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Case:
OLG Hamm, 11th Civil Senate 11 U 108/89 BGB § 839, Basic Law Art 34, SchulPflG NW § 7 (1)
Date:
23 March 1990
Note:
Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Copyright:
Professor Basil Markesinis

OFFICIAL LIABILITY for refusing to allow a sick child to participate in special tuition.

1. Officials of the Education Office and head teachers can breach their official duties as against the mother of a child who is required to attend school butwho suffers from school phobia if they do not ensure that the child can takepart in special tuition in accordance with SchpflG NW § 7 (1) (juris: SchulPflGNW). The mother can demand in such a case that the costs spent on private tuitionare reimbursed in accordance with PRINCIPLES OF OFFICIAL LIABILITY.

Course of proceedings

Previously LG Bochum 1989-04-24 3 O 146/89

Formal part

On the plaintiff's appeal (in other respects rejected) the judgment of the thirdcivil chamber of the Bochum Landgericht, delivered on the 24th April 1989, isamended.

The defendant Land is ordered to pay to the plaintiff 2,500.00 DM with interestat 4% from the 12th January 1990.

The remainder of the claim is rejected.

The plaintiff is to bear 1/6 and the defendant Land 5/8 of the costs of the actionagainst the defendant Land.

The judgment is provisionally enforceable.

It requires the plaintiff to pay 500.00 DM and the defendant Land the sum of2,500.00 DM.

Reasons:

The appeal of the plaintiff is permissible and is largely successful. It resultsin judgment against the defendant Land for payment of 2,500.00 DM with interest.

II.

The plaintiff is entitled in her own right to a claim for damages in the sumof 2,500.00 DM against the defendant Land under § 839 (1) of the BGB incombination with Art 34 of the Basic Law. This is because the employees of theeducation office for the ... town and the head teachers of the ... Grammar Schooland the ... Secondary School did not ensure (or did not ensure in time) thatthe plaintiff's son was given special education in the form of home tuition.

1.

a) It was a breach of official duty for the competent officials of the Education Office (in particular the educational supervisor, but also the head teacher ofthe W Grammar School and the head teacher of the ... Secondary School) not (ornot at the right time) to take steps which ensured that the plaintiff's son wasgiven special tuition. The setting up of special tuition was unreasonably delayedas a result.

It must be assumed that a sick child has a subjective public right to schooling in a special school or to take part in special tuition, which corresponds tohis or her duty to attend a special school or to take part in special tuitionwhich is regulated in § 7 (1) of the SchpflG. But the entitlement followingfrom this provision is limited by the educational standards of primary and secondaryschools, so that no breach of official duty falls to be considered insofar asthe Education Office has not enabled the plaintiff's son to take part in specialtuition at grammar school level.

According to § 7 (1) sentence 2 of the SchpflG, the education authorityto be designated by the Minister of Education and the Arts by statutory instrumentdecides on the special tuition in which children required to attend school haveto take part. The competent education authority is the Education Office (§ 1of the Education Office Competence Regulations in combination with para 2 ofthe Appendix). The official duties of the Education Office officials and thehead teachers arise from the Circular of the Minister for Education and the Artsof the 17th July 1980, amended by the Circular of the 10th and 23rd October 1984and the Circular of the 16th November 1987. Until the amendment of the Circularof the 17th July 1980 by the Circular of the 16th November 1987 (with effectfrom the 15th February 1988) a pupil had a claim to special tuition if he wasprevented from attending school on the grounds of illness for longer than eightweeks (six weeks from the 15th February 1988). If it is established from thestart that a pupil will have to stay away from school lessons for more than eightweeks, special tuition can be given earlier (para 1.1 of the said Circular).According to para 5 of the Circular of the 10th October 1984, applications forspecial tuition (home tuition) through the direction of the school so far attendedby the pupil are to be directed or referred on to the Education Office. The EducationOffice then decides on the application in accordance with para 6 of the Circularand arranges the special tuition (home tuition). Before the decision it has tobe established by medical opinion - in cases of doubt by the medical officer- whether the prerequisites for special tuition are present and whether the pupilis in a position to take part in the special tuition (para 3 of the Circularof the 17th July 1980; but different provision is made in § 7 (1) sentence3 of the SchpflG, in which the obtaining of an opinion of the Public Health Departmentis essential).

