Hopkin Careless Teaching

Liability for careless teaching: should Australians follow the Americans or the British? Andrew Hopkins

Liability for careless teaching 39

University of Melbourne, Melbourne, Australia When discussion among Australian educators turns to the issue of schools and teachers being held liable for poor or careless teaching (what the Americans call “educational malpractice”), there is often a shaking of heads followed by the comment that “It’s happening in America and it’s only a matter of time before it happens here”. However, in fact, “it” is not happening in the USA, and the idea that US teachers are frequently sued for careless teaching is a popular misconception. While there was a small stream of these educational malpractice cases reported in the USA during the late 1970s and early 1980s, by the end of the 1980s this had become a mere trickle which, in the 1990s, appears to have dried up altogether. This decline in the number of reported educational malpractice cases is the result of a disinclination by the US courts to hold teachers, schools and educational authorities liable for educational malpractice. This means that, at the moment, at common law US students are unlikely to obtain compensation from the courts for loss resulting from careless or inadequate teaching. The law will remain in this dormant state unless either the US courts are persuaded to change the direction of the common law on this point or state legislatures pass laws to create a statutory right to sue. However, a recent case from the UK House of Lords[1], indicates that the common law of the UK is, initially at least, developing in a different direction from the common law of the USA. This case was the first in the UK in which the House of Lords had to consider the liability of schools and teachers for the intellectual development of their students. The court found (details are provided later) that, where children appear to be experiencing difficulties with their school work, teachers have a duty to take care when assessing and advising on the educational needs of those children. This case did not deal with other forms of negligent or inadequate teaching, such as failure to cover compulsory components of curriculum or giving poor explanations of concepts, ideas and facts which resulted in students’ obtaining low marks. The refusal of the US courts to find liability for educational malpractice is not the result of the courts adjudicating on technical legal questions. Rather it is the result of those courts being swayed by what the courts call “policy considerations”, that is, arguments suggesting that it is not in the public interest to award compensation to students where there has been a failure to provide an adequate education. In contrast, the one UK decision on educational negligence paid virtually no attention to policy issues.

Journal of Educational Administration, Vol. 34 No. 4, 1996, pp. 39-59. © MCB University Press, 0957-8234

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The common law has been developed by judges over centuries of deciding cases which have been argued before them. In Australia, there have not been as yet any reported cases involving a common law claim for negligent teaching. Consequently, it is difficult to predict how the law in Australia is likely to develop, and it cannot be assumed that the Australian courts will follow either the UK or the US courts. The common law of Australia develops in accordance with the doctrine of precedent, which provides that lower courts must follow (i.e. apply the principles of law established in) the decisions of higher courts. However, the US courts’ decisions do not establish binding precedents for Australian courts. This means that Australian courts may consider the reasoning applied in US decisions, but are under no obligation to accept that reasoning. Accordingly, even though the US courts have not permitted common law claims for educational malpractice to succeed, the Australian courts could choose to accept them. Similarly, the Australian courts are not bound to follow UK decisions, although decisions of the House of Lords are treated with great respect and still have a significant effect on the development of Australian common law. This article will examine the following: • the extent to which Australian schools and teachers, at the moment, could be liable pursuant to either statute or the common law for injuries suffered by students as a result of poor or inadequate teaching; • the UK decisions in E (a minor) v. Dorset County Council; Christmas v. Hampshire County Council; Keating v. London Borough of Bromley; • the US courts’ policy reasons for refusing to recognize educational malpractice claims; • whether Australian courts should follow the US courts or the UK courts with regard to these sorts of claim; • the likelihood of Australian schools being sued for educational malpractice in the near future. Liability in Australia: the current position Broadly speaking, there are two ways in which schools and teachers can be made liable for injuries suffered by students as a result of poor or careless teaching: (1) By parliament legislating to create such liability (state parliaments clearly have the power to do this. Now that the Commonwealth has ratified the UN Convention on the Rights of the Child, it might be able to use the external affairs’ power of the Constitution in order to legislate to create an enforceable right to an education, but this is not clear); or (2) By the courts recognizing a common law right to sue for damages in negligence in particular circumstances. Liability under existing statute law will be examined first.

Statute law: the Education Acts At present, there is no statute in any of the Australian states which appears to create a statutory right to sue for poor or careless teaching in schools. The various Education Acts of the state parliaments usually are concerned with establishing a system of state education which then becomes the responsibility of the education minister of that state. Such an Act might provide for a core curriculum to be taught, set a minimum age at which a student can leave school, and provide for registration of non-government schools, etc. An exception is the NSW Education Reform Act 1990 which provides, in Section 4, that “every child has the right to receive an education” and that “it is the duty of the State to ensure that every child receives an education of the highest quality”. However, Section 127 of that Act makes it clear that Section 4 does not give rise to “any civil cause of action”. Other state legislation might provide for the appointment of teachers, and their dismissal for poor teaching. But these acts stop short of creating a right for parents or students to sue for the loss suffered as a result of poor teaching. Statute law: the Disability Discrimination Act 1992 (Commonwealth) While school administrators now are well aware of the significance to schools of race and sex discrimination legislation, they might not have fully appreciated yet their potential liability under the Disability Discrimination Act 1992. The definition of disability under this Act covers not only discrimination relating to obvious disabilities such as blindness, deafness, lack of mobility, etc., but also “disorders or malfunctions that result in a person learning differently from a person without that disorder or malfunction”[2]. This definition could be interpreted to cover the sorts of specific learning difficulty which are relatively common in the classroom (such as poor auditory retention) and do not require a student to be accompanied by a teacher’s aide in order to participate in learning activities, but do result in the student being a slow learner. The Disability Discrimination Act 1992 makes it unlawful to discriminate by denying or limiting a student’s access to any benefit provided by an education authority (Section 22). Education is the main benefit provided by an education authority. It is unlikely that a teacher who is aware of a student with a specific learning disability would directly discriminate against that student by overtly treating him/her less fairly than the other students are treated. However, the Act also makes indirect discrimination unlawful by defining discrimination as behaviour which requires the disabled student to comply with a requirement or condition with which a substantially higher proportion of persons without the disability are able to comply (Section 6). Accordingly, if a teacher’s method of teaching takes no account of the student with the disability, and consequently disadvantages that student, the teaching method could amount to unlawful discrimination under the Disability Discrimination Act 1992. Both government and non-government schools are covered by the Act. This legislation, then, could provide a means for students to bring legal proceedings against schools in which there is awareness of, but failure to

