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Liability for careless teaching:should Australians follow the

Americans or the British?Andrew Hopkins

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 calleducational malpractice), there is often a shaking of heads followed by thecomment that Its happening in America and its only a matter of time before ithappens here. However, in fact, it is not happening in the USA, and the ideathat US teachers are frequently sued for careless teaching is a popularmisconception. While there was a small stream of these educational malpracticecases reported in the USA during the late 1970s and early 1980s, by the end ofthe 1980s this had become a mere trickle which, in the 1990s, appears to havedried up altogether. This decline in the number of report ed educationalmalpractice cases is the result of a disinclination by the US courts to holdteachers, schools and educational authorities liable for educational malpractice.This means that, at the moment, at common law US students are unlikely to

obtain compensat ion from the court s for loss result ing from careless orinadequate teaching. The law will remain in this dormant state unless either theUS courts are persuaded to change the direction of the common law on thispoint 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 thecommon law of the UK is, initially at least, developing in a different directionfrom the common law of the USA. This case was the first in the UK in which theHouse of Lords had to consider the liability of schools and teachers for theintellectual development of their students. The court found (details are providedlater) that, where children appear to be experiencing difficulties with theirschool work, teachers have a duty to take care when assessing and advising onthe educational needs of those children. This case did not deal with other formsof negligent or inadequate teaching, such as failure to cover compulsorycomponents of curriculum or giving poor explanations of concepts, ideas andfacts which resulted in students obtaining low marks.

The refusal of the US courts to find liability for educational malpractice isnot the result of the courts adjudicating on technical legal questions. Rather it isthe result of those courts being swayed by what the courts call policyconsiderations, that is, arguments suggesting that it is not in the public interestto award compensation to students where there has been a failure to provide anadequate education. In contrast, the one UK decision on educational negligencepaid virtually no attention to policy issues.

Journal of EducationalAdministration, Vol. 34 No. 4, 1996,pp. 39-59. MCB University Press ,

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Statute law: the Education ActsAt present, there is no statute in any of the Australian states which appears tocreate a statutory right to sue for poor or careless teaching in schools. Thevarious Education Acts of the stat e parliaments usually are concerned withestablishing a system of state education which then becomes the responsibilityof the education minister of that state. Such an Act might provide for a corecurriculum 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 theNSW Education Reform Act 1990 which provides, in Section 4, that every childhas the right to receive an education and that it is the duty of the State toensure 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 anycivil cause of action. Other state legislation might provide for the appointmentof teachers, and their dismissal for poor teaching. But these acts stop short ofcreating a right for parents or students to sue for the loss suffered as a result ofpoor teaching.

Statute law: the Disability Discrimination Act 1992 (Commonwealth)While school administrators now are well aware of the significance to schools ofrace and sex discrimination legislation, they might not have fully appreciatedyet their potential liability under the Disability Discrimination Act 1992. Thedefinition of disability under this Act covers not only discrimination relating toobvious disabilities such as blindness, deafness, lack of mobility, etc., but also

disorders or malfunctions that result in a person learning differently from aperson without that disorder or ma lfunction[2]. This definition could beinterpreted to cover the sorts of specific learning difficulty which are relativelycommon in the classroom (such as poor auditory retention) and do not require astudent to be accompanied by a teachers aide in order to participate in learningactivities, but do result in the student being a slow learner.

The Disability Discrimination Act 1992 makes it unlawful to discriminate bydenying or limiting a students access to any benefit provided by an educationauthority (Section 22). Education is the main benefit provided by an educationauthority. It is unlikely that a teacher who is aware of a student with a specificlearning disability would directly discriminate against that student by overtlytreating him/her less fairly than the other students are treated. However, the Actalso makes indirectdiscrimination unlawful by defining discrimination asbehaviour which requires the disabled student to comply with a requirement orcondition with which a substantially higher proportion of persons without thedisability are able to comply (Section 6). Accordingly, if a teachers method ofteaching takes no account of the student with the disability, and consequentlydisadvantages that student, the teaching method could amount to unlawfuldiscrimination under the Disability Discrimination Act 1992. Both governmentand non-government schools are covered by the Act.

This legislation, then, could provide a means for students to bring legalproceedings against schools in which there is awareness of, but failure to


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properly deal with, students learning disabilities. However, the legislation doesnot appear to impose a duty on schools to detect or recognize the existence ofspecific learning disabilities.

State fair trading legislation and the Trade Practices Act 1974(Commonwealth)Non-government schools could incur liability under either the CommonwealthTrade Practices Act 1974 or the state fair trading legislation. These actsenable proceedings to be brought for damage suffered as a result of businessconduct 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 prospectusor advert ising brochure. To incur liability under the Commonwealth legislationthe school has to be a trad ing corpora tion, which means it has to be anincorporated body rather than a charitable trust controlled by a religious order.This requirement of incorporation does not apply to claims brought under thestate fair trading legislation. However, a schools conduct must be misleading ordeceptive, and not merely negligent, to incur liability under these provisions.

