In May this year, I wrote a post about the case of Rose Ashton-Weir, who, with her mother, Elizabeth Weir, was suing Geelong Grammar because she alleged it did not support her to a sufficient degree to allow her to get into Law at Sydney University. Judgment has been handed down (Weir v Geelong Grammar School (Civil Claims)  VCAT 1736). It may not surprise readers to know that Ms Ashton-Weir and her mother lost the case. They failed in their allegations of breach of contract and misleading and deceptive conduct pursuant to the Fair Trading Act 1999. There was no breach of contract, and no relevant misleading or deceptive conduct.
Even if they had succeeded in their claims, there were problems with the damages claims. The mother had claimed that the school should pay for her increased rent when she had to move to new larger premises to accommodate Rose after she returned from Geelong Grammar. At , Lulham DP noted, ‘She [the mother] did not prove, for example, that her residence on Copacabana was so small that Rose could not be accommodated there. People who claim damages have an obligation to mitigate their damage, and if Copacabana was inadequate for Jane and Rose to cohabit, that would not explain why Jane had to move to Double Bay at around 2.5 times her Copacabana rent.’ The loss of Rose’s mother’s earnings from a proposed chocolate fortune cookie business were rejected because they were not losses which fell within the rule in Hadley v Baxendale: they were not losses which arose naturally (first limb) or were not losses which were in the contemplation of the defendant at the time the contract was made (second limb). (At , the Deputy President uses the following example: ‘if a builder breached its contract by performing defective building work, the owner’s need to incur the cost of rectifying the defects occurs in “the usual course of things”, but the loss occasioned because the owner was unable to hire out the house as a wedding venue until the repairs were completed would not.’)
As to Rose’s loss of income as a lawyer, Lulham DP said at  – :
Rose’s claim for damages is illusory. The fact that Rose has gained admission into a double degree at Sydney University reflects well on Rose in Year 12, but also reflects poorly on her claim against the School because it shows that Rose did not suffer any damages at law.
Rose asserts that she will complete her degrees, then study Law, then graduate from Law, then gain employment as a lawyer. Assuming that events pan out in that way, the costs and deferral of income arising from them will not have occurred in “the usual course of things”, within the meaning of Hadley v Baxendale. Rose assumes that the School somehow guaranteed that she would gain admission to Law school immediately after Year 12, and there is no basis for that assumption.
As with Jane, Rose must mitigate her damage. Rose conceded that her Year 12 marks were sufficient to gain her entry into a law school other than Sydney University. Her decision not to take that path is contrary to her duty to mitigate.
I do hope some of my Remedies students are reading this post…!
What I gleaned from the case was that Rose had been pushed by her parents (particularly her mother) to go to Geelong Grammar boarding school. She was hideously unhappy there, and frequently unwell. She regularly failed to attend meals and class, and did not interact well with other students and teachers. She often did not bring books to classes or did not do homework. When I read the case, my inference was that Rose simply did not want to be at the school, but that her mother really wanted her to be there, and was not prepared to listen to the school when it told her how depressed her daughter was. Rose’s lack of attendance at meals and class seems to me to be a kind of protest (conscious or subconscious) about being so far away from her parents – the message was: “I don’t want to do this, I don’t want to be here“. It seems evident to me that the school thought that what Rose needed most was guidance and support from her mother, or her father (who were separated). I felt rather sorry for Rose at this point.
However, Rose’s mother had obtained a psychological report when Rose was 13 years old which said that she was highly intelligent, but needed a structured environment, and lacked organisational skills. From this, Rose and her mother took that she was “gifted” but that she had a “disability” (namely, lack of organisation and ability to apply herself) and that the school needed to work with these two things. Thus, they sued the school because it did not help Rose reach her potential as a “gifted” student, and she did not get into Law at Sydney University when she ultimately sat her HSC (at a different school, I might add). Her results were sufficient to get into Law at other New South Wales universities, but she instead chose Arts/Science at Sydney University.