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properly deal with, students’ learning disabilities. However, the legislation does not appear to impose a duty on schools to detect or recognize the existence of specific learning disabilities. State fair trading legislation and the Trade Practices Act 1974 (Commonwealth) Non-government schools could incur liability under either the Commonwealth Trade Practices Act 1974 or the state “fair trading” legislation. These acts enable proceedings to be brought for damage suffered as a result of business conduct which is “misleading or deceptive”[3]. Proceedings could be brought, for example, where a non-government school failed to provide the sort of remedial or “special education” services which it had promised in its prospectus or advertising brochure. To incur liability under the Commonwealth legislation the school has to be a “trading corporation”, which means it has to be an incorporated body rather than a charitable trust controlled by a religious order. This requirement of incorporation does not apply to claims brought under the state fair trading legislation. However, a school’s conduct must be misleading or deceptive, and not merely negligent, to incur liability under these provisions. Negligent teaching by a non-government school (or a university) might give rise to liability pursuant to Part V Division 2 of the Trade Practices Act 1974 which requires trading corporations to act with due care and skill when providing educational services (see [4, pp. 194-5]). However, as explained above, the provisions of the Trade Practices Act 1974 apply only to educational institutions which are incorporated. Liability at common law If a statute does not create a right for students to sue for inadequate or careless teaching, a common law right to sue, based on the tort of “negligence”, might be found by the courts to exist. In the case of non-government schools, the courts could find also, pursuant to common law rules of contract, that a school has breached its contract with the students’ parents and is liable for any resulting loss. (An action for breach of contract could not be brought by government schoolchildren’s parents as they do not enter into a contractual relationship with their children’s school, for the provision of education. A thorough examination of contractual liability is not possible in this article.) It is well established that schools can be liable in negligence where their students suffer physical injuries as a result of careless instruction or supervision at school. However, so far there have been no reported decisions in Australia or New Zealand which have determined that a student should be awarded damages to compensate for the effects of poor teaching. The tort of negligence. At this stage, it might be helpful to outline the general principles of law which apply to all negligence actions, regardless of whether the action is brought against a doctor, a school, a motorist or a manufacturer. In order to bring proceedings for negligence successfully, the plaintiff must establish the three elements of the tort:

(1) The plaintiff must show that the law has imposed on the defendant a duty to take reasonable care with respect to the plaintiff. (2) The plaintiff must show that the defendant has breached the duty of care by failing to exercise the standard of care which the law expects the defendant to observe in his/her dealings with that plaintiff. (3) The plaintiff must show that the defendant’s breach of the duty of care caused reasonably foreseeable damage to the plaintiff. The aim of the law of tort, in contrast to the criminal law, is to compensate the victim rather than to punish the wrongdoer. Hence, some injury must be suffered in order for the plaintiff to sue successfully for negligence. The case will not succeed if there has been merely carelessness without any consequent injury. It is well established at common law that the teacher owes a duty of care to protect students from personal injury. However, if the courts were to find that teachers are also liable for loss suffered as the result of poor teaching, this would require the courts to extend substantially the duty of care currently owed by teachers. The approach which is followed currently by a majority of the High Court of Australia, when determining whether a duty of care is owed by a defendant in a new category of cases, is to apply a test which asks the following questions: •

Was it reasonably foreseeable that the plaintiff could suffer this sort of harm as a result of the defendant’s behaviour?

•

Was there an element of “proximity” in the relationship between the plaintiff and defendant with regard to the defendant’s behaviour and the injury suffered?[5].

•

The court can then determine, for policy reasons alone, not to recognize a duty of care; that is, the courts can determine that it would not be in the public interest to recognize a duty of care in these circumstances.

It might not be difficult for the court to find that some harm would be a reasonably foreseeable consequence of careless teaching. With regard to the second question, it probably can be argued that a proximate relationship exists between teachers and students with regard to the provision of education. Proximity is a vague notion: proximity can characterize a formal relationship, like that between patient and doctor, or one involving physical nearness, such as the relationship between motorists on the road. Whether proximity applies will depend on the circumstances of the particular case before the courts, and can include considerations of what is “fair and reasonable”[6]. In a case of educational negligence, it can be argued that there is a special quality to the relationship. Students are placed in the care of teachers and schools for their learning, and feel they can rely on the knowledge and skills of their teachers. They believe that schools will act responsibly when making decisions about the

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sort of education children will be exposed to, and how that education will be provided. However, the courts still can take into account considerations of purely public policy when determining whether a duty of care exists[7]. For example, in Gianarelli v. Wraith[8], the High Court held that, for policy reasons, barristers may not be held liable for negligence for the way in which a client’s case has been presented in court. Several policy reasons were mentioned by the court, including that allowing litigation against the barrister would amount to a complete retrial of the case. In UK, an action for negligence brought against the police by the mother of the last victim of a serial killer was rejected on policy grounds[9]. The court felt that the imposition of a duty would not fulfil its normal function of providing an extra incentive to carry out the task carefully, and that defending tort actions would either divert the police resources from detecting and prosecuting crime or require further expenditure on police services. In Gala v. Preston[10] some young men had an accident in a stolen car while they were on their way to commit a burglary. One of the passengers sued the driver of the vehicle, seeking compensation for the injuries received in the accident. The High Court found that there were policy reasons for refusing to recognize a cause of action in such circumstances, as it would amount to the law recognizing that criminals owed a duty of care to each other when performing crimes. The court felt that the civil law should not condone criminal activity. The uncertainty about how the courts will respond to these policy issues makes it difficult to predict whether an educational negligence claim would succeed in Australia. However, it is possible to analyse the policy issues which could affect the courts and consider how the courts might, and should, respond to those issues. Here, the policy considerations which have influenced the US courts can be helpful as, although US precedents are not binding on Australian courts, they may be persuasive. But before considering those decisions, the developments in the law relating to liability for negligent misstatements should be considered. Negligent misstatements. Over the last 30 years considerable case law has built up to establish that a wide range of people (not just professionals) may be held liable for loss resulting from wrong information or bad advice which was negligently provided. The rules established by the High Court can be summarized as follows: a person may be liable if he/she makes a negligent misstatement on a serious matter in circumstances where that person knows, or ought to know, that the other will rely and act on that advice or information, and it is reasonable for the other to act on it[11]. Whether or not a person is under a duty of care towards another with regard to statements will ultimately depend on whether the court finds there is a proximate relationship between the two parties. As was explained earlier, proximity depends on all the circumstances of the case, though in some cases it can be decided on the basis of policy considerations. While careers teachers are particularly vulnerable to being sued for careless advice, so far there have been no reported decisions in which classroom