Negligent teaching by a non-government school (or a university) might giverise to liability pursuant to Par t V Division 2 of the Trade Practices Act 1974which requires tr ading corpora tions to act with due care and skill whenproviding 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 lawIf a statute does not create a right for students to sue for inadequate or carelessteaching, a common law right to sue, based on the tort of negligence, might befound by the courts to exist. In the case of non-government schools, the courtscould find also, pursuant to common law rules of contract, that a school hasbreached its contract with the students parents and is liable for any resultingloss. (An action for breach of contract could not be brought by governmentschoolchildrens parents as they do not enter into a contractual relationshipwith their childrens school, for the provision of education. A thoroughexamination of contractual liability is not possible in this a rticle.) It is wellestablished that schools can be liable in negligence where their students sufferphysical injuries as a result of careless instruction or supervision at school.However, so far there have been no reported decisions in Aust ralia or NewZealand which have determined that a student should be awarded damages tocompensate for the effects of poor teaching.

The tort of negligence.At this stage, it might be helpful to outline the generalprinciples of law which apply to all negligence actions, regardless of whetherthe action is brought against a doctor, a school, a motorist or a manufacturer. Inorder to bring p roceedings for negligence successfully, the plaint iff mustestablish the three elements of the tort:


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(1) The plaintiff must show that the law has imposed on the defendant aduty to take reasonable care with respect to the plaintiff.

(2) The plaintiff must show that the defendant has breached the duty of careby failing to exercise the standard of care which the law expects thedefendant to observe in his/her dealings with that plaintiff.

(3) The plaintiff must show that the defendants breach of the duty of carecaused reasonably foreseeable damage to the plaintiff. The aim of the lawof tort, in contrast to the criminal law, is to compensate the victim ratherthan to punish the wrongdoer. Hence, some injury must be suffered inorder for the plaintiff to sue successfully for negligence. The case will not

succeed if there has been merely carelessness without any consequentinjury.

It is well established at common law that the teacher owes a duty of care toprotect students from personal injury. However, if the courts were to find thatteachers are also liable for loss suffered as the result of poor teaching, thiswould require the courts to extend substantially the duty of care currently owedby teachers. The approach which is followed currently by a majority of theHigh Court of Australia, when determining whether a duty of care is owed by adefendant in a new category of cases, is to apply a test which asks the followingquestions:

Was it reasonably foreseeable that the plaintiff could suffer this sort of

harm as a result of the defendants behaviour? Was there an element of proximity in the relationship between the

plaintiff and defendant with regard to the defendants behaviour and theinjury suffered?[5].

The court can then determine, for policy reasons alone, not to recognizea duty of care; that is, the courts can determine that it would not be in thepublic 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 areasonably foreseeable consequence of careless teaching. With regard to thesecond question, it probably can be argued that a proximate relationship existsbetween 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, suchas the relationship between motorists on the road. Whether proximity applieswill depend on the circumstances of the particular case before the courts, andcan include considerations of what is fair and reasonable[6]. In a case ofeducational negligence, it can be argued that there is a special quality to therelationship. Students are placed in the care of teachers and schools for theirlearning, 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 beprovided.

However, the courts still can take into account considerations of purelypublic policy when determining whether a duty of care exists[7]. For example,in Gianarelliv. Wraith[8], the High Court held that, for policy reasons, barristersmay not be held liable for negligence for the way in which a clients case hasbeen presented in court . Several policy reasons were mentioned by the court,including tha t allowing litigation against the bar rister would amount to acomplete retrial of the case. In UK, an action for negligence brought against thepolice by the mother of the last victim of a serial killer was rejected on policygrounds[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 fromdetecting and prosecuting crime or require further expenditure on policeservices. In Galav. Preston[10] some young men had an accident in a stolen carwhile they were on their way to commit a burglary. One of the passengers suedthe driver of the vehicle, seeking compensation for the injuries received in theaccident. The High Court found that there were policy reasons for refusing torecognize a cause of action in such circumstances, as it would amount to the lawrecognizing that criminals owed a duty of care to each other when performingcrimes. The court felt that the civil law should not condone criminal activity.

The uncertainty about how the courts will respond to these policy issuesmakes it difficult to predict whether an educational negligence claim would

succeed in Australia. However, it is possible to analyse the policy issues whichcould affect the courts and consider how the courts might, and should, respondto those issues. Here, the policy considerations which have influenced the UScourts can be helpful as, although US precedents are not binding on Australiancourts, they may be persuasive. But before considering those decisions, thedevelopments in the law relating to liability for negligent misstatements shouldbe considered.

Negligent misstatements. Over the last 30 years considerable case law hasbuilt up to establish that a wide range of people (not just professionals) may beheld liable for loss resulting from wrong information or bad advice which wasnegligently provided. The rules established by the High Court can besummarized as follows: a person may be liable if he/she makes a negligentmisstatement on a serious matter in circumstances where that person knows, orought to know, that the other will rely and act on that advice or information, andit is reasonable for the other to act on it[11]. Whether or not a person is under aduty of care towards another with regard to statements will ultimately dependon whether the court finds there is a proximate relationship between the twoparties. As was explained earlier, proximity depends on all the circumstances ofthe case, though in some cases it can be decided on the basis of policyconsiderations.

While careers teachers are particularly vulnerable to being sued for carelessadvice, so far t here have been no reported decisions in wh ich classroom


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teachers have been held liable in connection with negligently given advice orinformation. However, classroom teachers continually provide information andgive advice to students and hence could be vulnerable to this sort of action. Forexample, classroom teachers provide advice on career choice, subject selection,tertiary course entry requirements, how to s tudy for exams, and theysometimes try to tip likely questions in public examinations. They provideinformation in the classroom (e.g. economics teachers attempt to be up-to-dateon the latest inflation and employment trends when preparing students forexaminations), and assume responsibility for informing students on the contentof a compulsory curriculum. A newspaper story in Victoria in 1993 reported theplight 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 theday of the examination that the book was not on the syllabus[12]. The courtscould hold that teachers are under a duty of care when providing this advice orinformation.

