Legal liability in training

Ross Woods, Revised 6 Dec.05

 

Legal liability

According to the courts, vocational education personnel can be liable for their assessments. The apparent reason is that the training sector certifies competence. In some jurisdictions, this extends to higher education.

You can be liable if you certify students as competent for something that they cannot do.

Example 1

Assessment guidelines in the competency standard required farm students to be able to use both motorcycles and quad bikes. However, the college only taught students to use quad bikes because motorcycle insurance was too expensive.

Imagine that a graduate is told to use a motorcycle on a farm. The boss is within his/her rights, because the student has a certificate that says he can. The graduate is afraid of losing his job, so he gets on the motorcycle and crashes, resulting in major injury.

The college's assessor is personally liable for the injuries because he passed the student for that unit. He ignored the fact that he was certifying students as competent to ride motorcycles.

Example 2

In one state, aged care workers are not legally permitted administer medication; nurses must do it. Here's a hypothetical case.

You certify a student in aged care work as competent to administer medication because it's written in the package. However, he does not actually have those skills. Then he moves to another state where their laws allow aged care workers to give medicines. He gets a patient's medication wrong and the patient dies.

You are personally liable because you certified the student as competent to do something that he could not do.

You are required to follow industry standard professional practice.

Teaching staff can be sued for damages arising from their failure to comply with current industry standards. In fact, you may still be vulnerable unless you follow world best practice. This means that presently you must comply with the assessor is assessor certification standards whether you have it or not.

Insurance won’t necessarily cover you.

Your liability insurance might not help. Insurers will invest substantial resources to avoid paying out a large claim if they think they shouldn't pay.

They probably won't cover you for liability if they can show you were negligent, didn't follow due process, or didn't try to identify and minimize risks. Consequently, you would be personally liable.

Detailed records are good defense against litigation.

Keep records of evidence, not just to be able to demonstrate compliance with the college's quality standard, but for as long as there is an identified risk of litigation. You will need to be able to demonstrate "due process." Students don’t need to sign the assessment, but it may be helpful in case of litigation.

I understand that this is an actual case ...

A college assessed a student as competent to use a large piece of expensive equipment. Soon after the assessment, the student was horsing around and damage the equipment beyond repair. The employer took the college to court, claiming that it had incorrectly certified the student as competent.

The college brought out its records showing:

The college was found not liable, and the student was found personally liable. Although competent, the student was blamed for his own irresponsible behaviour.

 

Risk management

The concern of legal action for personal and organizational liability should generally be treated through a risk management procedure. That is, you should have appropriate risk management plans in place to minimize personal and organizational liability. You are not only required to provide the most relevant and current information, but must also be able to prove it.2

In short, everybody has some level of risk. Barring other factors and unusual circumstances, you should be okay if you implement those current ACAS policies that apply to you:

Here's a list of risk factors and possible risk management responses. Of course the appropriate responses will vary from place to place.

 

Risk factors Possible responses
Casual and sessional staff Orientation, supervision, checking previous training
Failure to comply with best practice Professional Development of various kinds (reading, PD meetings, etc.)
Failure to comply with industry standards (e.g. those defined by Training Packages) Check that people read and comply with standards
Failure to comply with organisational standards Check that people read and comply with standards
Lack of a prior documented risk management policy Have a good policy. (ACAS has one that covers all its member colleges)
Lack of a prior written implementation of risk management policy (e.g. identify, assess, and manage risks) Keep your risk management up to date.
Lack of updates on risk areas (industries tend to identify industry-wide risks) Professional Development of various kinds (reading, PD meetings, etc.)
Keep up with the Worksafe website.
New staff Induction, supervision/liaison
OHS-related risks in predominantly blue-collar occupations See SU's approach
On-job training Good procedures in place
Orientation, supervision
Tasks that involve care of confidential information Induction, supervision, liaison
Good procedures in place.
Tasks that involve care of money Induction, supervision, liaison
Good procedures in place (e.g. two people do key tasks together)
Tasks that involve duty of care (especially of minors and other persons with diminished ability to care for themselves) Induction, supervision, liaison
Good procedures in place.
Tasks that involve giving advice or guidance Induction, supervision, liaison
Disclaimers
Clear policies (including boundaries) in place.

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1Source: Russell Docking. Nov. 2004.
2 Workshop Bulletin 7th July 05, Training Australia Magazine.