Children’s safety, health and wellbeing is our key priority. Early Learning Victoria recognises that staff have a legal obligation to take reasonable steps to prevent harm to children in their care.
1. Scope
This policy applies to children, families, staff, management and visitors of Early Learning Victoria centres. This includes volunteers, students on placement and contractors or labour hire employees of Early Learning Victoria.
2. Policy statement
All Early Learning Victoria centre staff working with children owe a duty of care to those children. All staff must take reasonable steps to reduce the risk of foreseeable harm to enrolled children and reasonable precautions to minimise the risk of child abuse by an individual working at the service.
These requirements continue even when another party is involved in delivering an activity at the centre for example, a third-party providing services for an excursion or incursion.
In some circumstances, the duty of care will extend beyond centre hours or away from the main centre location.
Centre directors and Early Learning Victoria staff can seek legal advice about particular circumstances from the Department of Education’s (the department) Legal Division on 03 9637 3146 or legal.services@education.vic.gov.au.
2.1 Requirements
All Early Learning Victoria staff owe a duty of care to children enrolled at Early Learning Victoria centres. Centre directors, teachers, educators and other centre staff must take reasonable steps to avoid harm to children, whether physical or psychological harm, including by:
- ensuring staff are familiar with and follow relevant Early Learning Victoria policies and procedures
- providing suitable and safe premises
- providing an adequate system of supervision of children (see the Supervision of children policy)
- ensuring that appropriate medical assistance is provided to a sick or injured child (see the Management of medical conditions policy and procedure)
- identifying and managing risks of harm by undertaking risk assessments for centre activities and implementing risk management strategies
- ensuring each staff member’s roles and responsibilities in relation to child safety and wellbeing are identified and clearly communicated (see the Child safety and wellbeing policy and the Protecting children policy)
- taking appropriate action on becoming aware of safety concerns about a child, for example in response to child-child bullying or family violence risks to a child (see the Child safety and wellbeing policy and the Protecting children policy).
Early Learning Victoria centre staff also owe a duty of care to take reasonable precautions to minimise the risk of child abuse by an individual working at the centre, including by:
- ensuring that all staff, volunteers, students and contractors follow child safety policies, volunteer and visitor policies, and agree to follow the department’s Child Safety Code of Conduct
- appropriately managing employee, volunteer, student and contractor recruitment and screening, conduct and performance.
Early Learning Victoria centres must keep records of actions taken by centre staff in exercising their duty of care. This could include a risk management plan for an activity, making notes on a child’s enrolment record of steps taken in response to an incident involving that child, and documenting in a child safety plan the role of staff in supporting a child to feel and be safe.
Duty of care when a third party is involved
The duty of care owed by centre staff is non-delegable, meaning that it continues to exist even if another organisation is involved in delivering a centre activity for example, a third-party providing services for an incursion or excursion. Both centre staff and the third party will separately owe a duty of care to the children at the same time. However, the reasonable steps that need to be taken by centre staff and staff from the third party are likely to be different.
Before an external third-party provider is selected to assist with the delivery of a program, the centre director must be satisfied that a thorough check of the proposed provider has been undertaken and that the provider has appropriate expertise to deliver the program, has experience working with groups of children and has policies, procedures and practices in place to keep children safe (see the Excursions, incursions and regular outings policy and procedure).
The centre director must also ensure that there is agreement between the centre and the external provider about supervision of children, so that supervision requirements are met at all times during the activity, including first aid, emergency procedures and specialist equipment.
Parents/carers must be made aware of the role of the third-party provider in running the activity and appropriate consent obtained, including for the sharing of relevant health and personal information about a child with the provider, for example known allergies and anaphylaxis risks.
Duty of care to children outside the centre
In some circumstances, where there is a sufficient connection between the centre and an activity, the duty of care owed by centre staff will extend beyond the centre’s normal operating hours and away from the centre. Whether the duty is extended will depend on the circumstances of each individual case.
Likely there will also be sufficient nexus between the centre and an after-hours activity if centre staff are supervising children or present at the activity or if the event is organised by parents/carers as an authorised centre event.
Centre staff can reduce the risk of inadvertently extending the duty of care to activities run out of normal operating hours by providing clear communication to staff and families about whether an activity is a centre activity or not and by setting clear boundaries about staff supervision and involvement.