Again, as with any negligence action against a school or teacher, a majorproblem for any plaintiff will be establishing that the negligence resulted insome financial loss, and this point will be taken up again later. Meanwhile, inthe next two sections, the recent House of Lords decisions on educationalnegligence will be examined. Following that, the policy considerations raised inthe US cases will be identified, and then their appropriateness to Australianconditions will be considered.

The recent decis ion from the House of LordsThe 1995 House of Lords decisions in E(a minor) v. Dorset County Council;Christmasv. Hampshire County Council;Keatingv. London Borough of Bromleyinvolved three separate claims concerning three different students, all withlearning difficulties. Each claim had been brought against the local educationauthority responsible for the students education. The claims alleged breachesof both a statutory and a common law duty to the students. All three childrenhad special educational needs, and the plaintiffs alleged that the relevanteducation authorities had been negligent when diagnosing, advising on andtaking action with regard to the childrens special educational needs. In thecases ofE(a minor) and Christmas, the children were dyslexic, but were notprovided with appropriate assistance after the pa rents had b rought thechildrens problems to the attention of the education authorities. In the Keatingcase, it was alleged tha t the authority had made a number of errors whendealing with the childs educational needs. These errors included incorrectlyplacing the child for some time in a special school when he did not have adisability, 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 aconsolidated appeal application went to the Court of Appeal[13], and then to theHouse of Lords. The House of Lords and the Court of Appeal reached the sameunanimous decisions. First, they found that the relevant statute had not createda right to bring an action in tort for breach of a sta tutory duty to educate.


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Second, they found that, at common law, the employees of a local educationauthority owe a duty to take care when assessing, advising on and determiningchildrens educational needs. The educational authority was then vicariouslyliable 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). Thepolicy 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 hisphysical well-being but also for his educational needs. The education of the pupil is the verypurpose 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 isunderperforming, he does owe a duty to take such steps as a reasonable teacher wouldconsider appropriate to tr y to deal with such underp erformance. To hold that, in suchcircumstances, the head teacher could ignore the matter and make no attempt to deal with itwould f ly in the face, not only of societys expectations of what a school will provide, but also ofthe fine traditions of the teaching profession itself [added emphasis]. If such a head teachergives advice to the parents, then in my judgment, he must exercise the skills and care of areasonable teacher in giving such advice[1, p. 395].

The court made it clear that teachers, and not just principals, are also liable wherethey are asked to give advice and they know that the advice will be communicatedto the parents. With regard to psychologists employed by the education authority,the court found there was a duty to take care when assessing and determiningeducational needs because Psychologists hold themselves out as having special

skills and they arelike any other professional bound both to possess such skillsand 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 actionin law which could be tried. The cases were to be retur ned to the respective trial

judges to determine whether the relevant education authoritys employees didin fact breach the standard of care owed to the students. In the case of advicegiven by the headteacher and an advisory teacher, the House of Lords pointedout that the trial judge will have to decide whether the advice was in accord withthe views that might have been entertained at the time by reasonable membersof the teaching profession[1, p. 396]. They did not have to exercise a standardof care which was as high as that expected of a psychologist. Hence the actionscould still fail if the trial judges find that the required standard of care had beenexercised.

In the Keatingcase, the education authority argued that an additional reasonfor striking out the claim was that the damage it was alleged that the child hadsuffered impairment of intellectual development was not a form of damagerecognized by law. But the House of Lords found that this point would be betterdetermined at trial in the light of the evidence as to the palintiffs actual mentalcondition 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 existingin respect of other aspects of schooling, such as quality of teaching, coverage of


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curriculum, accuracy in marking work submitted by students, etc. The decisionwas quite narrow in that it was confined to assessment and advice regardingeducational needs. And as wa s mentioned above, the cour t gave no realindication regarding whether students could obtain damages for intellectualimpairment.

The US courts policy reas ons for rejecting educationalmalpractice claimsThe US cases dealing with educational malpractice claims have been consistentin finding tha t t he cause of action should be rejected on policy g rounds.However, the reasons justifying these decisions have not been consistent across

the US, and different policy considerations have influenced the various courtswhich have heard these cases. Broadly speaking, two different lines ofargument, or sets of policy considerations, have been used. The first line is thatbased on the Californian decision ofPeter W. v. San Francisco Unified SchoolDistrict[14]; and the second line is based on a series of New York decisions,beginning with Donahuev. Copiague Union Free School Distr ict[15]. Some caseshave relied on both lines of argument (despite the fact that the New Yorkapproach involves rejection of the Californian approach), often withembellishments of their own.

The Peter W. case and the Cali fornian line of argumentPeter W. sued for damages after he graduated from high school, claiming that

his literacy skills were so poor that his income-earning capacity wassubstantially reduced. The following six policy considerations appear tounderlie the courts rejection of his claim:

(1) Given that there are so many different educational theories with varyingphilosophical bases, it is not possible to devise an appropriate standardaga inst wh ich the teachers inst ruction can be judged in order todetermine whether it was negligent.

