Educational Negligence and the Legalisation of Education

Abstract

This article examines the possibility of establishing a claim for educational negligence in Australia. Education negligence occurs when a student suffers harm as a result of incompetent or negligent teaching. The prospects and difficulties associated with such a claim are examined. Issues discussed in the article include whether it is possible to establish a claim for educational negligence according to established legal principles. Also discussed is whether allowing an educational negligence claim to succeed satisfies sensitive policy considerations that are evident in such a claim. These include whether courts have the necessary expertise to assess educational negligence claims, whether disruption of the school environment would be a necessary result and whether allowing education negligence claims would enhance educational standards. One of the arguments considered is that while legal intervention in the school environment is based upon the goals of remedying wrongs and deterring future harmful behaviour, such intervention can stifle, through the fear of legal liability, the creativity and innovation that is so vital to the educational process.