Colleges are used to coming to terms with changes in the law made by Acts of Parliament and European Directives. But judge-created law can also radically change the legal landscape - a recent example of this is the ground-breaking decision of the House of Lords in the case of Phelps. In our increasingly litigious society, this decision has worrying implications for all teachers - and those in further education are no exception.

What is the Phelps case about?

Miss Phelps began her court action in 1994, claiming money from the London borough of Hillingdon because of a number of supposed failings by the borough. This included that it was negligent in failing to identify that Miss Phelps was dyslexic. The case was eventually decided by this country’s highest court, the House of Lords. The Law Lords found the borough had been negligent and ordered it to pay just over pound;44,000, plus interest, to Miss Phelps.

Can teachers be negligent?

Simply put, negligence is the failure of a person to act to a standard expected by the law. There is now no doubt that teachers can also be negligent. The courts are clear that teachers have an obligation as regards the teaching they do. This obligation is called a “duty of care”. Where teaching is not up to the expected standard, a finding of negligence may follow. Although it is the teachers who owe the duty of care, a student’s claim will generally be against the college. The student will argue that the college is liable for the acts of its employees - this is termed “vicarious liability” and is an accepted principle of law.

But doesn’t Phelps only affect schools and local authorities?

It would be wrong of college teachers to assume this decision only affects schoolteachers, local education authority employees or the LEAs themselves. The actual comments of the Law Lords are so wide that it is clear that teachers in colleges also face the possibility of being found negligent. As far as dyslexia is concerned (and the same would apply to other such conditions), it is hoped that schools would identify those children who are dyslexic. But that is not always the case. The failure by a school to identify a child as being dyslexic will not mean that a teacher or a college cannot later be found negligent. The teaching obligations in FE stand separate to the obligations which schoolteachers and LEAs are under.

Is a duty of care only owed to students with special education needs?

Teachers and colleges should not fall into the trap of assuming a teacher only owes a duty of care to students with special education needs. Lord Nicholls said that if this were to be the case, “the law would be in an extraordinary state”. Teachers, therefore, owe obligations to all students.

If a student with special ducation needs alleges negligence, then the courts may be able to award a larger sum of money to them if the courts agree there has been negligence than if the student does not have special education needs. This is because the Law Lords found that the effect of the failure to diagnose dyslexia could amount to a physical injury. For a student who does not have special education needs, there would be no such effect or claim. Such a student would probably only bring a claim for financial loss as a result of being less employable.

How is negligence proved?

To find in favour of a student the courts will need to hear expert evidence that the teaching has not reached expected standards. For each alleged act of negligence (or lack of act), the experts will be asked what the general body of opinion is. That is not to say if you don’t follow general opinion you will be found negligent - the court will look at each case on its own facts. It does mean decisions on how to teach a student should be recorded, especially if “general opinion” is not followed.

The issue of how teachers and colleges record reasons why decisions have been taken is now crucially important. How many student files do you know where there are notes of discussions between staff that explain why a decision has been taken? If that decision does not follow the “general opinion”, how do you defend a negligence claim? With great difficulty.

Will Phelps open the litigation flood gates?

The borough argued that if the Court found against it, it could open the “floodgates” to similar litigation. The Court was not impressed with this argument. The courts now have powers to control cases that come before it far more than before. The Law Lords believe that the courts themselves will have to ensure that “obviously hopeless” cases are not allowed to take up undue court time.

Although the courts may deal with speculative cases firmly, if a case reaches court, a vast amount of time will already have been “wasted” dealing with the claim. There will also be legal costs that will already have been incurred. If the student is of limited financial means, they may have secured public funding to pursue the claim. If that is the case, it is highly unlikely the costs spent will be recovered.

What lessons can colleges learn from this case?

There are a number of lessons that can be learnt including:

* Teachers owe an obligationduty of care to all students.

* Make up your own mind about the ability of a student and the best way to teach them.

* Ensure that if you have concerns about a student’s learning ability that steps are taken to properly assess that student.

* Record reasons why decisions have been made, and keep those records. Keep the student’s progress under review, and record such reviews.

Additional research Tony Heath of Eversheds, solicitors, London EC4