Until the report of the head teacher of the ... Grammar School of the 5th March 1986 [reference omitted], the plaintiff's son had been absent from lessons for about 1 _ years ie from the 3rd September 1984 to the 6th March 1986. This occurred without the responsible head teacher of the Grammar School and the Education Office having arranged anything to secure the fulfilment of the duty to attend school in accordance with §§ 1 (1) and 7 (1) of the SchpflG. The pupil had been ill from the 3rd September 1984. It is revealed by the report of the head teacher to the Education Office for the town of ... of the 5th March 1986 that the plaintiff had submitted to the school a psychological certificate which stated that her son had acute attacks of school anxiety and declared that school attendance was not possible for half a year for this reason. Even at that time the head teacher of the ... Grammar School ought, according to the legal and administrative provisions previously mentioned, to have considered the giving of special tuition and arranged for the plaintiff to make an appropriate application. Then the Education Office would also have been immediately involved in the matter. According to the psychological certificate (possibly relating to certification by the qualified psychologist ... of the 4th October 1984) it was certain from the start that the pupil would have to be absent from school lessons for more than eight weeks. When the certificate had run out and the plaintiff appeared at the school with her son on the 1st March 1985, he refused to attend school of any kind. It may admittedly have been proper to refer the plaintiff to an education advice centre. But no-one at the Grammar School and the

...

Secondary School at which the plaintiff's son was enrolled then troubled any further about the educational fate of this pupil. There was no co-ordination of any kind between the two schools. The Education Office too was not brought in at first, so it became possible for the plaintiff's son to miss several years of compulsory schooling. It was true that the persons having the right of upbringing have, according to § 16 (2) of the SchpflG, to see to it that a child who is under a duty to attend school takes part regularly in lessons and in the other events of the school. But as the pupil had school phobia, which emerges from the certification of the clinics of the state capital D of the 24th November 1987 and their opinions of the 16th December 1987, the plaintiff could not urge her son to take part in lessons at the school.

In this situation, the Education Office had to ensure that the necessary special tuition was given to the plaintiff's son. In the same way as the persons having the right of upbringing, it has the task of encouraging pupils to fulfil the duties incumbent upon them (§ 14 (3) sentence 2 of the SchpflG). These include in particular that the pupils should comply with their duty to attend school to the required extent. For this purpose, the Education Office has to ensure that it learns of school absences of long duration in good time, so that it can if necessary take the measures needed to fulfil the duty to attend school.

Substantial absences must have occurred here, because a pupil could not otherwise have received no lessons for more than three years. Even after the receipt of the report of the head teacher of the ... Grammar School of the 5th March 1986, it was more than a year until the attempt at setting up special tuition from the 6th July 1987 was undertaken. As indications of the existence of school anxiety emerged from the report anyway, the Education Office ought immediately to have clarified whether the pupil had a school phobia which made the arrangement of special tuition (home tuition) necessary. It should have done this by obtaining an opinion from the Public Health Office. The lawyer's letter of the 10th February 1987 in which it was announced that the pupil would attend a boarding school with immediate effect changed nothing in this respect, because it was immediately overtaken by the further lawyer's letter of the 16th February 1987 in which it was stated that the best thing would be to give private tuition to the boy until his psychological condition had been overcome. It was only on the basis of the letter by the plaintiff's legal representative of the 8th December 1987 that private tuition at home was set up, but admittedly only four hours a week initially.

b) The officials of the defendant Land, in particular the employees of the Education Office, have negligently breached their duties in that they did not arrange and expedite the setting up of the special tuition in a purposeful manner. Even the head teachers involved did not take sufficient steps to ensure compulsory school attendance and thereby likewise negligently breached their official duties. They have violated unambiguous legal and administrative provisions. Every official must possess or acquire the knowledge of law and administration necessary for the conduct of his office.

(c) The defendant Land is liable in accordance with Art 34 of the Basic Law for the breaches of official duty. According to this provision, the liability applies in principle to the body which the official who acts contrary to duty serves. Here that is the Land of NW. The head teachers of the named schools are officials of the defendant Land. The same applies to the employees of the Education Office. Admittedly the Education Office in a town which is an administrative district in its own right (... is such a town) consists of the chief executive and the educational supervisor (§ 18 (2) sentence 1 of the SchVG). It is not however here a question of breaches of the official duty of the chief executive, who is in principle a local official. It can therefore be left undecided whether on breaches of official duty by the chief executive as a member of the Education Office, the town of ... or the defendant Land is the body liable in the sense of Art 34 of the Basic Law. The breaches of official duty established in the case in question are to be laid at the door of the educational supervisor. According to the Circular of the Minister for Education and the Arts of the 10th October 1984 (para 7) competence for special tuition (home tuition) was to be transferred at the Education Office into the overall charge of an educational supervisor. According to the standing orders for the Education Office - § 3 (3) sentence 2 of the Circular of the Minister for Education and the Arts of the 4th December 1984 - the arrangement and carrying out of the special lessons is in any case predominantly in the educational service area. The former defendant’s reply to the appeal, which the defendant Land has clearly adopted, also proceeds on this basis. The educational supervisor is however an official of the defendant Land.

