Britain is becoming an increasingly litigious society. When something goes wrong, we want to know two things: who is to blame, and who will compensate me? This has long been true in the area of physical injury, and numerous press reports over the past year - "Woman sues school over failure to tackle learning problems"; "Boy wins right to sue school over bullying" - show that this attitude is taking hold in education.
A ruling in the House of Lords last year made it clear that the courts would entertain claims for negligence against schools and local education authorities. So what is negligence, who can sue whom and for what, and how can educational professionals protect themselves?
The legal concept of negligence evolved during the latter part of the 19th century as a way of allocating liability for fault, and was based on the commandment "Love thy neighbour". In law, this translates as "You must not harm your neighbour" or, more precisely, "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour".
Thus the law of negligence is based on a duty of care which applies to the acts and omissions of all members of society. Car drivers owe a duty of care to all other road users, and an occupier of land is liable for the safety of visitors to that land.
In the 1960s the law on negligence liability was extended to statements made and advice given as well as to acts and omissions, and it is this area that is relevant to the provision of education.
The law has imposed a particular duty on professionals, especially surgeons, doctors, and other medical professionals. Cases of "medical negligence" are frequent and extensively reported in the press. Accountants and lawyers have also been found to be negligent in advice they have given, and schools and local education authorities have on numerous occasions been found to be negligent in relation to the physical safety of pupils in their care.
However, it is only in the past 12 months that educational professionals have faced the prospect of having to defend themselves against the charge of negligence in relation to the provision of education.
The landmark case of X (minors) v Bedfordshire County Council (1995) established that professionals providing education have a duty of care to the recipients of that education in relation to the methods of teaching used.
The decision in this and the related cases, as to whether the local authority was negligent in its provision of education, is still awaited, but the gates are open and there is no shortage of complainants who feel they have been failed by the education system.
Many of the early cases related to pupils with special needs, the plaintiff's claim being failure to provide for those needs. Bullying is another issue that has attracted legal action in recent months. A school that does not protect a child from systematic bullying is failing to take care of that pupil in a physical sense, but it may also be failing to provide adequately for the educational needs of that child by not offering an environment conducive to learning.
Any assessment of risk in this area needs to start by differentiating between providing for the general needs of most pupils (the curriculum and its delivery) and providing for those pupils with special needs. It is "foreseeable" that a pupil with a specific learning need will not benefit from the general curriculum provision in a mainstream class. That pupil's specific need must be met in a specific way.
A management team needs, when embarking on a risk analysis, to look at the provision of education in this structured way, and ask the question, "What are the risks that education will not be provided to all pupils?" To reach a verdict of negligence a court must decide it is taking a "just and reasonable" course of action.
Every teacher knows that, just as not all accidents can be anticipated and prevented, so it is not possible for a school to have all of its pupils achieving their full potential at the age of 16 or 18, and emerging into the world with a full complement of qualifications. The courts also recognise this, and that professionals can only work or advise to the best of their ability in accordance with best accepted practices. Negligence in this context means the failure to act in accordance with the standards of reasonably competent teachers.
If a defendant, be they teacher, headteacher, educational psychologist or adviser, can show that his or her actions and methods were reasonable and in line with accepted practice in the profession, then he or she will not have acted negligently.
How then can schools and local authorities protect themselves from negligence liability and satisfy their insurers that premiums should not rise to cover the risk of successful negligence claims?
An important first step is to undertake a proper risk analysis. In schools, as in industry, there are several layers of responsibility. At the sharp end are the classroom teachers and the ancillary staff with supervising responsibility. The senior management team, led by the headteacher, is the next major level, and final responsibility lies with the governing body andor the education authority, depending on the type of school.
There is a duty of care at each tier, and each group needs a system for considering potential risks and taking steps to minimise them.
This is already done in relation to physical safety, but all local authorities, governing bodies, school management teams and teachers should also have risk analysis systems relating to the provision of education. At each level, the questions that should be asked are: What is our duty in relation to the provision of education for all pupils? Which individuals are at risk of not being provided with a suitable education? How do we identify those pupils? What do we do once we have identified them? And, finally, how do we monitor outcomes?
This exercise will allow all those concerned to look at their teaching methods in a new way and will provide measurable outcomes which, as well as reducing risk, can be used as performance indicators.
Jane MacFarlane is a solicitor specialising in education law and practising with the regional firm, Gabb Co. Before becoming a lawyer she taught for 10 years and was a head of department in secondary schools in London and Bristol