A student at a private school in Minnesota suffered a severe brain injury when she was struck on the temple by a golf ball hit by another student during class. Her parents sued the school and golf instructor for negligent design, construction, and maintenance of the golf net, and for negligent supervision. There was an indemnity clause in the enrolment contract in which the parents agreed to hold the school harmless from all damages arising from personal injury. The Court said this was too broad in its scope and therefore unenforceable.
Schools must be very careful when they insert any form of indemnity clause into their documents. Likewise, schools must be careful when they find indemnity clauses in contracts used by external providers. It is not unusual for such providers to use badly drawn and quite unfair clauses releasing them from all claims and indemnifying them against all claims. We have been able to assist in many schools to negotiate a much fairer situation.
Section 18 of the Australian Consumer Law says that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Each of the States has comparable provisions and these are not limited to corporations. It has often been said that schools must be mindful of these provisions when drafting their prospectus or other marketing brochures.
Now, a student has actually made a claim relying upon alleged misleading and deceptive conduct. The student enrolled at an English language school so that she could qualify to enter Year 11 at a NSW high school. She received an information brochure before she enrolled. Essentially, her complaint was that she was misled by the brochure and other things as to the time it would take to do the English preparation course to reach the level required for her to enter Year 11. The result for her was an additional year at school and therefore an additional year’s tuition fees.
The Tribunal said that the school clearly engaged in trade or commerce in the publication and distribution of the brochure. The Tribunal then noted that the student had to prove that:
Where it is alleged that a brochure contains misleading or deceptive representations, the test is whether what is written is misleading, deceptive or likely to mislead or deceive a reasonable person - a hypothetical person who is an ordinary or reasonable member of the class of persons who will see the brochure. Accordingly, reactions to the statements in the brochure that are extreme or fanciful are excluded as being unreasonable. Similarly, strained, false or unreasonable interpretations are rejected. One must ask how the ordinary, reasonable reader would understand the brochure. Where only a part of the brochure is relied upon as being misleading or deceptive, that part must be read in the context of the whole. It is wrong to select some words as misleading or deceptive if, in their context as a whole, they were not capable of being so.
It is not relevant that the school did not intend to mislead or deceive. Accordingly, there doesn’t need to be evidence of actual deception, although that will be required before damages will be awarded.
In this case, the student was able to show a number of incidences of misleading or deceptive conduct. For example, the brochure said that the school would provide progress reports on a regular basis to parents. The school had to concede that this was not done. The school also had some difficulty in that it was unable to prove that certain documents containing relevant terms had been provided to the student or her guardians. This underlines the importance of schools having enrolment procedures that carefully record what documents are provided to students or their parents when they are contemplating enrolment. Nevertheless, the claim failed because the student was unable to show that the misrepresentations were the cause of her loss.
As the Tribunal noted: “The solution, to avoid proceedings such as this, is the simple provision of full information, in the hands of the students and their parents, so that they are all properly informed.”
The new Disability Standards for Education are causing schools to update their enrolment policies and procedures. Part 4 of the Standards must be read carefully and its requirements adopted. In particular, a school must consult prospective students with disabilities, or their parents, about the ways the disability might affect the student’s ability to apply for enrolment, participate in the school’s courses and use the school’s facilities. Following that consultation, decisions must be made as to the necessity to make adjustments to ensure the student can do all these things on the same basis as a prospective student without a disability. Then, the school must decide whether such adjustments are reasonable and, if so, make them … unless, of course, the defence of unjustifiable hardship can be made out.
Emil Ford & Co are able to assist rewrite enrolment policies and procedures that comply with the Standards so your school is ready for new enrolments.
Arguments often arise between parents who are separated or divorced about where their child should attend school. When faced with this situation, should schools obtain the signature of both parents on the enrolment form, or is the signature of one parent sufficient? We suggest that your enrolment officer ask the parent you are in contact with whether there is a Court Order or a Parenting Plan in place which affects the child. If there is a Court Order or Parenting Plan, obtain a copy of it to see whether the decision concerning where the child attends school is to be made solely by one parent, by both parents jointly or by either parent.
If the Court Order or Parenting Plan indicates which parent or parents should make the schooling decision, the enrolment form must be signed by that parent or those parents. If the decision is to be made solely by one parent but the other parent agrees that the child should attend the school and has the capacity to pay the fees, that parent should also be asked to sign the enrolment form. You ought not to have the enrolment form signed solely by a parent who does not have the right to make the decision.
What if there is no Court Order or Parenting Plan or they are silent about who should make the decision regarding where the child goes to school? Under the Family Law Act, each of the parents of a child who is under 18 years of age has parental responsibility for the child. This means that either parent can, independently of the other, make decisions regarding where their child attends school. Accordingly, if this is the situation, the enrolment form does not need to be signed by both parents. Therefore, if you feel a dispute between the parents could arise if both parents were asked to sign the enrolment form, you may be prepared to proceed with the signature of only one parent.