Insurers were braced for a deluge of claims after local authorities were made liable for the quality of teaching. David Knapp and Tom Walshaw explain why the claims did not materialise
Eighteen months ago insurers specialising in cover for schools were bracing themselves for a deluge of education claims apparently sanctioned by the House of Lords. The Lords had ruled in two cases that effectively made local authorities liable for the negligent acts of teachers.
In Phelps v London Borough of Hillingdon the council was said to have failed to recognise or properly to teach someone with a special educational need - dyslexia - which led to under achievement by that pupil.
One of the Law Lords in the case implied that teachers in their ordinary work would also owe duties to their non-special needs pupils. Media hype suggested that every failing pupil would sue for a jackpot award of damages. This was fuelled by the announcement by various claimant solicitors that they were launching massive claims for damages.
But two years down the line, where are the huge pay-outs and the crippling claims? In fact, while a respectable number of claims were initiated and even issued, the vast majority have never reached trial and a tiny number have resulted in an award of damages.
What has stemmed the flow is the quick reaction of education authorities and their insurers drawing up a coherent strategy to defend each claim. Defending claims has been time consuming and, as claimants realised their claims would not be settled on a nuisance basis, enthusiasm speedily waned.
What happens if a teacher or another employee of the school commits an assault or act of abuse upon a child? The commonsense answer must surely be that such an action by an employee is a criminal act for which an employer cannot be liable. After all, a teacher is not employed on the basis that he will abuse his pupils. Nevertheless, in Lister v Hesley Hall the House of Lords substantially extended the concept of vicarious liability.
Effectively, the Lords considered that an employer, such as an education authority or private school, undertakes to look after children through the services of staff employed at the school. If that member of staff commits an act of abuse then, ordinarily, the education authority or school will be liable.
We are not just looking at acts of teaching, the duty of a care is owed in respect of staff as diverse as the school caretaker and matron.
Checks on staff employed at education establishments are much more rigorous than was historically the case. The tragic events at Soham are likely to result in checks on new staff being even more rigorous. Nevertheless they cannot be 100% failsafe.
Claims handlers should also note one interesting limitation point in these claims: the act of abuse is the foundation of the claim. This does not constitute negligence but is an intentional tort. The limitation period for intentional tort is six years, but there is no discretion to extend the period.
This may therefore give claimants considerable problems on limitation in abuse cases which are often brought many years after the events in question.
Strategy for defendants of school claims
Legal aid must be attacked from the start. On the funding of a claim, modest claims usually do not satisfy the Legal Services Commission criteria, so may not proceed.
Also insurers rarely want to see through such potentially costly claims which may arise from conditional fee arrangement claims.
Courts favour the early identification of claims that can be struck out as time barred or those hopelessly poorly pleaded.
There must be scrupulous investigation of the evidence. Many claims will involve trawling back through school files over a decade old. Many teachers will have either moved on, or retired or be reluctant to participate. Claimant's solicitors often assume that local authorities simply will not have the evidence.
Some experts employed by claimant's solicitors have unrealistic ideas as to the duty of care owed by councils in the early 1990s as to dyslexia, or the susceptibility of young claimants to emotional trauma. The use of robust experts helps to counter that.
There has been a marked reluctance by courts to recognise newly-diagnosed disorders such as dyspraxia.
As predicted in Phelps, grave difficulties exist for claimant's proving causation. Many claims fail because the claimant's cannot prove that, even though they were dyslexic, they would have performed appreciably better if they had received special needs help.