teachers have been held liable in connection with negligently given advice or information. However, classroom teachers continually provide information and give advice to students and hence could be vulnerable to this sort of action. For example, classroom teachers provide advice on career choice, subject selection, tertiary course entry requirements, how to study for exams, and they sometimes try to “tip” likely questions in public examinations. They provide information in the classroom (e.g. economics teachers attempt to be up-to-date on the latest inflation and employment trends when preparing students for examinations), and assume responsibility for informing students on the content of a compulsory curriculum. A newspaper story in Victoria in 1993 reported the plight of some year 12 English literature students who had been told that a particular text would be examined in the final examination, only to find on the day of the examination that the book was not on the syllabus[12]. The courts could hold that teachers are under a duty of care when providing this advice or information. Again, as with any negligence action against a school or teacher, a major problem for any plaintiff will be establishing that the negligence resulted in some financial loss, and this point will be taken up again later. Meanwhile, in the next two sections, the recent House of Lords decisions on educational negligence will be examined. Following that, the policy considerations raised in the US cases will be identified, and then their appropriateness to Australian conditions will be considered. The recent decision from the House of Lords The 1995 House of Lords decisions in E (a minor) v. Dorset County Council; Christmas v. Hampshire County Council; Keating v. London Borough of Bromley involved three separate claims concerning three different students, all with learning difficulties. Each claim had been brought against the local education authority responsible for the student’s education. The claims alleged breaches of both a statutory and a common law duty to the students. All three children had special educational needs, and the plaintiffs alleged that the relevant education authorities had been negligent when diagnosing, advising on and taking action with regard to the children’s special educational needs. In the cases of E (a minor) and Christmas, the children were dyslexic, but were not provided with appropriate assistance after the parents had brought the childrens’ problems to the attention of the education authorities. In the Keating case, it was alleged that the authority had made a number of errors when dealing with the child’s educational needs. These errors included incorrectly placing the child for some time in a special school when he did not have a disability, and failing to provide any schooling for the child for a period of time. Each claim was rejected by the single judge at the first hearing, and a consolidated appeal application went to the Court of Appeal[13], and then to the House of Lords. The House of Lords and the Court of Appeal reached the same unanimous decisions. First, they found that the relevant statute had not created a right to bring an action in tort for breach of a statutory duty to educate.

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Second, they found that, at common law, the employees of a local education authority owe a duty to take care when assessing, advising on and determining children’s educational needs. The educational authority was then vicariously liable for the negligent acts of its staff. The House of Lords did not provide a lengthy justification for this decision (in contrast to the US courts’ decisions which will be examined later). The policy underlying its decision is contained in one paragraph of the judgment: In my judgment 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 school. The head teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of the headmaster that a pupil is underperforming, he does owe a duty to take such steps as a reasonable teacher would consider appropriate to try to deal with such underperformance. To hold that, in such circumstances, the head teacher could ignore the matter and make no attempt to deal with it would fly in the face, not only of society’s expectations of what a school will provide, but also of the fine traditions of the teaching profession itself [added emphasis]. If such a head teacher gives advice to the parents, then in my judgment, he must exercise the skills and care of a reasonable teacher in giving such advice[1, p. 395].

The court made it clear that teachers, and not just principals, are also liable where they are asked to give advice and they know that the advice will be communicated to the parents. With regard to psychologists employed by the education authority, the court found there was a duty to take care when assessing and determining educational needs because “Psychologists hold themselves out as having special skills and they are…like any other professional bound both to possess such skills and to exercise them carefully”[1, p. 393]. It was not the task of the House of Lords to assess the merits of the claims in these cases, but only to determine whether in each there was a cause of action in law which could be tried. The cases were to be returned to the respective trial judges to determine whether the relevant education authority’s employees did in fact breach the standard of care owed to the students. In the case of advice given by the headteacher and an advisory teacher, the House of Lords pointed out that the trial judge will have to decide whether the advice was in accord with the views “that might have been entertained at the time by reasonable members of the teaching profession”[1, p. 396]. They did not have to exercise a standard of care which was as high as that expected of a psychologist. Hence the actions could still fail if the trial judges find that the required standard of care had been exercised. In the Keating case, the education authority argued that an additional reason for striking out the claim was that the damage it was alleged that the child had suffered – impairment of intellectual development – was not a form of damage recognized by law. But the House of Lords found that this point “would be better determined at trial in the light of the evidence as to the palintiff’s actual mental condition and the effect of receiving an inappropriate education”[1, p. 400]. The House of Lords did not canvass the possibility of a duty of care existing in respect of other aspects of schooling, such as quality of teaching, coverage of

curriculum, accuracy in marking work submitted by students, etc. The decision was quite narrow in that it was confined to assessment and advice regarding educational needs. And as was mentioned above, the court gave no real indication regarding whether students could obtain damages for intellectual impairment.

Liability for careless teaching

The US courts’ policy reasons for rejecting educational malpractice claims The US cases dealing with educational malpractice claims have been consistent in finding that the cause of action should be rejected on policy grounds. However, the reasons justifying these decisions have not been consistent across the US, and different policy considerations have influenced the various courts which have heard these cases. Broadly speaking, two different lines of argument, or sets of policy considerations, have been used. The first line is that based on the Californian decision of Peter W. v. San Francisco Unified School District[14]; and the second line is based on a series of New York decisions, beginning with Donahue v. Copiague Union Free School District[15]. Some cases have relied on both lines of argument (despite the fact that the New York approach involves rejection of the Californian approach), often with embellishments of their own.

