The courts are increasingly being exposed to claims of educational negligence.
A former student of a prestigious Victorian private school has recently filed a claim in the Victorian Civil and Administrative Tribunal. Ms Ashton-Weir has claimed damages on the grounds that she failed to gain entry into the University course of her preference because the school provided her with inadequate educational support. She had specifically wished to study Law at the University of Sydney. She boarded at the school during 2008 and 2009 but completed her secondary schooling at a TAFE in Sydney.
The claimant’s mother has alleged that the school knew her daughter was intelligent, having undertaken IQ testing prior to commencing at the school, but struggled with mathematics. The claimant has alleged the school failed to provide her with the support necessary for her to “excel”. A teacher at the school is alleged to have criticised the claimant, for using words that were “too long” in her English class, which confused and distressed the claimant, particularly when her grades began to fall.
The school has argued that the claimant could have studied law at other Universities. It also claims to have supported the claimant however she was poorly organised, regularly missed classes and was on ‘internal suspension’ on numerous occasions whilst at the school.
This case is a claim for what has become known as ‘educational negligence’. The courts are increasingly being exposed to such claims however none have yet been judicially resolved. In theory, this form of negligence is premised on a duty of care to educate existing between teacher and student, with the school held vicariously liable because the teacher was operating within the scope of his or her employment. There are currently no judicial precedents within the Australian courts however cases within the United Kingdom provide some guidance. They have generally been conducted on the basis that the principles of causation and foreseeability also apply, both of which have proven difficult to establish.
Separately, the matter of Abela v State of Victoria is as we speak in the middle of a four week hearing before the Federal Court. The applicant Abela is claiming damages for economic loss against the school authority. Mr Abela’s claim against the government school is based on a breach of the anti-discrimination laws, not in negligence. He alleges that a school allowed him to progress from grade to grade despite being illiterate and his father requesting that he repeat grades to catch up.
The hearing of Abela is due to conclude on 25 May and Ms Ashton-Weir’s will continue in August. We will keep you posted on developments.
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