injury occurred.

9. Sporting Injury Cases • Supervision A student from a government high school who suffered minor learning and 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. 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 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 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 also claimed that DET’s duty of care towards the student was higher in the circumstances because of the student’s disabilities. • Supervision A student from a government high school was returning home after recreational cycling which was part of the school curriculum when he was 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 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 student in the circumstances.

10. Sporting Injury Cases • Foreseeable Risk A student at a government high school was participating in soccer training afterschool. An Industrial Arts teacher was coaching the team. 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 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 severe burns to a large percentage of his body. The student claimed against DET. WorkCover commenced action against DET but this was discontinued. • Foreseeable Risk 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 another student in the eye. The injured student was standing behind the student who struck the ball. The injured student claimed against DET. The court found that it was reasonably foreseeable that a golf ball would hit a tree and rebound onto a student causing injury.

11. Occupational Health & Safety in Schools • Legislative Context Occupational Health and Safety Act 2000 and Occupational Health and Safety Regulation 2001 • Policy context: Bulletins Guidelines for Safe Working and Learning Proformas (eg risk management plans ) Forms (eg employee incident notification form) Risk management plans for venues used by DET https://detwww.det.nsw.edu.au/adminandmanage/ohands/excursions/index.htm • OH&S website http://detwww.det.nsw.edu.au/adminandmanage/ohands/index.htm

12. Occupational Health & Safety in Schools • The Department’s duty as an Employer includes: - Ensure that non-employees (eg students and visitors) are not exposed to risks to their health and safety arising from the conduct of the employer’s undertaking while they are a the employer’s place of work. - to inform and consult employees. - ensure the health, safety and welfare of employees at work by providing and maintaining systems of work and working environments that are safe and without risk to health

13. Occupational Health & Safety in Schools • Duties of Employees include: - Taking reasonable care for the health and safety of persons who may be affected by their acts or omissions at work. - Co-operating with their employer to enable compliance with any requirement imposed on the employer by the legislation (eg assist in risk assessments and management plans, follow direction and policy in relation to safety matters.) - Failure to comply with relevant policy or procedure is a serious issue and may result in disciplinary action against a teacher

14. Risk Assessments and Risk Management Plans • A Risk Management Plan must be undertaken for all sporting events in which students participate. The potential hazards of each activity need to be identified, the level of risk assessed and ways of controlling or eliminating the risk established. (See appendix C of Guidelines for Safe Conduct of Sport and Physical Activity in Schools (the Guidelines)) • Where sporting activities are conducted in collaboration with other organisations and under the auspices of the school the risk management plan of the other organisation/s should be assessed as part of the school’s risk assessment and management. (see the Guidelines, Welfare of Students While Engaged in Activities Conducted Under the Auspices of the School 97/138, Excursion Policy PD/2004/0010 & Incident Reporting Policy PD/2007/0362)

15. Risk Assessment and Risk Management Plans • Need to take into consideration all foreseeable risks and their management. These include: - student needs; - accommodation of students with a disability; - supervision; - child protection issues; - skills, experience and expertise required by coaches etc; - industry standards; - nature of the activity; - venue; - equipment; - environmental issues; - travel/transport

16. School Aquatic Activity and Water Safety • Following the inquest into the death of a student at a public swimming pool in December 2006, the Department has issued the following memoranda to Principals. They address the issues of unstructured aquatic activity or “free swimming” and recommend that schools replace this type of activity with a range of structured novelty events that will enable swimmers and beginning swimmers to participate. • https://detwww.det.nsw.edu.au/inprincipal/assets/common_media/20081114/dn0800356SchlsAquaticActivities.pdf • https://detwww.det.nsw.edu.au/inprincipal/state_office/2009-02-06/DN0900043SchlAquaticActivity.htm

17. Privacy and OH&S Issues • Privacy Legislation - The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 apply to government schools and agencies. - The Commonwealth Privacy Act 1988 and Health Records Information Privacy Act 2002 apply to non- government schools. - The legislation deals with the collection, storage, accuracy, use and disclosure personal and health information of individuals.

18. Privacy and OH&S Issues Personal Information: is information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. Health Information: is personal information that is information or opinion about the physical or mental health or disability of an individual or information about health services relating to an individual. Privacy legislation provides that an organisation does not need to comply with the legislation if non-compliance is authorised or required by another Act or law eg the OH&S Act.

19. Privacy and OH&S Issues • All consent forms should contain a privacy notice informing parents/caregivers or the intended use and disclosure of the information collected. • Examples of consent forms are in the Guidelines at http://www.sports.det.nsw.edu.au/spguide/appendia.htm • An example of a privacy notice is found at appendix 4 of the excursions policy • https://detwww.det.nsw.edu.au/policies/student_admin/excursions/excursion_pol/PD20040010_i.shtml?level= • A further example of a privacy notice is found at the DET Privacy intranet website • https://detwww.det.nsw.edu.au/directorates/leglserv/privacy2/privacy%20notice.htm

20. Anti-Discrimination and OH&S • Anti-Discrimination Legislation - Anti-Discrimination Act 1977 - Disability Discrimination Act 1992 (Cth) - Sex Discrimination Act 1984 (Cth) - Racial Discrimination Act 1975 (Cth) - Human Rights and Equal Opportunity Act 1986 (Cth) - Age Discrimination Act 2004 (Cth) - Disability Standards 2005 (Cth) The legislation makes it unlawful to discriminate against students on particular grounds including disability.

21. Anti-Discrimination and OH&S Anti-Discrimination legislation requires schools to make reasonable adjustment to ensure students with a disability are able to access and participate in education without experiencing discrimination. It is not unlawful to discriminate against a student with disability if it would cause unjustifiable hardship to provide the student with access to a benefit provided by DET. It is not unlawful to discriminate against a person if it is necessary to do so to comply with a requirement of another Act (eg OH&S Act)