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The Peter W. case and the Californian line of argument Peter W. sued for damages after he graduated from high school, claiming that his literacy skills were so poor that his income-earning capacity was substantially reduced. The following six policy considerations appear to underlie the court’s rejection of his claim: (1) Given that there are so many different educational theories with varying philosophical bases, it is not possible to devise an appropriate standard against which the teacher’s instruction can be judged in order to determine whether it was negligent. (2) There are many variables, which may be “physical, neurological, emotional, cultural (or) environmental”[16], that can account for a child’s failure to learn. Consequently it is not possible to isolate the impact of schooling on that process. (3) The injury suffered by the plaintiff was not of a type which was recognized by the Law of Torts in the US. (4) The traditional “opening of the floodgates” argument: if the courts recognized educational malpractice as a cause of action, schools would be exposed to a flood of claims and would waste much time and money defending them. (5) The additional burden on the education system would be intolerable, as schools already had much responsibility to bear, and were the target of constant criticism.

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(6) The final policy consideration was not clearly spelt out by the court, but was implied in its concluding statement: Upon consideration of the role imposed upon the public schools by law and the limitations imposed upon them by their publicly supported budgets [added emphasis] … and the just cited consequences to the community…we find no such “duty” in the first count of the plaintiff’s complaint[16].

The role imposed by law to which the court referred is the statutory responsibility to provide schooling for all students until the statutorily determined leaving age. By mentioning the budgetary constraints on schools, the court seems to have suggested that it is inevitable that schools will carry out their functions in an imperfect way. That is, given that the task of schools is so difficult, and their resources so limited, it follows that some children will be poorly educated. These last two considerations are similar to the policy considerations on which the New York decisions were based. The Californian line: additional arguments The Alaskan case of L.A.H. and D.S.W v. Fairbanks North Star Borough School District[17] followed the reasoning of the Peter W. case, and added two arguments against recognizing educational malpractice. This case concerned two students with learning problems resulting from dyslexia who alleged negligence in the failure to diagnose the dyslexia, and subsequent negligence through failure to provide adequate remedial assistance. (As the Peter W. case identified six policy arguments, the additional two arguments in this case will be numbered (7) and (8)). (7) Money damages are a poor substitute for a proper education, and it is better if prompt administrative action is taken to correct educational shortcomings (in both these cases statutory-based complaint mechanisms existed under which parents could seek review of a child’s placement or progress). (8) It would be impossible to assess the level of achievement the students might have reached had the mistakes not been made and, accordingly, an appropriate amount of financial compensation cannot be calculated. The Maryland case of Hunter v. Board of Education of Montgomery County[18] involved negligent evaluation and treatment of learning difficulties. The case was appealed twice and the court supported the Peter W. case and the additional arguments in the D.S.W. and L.A.H. case. At the first appeal two further arguments were put: (9) A new twist was given to the “floodgates” argument put in the Peter W. case by suggesting that teachers might promote students where it was not warranted in order to avoid malpractice actions. This in turn could lead to more claims, this time based on damage caused by unwarranted promotions.

(10) The court quoted from one of its earlier decisions in a case involving physical injuries to a student to make the point, by implication, that the threat of legal action could be a disincentive to good teaching: As delicate a balance exists in attempting to develop a child's body as in attempting to develop his mind. How to maintain that balance is largely a matter of judgement. To the extent that each child is given personal attention, thirty-nine others may be deprived. Which need is given preference upon a given time is a decision made hundreds of times a day by a teacher. The problems are multiplied as a teacher comes to know his students and their various needs and differences. All of these decisions occur repeatedly every fifty minutes daily with classes of various sizes. In making sensitive “judgement calls” a teacher must not be made aware of the precariousness of his position, as was Damocles, beneath some economic fashion suspended by the hair of hindsight[19].

Thus the court believes teachers should not be making all these decisions while fearful of being sued. This is a powerful argument, but was not followed up in any other decisions. The New York cases The facts of the first New York educational malpractice case, Donohue v. Copiague School District[20], were similar to those in Peter W., and involved a young man who had graduated from high school with very poor literacy skills. The case was unsuccessfully appealed twice. The basis of the decision was that the courts should not interfere with the work of educational administrators. The point was expressed well at the first appeal: Even if it were possible to determine with exactitude the pedagogical course to follow with respect to particular individuals, yet another problem would arise. Public education involves an inherent stress between taking action to satisfy the educational needs of the individual student and the needs of the student body as a whole. It is not for the courts to decide how best to utilize scarce educational resources to achieve these sometimes conflicting objectives. Simply stated, the recognition of a cause of action sounding in negligence … would impermissably require the courts to oversee the administration of the State's public school system[21].

A further justification for this policy was that a statute-based avenue of redress existed which enabled parents to appeal to a Commissioner for Education who had power to investigate decisions of school authorities. The court did add a rider to its decision: “this is not to say that there may never be gross violations of defined public policy which the courts would be obliged to recognize and correct”[21]. An interesting aspect of the final appeal was its rejection of three of the arguments from the Peter W. case. The court conceded that it is possible to: devise a standard of care against which an educator's performance can be assessed; and establish whether there is a causal link between poor teaching and a failure to learn. It also suggested that someone who has graduated from high school unable to comprehend simple English has suffered an “injury” of a sort which is recognized by the Law of Torts. This policy, that the courts should not interfere with or “second guess” the decisions of educational administrators, was followed in a number of decisions