(2) There are many var iables, which may be physical, neurological,emotional, cultural (or) environmental[16], that can account for a childsfailure to learn. Consequently it is not possible to isolate the impact ofschooling on that process.

(3) The injury su ffered by the plaintiff was not of a type which wasrecognized by the Law of Torts in the US.

(4) The traditional opening of the floodgates argument: if the courtsrecognized educational malpractice as a cause of action, schools wouldbe exposed to a flood of claims and would waste much time and moneydefending them.

(5) The additional burden on the education system would be intolerable, asschools already had much responsibility to bear, and were the target ofconstant criticism.


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(6) The final policy consideration was not clearly spelt out by the court , butwas implied in its concluding statement:

Upon consideration of the role imposed upon the public schools by law and thelimitations imposed upon them by their publicly supported budgets[added emphasis] and the just cited consequences to the communitywe find no such duty in thefirst count of the plaintiffs complaint[16].

The role imposed by law to which the court referred is the statutoryresponsibility to provide schooling for all students until the statutorilydetermined 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 sodifficult, and their resources so limited, it follows that some children will bepoorly educated. These last two considerat ions are similar to the policyconsiderations on which the New York decisions were based.

The Californian line: additional argumentsThe Alaskan case ofL.A.H. and D.S.Wv. Fairbanks North Star Borough SchoolDistrict[17] followed the reasoning of the Peter W. case, and added twoarguments against recognizing educational malpractice. This case concernedtwo students with learning problems resulting from dyslexia who allegednegligence in the failure to diagnose the dyslexia, and subsequent negligencethrough failure to provide adequate remedial assistance. (As the Peter W. case

identified six policy arguments, the additional two arguments in this case willbe numbered (7) and (8)).

(7) Money damages are a poor substitute for a proper education, and it isbetter if prompt administrat ive action is taken to correct educationalshortcomings (in both these cases statutory-based complaintmechanisms existed under which parents could seek review of a childsplacement or progress).

(8) It would be impossible to assess the level of achievement the studentsmight have reached had the mistakes not been made and, accordingly,an appropriate amount of financial compensation cannot be calculated.

The Maryland case ofHunterv. Board of Education of Montgomery County[18]

involved negligent evaluation and t reatment of learning difficulties. The casewas app ealed twice and the court supp orted the Peter W. case and theadditional arguments in the D.S.W. and L.A.H. case. At the first appeal twofurther 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 wasnot warranted in order to avoid malpractice actions. This in turn couldlead to more claims, this time based on damage caused by unwarrantedpromotions.


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(10) The court quoted from one of its earlier decisions in a case involvingphysical injuries to a student to make the point, by implication, that thethreat 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 attemptingto 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 bedeprived. Which need is given preference upon a given time is a decision madehundreds of times a day by a teacher. The problems are multiplied as a teachercomes to know his students and their various needs and differences. All of thesedecisions occur repeatedly every fifty minutes daily with classes of various sizes. Inmaking sensit ive judgement calls a teacher must not be made aware of theprecariousness 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 whilefearful of being sued. This is a powerful argument, but was not followed up inany other decisions.

The New York casesThe facts of the first New York educational malpractice case, Donohuev.Copiague School Distr ict[20], were similar to those in Peter W., and involved ayoung man who had graduated from high school with very poor literacy skills.The case was unsuccessfully appealed twice. The basis of the decision was thatthe courts should not interfere with the work of educational administrators. Thepoint was expressed well at the first appeal:

Even if it were possible to determine with exactitude the pedagogical course to follow withrespect to particular individuals, yet another problem would arise. Public education involves aninherent stress between taking action to satisfy the educational needs of the individual studentand the needs of the student body as a whole. It is not for the courts to decide how best to utilizescarce educational resources to achieve these sometimes conflicting objectives. Simply stated,the recognition of a cause of action sounding in negligence would impermissably require thecourts 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 redressexisted which enabled parents to appeal to a Commissioner for Education whohad power to investigate decisions of school authorities. The court did add arider to its decision: this is not to say that there may never be gross violationsof defined public policy which the courts would be obliged to recognize andcorrect[21].

An interesting aspect of the final appeal was its rejection of three of thearguments 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 beassessed; and establish whether there is a causal link between poor teachingand a failure to learn. It also suggested that someone who has graduated fromhigh school unable to comprehend simple English has suffered an injury of asort which is recognized by the Law of Torts.

This policy, that the courts should not interfere with or second guess thedecisions 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 variedgreatly, and included some cases where students had been incorrectly classifiedas retarded and consequently inappropriately placed in schools or classes forretarded students[22]. (In one of these cases, Hoffmanv. Board of Education ofthe City of New York, the plaintiff originally succeeded in his claim and wasawarded $750,000, only to have this decision quashed by the final appeal court.)The case ofCavellov. Sherburne-Earlvi lle Central School Distr ict[23]demonstrates that the refusal of the New York courts to recognize educationalmalpractice was based purely on policy, rather than on technical legal reasons.Here the Cavello parents complained that their children had been victimized byunruly students at the school, and that, as a result of the ceaseless harassmentand threats, the children had suffered emotional distress and disruption to theirlearning. The educational component of the claim was rejected withoutdiscussion, with the court citing the Hoffmanand Donohuecases as precedents.However, the court was prepared to consider the claim for emotional distress asthis is a type of physical injury, and it was well established in New York (as inAustralia) that schools are under a duty of care to provide adequate supervisionto protect students from physical injury. If the Cavellos allegations were true,one form of misbehaviour had produced two sorts of suffering. However, thecourt 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 ofreasoning, would, in Australia, be regarded as legal issues rather than policyissues. Those legal issues are whether:

(1) there is an app ropriate standard of care to apply in an educationalmalpractice action;

(2) a causal link can be established between the alleged educationalnegligence 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 remainingpurely policy issues from the Peter W. and Donohuelines of reasoning will be

looked at.

