In recent years two Melbourne private schools have faced claims from disgruntled parents that the schools failed to provide an adequate education to their children. Both claims settled prior to trial. A similar claim against the Victorian Education Department is likely to be heard this year [2008]. So far Australia has not had a successful case for what has been termed “educational negligence”.
Actions against schools
There is no shortage of examples of successful claims against schools in Australia for negligence in almost every area of school life. In the seminal case of The Commonwealth of Australia v Introvigne,[1] the High Court stated that: “A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on school premises” (at 269). That duty encompasses responsibility for all aspects of students’ physical and mental wellbeing. However, the High Court has yet to decide whether that duty extends to ensuring reasonable care in the fundamental activity in which schools are engaged: the teaching of students.
In other influential jurisdictions, such as the US and UK, many more claims have been brought against schools for educational negligence. If an Australian case for educational negligence reaches a higher court, can it succeed? A review of some of the US and UK cases, and the way Australian courts have treated some of the principles involved, may provide an answer.
The US experience
Perhaps the most surprising trend in educational negligence cases is that the US does not lead the charge. Ever since the first “educational malpractice” claims (as they are called in the US) in the 1970s, the US courts have consistently denied plaintiffs relief on the basis of public policy.
In the case of Peter W v San Francisco Unified School District,[2] an 18-year-old student sued the educational authority due to his poor reading and writing ability. He alleged the school had been negligent in failing to determine that he had a reading disability. The court rejected the claim as not disclosing an actionable duty of care. The court cited a number of policy reasons, including that it was not able to decide an acceptable standard of care, as there were conflicting theories “of how or what a child should be taught” (at 824). Other factors included that to allow an actionable duty of care against a school would expose them to a “flood” of claims and that the court did not want to add to the problems of “limitations imposed upon them by their publicly supported budgets” (at 825).
In the case of Donohue v Copiague School District,[3] another allegedly illiterate student sued his school for failing to provide adequate reading assistance. The court, in refusing to allow the claim, held that “recognition in the Courts of this cause of action would constitute blatant interference with the responsibility for the administration of the public school system” (at 445).
Since the Peter W and Donohue decisions, and several other similar cases, the US courts have steadfastly refused to allow almost all educational negligence claims to get past the first hurdle. There are only a handful of examples of successful cases, and they generally fall outside the “standard” educational negligence claim – for example, the successful claim of Snow v State of New York,[4] where the failure to diagnose deafness and place the student in an appropriate educational setting “constituted a discernable act of medical malpractice on the part of the State rather than a mere error in judgement vis-a-vis claimant’s educational progress [sic]” (at 964). The court clearly distinguished the case from the educational malpractice cases on that basis.
The US shows no signs of reversing the long line of cases refusing to recognise educational malpractice.
The English experience
Almost as surprising as the US responses have been the more recent English decisions in educational negligence claims. The first major decision to reach the English House of Lords was in 1995 in the case of X (Minors) v Bedfordshire CC.[5]
That case involved five plaintiffs, three of whom claimed educational negligence against school authorities. The claims were based on alleged breaches of statutory duty, as well as common law negligence.
The House of Lords would not allow the claims based on direct liability for negligence in providing an educational service, but did allow the pleadings to stand on the basis of the authorities’ vicarious liability for its employees – in these cases, mostly the educational psychologists. Lord Brown Wilkinson said: “In my judgement a school which accepts a pupil assumes responsibility not only for his physical well being but also for his educational needs. The education of the pupil is the very purpose for which the child goes to the school” (at 45).
The X (Minors) case was followed by the landmark House of Lords decision in Phelps v Mayor Etc of the London Borough of Hillingdon Anderton and Clwyd County Council and In Re G (A Minor) v Hampshire County Council.[6] In the Phelps decision four cases were heard together. Three of the children were dyslexic and the fourth child, “G”, was suffering from Duchenne muscular dystrophy. The plaintiffs claimed the schools and their employees either failed to diagnose their learning disability or, in the case of “G”, did not provide a proper education taking into account his special needs.
