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Date Submitted: 08/15/2011 05:27 PM
MEL5_96589_1 (W97)
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 MEL5_96589_1 (W97)
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...