EDITORIAL - A presumption of negligence

There is a doctrine employed in the law of negligence known most familiarly by its Latin formulation – “res ipsa loquitur”. In brief, it assists a claimant in establishing negligent conduct by a defendant where the operative cause of the harm is unknown or unidentifiable. Once the claimant establishes that the defendant was in control of the circumstances in which the accident was caused, alternatively that there was no probability of external interference, and that in the ordinary course of human interaction, the accident would not have occurred in the absence of negligence on the part of someone, most probably the defendant, then there arises a rebuttable presumption that the defendant was negligent.

In turn, the defendant may rebut that presumption and thus escape liability by showing that he, she or it took all reasonable care in the circumstances.

The recent unfortunate incident where the papers of students from a number of schools received a mark of “Ungraded” in certain subjects even though they had submitted the required school-based assessments would appear to permit the affected students to argue that this raises a presumption of negligence against any one of the teachers, the Ministry or the Caribbean Examinations Council (CXC) or all of them jointly and severally.

Once the student can establish by adequate documentary proof that the assignment was indeed submitted, the teacher, Ministry and CXC assume effective control of the assignment. Further, since in the ordinary course of things, the disappearance of the paper would not have occurred without someone being at least negligent as to its safe custody, the respective parties should be forced to rebut the resulting presumption of negligence by showing that they took all reasonable care in the circumstances.

So far, CXC has sought to absolve itself of any liability. According to the local Assistant Registrar, “If a particular component of the examination was not received by CXC the Council cannot give the students a grade …” This seems an eminently reasonable course of action. However, the president of the Barbados Secondary Teachers’ Union (BSTU), one of the local teachers’ unions, argues that CXC should be held accountable in the circumstances, observing that its members had stuck to their position and did not grade the assignments and so could not be held responsible. This does not of itself rebut the CXC’s assertion of never having received the assessments, but may offer a clue as to how the cock-up might have occurred.

For its part, the local Ministry of Education has not offered any explanation of the matter, but notes that the current phenomenon is not unprecedented, since it is “something that happens every year”. As the Chief Education Officer stated, “You have students that come back ungraded for whatever reason and the schools alert the Ministry and we investigate…”

While the officer did not disclose the results or consequences of those investigation, this state of affairs is clearly unsatisfactory. To put children who have duly submitted their assignment through the anxiety wrought by not receiving a grade on account of its non-submission is patently to be condemned; to suggest that it happens every year converts it into an unpardonable snafu.

We have never heard of any scripts going missing when local children sat the Cambridge GCE Examinations in past years, even though these scripts had to be mailed abroad. For this phenomenon to have now become par for the course by the Ministry’s own admission beggars belief. We at The Barbados Advocate suspect that this matter may yet have its resolution in the local courts.