[MUSIC] Welcome back everyone, we're in course 7, being a professional, week 3, legal and administrative responsibilities of a teacher. And we're going to begin with lecture one, the duty of care. It's important to understand the two main ways that the law is made. The first is through the decisions of judges in courts, and we refer to this as common law, or case law. This has been built up over time and, acts as precedent of the sorts of things that we can and can't do in society. Law reports are sometimes published and these have significant cases in them which judges outline their reasons for their particular decision. These serve as important cases for future debates, future action in education. So, the power of precedent is quite powerful and goes across international boundaries. So, it's not unusual, for example, to hear in a court case examples of significant cases that have come from other jurisdictions and other countries. The duty of care is fundamental to the professional conduct of the teacher. Just some background before we begin. We all owe a duty of care to each other, and that mainly consists of the fact that we should not do anything that would imperil or harm somebody else, but as regular citizens if you like, there is no compulsion on us to go to the aid of another person. This is different however when someone is in a position of responsibility. [MUSIC] Now teachers, because they are older, wiser, more experienced, knowledgeable, and they should be aware of potential dangers, are in a position of responsibility for their students. The key consideration in the duty of care is does the pupil-teacher relationship exist? Now, this doesn't just refer to school hours or school premises as we'll see in a moment. There's an exercise there for you. And the key question to ask yourself is, in each scenario is there a formal pupil-teacher relationship? Is the teacher exercising authority and control over the student? Is the student under the control of the teacher? The first example is when you take a class on an excursion or field trip, out of the school and sometimes out of school hours, is there a formal pupil-teacher relationship? Is there a duty of care in that case? Secondly, you see a student steal something at the local supermarket on a Saturday. You're there as a regular member of the public. Does the duty of care between teacher and student exist on that occasion? Our third example is when you coach a school sporting team, which may well be playing outside the school, against another school, and quite possibly out of school hours. You're the coach of that team. Is there a duty of care? Is there a pupil-teacher relationship between you and members of that team? The final example is that you're at the school at 8 a.m in the morning. Students are present with your knowledge, but school officially does not begin until lessons begin at 9 a.m. Is there a duty of care? Is there a situation where students and teachers are there in a formal relationship of authority? [MUSIC] Another important concept is that of "In Loco Parentis", which basically means, in place of the parent. There was a view, for many years, that teachers received their authority, over students, from the parent. In other words, they acted in place of the parent. However, significant court cases have shown this concept to be incorrect. Teaching of authority does not come from the parents. It can, it can't be given and taken away. Teacher's authority comes from things like legislation. Which requires students to attend school up to a certain age and through teachers' authority to practice through things like certification as we've mentioned before. In actual fact, the duty of care that teachers owe to their students is greater in some cases then the duty of care that a parent owes their children. One example is, that it would not be unusual for parent to leave a seven or eight year old child unsupervised in a room, while they went to do something in another room. On the other hand, it will be seen to be unreasonable for a teacher to leave a class unsupervised for any length of time. Secondly, principals are responsible for teachers. And in turn, those teachers may be responsible for 25, 30 students or more. Very few parents have 30 children or more. So, the duty of care is seen to be over and above that which a normal parent would exercise over their child. We've mentioned how court cases help construct case law or common law, and in those cases, a judge will make a decision. However, that decision doesn't normally result in a criminal conviction or in someone being imprisoned. In the case of case law, we're mainly concerned with justice, and not the breaking of a crime. We're interested in case law, in the fact that someone may well have been disadvantaged in some way, and we're trying to get some sort of restitution, or some sort of decision on that. Criminal action, however, is where someone has broken a crime, statute. A statute is a law that has been passed by parliament. It begins with a bill which then becomes an act and is binding. Criminal courts are different from civil courts. Criminal law attempts to control the behaviour of individuals, groups and corporations. It delineates specific offences and backs them up by the threat of punishment; which might be imprisonment, fines or probation. As we mentioned, criminal law its made through parliament. It's considered statutory law. Although judge-made law is very important in interpreting and developing what's laid down in statutes, it's impossible to cover every single incident that could occur for example, between a teacher and student or a teacher in school, by criminal law. However, case law built up over time gives us many precedents on which to base our action. In the case of criminal action, normally it is the state, that is, the government, the particular leadership of a country, who brings the action against a person or persons. Usually, with criminal action, there is a prosecutor and and a defendant. And an important consideration for us is that offences need to be proved beyond reasonable doubt. The word reasonable is very, very important in the law because it asks, what would a reasonable person do? What would a reasonable expectation be in the community? Beyond reasonable doubt means that there was very, very little doubt that someone has not committed a certain crime. If there is more doubt, then that person can't be convicted. The most common area of criminal law involving teachers is that of sexual offences involving children, and we'll talk more about that later. Obviously that would be a breach of the code of conduct we mentioned earlier, but it goes far beyond that. Civil action as we've mentioned is where individuals, corporations or the state bring an action against another individual, corporation or state. For example, your neighbour may well have chopped down a tree which falls over your fence, demolishes your fence and damages your house. That person may well not have committed a crime, but you could take civil action for damages. That would help pay for the repairs to your house, and fence, and so forth. Normally in civil action, the main action is monetary payment, In other words, damages. Now, the burden of proof in civil cases is less than that in criminal cases. In civil action, you only need to prove on the balance of probability that something has occurred as the result of someone's action. Balance of probability means more likely than not. So, the key point here is that it's easier to gain a favorable decision in a civil case than it is in a criminal case. Now, the vast majority of cases involving teachers and schools, which fall under the area of civil law, are called negligence. And we're going to take a particular look at negligence. Just a final concept before we do that though, vicarious liability basically means where the buck stops. In a school, the principal is really the key person in terms of responsibility. They may well have other responsibilities outside the school, but within the school, they are the key person. And as a result, teachers are under their supervision. Likewise students are under their supervision. When a teacher commits something which could be termed negligence, which is a breech of the duty of care, in some cases, the responsibility will flow through to the principal whose job it was to supervise the teacher. However, in a serious matter, for example, a criminal matter such as an assault by a teacher on a student, vicarious liability is not a defense for the teacher and the teacher may well have to face that charge alone. The exception would be, if the principal had incited or encouraged the teacher to commit the crime. In our next session, we will look very closely at this key point of negligence, which involves teachers in their day to day work. And in particular, the issue of a breach of the duty of care. [MUSIC]