The legal issuesThat there is no appropriate standard of care against which the degree of careexercised by the teacher or school authority can be measured. Even though thisargument was rejected by the final appeal cour t in Donahue, other cour tscontinued to endorse the reasoning in Peter W. and ignored the criticism madein Donohue. The argument has also preoccupied some North Americancommentators[24]. However, as will be discussed below, it should not provide


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the same sort of problem for Australian courts. Certainly the House of Lords inits decision in E(a minor) and Other Appealsdid not regard it as a problem.

In a negligence action, where a person owes another a duty of care, the courtwill determine liability by examining the evidence, and then measur ing thedefendants conduct against a standard of care set by the courts. The courtshave set out various factors which may be taken into account in determiningwhether the standard has been met. The traditional standard of care set by thecourts is the standard of care expected of the reasonable man. Where peoplehold themselves out as capable of providing special services, such as plumbersand doctors, they must exercize the higher degree of skill which is usual withpeople 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 thesame sense that medicine, law and architecture are[25], there can be no doubtthat 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 childrenbetween whom there is a wide range of cognitive abilities. They must be able toadjust teaching methods to suit the age, ability, gender, motivation, alertnessand socio-economic background of individuals and groups. A technique whichis successful with year 11 during period two on Tuesday morning might notwork with year n ine on a hot Friday afternoon. These skills are based on,among other things, an understanding of group dynamics and knowledge of theemotional and cognitive development of children which has been acquired

through a mix of formal training in pedagogical theory and on-the-jobexperience.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 todetermine. This is done with the help of testimony from witnesses regardinghow the reasonable teacher ought to behave in those particular circumstances.This would not necessarily be an easy task for, as one American writer haspointed out, educational theorists cannot even agree on such a basic issue asthe underlying goal of education and, given that educational theory is not anexact science, expert testimony is likely to vary[26]. Ramsay, an Australianwriter, also discusses this problem[4, pp. 201-4], emphasizing that while it mightnot be difficult to determine that the standard of care has not been met wherethere has been a specific act of negligence (e.g. where a teacher has omitted toteach a prescribed text on the English syllabus), it is more difficult where theallegation is that there has been a general lack of educational achievement.However, Ramsay points out that the existence of imprecise standards shouldnot form a permanent bar rier to judicial consideration of these negligence cases.He makes a comparison with psychiatry, in which field there is a vigorousdebate about professional processes, yet this has not prevented the courts fromdetermining that psychiatrists owe a duty of care to their patients. In the case ofteachers, then, the requirement that the standard of the reasonable teachershould 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 supportfrom, an educational theory or the experience of other educators.

That a causal link cannot be established between the negligent teaching andthe 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 difficultproblem in many cases, but this is not a reason for excluding all educationalmalpractice problems from the courts. In some cases causality might not be aproblem and, in any event, the courts are accustomed to attempting to unravelcomplex and technical situations, for example in medical negligence cases, orcases involving fraud and myriad financial transactions. Where the causal linkis 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 reducesthe students earning potential; and emotional damage.

It is well established now in Australia that damages can be awarded where aplaintiff has suffered only economic loss[4,27] without accompanying physicalinjuries. 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 andforgo earnings in order to continue with full-time or part-time education inorder to acquire the knowledge and skills which had not been provided becauseof the poor teaching. However, the plaintiff could have difficulty in proving thata loss of future earnings will flow from the poor teaching. Once, for example,

the plaintiff has acquired the missing knowledge and skills through furthereducation, there is no further loss. If the plaintiff alleges failure to gain entry toa particular tertiary course because of a low tertiary entry score resulting frombad teaching, there is always the possibility of gaining entry to another courseand then seeking transfer to the course with more difficult entry requirementsonce the plaintiff has built up his/her skills. Fur thermore, it might be difficult toprove that the plaintiff will earn less income, in adult life, than he/she couldhave done if entry had been gained to the other course. Thus the likelihood ofthe 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, takereasonable steps to help himself to minimize the negat ive effects of thedefendants conduct. This does not mean that the courts would refuse to hearthe claim for educational negligence, but rather that the difficulty of provingloss is another disincentive to the potential litigant.

The plaintiff could allege some sort of emotional damage, such as loss of self-esteem or of confidence flowing from the failure to educate properly. At themoment the courts would probably not recognize this as a category of hurtwhich entitles the plaintiff to compensation. The general r ule is that damagesare not awarded for sorrow or disappointment. So, for example, where a lovedone is killed, damages will not be awarded for sorrow and grief, although wheresomeone suffers profound emotional damage from witnessing or experiencingthe accident or its consequences, he or she may be able to claim damages for


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what the courts call nervous shock. While there has been some increase in therange of mental hurt which the courts will compensate[28, p. 832], a plaintiffwould be very foolish to launch proceedings in negligence to seek compensationfor this s ort of har m. Apart from the low probability of success (and t helikelihood of an appeal if a trial judge were to order damages for such harm), theamount of money awarded could be miniscule. Litigation would only beworthwhile if the plaintiff also has a strong claim for economic loss.

