Duty of Care

 

Civil Liability Act 2002 (WA)

Even if you are at fault and somebody comes to harm, they can't successfully sue you if they could (or should) have seen the risk and taken precautions, especially considering:

• Would they probably be harmed if they are careful?
• Would the harm probably be serious?
• Is it reasonable to expect them to take precautions?
• "Social utility" defined in various ways: Is it primarily a social or recreational activity? What was practical and possible in the situation?

More:

What is a Duty of Care?

It is a duty to take reasonable care to avoid acts or omissions that you can reasonably foresee would probably result in injury or other harm to somebody. You should have thought about them when doing what you did.

You have a duty of care to students, regardless of their age. This is more so if they are minors.

Some relationships (such as student- teacher) have a more demanding duty, called a 'non-delegable' duty of care. In schools, this is based on the  idea that the child is vulnerable and dependent. The school still has a duty of care even if employees and independent contractors do the work.

Negligence Claim

Most educational legal claims are based on negligence. The employer is responsible for what is done by employees as part of their employment, so people sue the employer.

They can only sue the employee personally for something done by employees outside their employment.

To sue the school, the plaintiff has to show in court that:

1. the defendant had a duty of care;
2. the defendant gave a lower standard of care than would be reasonable,
3. that the lack of adequate care resulted in harm (usually injury), even if it wasn't the sole cause of harm.
4. the plaintiff suffered some kind of damage or loss.

However, care doesn't have to be perfect. You don't have to cover all possible problems, because that would be unreasonable.

Consider the following:

1. Is the person particularly vulnerable, such as a young child?
2. How serious would the harm/injuries probably be?
3. How likely would it be? (If you can't reasonably be expected to foresee it, then you don't have to do anything about it.)
4. How difficult is it to take preventative measures. (Extreme measures would be unreasonably demanding.)

Note: points 2-4 are covered as part of normal risk management.

Quote:

Liability for harm caused by the fault of a person

Duty of care General principles

(1) A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless —

1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
2. the risk was not insignificant; and
3. in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —

1. the probability that the harm would occur if care were not taken;
2. the likely seriousness of the harm;
3. the burden of taking precautions to avoid the risk of harm;
4. the social utility of the activity that creates the risk of harm.

Causation

Recreational activities, Contributory negligence, Assumption of risk (e.g. Injured person presumed to be aware of obvious risk, and no duty to warn of obvious risk, and no liability for harm from inherent risk