Dominus illuminatio mea

The field of special educational needs is primarily concerned with obtaining help for children struggling at school and who need special educational provision, whether ultimately provided by an EHC plan or otherwise.

But sometimes children slip completely through this net, and years later are left as young adults bereft of qualifications or having suffered discernible psychiatric harm. In such circumstances where the option of a remedy in the First Tier Tribunal is a distant memory, claims for damages for educational negligence may yet be brought against a defaulting educational provider.

An interesting case which was heard in the courts recently was the claim brought by Mr Siddiqui against the University of Oxford. It was widely reported in the press and other media; a summary of the case can be found here: Mr Siddiqui’s claim ultimately failed and the substantive judgment can be found here: Siddiqui v Chancellor Masters and Scholars of the University of Oxford [2018] EWHC 184 (QB). The decision whilst carefully reasoned and thoroughly expressed by a High Court judge has perhaps overshadowed the earlier judgment of Mr Justice Kerr dealing with an application by the University for a summary disposal of the claim. That judgment can be found here: Siddiqui v University of Oxford [2016] EWHC 3150 (QB). It is of particular interest for those who practise in this field, for the very careful explanation and categorisation of the various types of claim which can be made. They are worth setting out in full.

41. Claims for negligent educational provision can take various forms. They are notoriously difficult to win, but that has been held not to be a good reason for excluding the existence of duty of care. In private law claims founded on tort or contract (as distinct from public law claims, normally brought by judicial review), the relevant principles are now reasonably well settled. I do not begin to attempt a full exposition here. It is sufficient to identify three broad categories of claim, which do not necessarily occupy the entire field.

42. The first category is a claim which asserts a breach of a duty owed in tort or contract arising in the exercise by the defendant’s professional teaching staff of academic judgment. An example would be a decision to award a particular grade to a student sitting an examination. Such a claim is not justiciable as a matter of law, and is therefore liable to be struck out: see eg Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, CA, per Sedley LJ at paragraphs 2-13).

43. The second category is that of claims which allege the use of negligent teaching methods, in the devising of courses or the means of acquainting students with the educational content of the courses that are being taught. Such claims can be actionable in principle; see the appeals heard together in Phelps v Hillingdon London Borough Council [2001] AC 619, per Lord Slynn at 653F-654B. However, because the claimant’s attack is on the competence of the defendant’s performance in the exercise of skill and care in a profession, the merits of the claim must be assessed by reference to the Bolam test.

45. A claimant advancing such a claim will therefore require expert evidence that the Bolam standard was not met; cf Phelps v Hillingdon LBC (cited above), per Lord Clyde at 672E-H. A recent example is the decision of Burnett J (as he then was) in Abramova.v.Oxford Institute of Legal Practice [2011] EWHC 613 (QB), [2011] ELR 385, where the unsuccessful complaints included, in particular, an attack on the practice of having students mark their own mock examination papers; see Burnett J’s judgment at paragraphs 58-63 and 68, on the requirement for expert evidence in such a case.

46. The third category of claim could be described as one founded on simple operational negligence in the making of educational provision. Again, hypothetical examples would include administrative error leading to a student sitting the wrong examination paper, containing questions about which the student had received no tuition; or where classes are cancelled due to non-availability of teaching staff; or a case where a teacher was habitually drunk or asleep during classes.

47. In such a case if it is proved on the facts, a court does not need expert evidence to accept the proposition that the required standard of professional skill and care has not been met. Mr Milford, for the University, rightly accepted that in the latter example, expert evidence would not be necessary to establish a breach of the duty of skill and care.

48. In Winstanley v. University of Leeds [2013] EWHC 4792 (QB), the claimant’s PhD thesis had initially failed, but on an internal appeal that decision was reversed, the appellate body accepting the contention that the supervision or other arrangements during his period of study had been unsatisfactory. An application by the defendants to strike out the claimant’s subsequent damages claim, or for summary judgement on the claim, failed for various reasons, including the rejection by HHJ Saffman (sitting as a deputy High Court judge) of the proposition that the Phelps duty of care was not arguably owed because the pleaded injury was not foreseeable.

49. At paragraph 71 of his judgment, the learned judge observed:

If a university fails to take proper care of a student’s career by falling short in the delivery of the processes involved in obtaining the qualification for which the student is studying, why is it not arguable that it is foreseeable that the claimant will suffer some loss or injury as a result? The nature of the injury need not, as a matter of law be foreseeable but the possibility of injury of some description is surely foreseeable, or at least arguably so.

It will be noted that in this field, as before the tribunal, expert evidence usually from an educational psychologist, will be key to establishing a case. Should a case be made out in court on liability, damages can include claims for economic loss such as an impaired earning capacity as well as claims for personal injury.

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