Educational Malpractice - why are such cases rare?

by Stewart Roberts
26 September 2012

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 student himself/herself.

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 established.