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

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...