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from New York and other state courts. The facts of these decisions varied greatly, and included some cases where students had been incorrectly classified as retarded and consequently inappropriately placed in schools or classes for retarded students[22]. (In one of these cases, Hoffman v. Board of Education of the City of New York, the plaintiff originally succeeded in his claim and was awarded $750,000, only to have this decision quashed by the final appeal court.) The case of Cavello v. Sherburne-Earlville Central School District[23] demonstrates that the refusal of the New York courts to recognize educational malpractice was based purely on policy, rather than on technical legal reasons. Here the Cavello parents complained that their children had been victimized by unruly students at the school, and that, as a result of the ceaseless harassment and threats, the children had suffered emotional distress and disruption to their learning. The educational component of the claim was rejected without discussion, with the court citing the Hoffman and Donohue cases as precedents. However, the court was prepared to consider the claim for emotional distress as this is a type of physical injury, and it was well established in New York (as in Australia) that schools are under a duty of care to provide adequate supervision to protect students from physical injury. If the Cavellos’ allegations were true, one form of misbehaviour had produced two sorts of suffering. However, the court felt that only one of those categories of injury should be compensated. Should the US policy arguments be accepted? Four of the arguments raised in the cases which adopted the Peter W. line of reasoning, would, in Australia, be regarded as legal issues rather than policy issues. Those legal issues are whether: (1) there is an appropriate standard of care to apply in an educational malpractice action; (2) a causal link can be established between the alleged educational negligence and the injuries which the student alleges he/she has suffered; (3) the injuries are of a type recognized by the Law of Torts; and (4) the damages can be assessed. A brief examination of these legal issues will be made, and then the remaining purely policy issues from the Peter W. and Donohue lines of reasoning will be looked at. The legal issues That there is no appropriate standard of care against which the degree of care exercised by the teacher or school authority can be measured. Even though this argument was rejected by the final appeal court in Donahue, other courts continued to endorse the reasoning in Peter W. and ignored the criticism made in Donohue. The argument has also preoccupied some North American commentators[24]. However, as will be discussed below, it should not provide

the same sort of problem for Australian courts. Certainly the House of Lords in its decision in E (a minor) and Other Appeals did not regard it as a problem. In a negligence action, where a person owes another a duty of care, the court will determine liability by examining the evidence, and then measuring the defendant’s conduct against a standard of care set by the courts. The courts have set out various factors which may be taken into account in determining whether the standard has been met. The traditional standard of care set by the courts is the standard of care expected of the “reasonable man”. Where people hold themselves out as capable of providing special services, such as plumbers and doctors, they must exercize the higher degree of skill which is usual with people professing that skill. A doctor will be liable for negligence if he/she failed to diagnose a disease which the reasonable doctor should have diagnosed. While there can be endless debate over whether teaching is a profession in the same sense that medicine, law and architecture are[25], there can be no doubt that it does involve special skill and competence. Among a host of other things, teachers must be able to explain difficult concepts to large groups of children between whom there is a wide range of cognitive abilities. They must be able to adjust teaching methods to suit the age, ability, gender, motivation, alertness and socio-economic background of individuals and groups. A technique which is successful with year 11 during period two on Tuesday morning might not work with year nine on a hot Friday afternoon. These skills are based on, among other things, an understanding of group dynamics and knowledge of the emotional and cognitive development of children which has been acquired through a mix of formal training in pedagogical theory and “on-the-job” experience. If the courts were to decide that teachers do have special skills, then whether a teacher has exercised this standard of care is a question of fact for the court to determine. This is done with the help of testimony from witnesses regarding how the reasonable teacher ought to behave in those particular circumstances. This would not necessarily be an easy task for, as one American writer has pointed out, “educational theorists cannot even agree on such a basic issue as the underlying goal of education” and, given that educational theory is not an exact science, expert testimony is likely to vary[26]. Ramsay, an Australian writer, also discusses this problem[4, pp. 201-4], emphasizing that while it might not be difficult to determine that the standard of care has not been met where there has been a specific act of negligence (e.g. where a teacher has omitted to teach a prescribed text on the English syllabus), it is more difficult where the allegation is that there has been a general lack of educational achievement. However, Ramsay points out that the existence of imprecise standards should not form a permanent barrier to judicial consideration of these negligence cases. He makes a comparison with psychiatry, in which field there is a vigorous debate about professional processes, yet this has not prevented the courts from determining that psychiatrists owe a duty of care to their patients. In the case of teachers, then, the requirement that the standard of the reasonable teacher should be exercised still allows scope for deviation from standard practices

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where it can be shown that the deviation is consistent with, or has some support from, an educational theory or the experience of other educators. That a causal link cannot be established between the negligent teaching and the failure to learn as so many other variables could account for the failure. Establishing the causal link is a matter of proof, and it could be a difficult problem in many cases, but this is not a reason for excluding all educational malpractice problems from the courts. In some cases causality might not be a problem and, in any event, the courts are accustomed to attempting to unravel complex and technical situations, for example in medical negligence cases, or cases involving fraud and myriad financial transactions. Where the causal link is difficult to prove, it will act as a big disincentive to potential plaintiffs who are contemplating the stress and expense of litigation. That the injury is not a type recognized by the Law of Torts. Two sorts of harm can flow from educational negligence: “intellectual” harm which reduces the student’s earning potential; and emotional damage. It is well established now in Australia that damages can be awarded where a plaintiff has suffered only economic loss[4,27] without accompanying physical injuries. A plaintiff might be able prove some loss resulting from poor teaching. For example, the plaintiff could show that she/he had to incur expense and forgo earnings in order to continue with full-time or part-time education in order to acquire the knowledge and skills which had not been provided because of the poor teaching. However, the plaintiff could have difficulty in proving that a loss of future earnings will flow from the poor teaching. Once, for example, the plaintiff has acquired the missing knowledge and skills through further education, there is no further loss. If the plaintiff alleges failure to gain entry to a particular tertiary course because of a low tertiary entry score resulting from bad teaching, there is always the possibility of gaining entry to another course and then seeking transfer to the course with more difficult entry requirements once the plaintiff has built up his/her skills. Furthermore, it might be difficult to prove that the plaintiff will earn less income, in adult life, than he/she could have done if entry had been gained to the other course. Thus the likelihood of the courts accepting any long-term consequences of a poor education is slight. In addition, a plaintiff is expected to mitigate his/her losses, that is, take reasonable steps to help himself to minimize the negative effects of the defendant’s conduct. This does not mean that the courts would refuse to hear the claim for educational negligence, but rather that the difficulty of proving loss is another disincentive to the potential litigant. The plaintiff could allege some sort of emotional damage, such as loss of selfesteem or of confidence flowing from the failure to educate properly. At the moment the courts would probably not recognize this as a category of hurt which entitles the plaintiff to compensation. The general rule is that damages are not awarded for sorrow or disappointment. So, for example, where a loved one is killed, damages will not be awarded for sorrow and grief, although where someone suffers profound emotional damage from witnessing or experiencing the accident or its consequences, he or she may be able to claim damages for

