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Compensation Claims by Students Under the Australian Consumer Law

Emeritus Professor Stephen Corones argues that the nature of modern university education is such that students are consumers under the Australian Consumer Law (ACL) and that their education is provided by universities “in trade or commerce”. If this is the case, then the next question is: does the same apply to primary and high school education?

The argument is probably right and Professor Corones’ conclusion may well apply to primary and secondary schools (at least private schools) and private colleges of adult education.

What implications then arise if the education provided is somehow deficient, or even results in the student suffering an injury? The ACL imposes on such educational providers a guarantee of due care and skill in the provision of their services, to the benefit of consumers of those services

Claims for negligence or breach of contract compared to ACL claims.

Students have always had other options, such as claims using the tort of negligence where a person may sue a school seeking compensation. The student bears the onus to prove there was a duty of care owed, that the duty was breached, and that there was injury, loss, or damage suffered. Similar claims could be made in some circumstances alleging breach of contract.

The consumer guarantees regime in the ACL stands independently of the law of contract and of tort; the causes of action are contained the statute.

There is no ability for the supplier to contract out of relevant provisions in the ACL such as by the use of waivers.

In certain circumstances, a student may be able to rely on the ACL even when the Australian educational provider supplies the services overseas.

A concrete example: Professor Corones notes, in the design and delivery of the curriculum or in the setting of admission standards, a school guarantees due care and skill. Also, he suggests, the ACL could be used in claims by students where there was a guarantee of fitness for purpose or the assertion of a desired result within a reasonable time

Another concrete example: If a student studies the wrong literature text because the teacher has misread the curriculum and there is no question on the exam, then this may be a breach of the school’s duty of due care and skill. However, if a student fails to study and does not pass the exam, there should be no breach of the duty.  We suspect the line between the duty being preserved, and the duty not existing, is a fine line of distinction.

Conclusion

The imbalance in financial power between a provider and a consumer gave rise to provisions within the ACL to assist consumers – including students.

As Professor Corones further argues, consumer guarantees under the ACL provide incentives for education providers to ensure that reasonable standards of program delivery are maintained and strengthen the hand of students as consumers of educational services.

We may in future see dissatisfied students making more use of the ACL protections.

Justine Anderson, Solicitor

Bill Madden, Special Counsel

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