We all know that our society is becoming increasingly litigious. Whilst western society generally is litigious, some information suggests that New South Wales is one of the most litigious jurisdictions in the English speaking world.
Schools operate in what might be called a growth area for liability and so litigation. Concerns over liability and risk management are increasingly demanding the attention of school boards and executive staff. Schools are seen as institutions with broad shoulders and with solid insurance. Given that the law expects that young people will act irresponsibly and that schools ought to plan their affairs accordingly, there is obviously great potential in an imperfect world in the event of injury or otherwise for a school to be sued by or on behalf of a student.
It is not only student actions which are becoming more prevalent. A plethora of legal claims are available to staff who wish to sue a school as their employer.
A recent case in Victoria illustrates how a staff member who might become aggrieved with a school over an incident might frame a claim against a school. Whilst this case is primarily concerned with the legal principles regarding expert evidence it is a useful example of what schools will face in the future.
Complaint by employee
In the Victorian case of Rees v Lumen Christi Primary School an employee of the school sued the principal and the school for a breach of duty which the employee alleged led to her sustaining both physical and psychological injuries. The case is due to be heard by a jury in due course. In the course of the argument the issue of negligence transformed into a legal battle of principles centred on the admissibility of expert evidence.
The employee, Ms Rees, was an integration teacher's aide at the Lumen Christi Primary School. During the course of her employment, Ms Rees alleged that she sustained physical and psychological injuries after restraining a violent and aggressive student at the school. Subsequently, Ms Rees contends her condition was exacerbated by the duties undertaken in the course of her employment and mistreatment by the principal and other staff members. Relying upon expert opinions, Ms Rees sought to call upon oral evidence of Professor Trouc who held specialised knowledge in the theory and practice of educational administration.
Objections of the Educational Institution
Prior to the admission of Professor Trouc's report, the school challenged the admissibility of this evidence by arguing that it did not comply with the Victorian equivalent of provisions of the Evidence Act 1995 (NSW). The school also argued that the majority of Professor Trouc's opinions and conclusions were based on assumptions, rather than facts, which would likely lead to unfair prejudices against the school and might mislead or confuse the jury.
The Supreme Court held that the so called expert evidence did not constitute what the law requires for the admission of expert evidence. Professor Trouc was essentially asked to provide an opinion, albeit from an expert in the field.
Ms Rees framed an ambit case against the school both under her contract of employment (alleging breach of conduct at general law) and under the Victorian equivalent of the Occupational Health and Safety Act 2000 (NSW) alleging breach of statutory duty. The ambit claim of the staff member was that the school bore legal responsibility to her for:
- failing to instruct or properly instruct a teacher or employee
- failing to provide a teacher with any or any adequate supervision
- failing to provide a teacher with any or any adequate assistance
- failing to provide a teacher with any or any adequate equipment
- failing to carry out any or any adequate risk assessment in the tasks required of a teacher
- failing to heed complaints made by a teacher
failing to provide the plaintiff with any or any adequate:
- post restraint instruction
- ignoring a teacher's request for assistance in respect of the need to be able to adequately control aggressive, violent student behaviour
- exposing a teacher to aggressive violent student behaviour in the circumstances
- failing to take heed of past aggression and violence of the student in establishing work practices and protocols
- failing to recognize the risks created by the aggressive and violent student to the health and welfare of a teacher and other students at the school
- failing to implement any or any adequate system of advice to parents, other students and staff in relation to dealing with, the consequences of, the presence of an aggressive and violent student at the school
- failing to ensure that the Principal had adequate training and experience to properly direct a teacher
- permitting the Principal after and in relation to the restraint to engage in bullying of a teacher by way of humiliation, scape-goating, lack of support, disbelief, ostracism, public abuse, exclusion, denigration, inconsistent and overbearing work demands and intimidation
- permitting a teacher to be subjected to mobbing by others of its staff at the school after the restraint, in their lack of support, mirroring the Principal's lack of support, particularly in relation to a teacher's expressed concern about the legitimacy of their action in effecting the said restraint.
Fortunately, the Court no doubt correctly held that there was not really such a thing as an expert witness to say whether or not a school was negligent in a particular case. That was a question of law and fact which the Court determined.
The case illustrates how schools can be exposed to claims, how broadly a claim can be framed, and suggests that schools have to adopt systems including risk management policies to deal with potential exposure not only to staff but also to students and to any other stakeholders in the institution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.