what the courts call “nervous shock”. While there has been some increase in the range of mental hurt which the courts will compensate[28, p. 832], a plaintiff would be very foolish to launch proceedings in negligence to seek compensation for this sort of harm. Apart from the low probability of success (and the likelihood of an appeal if a trial judge were to order damages for such harm), the amount of money awarded could be miniscule. Litigation would only be worthwhile if the plaintiff also has a strong claim for economic loss. The level of damages cannot be calculated. Certainly damages would be difficult, but not impossible, to quantify in an educational negligence claim. The courts are accustomed to calculating an amount of compensatory damages in difficult circumstances and for intangible losses: for example, for loss of enjoyment of life, loss of amenities (e.g. ability to play tennis), loss of earning capacity and loss of expectation of life. An educational negligence action involves no greater difficulty than do these sorts of case, and certainly this consideration does not justify barring the action altogether. The purely policy issues There are five issues from the US cases which remain to be discussed, namely, the claims that: (1) the litigation floodgates would be opened; (2) schools would promote students to avoid litigation; (3) monetary compensation is a poor substitute for an education; (4) the threat of litigation would operate as a disincentive to good teaching; (5) the courts should not substitute their judgments for those of professional educators (the argument from the New York cases). While the last two of these arguments require some discussion, the first three can be disposed of quickly. The “floodgates” argument. The discussion in the previous section on legal issues suggests that there will not be a flood of litigation. Educational negligence cases would often involve difficulties associated with proving the causal link between the teaching and a failure to learn, and usually there would be considerable difficulty in proving any significant economic loss flowing from the poor teaching. This substantial risk of losing the case, when combined with the expense of conducting legal proceedings and the difficulty of obtaining legal aid, will act as a deterrent to many would-be litigants. The “promotion of students” argument. With regard to not promoting students to avoid litigation, the usual practice in Australian schools is not to base “promotion” decisions simply on performance in tests. Rather such decisions are made in consultation with parents, and include considerations such as the importance of staying with peers, or the negative effect on selfesteem of being “kept down”, as well as what would be best for the child’s academic progress.

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Is money a poor substitute for an education? The short answer to this argument is, “Yes”. However, in the absence of any other avenue of appeal or form of redress, monetary compensation (damages) is the only remedy available. It is a poor substitute in the same way that money is the poor substitute offered by the courts in a personal injury case for the loss of a limb, or for loss of enjoyment of life because of brain damage. Would the threat of litigation lead to “defensive” teaching? This criticism of the educational negligence action, which has received more attention from writers than it has from the courts, suggests that the threat of such an action will lead to “defensive” teaching, stifling creativity to ensure that minimum standards acceptable to the courts are maintained. Teachers, it is suggested, “may endeavour to treat all students equally as a ‘safe’ response to potential liability rather than attempt to cater to the needs of particular students”[4, p. 216]. If this were the case, it could then hamper the development and refinement of teaching methods, with teachers opting for traditional approaches which they feel might appeal to the courts. Foster mentions the argument that “resources may be misapplied, for example by narrowing curricular offerings or concentrating on basic skills to the detriment of other areas”[24, p. 198] and that an emphasis might be placed on achievement in basic skills tests, without general educational levels rising. This issue raises two questions for consideration. First, will it necessarily be the case that the threat of litigation will produce conservative and unimaginative teaching? Second, if this threat does create more caution among teachers, it must be asked whether this is a bad thing? Regarding the effect on method, it should be noted that the increase in the awareness of school liability for physical injury suffered by students, and the potential for very large damages’ awards where serious injury results, do not seem to have had a stifling effect on school curricula. Accidents are most likely to arise during sport, in the playground, during physical education classes, and on camps or during other outdoor education activities. There have been no suggestions made that any of these activities have been substantially curtailed following the many widely publicized cases of student injury and, sometimes, death. Rather than discontinue these activities, schools seem to have responded by ensuring that the activities are better planned and more safely carried out. Thus the effect of litigation on school programmes has been positive, not negative, although, regrettably, some schools are still not exercising sufficient caution. This observation leads to the second point. The advent of litigation for educational negligence may well lead to greater caution among teachers regarding the nature of their style and delivery, but with benefits for students. Teachers will be required to think more carefully about educational objectives and the best ways of achieving them. In short, it could lead to greater professionalism among teachers, as they are made aware they might have to account for, and justify on educational grounds, what they are doing in the classroom. Better, not worse, teaching might result.

If some defensive teaching does result, Foster argues that this negative effect will be more than offset by benefits flowing from: the removal of incompetent educators from the field; the discouragement of those unsuited for the profession from entering it; and the upgrading of the educational system which should result and which in turn may make the profession more attractive than it would otherwise be to persons possessing the necessary qualities[24, p. 199].

Creativity would not necessarily be stifled by fear of a negligence action, but teachers would be encouraged to be more cautiously experimental. New methods still could be introduced, but only after they have been tested, or where they are strongly supported by theory. This is arguably a better way to introduce educational innovation. To engage in wholesale experimentation where the outcomes are unclear is to show scant respect for the rights of the children. Foster suggests that the advent of negligence litigation could result in students being given a choice regarding whether they would like to participate in experimentation, rather than in its abandonment. Should the courts oversee the education system? The argument was applied in the New York cases and referred to in the Peter W. case. The argument is that a court is not an appropriate forum in which to determine questions about appropriate pedagogical methods and educational programmes, or the allocation of scarce educational resources by educational administrators who are acting under pressure. Certainly the court’s adversarial method for determining issues is less thorough than is the long and detailed inquisitorial process engaged in by educational researchers to determine educational questions. But does this mean that educators should be immune from scrutiny? Should we prohibit judicial protection of students’ rights? In cases involving professional judgment, the court’s method is to hear and evaluate expert testimony. For example, in medical negligence cases, if the common practice of medical practitioners has been complied with, a finding of negligence is unlikely. But the courts reserve the right to declare that the common practice itself is inadequate[28, pp. 286-7]. The justification for this is that the question of what is reasonable care is ultimately the duty of a court to decide and “cannot be delegated to any profession or group in the community”[29]. Arguably, if courts can determine negligence questions in complex medical cases, they can also evaluate educational issues. The courts already do this in cases involving allegations of discrimination by education authorities, and where teachers who have been dismissed from their employment lodge claims of unfair dismissal[30]. In personal injury cases also the courts have been prepared to make judgments about the appropriateness of educational policies[31]. Should Australia follow the Americans or the British? Schools, and the teachers running them, do seem to have come under increasing pressure over the last 20 years. Teachers have had to cope with integration of disabled students, major curriculum changes, increased retention rates

