IN A CLASS APART? 'Educational Negligence' Claims Against Teachers.

Abstract

In Australia, the concept of negligence in schools is not new; but school litigation involving educators has centred on issues related to the care, safety and supervision of students. Thus the law as to liability for physical accidents in schools and on school excursions is well established.Paradoxically then, teachers and schools have an acknowledged duty for the physical safety and well-being of the children in their charge, but not for their intellectual advancement. Nonetheless, Mr. Justice Michael Kirby has recently said that there is no reason in principle why negligence actions against teachers should be confined to physical injuries. It may be observed, however, that the standard of care so far applied to teachers has been that of reasonable persons concerned for the physical safety of children in their charge and not a professional liability akin to that of doctors, lawyers or architects, for example. Even so, teachers have began to talk about the possible need for 'malpractice' insurance.Given the importance of the social role of education, the threat to the functions and processes of education posed by the American claims, the significance of the impact on daily activities in the classroom should such claims be successful and the similarity of the issues posed in both the American and the Australian context, it seems timely to subject the American 'educational negligence' claims to closer scrutiny.The purpose of this article is to review the relevant American cases, to introduce the legal and policy issues posed by 'educational negligence' claims, to suggest a narrow and limited basis upon which an 'educational negligence' claim might be recognized, and to consider some additional hurdles which might have to be overcome were such claims to be brought to Australia.