INTRODUCTION
Litigation is becoming more
prevalent in all areas of society and education is no exception. Professionals
generally are being held more accountable for their actions. Parents and students
are more aware of their rights and it would seem by the increase in litigation
more willing to pursue those rights through the process of litigation to
recover compensation. A legal cause of action may arise in many instances. Litigation
may follow breaches of the Education Act, negligence, and breach of contract,
defamation, assault and an emerging area of educational negligence or
educational malpractice.
Negligence in terms of
physical injury suffered by students is only one aspect of litigation, which a
teacher may face. Nevertheless, it is suggested that it is the most likely reason
a teacher will face legal action. It is therefore of great importance that
teachers and school authorities are aware of how the law of negligence operates
and what is acceptable and unacceptable practice. Cotton (1995) writes that
while physical educators in the United States have some basic knowledge of
negligence most are unaware of how the law operates and the liability of teachers.
The situation is similar in Australia. As litigation increases within the
education sector and society in general it is the responsibility of schools and
teachers, not only in an effort to reduce the risk of harm to students by a
greater awareness of potential hazards but also by knowledge of how the law of negligence
operates.
This paper is to identify
and clarify the law of negligence, how it operates within a school environment
and offer suggestions as to how litigation can be avoided or at least the
potential for such an action reduced. Case law will be presented to represent the
elements a plaintiff needs to prove in an action of negligence. Criminal
negligence will not be addressed.
NEGLIGENCE
Negligence is part of tort
law and deals with grievances between individuals where one party has suffered
as a result of something the other party did or did not do. The purpose of negligence
is to receive compensation for the injuries sustained. Educational negligence
or educational malpractice is an emerging area of litigation in the Great
Britain and the USA. To distinguish this area of litigation from negligence
where a physical injury is suffered by a student educational malpractice refers
to a claim by a student that a school/teacher has failed to facilitate learning
(Australian Professional Liability (2000) 2,206).
The American courts have rejected
educational malpractice as a basis for a claim, however, the English courts
have been more willing to embrace the concept where it pertains to children
with certain learning disabilities (Williams, 1996, p. 306). The English Court
of Appeal in E (a minor) vs. Dorset County Council & Other Appeals [1994] 4
All ER 640 stated that failure to identify and meet the educational needs of
certain students with learning disabilities were not unarguable under English
negligence law (Williams, 1996, p. 281).
The position in Australia
remains unclear but according to Williams, 1996, p. 306) it may only be a
matter of time before an Australian court accepts educational malpractice as a
head of damage. The more common injury suffered by a student who in law becomes
the plaintiff is a physical injury as a result of an act or omission and liability
will be determined according to whether a reasonable person or in this case the
reasonable teacher would or would not have acted in the same way given the circumstances.
There are two aspects to
negligence in schools.
1.
The
negligence of teachers to students.
Teachers
have a duty of care to students to provide adequate supervision. This may occur
in the playground, on the sports field, in the classroom or on an excursion.
Under the doctrine of vicarious liability the school authority may be liable to
pay the plaintiff for the negligence of teachers. It does not however, negate
the personal liability of the teacher.
2.
The
negligence of school authorities.
Negligence
of school authorities may arise where the grounds or equipment are unsafe and a
student is injured. School authorities have a no delegable duty to students to
ensure that reasonable care is taken for the safety of children at school
(Watson v. Haines (1987) ATR 80-094).
Negligence Defined
For an action in negligence
to be brought against a teacher or institution it must be established that a
duty of care existed, that it was breached by either an act or omission, that
the student suffered damage and that damage or injury was a reasonably
foreseeable consequence of the breach.
To be successful in a case
of negligence the student as the plaintiff sues the teacher & or the school
authority as the defendant. As the child is a minor the parents bring the
action on the child's behalf as the 'next friend'. An important point to note
is that statute of limitations allows the parents of a child to bring an action
until the child is 18 and then the child has the normal statutory period of six
years in Western Australia, ACT and Victoria and three years in NSW,
Queensland, SA and Tasmania in which to bring an action.
To be successful in an
action of negligence the plaintiff must prove all elements of negligence according
to the civil standard of proof, which is, on the balance of probabilities. This
means the plaintiff must satisfy the court that his or her version of the
events is more probable than not.
The plaintiff must first
prove that he or she was owed a duty of care. It would be extremely difficult
for a defendant to successfully argue that a student was not owed a duty of
care.
Secondly, that a breach of
duty care or the required standard of care was not met and finally that the
injury was caused by the breach of duty. Each element of negligence will be
presented with reference to appropriate case law.
