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LEGAL ISSUES

Traditionally in Australia parents and guardians of disabled children have tended to use the Disability Discrimination Act to resolve grievances with the various Education Departments.

Recent High Court of Australia decisions such as Purvis v N.S.W. (Department of Education and Training) have narrowed the scope of this Act, and reduced its effectiveness for people whose children have intellectual disabilities.

It may now be time to look at other remedies such as the common law Tort of Negligence. Educational negligence has been a no-go area as courts have ruled that there are so many contributing factors that cause a child not to succeed educationally. (Family, interest of the child, illness etc.) This has led to teachers being immune from negligence claims.

CHANGE IN UK COURT DECISIONS.

Recently in Britain, the House of Lords was asked to rule on a series of cases on appeal. In the Phelps case, the House of Lords was asked to make a ruling where a child who suffered from Dyslexia had been diagnosed incorrectly, and therefore not provided with remedial assistance. The Court of Appeal had overturned the original decision, and this reversal was then appealed to the House of Lords.

These English cases then have recognised liability for teachers or educational psychologists who are entrusted with diagnosing, assessing and treating students with special needs. This approach has also been successful in U.S. Courts.

WHAT IS THE SIGNIFICANCE THEN FOR AUSTRALIA?

The House of Lords is highly persuasive in the development of our common law.

The HIght Court of Australia in a statement in Parre V Apand (1999) took the approach of looking at the salient features to determine whether a duty of care exists by looking at past cases in similar categories. Such an approach should lead to the consideration of the Phelps decision.

If such cases are to be successful, we will need to prove that the failure of Duty of Care has damaged our children.

REGISTER YOUR CHILD NOW

It is vital for these cases, then, that we can prove our children have suffered as a result of the failure of duty of care. This is a major reason you should register your child with ATAC. Your child can be assessed by experts in the diagnosis of Autism Spectrum Disorders who will then make detailed recommendations for the care and education of your child.

If these recommendations are rejected by your child's school when they are presented with them, then the person who rejects them is responsible for their decision.

If your child is then damaged by that decision, the person responsible for rejecting it may be sued for negligence!

Damages can be determined with a further test by the autism expert. If the second report shows regression in your child's development another leg of the negligence claim is proved. The only other thing left to do is to quantify the cost of treatment and loss in monetary terms that results from this failure in Duty of Care of your child.

REGISTER YOUR CHILD WITH ATAC NOW

ATAC - Action for Tasmanian Autistic Children!

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