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 Journal of Educational
adequate education. In contrast, the one UK decision on educational negligence Administration, Vol. 34 No. 4, 1996,
pp. 39-59. © MCB University Press,
paid virtually no attention to policy issues. 0957-8234
Journal of The common law has been developed by judges over centuries of deciding
Educational cases which have been argued before them. In Australia, there have not been as
Administration 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
34,4 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
40 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.