COULD A SCHOOL OR EDUCATIONAL PROVIDER BE LIABLE IN NEGLIGENCE FOR A STUDENT’S POOR PERFORMANCE DURING COVID-19?
What happens when a school fails to deliver the grades a parent expects, or a student needs to get into university? With concerns around the quality of teaching during COVID-19, and its effects on a student’s performance, the question arises as to whether a school could be held liable for a student’s potentially “poor” performance during the chaos of 2020 and beyond. And further, with an increasing number of professionals, such as accountants, lawyers and doctors being held accountable to their clients and patients for negligence and the imposition of liability, it will need to be considered whether teachers and educational providers should be excluded from liability in respect to educational negligence.
It is recognised that teaching staff, and educational providers and authorities, have a responsibility to protect students against reasonably foreseeable harm, and as such this brings about a duty of care. This is regardless of whether the school is private or public. However, there is a potentially new meaning that could be associated with negligence for teachers, educational providers, and the like, namely education negligence. This is particularly given the categories of negligence are never closed.
Whilst claims of educational negligence are largely untested in Australia, the question arises: is now the time for flawed education to become a basis for parents and students to claim against schools and other educational providers, given the developments overseas.
Where litigation seems to be as commonplace as TikTok, the US has rejected the notion that schools owe a duty to underperforming students.
In two US cases, students graduated from school despite lacking basic literacy skills. In both cases the individual’s employment prospects had been affected, with one of them lacking the basic literacy required to complete a job application form. The US courts have relied on policy reasons for dismissing these cases. One court expressed the view that it is not able to decide an acceptable standard of care, as there are conflicting theories “of how or what a child should be taught”. It appears that these two US cases have been closely followed and as such educational negligence in the US is yet to find its footing.
In contrast, the UK courts have considered that a duty to educate exists and can be breached where a teacher is negligent. In X(minors) v Bedfordshore City Council  2 AC 633 (HL) a case of educational negligence was established as school staff had failed to assess the learning disabilities of several different students. Further in the case of Phelps v Mayor of the London Borough of Hillingdon Anderton and Clywyd Country Council  4 ALL ER 504, a claim of educational negligence was established as staff had failed to recognised a student’s disability and did not exercise reasonable professional care in considering the students learning difficulties. Within the court’s decision, Lord Nicholls said:
“…the question which arises, and cannot be shirked, is whether teachers owe duties of care to all their pupils in respect of the way they discharge their teaching responsibilities. … [and that, in his view there is] no escape from the conclusion that teachers do, indeed, owe such duties.”
However despite this, it should be noted that more recently, the courts have rejected a claim by an Oxford alumnus, who claimed his failure to gain a job in a top tier law firm was a result of negligently inadequate teaching.
Nevertheless, previous case law indicates that parents and students in the UK may have recourse as their Lordships in several cases now have unquestionably held that teachers owe a duty to educate and as such may be negligent in failing to fulfill such responsibility. Thus, the UK position has undeniably left open the possibility that such recourse could be adopted in Australia.
It appears that individual cases around educational negligence within schools and educational providers often turn on small details and as such there is a difference in approach in the UK, US and Australian approach.
Schools and the like may be heartened to hear that so far there has only be one matter being brought against a school in Australia, namely, Weir v Geelong Grammar School (Civil Claims)  VCAT 1736. In this case the mother of a student sued the relevant school on the basis that inadequate education had been supplied by the school. It was argued that such negligence had meant that the student failed year 9 and 10 mathematics and had missed out on enrolment in law at Sydney University. The former student said that her grades significantly improved after enrolling at Crows Nest TAFE in Sydney. However, the court dismissed the case as plaintiff failed to establish that the school had provided a standard of teaching lower than advertised, and that the failure had caused the student to be denied entry into law at Sydney University.
Looking to the future
One hurdle in bringing a legal claim for education negligence is that there may be many reasons for a student’s poor results and given that they are largely responsible for their own performance, such hurdle will need to be overcome before a parent or student can establish a successful claim of educational negligence. Nevertheless, schools and educational providers should be mindful of the potential for such disputes to arise. It is likely that in the months ahead as students sit their final exams and receive their results for 2020 that some results will be lower than expected. Further, parents and students might be unhappy with the potentially limited options open to themselves or their children.
What can schools and educational providers do to prevent such disputes arising?
In light of this and to avoid the potential of such disputes arising, schools and other such educational providers should ensure that, staff, at a minimum:
- adhere to the requisite professional standards;
- screen new staff to ensure they have the necessary training, qualifications and experience in relation to the subjects and/or year levels they are requested to teach;
- utilise the designated curriculums, whether national or school based;
- utilise appropriate teaching methods and techniques; and
- accurately assess and records student assessments in respect to national or school-based assessment programs.
As well schools and other educational providers should seek to minimise any potentially misleading or unconscionable statements about predicted grades or marks students could obtain by attending its educational facility in promotional content.
Given competition increases within the educational sphere, it is particularly important to avoid reputational damage because of any public allegations of negligence or poor teaching.
We can help
If you would like further advice about what your school or educational institution can do to protect yourself against a claim of negligence, or advice about how to resolve issues around such potential claims from parents or students we can help you and guide you in respect to your options going forward.
This article was written by Ashleigh Craig
 Faiz Siddiqui v The Chancellor, Masters & Scholars of the University of Oxford  EWHC 184 (QB).