Summary - It is very difficult for a
disgruntled student to succeed in an educational malpractice
It is rare to see cases of educational malpractice especially
when compared to claims alleging negligence against other
professionals such as medical practitioners, lawyers, valuers,
accountants and financial advisers.
So, when a case is brought, it often receives publicity such as
the case recently before the Victorian Court and Administrative
Appeals Tribunal between Geelong Grammar School and a former
student. The former student is seeking compensation for fees paid
and relocation costs because she blames the school for failing
Years 9 and 10 Mathematics and missing out on enrolment in law at
Sydney University. The former student alleges that she drastically
turned around her exam results after enrolling at Crows Nest TAFE
in Sydney. Geelong Grammar School is defending the claim.
The reason for the lack of educational malpractice cases is the
difficulty in establishing both negligence and that the negligence
caused damage or loss.
Circumstances can arise in which it is relatively easy to
establish negligence and causation. For example, the incorrect text
was taught for final year English. If a student fell a few marks
short of the entry mark for his/her desired tertiary course, the
student could potentially establish that he/she would have achieved
the extra marks had he/she been taught the correct text. If the
student had to repeat the final year of school to gain entry into
his/her preferred tertiary course, then the loss could potentially
amount to one year's loss of income.
However, usually it is much more difficult to prove educational
malpractice on the part of a teacher/school. It is a familiar
refrain for a student to claim that he/she would have done better
in a subject if he/she had a different teacher (and a very easy
method of exculpation which almost every parent would have heard).
However, even if accepted as fact, that does not equate to
negligence. There may be many reasons for a student's poor
academic performance but usually the person most responsible is the
Further, there is the necessity to establish a causal link
between any negligence and loss. Can a student establish that
he/she suffered a loss because of the negligent teaching? It is
difficult to establish an identifiable loss even if negligence is
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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