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involving more “non-academic” students staying on because of poor job prospects, increasing behavioural problems with students, school “rationalization” and amalgamation, devolution of authority to school level and steady reductions in government spending. These problems have been confronted against a background of mounting criticism of schools and teachers, a decline in the status of teaching as an occupation, and a relative decline in income vis-à-vis other white-collar occupations. Education is also a “political football”, a scapegoat for some perceived economic and social ills. Educational standards, it is constantly claimed, are declining, and declining teaching standards are usually blamed. Should teachers now have to cope with the added fear of a negligence action, and the trauma of actually being involved in one? Legal proceedings are unpleasant. Because of the delays associated with litigation, the pressure of the case is felt for many months, if not years. Unlike other professions, teachers do not have the community respect and potentially high income to compensate for the responsibility imposed by the threat of professional liability. Nor do they have the control which other professions have over their work conditions and the resources necessary for competent performance. These are strong arguments for exempting teachers from professional liability for the failure of students to learn. But they are not arguments for exempting school authorities from the responsibility to put in place systems to provide for all students to receive a sound education. Schools, and the authorities running them, perhaps should be seen as having the sort of responsibility that hospitals have. Hospitals hold out that they will provide a healthful environment in which patients can expect reasonable care. Schools should be seen as having a responsibility to provide reasonable opportunities for students to pursue their right to an education. The law of negligence does not require perfection, but simply reasonable care. The prospect of litigation would impress on education authorities the need to have clear goals, and to ensure that adequate resources are available and systems in place to meet those goals. In short, better educational administration might result. As Thompson[32] has pointed out, where a teacher is dealing with a particular student, and performs an act which he or she is aware will affect that student, there is a more compelling argument for finding that the individual teacher owes a duty of care. The student is not simply one of the crowd, on an equal footing with, and receiving the same treatment as, the rest of the students. The student has been marked out for particular attention, and then, because proper care has not been exercised, the child is worse off than he/she would have been had he/she been overlooked. A special relationship has been created, similar to the relationship between a doctor and patient: To overlook one child in a class of thirty is poor practice but at times inevitable. To single one child out of thirty, deal with him negligently and place him in a worse position than he would otherwise have been in, is another, more serious situation[32, p. 98].

The three students whose cases were dealt with by the House of Lords in E (a minor) and Other Appeals were each the subject of individual attention. Should schools fear an educational negligence claim? It is still not possible to predict the likely outcome of an educational negligence claim in Australia as litigation in a new field can only be uncertain. It is not uncommon in controversial or complex matters for the seven judges sitting as the Full Bench of the High Court to divide four to three on a decision, with the majority view prevailing[33]. Frequently when judges reach the same decision, they do so on the basis of different reasoning. Furthermore, the outcome of any negligence case will always depend on the particular facts of that case. Accordingly it would be foolish to conclude that malpractice actions will inevitably succeed, or fail, in Australia. However, the House of Lords decision in E (a minor) and Other Appeals is of great significance, given that decisions of that court still have much influence on the development of the common law in Australia. It is a clear warning to Australian educators that they might be found liable where they fail to take care when advising on students’ educational needs. As was pointed out earlier, there are many disincentives for potential litigants, and it would be a brave, determined and financially confident litigant who would bring the first educational negligence case in Australia. Parents of students in non-government schools who have paid large fees over many years might be more motivated to litigate if they feel their money has not been well spent, and that there is a chance to recoup some of it. While the litigation floodgates are unlikely to open, schools should still be proactive by placing appropriate procedures in place to minimize the possibility of a claim. Steps to be taken could include performance appraisal schemes for teachers, continuous relevant professional development, adequate pastoral care programmes, procedures to ensure that specific learning difficulties are detected and that reasons for slow learning are investigated, and systems to ensure all parts of a compulsory curriculum have been covered. Consideration should also be given to the establishment of an office of Education Omudsman to investigate and resolve complaints relating to educational negligence. This would help governments avoid the expense associated with defending litigation brought by irate students or parents, and also provide a mechanism to help students obtain the education which is their right. Notes and References 1. E (a minor) v. Dorset County Council; Christmas v. Hampshire County Council; Keating v. Bromley London Borough [1995] 3 All ER 353. 2. Section 4(1), Disability Discrimination Act 1992 (Commonwealth). 3. The relevant State/Territory legislation is the Fair Trading Act 1985 (Vic.) s.11; Fair Trading Act 1987 (NSW) s. 42; Fair Trading Act 1989 (Qld) s. 38; Fair Trading Act 1987 (SA) s. 56; Fair Trading Act 1987 (WA) s. 10; Fair Trading Act 1990 (Tas.) s. 14; Consumer Affairs and Fair Trading Act 1990 (NT) s. 42.