FOR EDUCATORS
Education authorities,
individual schools and teachers need to understand the law of negligence and
what must be proved against them to at least reduce the potential for successful
litigation by plaintiffs. It is worth noting that about 99% of cases are
settled out of court. The defendant accepts liability and agrees to pay the
compensation conditional on the settlement remaining confidential. It in no way
diminishes the fact that someone has been negligent and there may be employment
repercussions even though the case was not heard in open court.
What to do if there is an accident
·
Follow school policy.
·
Document as many details as possible including,
how the accident occurred, the nature of the injuries, who administered first aid,
whether an ambulance was called, who was present at the time of the accident,
the events leading up to and incluincident, what happened subsequently and who
was notified.
·
The document must be signed and dated and a
copy kept. Notes made contemporaneously have been shown to carry greater weight
in court than a witness relying on memory. It is worth remembering the time
limitations for negligence can be substantial. The quality of the documentation
made at the time of the accident may be the difference between a successful
defence of a claim and the plaintiff proving their case.
·
If a teacher or school authority is sued
that matter must only be discussed with the defendant’s lawyer. An individual
teacher may need his or her own lawyer if there is a conflict of interest
between the teacher’s liability and that of the school’s. It is worth noting
that no one wants to accept liability and if they can find someone else to
blame they will.
Negligence is only one
aspect of how the law impacts on the practice of teachers and their
responsibilities to students. Knowledge of the elements of negligence is
insufficient in an increasing litigious society. An understanding of the
application of the principles in specific cases is essential. Each case will be
assessed on its merits according to precedent. The law is constantly changing
and developing and with the
High Court prepared to
develop negligence law to the level seen in the Chappel v. Hart (1992) decision
professionals who do not stay abreast of recent changes do so at their peril.
Legal issues should be a core unit in undergraduate programs and an essential
part of ongoing and professional development. Evidence in the USA would indicate
that school administrators rather than teachers have programs in school law
(Sullivan, Zirkel, 1996). While this is important it is the classroom teachers
who are in contact with students and responsible for their safety on a day to
day basis. Programs need to be designed to provide teachers with knowledge of
the standard of care demanded by the law and to be informed of developments in
common and statutory law that affect the practice of education. Litigation in
the medical arena has burgeoned in the past decade and it may only be time
before a similar increase is witnessed in the education sector. Nevertheless, a
balance needs to be found between the demands of the law to take reasonable
care to avoid injuries and acceptable activities for students at schools and on
excursions or a great number of activities will be eliminated from school
curricula.
CONCLUSION
While it may be unlikely that a teacher or
school will be sued there is sufficient case law to indicate that it can and
does happen. To successfully sue in negligence the plaintiff must prove all
elements of negligence. If one element is missing, the plaintiff fails to prove
their case. Teachers and educational institutions need to be cognizant of their
legal responsibilities to students. Whether as a teacher in the classroom, on
the playing field or on a school excursion a duty of care is owed to students.
This manifests itself as a duty to protect students from injuries that are
reasonably foreseeable. To avoid injuries which are reasonably foreseeable
teachers and school authorities should at all times maintain an acceptable
standard of care given the circumstances. The consequences for failing to meet
the standard of a reasonable practitioner and in the event a student suffers damage,
the teacher and/or institution could face an action in negligence. The law and
its impact on education cannot be ignored and should not only be part of undergraduate
programs but part of ongoing professional development. Teachers have legal
responsibility for the safety of their students. They are expected to act with caution,
sensible leadership, and wise guidance. Their legal brief is to assess the
foreseeable dangers, to guard against risk, to take reasonable precaution
against injury and, above all, to generally behave as superior parents would be
expected to act in the nurture and training of their own children (Tronc 1996,
p. 19)
REFERENCES
Australian Professional
Liability – Education and the Law in Contemporary Society (2000) Sydney: CCH.
Cotton, D. (1995).
Liability of education for the negligence of others (substitutes, aides,
student teachers and new teachers) Physical Educator. 52, pp. 70-77.
Edwards, J. Knott,
A., Riley, D. (1997), Australian Schools and the law. NSW: LBC.
Hammes, R. (1979).
The tort and the teacher. The Clearing House. 53, (2), pp. 104-108.
Ramsay, I. (1992).
Teachers’ liability: the standard of care. Professional Negligence, 8,
(1), pp. 6-10.
Sullivan, K, & Zirkel,
P. (1996). Education law texts usage: survey results. Journal of Law and
Education, 27, (3), pp. 423-430.