Local education authorities could face numerous claims of negligence following a judgment in July, says Andreas Louciades of syndicate 702
Education is an increasingly risky business. Particularly for those that provide it. As a specialist underwriter of civil liability and legal expenses insurance to educational establishments, syndicate 702 has seen claims against private schools, local education authorities, colleges and universities increase significantly.
This experience is borne out by a number of well-publicised cases.
The House of Lords decision in Phelps v London Borough of Hillingdon hit the headlines at the end of July and beginning of August (Insurance Times August 3, p9).
This case centred on the negligence of an educational psychologist employed by the LEA to assess children with learning difficulties. The psychologist was found to owe a duty of care to the pupil she was assessing. The LEA was found vicariously liable for the employee's negligence. The implications of the judgment go far beyond the work of educational psychologists.
In his supporting judgment, Lord Nicholls of Birkenhead pursued the findings in the case to their logical conclusion. He stated: “The question which arises... is whether teachers owe duties of care to all their pupils in respect of the way they discharge their teaching responsibilities... I can see no escape from the conclusion that teachers do, indeed, owe such duties.”
As a result of the ruling on the Phelps case, it is likely that schools, colleges and LEAs will face increased numbers of negligence claims based on their vicarious liability for the alleged failures of their teachers and other employees.
Private schools that have a contractual relationship with the parents of pupils may also face related, and often concurrent, claims in breach of contract.
Claims in negligence and breach of contract are unlikely to be limited to undiagnosed learning difficulties.
Recently, the fear of claims in relation to sporting injuries induced five out of 26 Manchester state-run schools to withdraw from a cricketing competition.
Perhaps of more concern, claims for alleged failure to deal adequately with bullying are also on the increase. At its Conference in May the National Association of Head Teachers published long-awaited guidelines on bullying, and its general secretary, David Hart commented: “Although some complaints of bullying are unfounded, all allegations have to be treated seriously. Bullying can permanently damage individuals, or even put the school at risk of a claim for damages.”
When bullying or other anti-social behaviour is identified head teachers and governors still have a minefield to negotiate. Attempts to exclude the bully from school can lead to an application for judicial review of that decision and/or yet again negligence and breach of contract proceedings.
When I discussed this point with our specialist education underwriter, Andy Dore, he told me that 702 was recently involved in a claim against a private school as the school's civil liability and legal expenses insurer. The headmaster, with the support of the board of governors, permanently excluded a boy who had demanded money with menaces from other pupils. The boy's mother made an application for this decision to be judicially reviewed and at the same time issued breach of contract/negligence proceedings.
At an early stage the court declared the case inappropriate for judicial review as the school was not a public body. The breach of contract/negligence claim had no merit and was eventually settled for a nominal sum. The school successfully fought off both sets of legalproceedings, nevertheless, its irrecoverable legal costs, paid by 702 as its insurer, were in excess of £50,000.
This case highlights another significant problem – litigation is expensive and the educational establishment often faces an unequal contest. Since the Access to Justice Act 1999 came into force, many of those bringing negligence or breach of contract claims will have the benefit of conditional fee arrangements with their lawyers. Legal aid remains available to those bringing judicial review proceedings. The claimant faces very little, if any, financial risk in bringing and pursuing the proceedings. The educational establishment must pay for the litigation out of much needed, and often limited, funds – probably earmarked for improving the resources and services provided to its pupils.
The litigation costs of schools and colleges may also be increased when the Human Rights Act comes into force in October. Article 6 of the European Convention on Human Rights suggests that every claimant has a right to his “day in court” – see Osman v UK (1998) 5 BHRC. When the Act makes this right directly enforceable in English law it is generally thought that the courts will be more reluctant to strike out unmeritorious cases without a full hearing of the factual and legal issues. Even claims with little or no foundation may have to be fought to the bitter end rather than dismissed in the early stages.
In this climate schools, colleges and LEAs must look ever more carefully at their written procedures and follow them religiously. If and when the worst happens, financial protection and professional support should come from an appropriate and widely drafted insurance policy offered by insurers with experience in handling education claims. This is the only way in which those providing education can obtain protection from increasingly frequent and costly litigation.