2.2 Legal background
Duty of care is an element of the tort of negligence. In broad terms, the legal position is that if a person is injured as a result of a negligent act or omission of another, the injured person should be compensated for loss and damage flowing from that negligence.
To successfully bring a compensation claim in negligence, a person must establish on the balance of probabilities, that:
- a duty of care was owed to them at the time of the injury
- the risk of injury was reasonably foreseeable
- the likelihood of the injury occurring was more than insignificant
- there was a breach of the duty of care or a failure to observe a reasonable standard of care
- this breach or failure caused or contributed to the injury, loss or damage suffered.
The fact that a duty of care exists does not mean that a centre staff member will have breached their duty of care in every case where a child is injured. In order for the negligence claim to succeed, all of the above elements must be established.
If parents or carers bring a negligence claim against the department, Early Learning Victoria policies and evidence of the centre’s implementation and compliance with these policies, will be relevant to the legal claim.
No one is held to a standard of perfection by the law, the requirement is for reasonableness. Good record keeping can assist the department to defend a legal claim that may be brought many years after an incident. For example, risk management plans demonstrate the process to identify foreseeable risks and consider possible reasonable steps to mitigate those risks, at a given point in time.
Legal proceedings concerning personal injuries are usually brought against the responsible authority — for instance, the State of Victoria (the department) rather than an individual staff member or centre director. In the unlikely event that an individual Early Learning Victoria centre staff member is named as a defendant in a claim, the department will usually indemnify department employees, volunteers and students, where the staff member was performing their duties in good faith.
3. Actions and procedures
3.1 Responsibilities of families
Families are encouraged to raise concerns about the safety or wellbeing of their child with the child’s educator or teacher. If families do not wish to raise the matter with their child’s educator or teacher they can speak to the centre director or assistant director of the Early Learning Victoria centre instead.
Families are responsible for:
- raising any concerns with relevant staff when they come up, including about incidents resulting in an injury or harm to their child or near misses
- communicating any concerns or compliments relating to the management of risks or operation of the service as soon as is practicable
- working co-operatively with Early Learning Victoria and the department in any investigations related to incidents resulting in an injury or harm to their child
- being familiar with the Education and Care Services National Law Act 2010 and the Education and Care Services National Regulation 2011, service policies, constitution and procedures.
3.2 Responsibilities of staff
Multiple staff may owe a duty of care to the same child, with differing responsibilities and roles in discharging the Early Learning Victoria centre’s overall duty of care. For example, a centre director is not required to personally supervise every child to discharge their duty of care. Instead a centre director is responsible for establishing and monitoring a system for supervision that is shared amongst staff. A senior staff member may be responsible for preparing the supervision duty roster, ensuring sufficient coverage and communicating known risks to each rostered staff member.
All staff members on duty will owe a duty of care to take reasonable steps whilst they are on a rostered shift. This may include:
- monitoring specific children where there are known risks
- generally monitoring all children and intervening where there is inappropriate behaviour
- responding to accidents and taking appropriate measures to follow up any incidents that have occurred, which may involve ensuring that the incident is reported to another staff member with responsibility for further action.
Early Learning Victoria policies relating to the health, safety and wellbeing of children support centre staff to meet their duty of care. Centre directors must have in place robust and documented systems to ensure that all centre staff are familiar with and follow relevant policies. Centre staff must be familiar with and follow relevant policies and make written records following an incident about what occurred and actions taken by staff. For more information, see the Incidents, injury, trauma and illness policy.
4. Resources
Legislation and standards
- Education and Care Services National Law Act 2010
- Education and Care Services National Regulation 2011
- Wrongs Act 1958
Related policies
- Administration of first aid policy and procedure
- Administering medication policy and procedure
- Drop off and collection of children policy and procedure
- Emergency and evacuation management policy
- Excursions, incursions and regular outings policy and procedure
- Handling complaints and feedback policy
- Incidents, injury, trauma and illness policy
- Management of medical conditions policy and procedure
- Protecting children policy
- Staff code of conduct policy
- Visitors, volunteers and students on placement policy
- Department of Education Child Safety Code of Conduct
Updated