SCHOOL NEGLIGENCE

School Negligence

School Negligence

Introduction

Litigation is becoming more prevalent in all areas of society and education is no exception. Professionals generally are being held more accountable for their actions. Parents and students are more aware of their rights and it would seem by the increase in litigation more willing to pursue those rights through the process of litigation to recover compensation. A legal cause of action may arise in many instances. (Denis, 2007)

Litigation may follow breaches of the Education Act, negligence, breach of contract, defamation, assault and an emerging area of educational negligence or educational malpractice. Negligence in terms of physical injury suffered by students is only one aspect of litigation, which a teacher may face. Nevertheless, it is suggested that it is the most likely reason a teacher will face legal action. It is therefore of great importance that teachers and school authorities are aware of how the law of negligence operates and what is acceptable and unacceptable practice.

Cotton (1995) writes that while physical educators in the United States have some basic knowledge of negligence most are unaware of how the law operates and the liability of teachers. (Denis, 2007)The situation is similar in Australia. As litigation increases within the education sector and society in general it is the responsibility of schools and teachers, not only in an effort to reduce the risk of harm to students by a greater awareness of potential hazards but also by a knowledge of how the law of negligence operates.

The purpose of the paper is to identify the Case of Sam in the references of the laws and clarify the law of negligence, how it operates within a school environment and offer suggestions as to how litigation can be avoided or at least the potential for such an action reduced. Case law will be presented to represent the elements a plaintiff needs to prove in an action of negligence. (Denis, 2007) Criminal negligence will not be addressed.

Negligence

Negligence is part of tort law and deals with grievances between individuals where one party has suffered as a result of something the other party did or did not do. The purpose of negligence is to receive compensation for the injuries sustained. Educational negligence or educational malpractice is an emerging area of litigation in the Great Britain and the USA.

To distinguish this area of litigation from negligence where a physical injury is suffered by a student educational malpractice refers to a claim by a student that a school/teacher has failed to facilitate learning (Australian Professional Liability (2000) 2,206). The American courts have rejected educational malpractice as a basis for a claim however the English courts have been more willing to embrace the concept where it pertains to children with certain learning disabilities. (Denis, 2007)

The English Court of Appeal in E (a minor) v. Dorset County Council & Other Appeals [1994] 4 All ER 640 stated that failure to identify and meet the educational needs of certain students with learning disabilities were not unarguable under English negligence ...