The level of damages cannot be calculated. Certainly damages would bedifficult, but not impossible, to quantify in an educational negligence claim. Thecourts are accustomed to calculating an amount of compensatory damages indifficult circumst ances and for intangible losses: for example, for loss ofenjoyment of life, loss of amenities (e.g. ability to play tennis), loss of earningcapacity and loss of expectation of life. An educational negligence actioninvolves no greater difficulty than do these sorts of case, and certainly thisconsideration does not justify barring the action altogether.

The purely policy issuesThere 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 professionaleducators (the argument from the New York cases).

While the last two of these arguments require some discussion, the first threecan be disposed of quickly.

The floodgates argument. The discussion in the previous section on legalissues suggests that there will not be a flood of litigation. Educationalnegligence cases would often involve difficulties associated with proving thecausal link between the teaching and a failure to learn, and usually there wouldbe considerable difficulty in proving any significant economic loss flowing fromthe poor teaching. This substantial risk of losing the case, when combined with

the expense of conducting legal proceedings and the difficulty of obtaininglegal aid, will act as a deterrent to many would-be litigants.

The promotion of students argument. With regard to not promotingstudents to avoid litigation, the usual practice in Australian schools is not tobase promotion decisions simply on performance in tests. Rather suchdecisions are made in consultation with parents, and include considerationssuch as the importance of staying with peers, or the negative effect on self-esteem of being kept down, as well as what would be best for the childsacademic progress.


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Is money a poor substitute for an education?The short answer to thisargument is, Yes. However, in the absence of any other avenue of appeal orform of redress, monetary compensat ion (damages) is t he only remedyavailable. It is a poor substitu te in the same way tha t money is the poorsubstitute 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 l it igation lead to defensive teaching?This criticism ofthe educational negligence action, which has received more attention fromwriters than it has from the courts, suggests that the threat of such an actionwill lead to defensive teaching, stifling creativity to ensure that minimumstandards acceptable to the courts are maintained. Teachers, it is suggested,

may endeavour to treat all students equally as a safe response to potentialliability 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 andrefinement of teaching methods, with teachers opting for traditionalapproaches which they feel might appeal to the courts. Foster mentions theargument t hat resources may be misapplied, for example by nar rowingcurricular offerings or concentrating on basic skills to the detriment of otherareas[24, p. 198] and that an emphasis might be placed on achievement in basicskills tests, without general educational levels rising.

This issue raises two questions for consideration. First, will it necessarily bethe case that the threat of litigation will produce conservative andunimaginative 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 theawareness of school liability for physical injury suffered by students, and thepotential for very large damages awards where serious injury results, do notseem to have had a stifling effect on school curr icula. Accidents are most likelyto arise during sport , in the playground, during physical education classes, andon camps or during other outdoor education activities. There have been nosuggestions made that any of these activities have been substantially curtailedfollowing the many widely publicized cases of student injury and, sometimes,death. Rather than discontinue these activities, schools seem to have respondedby ensuring that the activities are better planned and more safely carried out.Thus t he effect of litigation on school programmes has been positive, notnegative, although, regrettably, some schools are still not exercising sufficientcaution.

This observation leads to the second point. The advent of litigation foreducational negligence may well lead to greater caution among teachersregarding the nature of their style and delivery, but with benefits for students.Teachers will be required to think more carefully about educational objectivesand the best ways of achieving them. In short, it could lead to greaterprofessionalism among teachers, as they are made aware they might have toaccount for, and justify on educational grounds, what they are doing in theclassroom. Better, not worse, teaching might result.


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If some defensive teaching does result, Foster argues that this negative effectwill be more than offset by benefits flowing from:

the removal of incompetent educators from the field; the discouragement of those unsuited forthe profession from entering it; and the upgrading of the educational system which shouldresult and which in turn may make the profession more attractive than it would otherwise beto persons possessing the necessary qualities[24, p. 199].

Creativity would not necessarily be stifled by fear of a negligence action, butteachers would be encoura ged to be more cautiously experimental. Newmethods st ill could be introduced, but only after they have been tested, or wherethey are strongly supported by t heory. This is arguably a better way tointroduce educational innovation. To engage in wholesale experimenta tionwhere the outcomes are unclear is to show scant respect for the rights of thechildren. Foster suggests that the advent of negligence litigation could result instudents being given a choice regarding whether they would like to participatein experimentation, rather than in its abandonment.

Should the courts oversee the education system?The argument was applied inthe New York cases and referred to in the Peter W. case. The argument is that acourt is not an appropriate forum in which to determine questions aboutappropriate pedagogical methods and educational programmes, or theallocation of scarce educational resources by educational administrators whoare acting un der pressure. Certa inly the courts adversa rial method fordetermining issues is less thorough than is the long and detailed inquisitorialprocess engaged in by educational researchers to determine educationalquestions. But does this mean that educators should be immune from scrutiny?Should we prohibit judicial protection of students rights? In cases involvingprofessional judgment, the courts method is to hear and evalua te experttestimony. For example, in medical negligence cases, if the common practice ofmedical practitioners has been complied with, a finding of negligence isunlikely. But the courts reserve the right to declare that the common practiceitself is inadequate[28, pp. 286-7]. The justification for this is that the questionof what is reasonable care is ultimately the duty of a court to decide and cannotbe delegated to any profession or group in the community[29].

