This research draws upon international experience and Australian law to propose a route by which the litigation of a negligence in the school may be determinatively found, reasonably contained and juristically advanced according to law, that is, without resort to the novel category of tort identified in the literature as an educational malpractice.
The study was prompted by awareness of an extensive but convoluted litigation of school issues in the USA and the possible (indeed now realised) import of this concern into Australian courts - a probability already presaged by the formation in this country of specialist academic and practitioner associations and interests. Given this foreign force towards litigation and a perceived still fragile transition of emphasis in the Australian school system from mass conditioning (primary) to individual advancement (secondary), criteria are sought or devised to isolate those aspects of school organisation the most likely to occasion an educational injury to a particular pupil, it being of sufficient severity and persistence as must legitimately invite judicial intervention and monetary compensation.
Preliminary examination of published sources exposed uncertainties within both the education and law literature regarding the nature of an educational injury and therefore the manner in which culpability for harm could be reliably attributed. Unresolved difficulties were found to attach to the indeterminacies of injurious behaviour, the origin, nature and extent of harmful effect, and of appropriate judiciable intervention. That Australian schools were directly or indirectly funded by government, cast a further patina of uncertainty across an already extant complexity.
It is found that agency for an intellectual harm within the purview and expertise of the school, but beyond the child's control, may be found in either curriculum or procedure. The former, as a socially sensitive and controversial presentation of values and ideologies, is rejected as the substance of a viable litigation by it not falling within the proper or accustomed jurisdiction of a court of law. Error of administrative process is, however, amenable to independent adjudication based on the facts of the particular case. Indeed, resort to litigation is inevitable should a claim for monetary compensation be filed against the school.
To assist construction of an advocacy in the tort of negligence, a prototypical course of events is excised from a US litigation (Hoffman) that, at first hearing, was concluded by generous award of damages but was subsequently lost to deliberation of policy. To assuage those judicial concerns which, in that instance, provoked a summary re- characterisation and dismissal of the complaint, this thesis introduces a traditional common law relationship of undertaken trust (assumpsit) that permits liability to be narrowly assigned to those inadvertencies identified as potentially harmful to pupil management and welfare.
To this commendation of foundational legal rule, an allied professional (medical) standard of performance primum non nocere (foremost, do no harm) is appended to meet the juridic requirements for a finding of defendant liability. It is further commended, subject to the facts of the presenting case, that within the close confines of school administration it is appropriate that cause be grounded on the rebuttable presumption res ipsa locquitor (the thing speaks for itself).
It is acknowledged that while governments, school authorities and sometime teachers themselves may espouse the rectitude of high objectives, students tend to pursue that expectation of instrumental advantage which a credentialed and competitive access to employment holds a fostered promise. Accordingly, if only to assuage customary 'floodgates' concerns, it is recommended that a claim of negligence be supplemented by petition of loss of chance, a consequent proportionate award of damages providing a just and justifiable avenue to mitigate the quantum of compensation and so to better advance or secure the plaintiff's case.
The significance of this study is that it proposes a simple format for the prosecution, according to law, of an injurious administrative error within the school. Importantly, doing so by a pleading insulated from attendant frivolous litigation and freed from the pitfalls of novelty or of need for specialist representation. Innovative modelling of prototypical injury and the prudent delineation of a threshold of culpability are combined with the recruitment of an organising common law concept in order to compensate a child inadvertently injured by the administrative machinery of a systematised mass education system. By these means, the aim is to avoid the injustice of a spoiled schooling condemning both the child's present reputation and future prospects.