What are you expectations about the session today

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What are you expectations about the session today?
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Educational Malpractice

• Taught or Tort?

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Session Speakers

• Lyndal Taylor, Senior Lecturer, Faculty of Law,
  UTS
• Jo McKenzie, Senior Lecturer, Institute of
  Interactive Media and Learning, UTS
• Carman Parsons, Equity and Diversity Unit, UTS

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Defining the Issue

• Who are affected?
• How are they affected?
• What loss might they incur?
• What claims may they have?

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Who are Affected?

• University level
• Dealing with independent adults
• May be full-fee paying or HECS/PELLS students
• Large classes
• Limited likelihood at coursework level to be
  known personally in contrast to thesis supervision

• School level
• Teachers have greater control over students
• Smaller class sizes - more individual knowledge
• Liability could differ for private schools in
  contrast to public schools

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How are they affected?

• Coming in
• Marketing/ Faculty Handbooks may affect their
  expectations
• Answers to specific queries/ Career days may
  affect their decision to enrol at the University
  or in certain units

• Whilst at University
• The ability to achieve satisfactory outcomes
  could be affected by
• resources
• quality of course outlines
• teaching quality
• Administrative support

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What loss?

• Could be broad range
• Fail the course
• Fail to meet professional accreditation
• Incur actual harm - psychological or physical
• Show a causative link with failing to gain
  relevant employment or promotion

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What claims might they have?

• Contract
• This is dependent on their being a contract
  between the parties and ascertaining the terms of
  that contract
• Query if there is consideration if HECS student?
• Query the terms of the contract - does it include
  statements in the Handbook?
• The remedy will be a contractual one such as
  terminating the contract and being refunded the
  cost of the course and/or contractual damages
  which is to be the party in the position they
  would have been if the contract had been
  performed.
• Turns on which term/ representation was not
  fulfilled.

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Negligence

• To establish negligence the person needs to show
  that
• there was a duty of care
• that has been breached
• which caused damage to be suffered
• and that the damage was forseeable
• damages are assessed on a tortious basis ie what
  was your loss

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Problems with establishing negligence

• Duty of Care
• The Australian Courts have traditionally been
  reluctant to impose a duty of care on teachers to
  teach to an appropriate standard on public policy
  grounds.
• This does not discount the duty of care to
  supervise in the playground to avoid personal
  injury

• Rather, it relates to educational decisions taken
  about a student
• For instance, do they need extra support o
  develop motor skills/ reading/ ADHD
• In the US courts failure to diagnose such needs
  was successful as medical negligence

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It must be established ...

• Which caused the damage claimed, which was
  reasonably forseeable
• in this context, primarily the loss will be
  economic
• to claim economic loss not consequent on physical
  injury, requires knowledge of possibly direct
  impact
• Contrast a PhD student with a student in a class
  of 200

• That the duty of care has been breached
• this requires some careless of reckless behaviour
  
• there must be evidence of negligence

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Phelps v Hillingdon BC

• The House of Lords handed down the decision in
  Phelps in July 2000.
• It was four cases heard together. Three related
  to students who had been sent to the educational
  psychologist for assessment. They had been failed
  to be diagnosed as dyslexic and hence not
  received the additional assistance needed.
• The issue was could a public school be held
  responsible for potential loss income due to not
  having an appropriate education.

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There is a duty of care

• The House of Lords had no difficulty with finding
  that there was a duty of care from the education
  provider to the student which had been breached.
• Public policy/ flood gate arguments did not
  protect the school
• The student was awarded over 45, 650 pounds as
  damages.

• BUT key issues need to noted
• These were specific cases, not an argument of a
  class not being appropriately treated
• the breach resulted from a failure to diagnose,
  which resulted in the failure to teach

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Failure to offer the ability to succeed

• One of the matters heard with Phelps turned on a
  different breach of duty of care
• In Re G the student had muscular dystrophy
• The student claimed that he could not be
  successful at school as the school had not
  provided appropriate facilities ie computers
• So the breach of duty of care arose from not
  providing a proper education by not providing him
  with computer technology and training

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What is the impact of this decision in Australia?

• House of Lords is highly persuasive in the
  development of our common law
• More recent statement on negligence by our High
  Court in Perre v Apand (1999) take the approach
  of looking at the salient features to determine
  whether a duty of care exists by looking at past
  cases in similar categories
• Such an approach should lead to a consideration
  of the Phelps decision

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It will turn on Public Policy argument

• New Zealand
• In Grant, Woolley, Staines and Grant v Victoria
  University of Wellington the High Court held that
  Master of Arts (Applied) in Environmental Studies
  students had an action in contract and tort for a
  claim that the course was not of a reasonable
  Masters standard The students claimed economic
  loss for loss of employment opportunities and Uni
  fees.

• UK
• House of Lords was clear that there was not
  justification for blanket immunity in favour of
  teachers or educational psychologists

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Civil Law jurisdictions

• USA
• Generally, the US Courts that schools function in
  imperfect ways and that public policy should
  dictate that no duty of care exists except where
  there has been misclassification and improper
  placement in the school system

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What will not be caught within the Duty of Care?

• Policy decisions
• HOL (other than Lord Nicholls) doubted whether it
  went so far as to cover the quality of classroom
  teaching
• as it is a claim for economic loss there
  particular plaintiff must have been directly
  forseeably harmed through the breach

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Trade Practices Act 1974 (Cth)

• S51 A Unconscionability
• This is an action that arises under common law
  and the TPA
• Cannot in unconsionable conduct
• For instance, representing one fee policy and
  then refusing to refund by Australian Early
  Childhood College was found to be unconsionable

• S52 Misleading or Deceptive Conduct
• A corporation
• shall not in trade or commerce
• engage in misleading or deceptive conduct
• or conduct likely to mislead or deceive

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What is in Trade or Commerce?

• Concrete Constructions v Nelson (1992) High Court
  requires it to be the activity with the public,
  external to the organisation
• ie it does not cover employer/employee
  relationships

• Clearly, covers marketing of courses to the
  public
• might not cover actual classes
• BUT query if this differs if the students are
  full fee paying
• Does it differ for Short courses?

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What is Misleading or Deceptive Conduct?

• Nike (1990) High Court the test is the whether
  the conduct would lead into error a reasonable
  member of the class the conduct is likely to be
  aimed at.
• How would an intending student read our marketing
  material.

• Target (2001) Federal Court extends the liable
  conduct to first impressions that are given and
  not corrected.
• Conduct can include opinions, silences and
  representations

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Due Care and Skill in providing the service

• There is also an obligation imposed on
  corporations in s74 that the corporation will
  provide a service with due care and skill
• This requires that the service be provided in
  the course of a business
• Does this mean courses provided by Insearch are
  covered, but HECS students are not?
• If the class material is not prepared with due
  competence, has there been a failure to provide
  the service with due care and skill?

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In Australia

• 1994 an action was brought against Deakin
  University for misleading advertising
• It was alleged the course material was obsolete
  and that pg students were undertaking exactly the
  same course as ug students (notes and assessment)
• The matter was settled out of Court
• PhD students have threatened negligent
  supervision when their thesis has been rejected.

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Future Trends?

• The breadth of s52 has expanded over the past
  years. The question is - how much of the
  University activity is within trade or commerce
• However, as long as it is provided in the course
  of business, there is an obligation to provide
  services with due care and skill

• It is likely that the Australian Courts will now
  accept an action lies in negligence against
  educational institutions
• With more full fee-paying students claims in
  contract are more likely