The Court again distinguished between claims directly against education authorities for their own negligence, and those in which the local authority or school was said to be vicariously liable for the breach of duty of its employees. On the question of breach of statutory duty, after a review of the statutes under which the schools operated, the Court concluded that Parliament did not intend “that there should be a remedy by way of damages for breach of statutory duty”.[7]
The Court had no such trouble confirming the view in X (Minors) that “a head teacher owes a duty of care to exercise the reasonable skills of a headmaster in relation to . . . a child’s educational needs” (at 518c).
In direct contrast to the policy reasons given by US courts, the House of Lords said that “questions as to causation and as to the quantum of damage, particularly if actions are brought long after the event, may be very difficult, but there is no reason in principle to rule out such claims”.[8] In answering the question of whether there were any public policy reasons why the courts should not recognise liability, the Court held that as long as teachers were held to the standard of “ordinary skill of an ordinary competent man exercising that particular art” (which is a restatement of the Bolam test),[9] then the policy arguments are no reason to remove the right to pursue the cause of action.
Since the Phelps decision, while there has not been the opening of floodgates predicted in the US decisions, there has been a steady growth in educational negligence claims. It is interesting to note that the subsequent UK decisions involve students with specific learning difficulties, and not students for whom there was no identifiable learning disability and who nevertheless failed to succeed in the regular classroom.
The Court in Phelps was careful to point out that “the existence of a duty of care owed by teachers to their pupils should not be regarded as a basis for the mounting of generalised ‘educational malpractice’ claims”.[10] Nevertheless, the principles in both the Phelps and X (Minors) cases would arguably extend to allowing claims for educational negligence based on a repeated failure of a teacher or an educational institution to adequately teach a student.
The position in Australia
As yet, there have been no reported decisions in Australia on the question of educational negligence. Certainly Australia’s court system is comfortable with attaching liability to the acts or omissions of a very broad range of professionals.
There is arguably, in the Australian legal system, a much less marked reliance on public policy as a determinant for liability than appears to be the case in the US in educational malpractice cases. As was pointed out in the English cases, the limits on professional liability can and have been made by legislators throughout common law countries, and it has been argued that it is not for the courts to decide which professions should be protected and which not. In the rare cases where higher courts in Australia have allowed professionals immunity from liability, the basis on which such immunity has been given, for example, is a duty to the court[11] rather than the sorts of public policy arguments put forward by the US courts, such as the “floodgates” arguments, or the inability to set a standard of care.
Duty of care
As neither English nor US courts have denied the possibility of a duty of care that schools and teachers owe to their students, it seems likely that this would not be a major hurdle in the Australian context. As the Court in Donohue stated: “If doctors, lawyers, architects, engineers and other professionals are charged with a duty owing to the public whom they serve, it could be said that nothing in the law precludes similar treatment of professional educators”.[12]
Standard of care
Where US courts found it impossible to establish a standard of care, the House of Lords simply applied the Bolam test. In Australia the Bolam test for professional negligence was overruled by the High Court in the case of Rogers v Whitaker,[13] but has been reinstated to a large extent by the recent tort reforms.[14] The post Phelps decisions in the UK involved evidence from educational professionals as to the appropriate actions to be taken in the particular circumstances of the student alleging negligence. For example, in the case of Liennard v Slough Borough Council[15] the court applied the Bolam test and, based on expert evidence, found that the teachers “acted in a way which reasonably competent teachers between 1985 and 1989 would have acted” (at 166) and could find no negligence.
Problems of proof
Perhaps one of the reasons that an educational negligence claim has not reached an Australian court for decision, and that the English decisions have only occurred in the past 10 to 15 years, is that there are significant problems of proof in educational negligence not faced by those alleging other kinds of professional negligence. First, children are taught by many teachers, and sometimes many schools, making the exact breach difficult to identify. There are sometimes myriad reasons for academic failure, only one of which may be negligent teaching. Second, determining exactly what damages flow from the inadequate teaching is often a major difficulty.
