Liability for little learning : an examination of the potential for educator/student liability in the compulsory education sector

Abstract

The thesis is that there exists a potential for liability of providers of primary and secondary education in respect of the quality of education they provide. It considers such liability in the context of both public and private law. Prior to embarking upon such consideration, the writer outlines the basis upon which compulsory education is provided in New Zealand as created by the Education Act 1989 and amendments. The focus in on the existence or otherwise of duties. In public law this is a duty to provide schools and schooling to the extent that it is accessible and of a good standard. The corresponding right to educational opportunity, it is argued, may be denied to an individual through the closure of local schools, or through being suspended or expelled from a school. It becomes questionable also in circumstances where a school fails to deal with factors which impede educational progress, such as bullying. If a public duty exists, the question then becomes that of the remedies which may be available. Judicial review has long been the appropriate action for failure to perform a public duty and this thesis considers the ability of a court to award damages in conjunction with this. It also considers the likelihood of an award of damages for breach of statutory duty, the tort of misfeasance in public office and for breach of the New Zealand Bill of Rights Act 1990. It is argued that the potential for liability in private law is threefold. First there may be liability in the tort of negligence for breach of a common law duty of care. Secondly, there may be liability for breach of the statutory guarantees provided by the Consumer Guarantees Act 1993. Thirdly, there may be liability in respect of the conduct of and representations made by educators under the Fair Trading Act 1986. In considering whether a common law duty of care may be established, the writer addresses the relevance of the policy issues which conclusively negated the existence of a common law duty of care in the U.S. education 'malpractice' cases. While accepting the validity of some policy considerations, it is argued there are many factors which support the existence of a duty of care. In respect of whether there may be tortious liability for careless teaching there is a spectrum beginning with the types of cases where the allegation is of a failure to educate generally and ending with those cases where inability to make educational progress can be attributed to a more specific carelessness. The latter may be the failure to correctly evaluate and provide for special needs. It is suggested that in the former case the courts are more likely to find that difficulties in definitively establishing causation preclude liability, in the latter case however, there is a strong argument that a duty of care should exist and that educators should therefore be liable where such carelessness is proved. While it is impossible to predict the outcome of a claim in educational negligence in New Zealand, it is the suggestion of this thesis that the potential exists and this is rightly so. The acceptance of a child into a school carries with it the expectation that the child's educational needs will be met. Teachers and others employed by schools for their specific expertise, such as special needs evaluators and educational psychologists, are possessed of special skills on which a student is entitled to rely. The foreseeability of loss is obvious where a school fails in this regard. While it will be difficult in many cases for a plaintiff to satisfy a court as to causation and as to the extent of compensatable loss, these are matters for factual argument not insurmountable in light of the educational expertise available today. The writer argues that the potential for liability in respect of educational services exists also by virtue of consumer protection legislation This proposition is based on the existence of factors which lead to the conclusion that education may now be regarded as a consumer commodity. Proprietors of private schools and boards of trustees of state schools are corporations engaged in the business of providing education and there is little reason why they should be immune from the liability encountered by other service providers. The Consumer Guarantees Act 1993 contains guarantees in respect of services that they shall be undertaken with reasonable skill and care, and that they shall be fit for the purpose required or achieve the purpose made known by the consumer to the seller. In establishing liability for breach of these guarantees by a school, it is accepted that a plaintiff will encounter many of the same problems in proving causation and loss as with an action in common law negligence However, the possibility of liability may not be denied on that basis for those are matters to be determined on the facts presented at trial. The Fair Trading Act 1986 enables proceedings to be brought for damages as a result of business conduct which is "misleading or deceptive". Schools, through their representatives, are these days engaged in business activity to an increasing extent They are producing promotional material, attending at education fairs nationally and internationally, and holding open days. They must be vigilant in promising only that which they are able to provide. Any information must be provided in a manner that is clear and unambiguous as it is argued that the potential for liability is high. Schools are also, as a necessary part of the educational services they provide, engaged in reporting on a student's progress, giving advice and offering counselling. It is important to ensure that no such information is given in a way which is misleading, unintentional as it may be The conclusion is that while it cannot be denied that there are many disincentives for potential litigants in persuading a court to recognise an action for intellectual damage, the potential nevertheless exists and is growing. Both schools and the Ministry of Education should be forewarned and put in place procedures for dealing with complaints. The threat of litigation should have the beneficial effect of ensuring that educational processes, particularly the evaluation and treatment of special educational needs, are being constantly revisited and improved upon. Consideration should also be given to measures such as the establishment of an office of Education Ombudsman or Education Tribunal to resolve complaints in a manner which is less expensive and less potentially damaging than traditional litigation.