2.

The official duties which have been breached do not only exist as against the pupil but also as against the plaintiff as the person having the right to bring him up. Whether in the individual case the person harmed belongs to the class of third parties in the sense of § 839 (1) of the BGB is not to be judged according to whether the official duty - even if not necessarily solely - has the purpose of looking after the interest of the person harmed. It must follow from the provisions which form the basis of the official duty and which outline it, as well as from the nature of the official business, that the person harmed belongs to the group of persons whose interests are to be protected and promoted according to the goal and legal purpose of the official business. Only then will a duty to compensate exist as against him following a culpable breach of duty. On the other hand, no duty to compensate is established as against other persons, even if the breach of official duty has had a more or less disadvantageous effect for them. A special relationship must therefore exist between the official duty breached and the third party harmed (constant case law of the Bundesgerichtshof, see eg BGHZ 106, 323, 331 with further references). Such a special relationship exists here between the official duties breached and the plaintiff. It arises from the fact that education of her son (who is required to attend school) is incumbent on the plaintiff and she therefore has a paramount interest in his well ordered school education in the same way as the pupil. According to Art 8 (1) sentence 2 of the Constitution of the Land of NW it is the natural right of parents to determine the instruction and education of children. The defendant Land has taken over the public school system and exercises supervision over it. The competent officials are therefore breaching their official duties as against the parents as the persons having the right of upbringing, if they do not ensure (or do not ensure in time) that a pupil who has a long lasting illness receives that special tuition which is provided for and formulated in the relevant legal and administrative provisions.

3.

It cannot be in doubt that substantial deficits in the pupil's education have occurred through the lengthy delays by the responsible officials. This is also expressly emphasised in the letter of the Institute for Remedial Education and Psychotherapy of the town of ... of the 23rd February 1987. These deficits could not be made up for by the special tuition which was given in the end after a long wait. The expenditure claimed by the plaintiff for the giving of private tuition is therefore adequately caused by the breaches of duty by the officials of the defendant Land. On the basis of the credible testimony of the witness ... Sch, it is established that the plaintiff's expenditure on the private tuition amounted to at least 2,500.00 DM. The witness stated that in the period from the end of September or the beginning of October 1987 to the end of June 1988 - with the exception of school holidays - she gave the plaintiff's son a double hour of private tuition twice each week for a payment of 20.00 DM per hour. Altogether the plaintiff paid her almost 3,000.00 DM, but at least 2,500.00 DM. The last named sum is to be taken as a basis for the measurement of the harm. A higher level of harm cannot be established with certainty in the face of the testimony of the witness, especially as receipts are not available.

4.

Contributory fault by the plaintiff for the origin of the harm (§ 254 (1) of the BGB) cannot be established. Contributory fault by the plaintiff could at best be deduced from the fact that in 1987 she did not arrange earlier for the Institute for Remedial Education and Psychotherapy of the town of ... to give an opinion about her son and then make the report available to the Education Office. This first happened with the letter of the 23rd April 1987 by the plaintiff's legal representative. But then the substantial deficits in education which were caused by the delays on the part of the officials of the defendant Land had already occurred. Also, it was not until the beginning of 1988 that the special tuition for the plaintiff's son was at last arranged.

5.

Finally, the plaintiff can also not be blamed for the fact that she omitted to avert the harm by the use of legal redress. The raising of a complaint in the administrative courts for failure to act would not have been able to change anything in relation to the onset of the harm, especially as the plaintiff might fairly have hoped that she could have achieved the arrangement of special tuition without taking legal action in the administrative courts.

III.

The disputed judgment - as is evident from the formal part of the judgment - is accordingly to be partly amended.
The costs decision follows from § 92 (1) of the Civil Procedure Order. It only affects the plaintiff and the defendant Land.
The further subsidiary decisions result from the provisions of §§ 708no. 10, 713 and 546 (2) sentence 1 of the Civil Procedure Order.

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