Councils may face writs for pupils who have failed
To date it has only been thought possible to sue a school in cases involving special educational needs, where procedures are highly specific and the pupils' problems are analogous to those in the medical field.
But there was widespread publicity late last year when a firm of local authority insurers agreed to pay an out-of-court settlement of Pounds 30, 000 to a pupil who claimed to have been bullied - even though the school did not admit liability.
Now it is being argued that schools owe a "duty of care" to all pupils. This could allow families to sue for inadequate education in cases where it can be shown that teachers have not behaved like "reasonable professionals" and that children's academic progress has been hampered as a result.
"A plaintiff pupil is in a position analogous to that of a patient of a hospital," writes Jonathan Robinson, who is Associate Dean of Law at the University of Buckingham.
"It follows that those who run a school are under a duty to its pupils to exercise reasonable care in the way in which it is run. Teachers are professionals who, with their employers, are liable if they negligently blight a pupil's education and prospects in life."
Whether or not schools owe the same common law "duty of care" as hospitals is a point of contention. The most recent statements from the law lords suggest that, in some cases at least, they probably do.
Pupils with special needs who want to sue their former local education authorities for negligence were at first refused the legal permission: the High Court told them it would "open the floodgates" to unwanted legal actions.
But in 1995 the House of Lords decided that they did, after all, have the right to sue.
Lord Browne-Wilkinson said: "A school that accepts a pupil assumes responsibility not only for his physical well-being but also for his educational needs. If it comes to the attention of the headmaster that a pupil is underperforming, he does owe a duty to take such steps as a reasonable teacher would consider appropriate to try to deal with such under-performance. "
This, says Mr Robinson, could also be the basis of a claim that a school is liable for a pupil's academic under-performance as well as for failings in special needs.
No pupil has yet sued a school successfully on special needs, bullying, or general education grounds. But the list of cases ready to go to court is mounting, including those of two pupils who want damages from schools listed as "failing" by the Office for Standards in Education.