David vs. Goliath (1): Can a student take action against the school or teacher for negligence – tort of negligence?”
- Jason Cheong (Partner) and Tan Qian Hui (Paralegal)
Recently, we heard the news that three Sabah students who filed a suit against their former English language teacher for being absent from class for seven months and four others including the government have won their case.
The court ruled that the defendants breached their statutory duties and violated the former students’ constitutional guarantee to education.
However, the duty owed by a teacher or an educational institution towards a student, in our view, is not confined only to statutory duties and the constitutional rights to education.
This article will discuss the duty of care owed by the teacher to their students under tort with reference to Malaysian cases, UK cases, and other jurisdictions.
Duty of care.
Firstly, there must be a duty of care owed. In this case, there must be a duty of care owed by the teacher or educational institution toward the student.
The question then arises here is whether a teacher or school owes a duty to their students?
The answer is in the affirmative. By virtue of the special relationship of teacher-pupil, teacher owes a duty of care to their students. As seen in Government of Malaysia & Ors v. Jumat bin Mahmud & Anor [1977] 2 MLJ 103,
“It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. The duty of care on the part of the teacher to the plaintiff must be commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and the duty of care required is that which a careful father with a very large family would take of his own children (see Ricketts v Erith Borough Council [1943] 2 All ER 629 631. It is not a duty of insurance against harm but only a duty to take reasonable care for the safety of the pupil. The duty is aptly described by the learned Chief Justice of Victoria in the judgment of the Full Court in Richards v State of Victoria [1969] VR 139 141 when he said:
“The duty of care owed by (the teacher) required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to (the pupil). This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi (the teacher) should reasonably have foreseen.”
As for educational institutions, in Schneider v Plymouth State College 144 N.H. 458, the Supreme Court of New Hampshire held that there was a fiduciary relationship between the student and the defendant college. By enrolling in the defendant college, the student became dependent on the college for education, thus the defendant college must act in good faith and with due regard for the student’s interests.
Breach of duty of care
Secondly, the must be a breach of such duty of care. (i.e., has the teacher and/or educational institution acted fall short of the required standard?)
The standard of care required by a teacher can be seen in the case of Williams v Eady (1893), 10 T.L.R. 41, where Lord Esher stated that “the schoolmaster was bound to take such care of his boys as a careful father would take of his boys and there could be a no better definition of the duty of the schoolmaster. Then he was bound to take notice of the ordinary nature of young boys, their tendency to mischievous acts, and their propensity to meddle with anything that came in their way.”
However, it is important to note that the standard imposed on teachers is not in which they must ensure the absolute safety of the students, but as long as reasonable and/or sufficient steps are taken, then the teacher would not be held liable.
This was illustrated by Chen Soon Lee v Chong Voon Pin & Ors [1966] 2 MLJ 264. In this case, the teachers brought a group of students to picnic by the sea at the beach on a Sunday (a holiday) upon the request of the students themselves. One of the students went missing due to a depression in the sea and was found in very shallow water. The student died as a result. The deceased’s administrator brought an action against the principal and the teacher.
Based on the facts of the case, it was held that both the principal and teachers owed no duty to the deceased or her parent in providing supervision. Even assuming such duty is owed, they had taken all the necessary steps to ensure the safety of the students by supervising the students and keeping watch over them while they were playing in the water. The depression was unforeseeable.
A different outcome was reached in Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981] 2 MLJ 27. The pupil in this case suffered an injury in the course of a practical gardening class. He sued the Respondents for failing to provide proper supervision and to instruct the pupil. At the first instance, the High Court held that the Respondents were not liable as proper instructions and warnings on the use of the gardening implements had been given. Besides that, the Respondents had taken reasonable steps and precautions to ensure the pupils’ safety. However, during the appeal, it was held that the Respondents were negligent for failing to take all necessary and reasonable steps to prevent the appellant from sustaining the injury, and the teacher failed to check the condition of the gardening tools.
What are the remedies available?
After establishing the two elements, it is also important to show that the damage or losses suffered by a student is attributed to the negligent act done by the teacher and/or the school.
Two types of damages are available, which are special damages and general damages.
Special damages refer to losses suffered that can be calculated or specifically quantified. For instance, the school fees paid, damages for personal injuries, costs for medical treatment (if any injury), etc.
General damages are compensation for losses that cannot be quantified but are still related to the injury or losses caused by the negligent act. Examples of general damages are costs of expectation and losses of learning opportunities.
In conclusion, a teacher or educational institution owes duty of care towards their students. Should there be any “mistake”, or the teacher had done something not right, you as a student could bring an action under the tort of negligence.
To summarize, in order successfully claim under the tort of negligence, 4 elements must be satisfied: –
- There is a duty owed by the teacher to the student;
- There is a breach of such duty;
- The causation can be established, and (i.e., the purported negligent act caused the damage or losses)
- The damage or losses suffered must not be too remote (i.e., it must be reasonably foreseeable) and must be proven and/or substantiated.
Disclaimer: This article is for informational purposes only and does not constitute any legal advice. If you have any questions, please contact us directly.