Arguably, if courts can determine negligence questions in complex medicalcases, they can also evaluate educational issues. The courts already do this incases involving allegations of discrimination by education authorities, and

where teachers who have been dismissed from their employment lodge claimsof unfair dismissal[30]. In personal injury cases also the courts have beenprepared to make judgments about the appropriateness of educationalpolicies[31].

Should Australia follow the A mericans or the British?Schools, and the teachers running them, do seem to have come under increasingpressure over the last 20 years. Teachers have had to cope with integration ofdisabled students, major curriculum changes, increased retention rates


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involving more non-academic students staying on because of poor jobprospects, increasing behavioural problems with students, schoolrationalization and amalgamation, devolution of authority to school level andsteady reductions in government spending. These problems have beenconfronted against a background of mounting criticism of schools and teachers,a decline in the status of teaching as an occupation, and a relative decline inincome vis--visother white-collar occupations. Education is also a politicalfootball, a scapegoat for some perceived economic and social ills. Educationalstandards, it is constantly claimed, are declining, and declining teachingstandards 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 areunpleasant. Because of the delays associated with litigation, the pressure of thecase is felt for many months, if not years. Unlike other professions, teachers donot have the community respect and potentially high income to compensate forthe responsibility imposed by the threat of professional liability. Nor do theyhave the control which other professions have over their work conditions andthe resources necessary for competent performance.

These ar e strong a rguments for exempting teachers from professionalliability for the failure of students to learn. But they are not arguments forexempting school authorities from the responsibility to put in place systems toprovide for all students to receive a sound education. Schools, and theauthorities running t hem, perhaps sh ould be seen as having the sort of

responsibility that hospitals have. Hospitals hold out that they will provide ahealthful environment in which patients can expect reasonable care. Schoolsshould be seen as having a responsibility to provide reasonable opportunitiesfor students to pursue their right to an education.

The law of negligence does not require perfection, but simply reasonablecare. The prospect of litigation would impress on education authorities the needto have clear goals, and to ensure that adequate resources are available andsystems in place to meet those goals. In short , better educational administrationmight result.

As Thompson[32] has pointed out, where a teacher is dealing with aparticular student, and performs an act which he or she is aware will affect thatstudent, 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 anequal footing with, and receiving the same treatment as, the rest of the students.The student has been marked out for par ticular attention, and then, becauseproper care has not been exercised, the child is worse off than he/she wouldhave 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 t imes inevitable. To single onechild out of thirty, deal with him negligently and place him in a worse position than he wouldotherwise have been in, is another, more serious situation[32, p. 98].


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The three students whose cases were dealt with by the House of Lords in E(aminor) and Other Appealswere 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 negligenceclaim in Australia as litigation in a new field can only be uncertain. It is notuncommon in controversial or complex matters for the seven judges sitting asthe Full Bench of the High Court to divide four to three on a decision, with themajority view prevailing[33]. Frequently when judges reach the same decision,they do so on the basis of different reasoning. Furthermore, the outcome of anynegligence case will always depend on the pa rt icular facts of that cas e.

Accordingly it would be foolish to conclude tha t malpract ice actions willinevitably succeed, or fail, in Australia. However, the House of Lords decision inE(a minor) and Other Appealsis of great significance, given that decisions ofthat court still have much influence on the development of the common law inAustralia. It is a clear war ning to Australian educators that they might befound liable where they fail to take care when advising on students educationalneeds.

As wa s p ointed out earlier, there are many d isincentives for potentiallitigants, and it would be a brave, determined and financially confident litigantwho would bring the first educational negligence case in Australia. Parents ofstudents in non-government schools who have paid large fees over many yearsmight 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 litigationfloodgates are unlikely to open, schools should still be proactive by placingappropriate procedures in place to minimize the possibility of a claim. Steps tobe taken could include performance appraisal schemes for teachers, continuousrelevant professional development, adequat e pas toral care programmes,procedures to ensure that specific learning difficulties are detected and thatreasons for slow learning are investigated, and systems to ensure all parts of acompulsory curriculum have been covered. Consideration should also be givento the establishment of an office of Education Omudsman to investigate andresolve complaints r elating t o educational negligence. This would helpgovernments avoid the expense associated with defending litigation brought byirate 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; Christmasv. Hampshire County Council; Keatingv.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 Trad ing Act 1985 (Vic.) s.11; FairTrading 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; ConsumerAffairs and Fair Trading Act 1990 (NT) s. 42.


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4. Ramsay, I.M., Educational negligence and the legalisation of negligence, UNSW LawJournal, Vol. 11 No. 184, 1988.

5. See Jaenschv. Coffey(1984) 155 CLR 549, at 586 per Deane J. Not all judges use theproximity test see the criticism of it by Brennan J (as he was) in Galav. Preston(1991) 172CLR 243.

