£400K for educational malpractice by university academics

Abstract

Click to increase image sizeClick to decrease image size Notes 1. Quickly accessed using CanLII and its case search mechanism: ‘Google’ in ‘canlii’ and then enter ‘Young v. Bella’. 2. Roughly, £1 = C$2. 3. Phelps v. Hillingdon LBC (2000) 4 All ER 504. 4. In Phelps Lord Nicholls stressed that such general claims would be difficult to prove in terms of breach/causation and hence the new tort would probably be confined to ‘manifest incompetence or negligence comprising specific, identifiable mistakes’. A leading textbook comments, however, that: ‘Whether in practice such a distinction can be drawn remains to be seen’ (Grubb, 2002, para. 17.39). See Grubb, A. (2002) The law of tort. (Butterworth) 5. One assumes that the University will not be expecting the two employees personally to share the damages bill (and legal costs) with it as ‘the deep pocket’: after all, academics do not carry personal professional indemnity insurance in the way that doctors, dentists, architects, engineers, surveyors, etc, need to. Indeed, many HEIs carry such cover only for, say, contract research in engineering as opposed to teaching generally. 6. For example, £2500–10,000K for mental distress in certain breach of contract cases, and £25,000K for long-running and egregious racial or sexual discrimination in employment cases; cf. £Xm for serious physical or psychiatric injury, or £50,000–250,000K for defamation. 7. Similarly, in Sharik v. Southeastern University of Health Sciences (2002, US case) the institution's breach of the implied term of applying fair processes under ‘the contract to educate’ resulting in a medical student being expelled very close to the completion of the degree course, meant there was readily identified damage (not graduating and becoming a doctor) that was easily quantified/calculated in financial terms (at the level of well-paid US doctors). 8. In English Law, such concurrent liability is based on Henderson v. Merrett Syndicates Ltd (1994) 3 All ER 506, HL. 9. See chapter 13, Farrington D. & Palfreyman D. (2006) The law of higher education (Oxford, University Press). 10. See chapter 13, as already cited. 11. See chapter 26 of Farrington and Palfreyman on risk assessment/risk management. 12. See chapter 8 of Farrington and Palfreyman on agency and vicarious liability.