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4. Ramsay, I.M., “Educational negligence and the legalisation of negligence”, UNSW Law Journal, Vol. 11 No. 184, 1988. 5. See Jaensch v. Coffey (1984) 155 CLR 549, at 586 per Deane J. Not all judges use the proximity test – see the criticism of it by Brennan J (as he was) in Gala v. Preston (1991) 172 CLR 243. 6. See judgment of Deane J in Jaensch v. Coffey[5]. See also the discussion on the influence of policy in Keeler, J.F., “The proximity of past and future: Australian and British approaches to analysing the duty of care”, (1989) 12 Adel LR 93. See also Miller, G. and Miller, D., “A reformulation of the concept of duty of care and entitlement to recovery of pure economic loss in negligence”, Australian Bar Review, Vol. 65 No. 8, 1991, pp. 89-90. 7. Sometimes judges regard considerations of “public policy” as matters to be considered when determining whether proximity exists, while at other times policy is regarded as a separate matter for consideration. For example, comapare the judgments of Brennan J and Deane J in Gala v. Preston[5]. 8. Gianarelli v. Wraith (1988) 81 ALR 417. 9. Chief Constable for West Yorkshire v. Hill [1989] AC 198. 10. Gala v. Preston (1991) 172 CLR 243. 11. Shaddock and Associates Pty, Ltd v. Parramatta City Council (1981) 150 CLR 225. 12. “School in Book Bungle”, The Herald Sun, Melbourne, 15 November 1993. 13. For a discussion of the Court of Appeal decision, see Holloway, J., “The rights of individuals who receive a defective education”, Education and the Law, Vol. 6 No.4, 1994, p. 207. 14. Peter W. v. San Francisco Unified School District 60 Cal App.3d 867 (1976). 15. Donahue v. Copiague Union Free School District 418 NYS 2d 375 (1979). 16. 131 Cal. Rptr. at 861 17. L.A.H. and D.S.W. v. Fairbanks North Star Borough School District 628 P.2d 554 (Alaska 1981). 18. Hunter v. Board of Education of Montgomery County Md.App. 425 A2d 681 (first appeal); Md. 439 A2d 582 (final appeal 1982). 19. Md. 439 A2d 582, at p. 684. The court quoted from Berg v. Merricks 20 Md.App. 666, 318 A2d 220. 20. Donohue v. Copiague School District 407 NYS 2d 874 (1977), 391 NE 2d 1352 (first appeal), 418 NYS 2d 375 (final appeal – 1979). 21. 47 NYS 2d 874, p. 879 22. See Hoffman v. Board of Education of the City of New York 49NY N. 2d 121, 424 NYS 2d 376; Doe v. Board of Education of Montgomery County 453 A2d 814 (1982 Court of Appeals of Maryland); De Rosa v. City of New York 517 NYS 2d 754 (AD 2 Dept 1987). See also Torres v. Little Children’s Services et al. (1984, New York) 485 NYS 2d 15. 23. Cavello v. Sherburne-Earlville Central School District 494 NYS 2d 466. For examples of other cases where the approach in Donohue’s case has been followed, see Aubrey v. School District of Philadelphia (1981) 437 A2d 1306 (issue was whether court could consider the appropriateness of a component of the curriculum and the adequacy of the assessment of student’s performance on that component); James v. Board of Education of the City of New York 397 NYS 2d 934 (whether testing was conducted negligently); Alban v. Board of Education of Hartford County 494 A2d 745 (Md. App. 1985) (placement of a mentally retarded child in a physical education class); Savino v. Board of Education of School District 1, Westbury, New York 506 NYS 2d 210 (AD 2 Dept 1986) (failure to notify parents of results of psychological tests which indicated child needed assistance); Sitomer v. Half Hollow Hills Central School District 520 NYS 2d 37 (AD 2 Dept 1987) (incorrectly excluded from tennis team on the basis of a negligently conducted physiological examination).

24. See Elson, J., “A common law remedy for the educational harms caused by incompetent or careless teaching”, NWULR, Vol. 73 No. 4,1979, p. 641. Fifty pages of this 129-page article are devoted to discussing the standard of care. Similarly Foster, W.F., “Educational malpractice: a tort for the untaught?”, UBCLR, Vol. 19 No. 2,1985, p. 161, spends 25 per cent of an 86-page article on this issue. 25. It seems unnecessary to go into this debate in this paper. Some of the arguments against regarding teachers as members of a profession include the fact that they are neither selfemployed, nor self-regulating in the way that other professions can be. 26. Calavenna, K.H., “Educational malpractice”, University of Detroit Review, Vol. 64 No. 717, Summer, 1987, p. 726. 27. See Sutherland Shire Council v. Heyman (1985) 157 CLR 424; San Sebastian v. Minister Administering Environmental and Planning Act (1986) CLR 340; and Hawkins v. Clayton (1988) 62 ALJR 240; 78 ALR 69. For a full discussion of the current position of the UK and Australian courts with regard to purely economic loss see the following: Gardiner, D. and L’Estrange, N., “Negligence and the recovery of pure economic loss, a rejoinder concerning the proper approach to duties of care”, (June 1989) Queensland Law Society Journal 191; Keeler J.F., “The proximity of past and future: Australian and British approaches to analysing the duty of care”, Adelaide Law Review, Vol. 93 No. 12, 1989; Miller, G. and Miller, D., “The reformulation of the concept of duty of care and entitlement to recovery of pure economic loss in negligence”, Australian. Bar Review, Vol. 65 No. 8, 1991; Quinlan, S. and Gardiner, D., “New developments with respect to the duty of care in tort”, Australian Law Journal, Vol. 347 No. 62, 1988; Smillie, J.A., “The foundation of the duty of care in tort” Monash University Law Review, Vol. 302 No. 15, 1989. 28. See Balkin, R.P. and Davis, J.L.R., The Law of Torts, Butterworths, Sydney, 1991. 29. F v. R (1983) 33 SASR 189 at 194. 30. See, for example, Haines v. Leves, NSWR Vol. 442 No. 8, 1987 and the decision of the Victorian Equal Opportunity Board in relation to the closure of Northlands Secondary College and Richmond Secondary College. 31. For example, in Nicholas v. Osborne (unreported Victorian County Court decision, 15 November 1985), where a child died on a hike through rugged mountain country in Victoria, the trial judge suggested that the hike was probably counter-productive to the achievement of the educational objectives of the excursion (developing self-sufficiency in the bush and an appreciation of the outdoors), and that the objectives could have been achieved in other less hazardous ways. Through these sorts of personal injury cases the courts have indicated also the extent to which school resources should be utilized to achieve safety. 32. Thompson, B., “In a class apart? ‘Educational negligence’ claims against teachers” QITLJ Vol. 85 No. 1, 1985, pp. 95-9. 33. For example, the court was divided four to three in Giannarelli v. Wraith (1988) 81 ALR 417, the case which determined that the barristers could not be held liable for negligent conduct of a case in court. In addition the reasoning in the majority decisions differed.

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