6. See judgment of Deane J in Jaenschv. Coffey[5]. See also the discussion on the influence ofpolicy in Keeler, J.F., The proximity of past and future: Australian and British approachesto analysing the duty of care, (1989) 12 Adel LR93. See also Miller, G. and Miller, D., Areformulation of the concept of duty of care and entitlement to recovery of pure economicloss 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 consideredwhen determining whether proximity exists, while at other times policy is regarded as aseparate matter for consideration. For example, comapare the judgments of Brennan J andDeane J in Galav. Preston[5].

8. Gianarelliv. Wraith(1988) 81 ALR 417.

9. Chief Constable for West Yorkshirev. Hill[1989] AC 198.

10. Galav. Preston(1991) 172 CLR 243.

11. Shaddockand Associates Pty, Ltdv. 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 Appea l decision, see Holloway, J., Th e rights ofindividuals who receive a defective education, Education and the Law, Vol. 6 No.4, 1994, p.207.

14. Peter W.v. San Francisco Unified School District60 Cal App.3d 867 (1976).

15. Donahuev. Copiague Union Free School District418 NYS 2d 375 (1979).

16. 131 Cal. Rptr. at 861

17. L.A.H. and D.S.W. v. Fairbanks North Star Borough School District628 P.2d 554 (Alaska1981).

18. Hunterv. Board of Education of Montgomery CountyMd.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 Bergv. Merricks20 Md.App. 666, 318A2d 220.

20. Donohuev. Copiague School Distr ict407 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 Hoffmanv. Board of Education of the City of New York49NY N. 2d 121, 424 NYS 2d376;Doev. Board of Education of Montgomery County453 A2d 814 (1982 Court of Appealsof Maryland); De Rosav. City of New York517 NYS 2d 754 (AD 2 Dept 1987). See alsoTorresv. Litt le Childrens Services et al. (1984, New York) 485 NYS 2d 15.

23. Cavellov. Sherburne-Earlville Central School District494 NYS 2d 466. For examples of

other cases where the approach in Donohues case has been followed, see Aubreyv. SchoolDistrict of Philadelphia(1981) 437 A2d 1306 (issue was whether court could consider theappropriateness of a component of the curriculum and the adequacy of the assessment ofstudents performance on that component);Jamesv.Board of Education of the City of NewYork397 NYS 2d 934 (whether testing was conducted negligently); Albanv. Board ofEducation of Hartford County494 A2d 745 (Md. App. 1985) (placement of a mentallyretarded child in a physical education class); Savinov. Board of Education of SchoolDistr ict 1, Westbury, New York506 NYS 2d 210 (AD 2 Dept 1986) (failure to notify parentsof results of psychological tests which indicated child needed assistance); Sitomerv. HalfHollow Hills Central School District520 NYS 2d 37 (AD 2 Dept 1987) (incorrectly excludedfrom tennis team on the basis of a negligently conducted physiological examination).


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24. See Elson, J., A common law remedy for the educational harms caused by incompetent orcareless teaching, NWULR, Vol. 73 No. 4,1979, p. 641. Fifty pages of this 129-page articleare devoted to discussing the sta ndar d of care. Similarly Foster, W.F., Educat ionalmalpractice: a tort for the untaught?, UBCLR, Vol. 19 No. 2,1985, p. 161, spends 25 per centof an 86-page ar ticle on this issue.

25. It seems unnecessary to go into this debate in this paper. Some of the arguments againstregarding teachers as members of a profession include the fact that they are neither self-employed, 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 Councilv. Heyman(1985) 157 CLR 424; San Sebastianv. MinisterAdministering Environmental and Planning Act (1986) CLR 340; and Hawkinsv. Clayton(1988) 62 ALJR 240; 78 ALR 69. For a full discussion of the current position of the UK andAustralian courts with regard to purely economic loss see the following: Gardiner, D. andLEstrange, N., Negligence and the recovery of pure economic loss, a rejoinder concerningthe proper approach to duties of care, (June 1989) Queensland Law Society Journal191;Keeler J.F., The proximity of past and future: Austra lian and British app roaches toanalysing 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 pureeconomic loss in negligence, Australian. Bar Review, Vol. 65 No. 8, 1991; Quinlan, S. andGardiner, D., New developments with respect to the duty of care in tort, Australian LawJournal, Vol. 347 No. 62, 1988; Smillie, J.A., The foundation of the duty of care in tortMonash 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. Fv. R(1983) 33 SASR 189 at 194.

30. See, for example, Hainesv. Leves, NSWR Vol. 442 No. 8, 1987 and the decision of theVictorian Equal Opportunity Board in relation to the closure of Northlands Secondary

College and Richmond Secondary College.31. For example, in Nicholasv. Osborne(unrepor ted Victorian County Court decision,

15 November 1985), where a child died on a hike through rugged mountain country inVictoria, the trial judge suggested that the hike was probably counter-productive to theachievement of the educational objectives of the excursion (developing self-sufficiency inthe bush and an appreciation of the outdoors), and that the objectives could have beenachieved in other less hazardous ways. Through these sorts of personal injury cases thecourts have indicated also the extent to which school resources should be utilized toachieve safety.

32. Thompson, B., In a class apart? Educational negligence claims against teachers QITLJVol. 85 No. 1, 1985, pp. 95-9.

33. For example, the court was divided four to three in Giannarelliv. Wraith(1988) 81 ALR417, the case which determined that the barristers could not be held liable for negligentconduct of a case in court. In addition the reasoning in the majority decisions differed.

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