Unless there has been a clear and unambiguous negligent act, it is very difficult to reason from a student’s poor academic performance that there has been an educational failure. Most of the cases, either successful or unsuccessful, have arisen in circumstances where there has been an identifiable teaching failure, or overlooking of a specific disability, rather than a student’s failure in academic progress without a clear act or failure to act by a teacher or teachers. Lord Nicholls in Phelps commented that “proof of under-performance by a child is not by itself evidence of negligent teaching. There are many, many more reasons for under-performance”.[16]
As an example, in the case of Liennard the plaintiff claimed a school had failed, over a three-year period, to assess properly, or at all, his learning difficulties and refer him to the appropriate services. Even at trial, the plaintiff was said to be suffering from a number of conditions and “the experts . . . struggled to describe his condition with any degree of unanimity”.[17] The Court was not convinced that the plaintiff’s presentation at the relevant time at school was enough to suggest that he was suffering from “exceptional difficulty” requiring “some exceptional response”.
Non-tortious claims
Although this article is chiefly concerned with tortious claims, there are other bases on which schools may be held accountable for educational failures.
Most of the public policy reasons surrounding schools’ immunity from suit revolved around the state’s duty to educate children. These arguments are less relevant for the non-government sector. In addition, in non-government schools there is a contract between the parents of the child and the school. There is also the possibility of an action under the Trade Practices Act 1974 (Cth). Those potential liabilities for non-government schools have yet to be explored by the courts.
Finally, there have been a number of successful claims against schools for discrimination in provision of educational services to children with specific learning disabilities that have resulted in these children not reaching their full potential.[18] Perhaps it is the very success of these discrimination claims that has obviated the need for parents to sue schools for negligence in Australia.
The future
Commentators have predicted the coming of educational negligence claims in Australia for many years.[19] The expectation was particularly high after the X (Minors) and Phelps cases.
Nevertheless, the height of the hurdles should not be underestimated. First, an Australian court will need to decide whether the law will allow a claim of educational negligence. Second, the standard of care and its breach must be established. Third, and most importantly, there must be adequate evidence that the breach caused some measurable and identifiable loss. It may be many years before an Australian court has to answer the question of why Julie can’t spell, whether she suffered any loss as a consequence and whether, if a school is found responsible, it should compensate her for that loss.
Jason Newman
Partner
Phone: 61 3 9602 9701
Jason_Newman@tresscox.com.au
To see the contact details of the entire TressCox Litigation & Dispute Resolution Services Team, please click here.
[1] (1982) 150 CLR.
[2] 131 CAL.RPTR.854 (1976).
[3] 418 NYS 2d 375 (1979).
[4] 469 N.Y.S.2d959 (A.D.2dept.1983).
[5] [1995] UKHL9.
[6] [2000] 4 ALL ER 504.
[7] Phelps, note 8 above, per Lord Slynn of Hadley at 517b.
[8] Phelps, note 8 above, per Lord Slynn of Hadley at 518j.
[9] Bolam v Friern Hospital Management Committee [1957] 2 ALL ER 118 at 122 per McNair J.
[10] Phelps, note 8 above, per Lord Jauncey of Tullichettle at 528g.
[11] See Giannarelli v Wraith [1988] HCA 52.
[12] Donohue, note 5 above, at 443.
[13] [1992] HCA 58.
[14] Wrongs Act 1958 (Vic) s59 and Civil Liability Act 2002 (NSW) s5O.
[15] [2002] EWHC 398 (QB).
[16] Phelps, note 8 above, at 531b.
[17] Liennard, note 17 above, per Justice Henriques at [4].
[18] See, for example, Turner v Department of Education and Training (Anti Discrimination) [2007] VCAT 873.
[19] Ian M Ramsay, “Educational negligence and the legalisation of education” (1988) 11 UNSW LJ 184, and Andrew Hopkins, “Liability for careless teaching: should Australians follow the Americans or the British?” (1996) 34(4) Journal of Educational Administration 39
|
