This is the first of three questions that came in during my recent break to Central Australia – and the break was great, thanks for asking. But not it’s back to business.
A volunteer trainer/assessor from WA asks:
Are volunteer trainer/assessors (i.e. those teaching a specific endorsed course through a department academy or approved school) open to litigation or accountability should one of the students assessed as competent go on to be injured or cause damage at some future time? At least any more or less than career staff in the same position or volunteers providing other training on station?
I would expect that the answer should be no, the student was assessed at the time as competent, but that does not have any effect on how they conduct themselves in future. Also, the training provides department endorsed procedures at the time, if procedures change in the future, then it is up to the department to ensure that they either advise or provide gap training to all past students.
I have volunteer brigades refusing to allow very competent, experienced, qualified trainer assessors to provide training or assessment because “they could be sued down the track”.
In answering this question, I assume the trainer/assessor has taught the current syllabus and the assessment has been properly conducted and the student genuinely assessed as competent. In those circumstances the answer is ‘no, there can be no liability attaching to the instructor if a student goes “on to be injured or cause damage at some future time”. Start with a practical test – if that was the rule then every time there was a car accident, the driver at fault could look to sue their instructor! Every time there was a plane crash everyone involved could sue the pilot’s trainers and assessors
Let us look at some more basic principle. The issue is one of ‘duty of care’. A duty of care is not owed to every foreseeable person who may be harmed. An instructor owes a duty of care to his or her students and no doubt the organisation in whose name they conduct the training but that cannot extend to everyone. It is impossible to know the circumstances in which a person will come to use the skills that are being taught and assessed, it is impossible to know what experience the student will gain between the training and the application of those skills, it is impossible to know who will benefit from those skills. A person cannot owe a duty of care to the world at large so the idea that a trainer/assessor owes a duty of care to some person who cannot be identified and who might, at a time and in circumstances that cannot be identified, need to rely on the training that the trainer/assessor provided is too broad a class of persons. If the trainer/assessor could be sued their liability would be unbounded – it would be owed to everyone forever in circumstances where they can do nothing to ensure their students remain competent. That a duty would be owed to the world at large or to an undefined and unclosed class of persons is a reasons to hold that there is no relevant legal duty (see Graham Barclay Oysters v Ryan (2002) 211 CLR 540).
Second the trainer/assessor’s obligation is to act reasonably in the circumstances. If they properly deliver the training and properly assess the student as competent that means no more than they were competent at that moment in time. The hope is that they can take those skills and use them but no-one is perfect and we all forget things we are taught, develop bad habits, get influenced by others who may do things differently etc. There can be no implication on a trainer/assessor if the student for whatever reason doesn’t apply the training they have been provided. I’m sure none of us drive the way we did when we had an instructor or examiner in the car with us! A trainer may well teach what we’re meant to know and do, and an assessor may well conclude that we’re able to do what we’re meant to do, but neither can guarantee that we’ll actually do it all the time in all circumstances.
The question was “Are volunteer trainer/assessors (i.e. those teaching a specific endorsed course through a department academy or approved school) open to litigation or accountability should one of the students assessed as competent go on to be injured or cause damage at some future time?”
Again assuming that they have delivered the training and conducted the assessment (not just signed off because they are mates, or the unit needed people with those qualifications, or decided that the training was rubbish and they’d deliver their own syllabus) then the answer to that question is “NO”.
Australian Emergency Law 
In a work seetting, not emergency services, as a trainer/assessor, I was put through my paces by a WorkSafe Inspector many years ago following an incident and he was more than happy with what was trained, how it was delivered, etc. This boiled down to having robust documentation in place that clearly outlined how the training was delivered, the assessment undertaken and other factors.
Whilst not the most pleasent experience, it was a good outcome that gave me good insight into the process and the importance of following processes.
First. I am glad your holiday was good and welcome back.
I am a RFS volunteer trainer in a number of areas including Chainsaw, Driving, firefighting
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If during the presentation to sometimes 15 people I say something in a way that is misinterpreted and that happens to be one of the assessment questions not used and the subsequent misunderstanding is the primary cause of and incident am I liable?
I was under the impression that Clause 128 of the rural fires act provided some protection in return for putting all this work in for no reward.
No, for all the reasons given. You can’t actually know what people hear and understand. If you taught the syllabus and the assessment was valid then you’ve done all you can do. Clause 128 of the Rural Fires Act will have no application here, this is a broader issue that applies to all teachers – driving instructors, first aid instructors, flying instructors etc. You can’t be liable for the subsequent poor performance of your student – there just can’t be any sort of duty to the potential users of those skills as what happens after they leave your classroom is way beyond your control.
Thanks for another interesting post.
Lets look at the other side of the issue, if a trainer/assessor deviates from the organisations published/approved training/assessment material, what is the implication then?
That would raise quite a different issue. If the trainer decides that they know better than those that wrote the syllabus then they may well be negligent – there duty would be to the student but if he or she were sued they may seek to join the trainer or the RTO that provided the training. As I note in my post I had assumed the training and assessment were properly conducted.
Training/assessing outside the organisations approved content posses an interesting issue which moves slightly away from your original post. It is common for trainers/assessors in organisations to deliver training and/or assessment using products that have not been approved by the organisation.
Reading your reply to my question I think its prudent for Trainers and Assessors to be mindful of sticking with the material provided by the organisation.
“using products that have not been approved by the organisation” may not be a problem if they are consistent and the assessment if fair and valid. It is of course up to assessors to determine the assessment to be applied and to satisfy themselves if the candidate is, or is not yet, competent. The issue is teaching their own syllabus – the ‘I know this is what the book says, but in reality do this instead because my experience says this is better …’