At  – , Lulham DP said:
Being “gifted” is a 2-edged sword – you have to apply yourself. The world is full of talented people and talent alone is not enough. In his [Mr Herbert's] mind “gifted” means “talent + application”.
“Talented and gifted” programs are not about academically gifted students who are not being challenged enough. They are about assisting students learn more about something that they are passionate about. Timbertop has many talented students and Timbertop offers many rich experiences.
A student in the “talented and gifted” program has to be self-motivated. The program does not provide “one on one” teaching.
Mary Jane Clarke of the School has special training in gifted and talented education. The School does not have a definition of “giftedness”. Members of staff meet and discuss each student. Rose did not apply to do anything in the gifted and talented program.
In my opinion, being labelled as “gifted” is not always helpful. I believe I might have been labelled as “gifted” in Primary School, but my parents did not make a big deal out of it, although I knew I was “clever”. I was later explicitly labelled as “gifted” in my Australian High School, and this was positively deleterious for me. What helped me was going to my English High School, where they initially thought I was retarded (seriously!) and I then set about proving them wrong in a convincing fashion. As I’ve said in my earlier post, I had to really work and learn how to apply myself. It was the making of me.
A while back, I had a conversation with an old friend who had been labelled “gifted” at an early age. She felt like she had failed her potential by working in an ordinary professional job on a part-time basis while raising two children: she wasn’t prime minister, she wasn’t a law firm partner, she didn’t have a PhD (you get the picture). However, she acknowledged that she has always had difficulty meeting deadlines and being organised. She is genuinely clever and good at exams, so she managed to muddle through very well until she got into the working environment, when her organisational problems began to impede her. Anyway, my response to my friend is this: you’re a fantastic woman who is doing a great job of bringing up two beautiful children. In your job, you help disadvantaged people and help them to access their legal rights, which is important to making our society compassionate and fair. You have not failed. You have recognised your problems and you are dealing with them. You juggle work and kids (no mean achievement on an organisational scale!) You should be proud of yourself.
But my friend’s story illustrates that if you are labelled as “gifted” you are constantly holding yourself up to extraordinary outcomes (‘Being Prime Minister’) and finding yourself wanting. I, too, have a tendency to do this, particularly on the days when I’m suffering from that frequent companion of academics, ‘imposter syndrome‘. Whereas if you hold yourself up to ordinary people, you’re doing just fine and dandy. This also comes through in Rose Ashton-Weir’s case, as Lulham DP notes at :
Another aspect of the alleged giftedness emerges in how the applicants perceive Rose. If, dare I say, Rose was an ordinary, normal adolescent secondary student in 2008 – 2009, and she is now an ordinary, normal undergraduate, her marks at school and university are unexceptional. It is only when Rose self defines as “gifted”, which implies an expectation that her marks must be exceptional, that her marks are perceived as being a problem.
What the Deputy President is saying is that Rose’s marks and Rose’s achievements are just fine for an ordinary person. It is only when she says that she is “gifted” that her marks appear below par.
If Rose lacks organisation, dedication, inter-personal skills and resilience, then it doesn’t matter how high her IQ is; she will have difficulties in succeeding (whether she falls at the hurdle of university studies or whether she falls at the hurdle of work). There comes a point when people don’t push you and organise you any more. You can’t blame other people any more: you can only acknowledge that your failure to achieve what you wanted has come about as a result of your own choices and your own failings. And then you have to have the resilience to get back up again, look your failings in the eye and deal with them. This is the part that I find hard — but I’ve had to learn, and I’m a much better person and a better academic for it.
My suggestion to Rose and her mother is this: accept that Rose is not a special snowflake. Rose is no more gifted than the average bear, even if she genuinely does have a high IQ, because she appears to lack the other things which give rise to success in the real world: organisation, responsibility, dedication, inter-personal skills and resilience. Her lack of dedication and resilience and her lack of an ability to take responsibility for her own actions (encouraged by her mother) is exemplified by the choice to bring legal proceedings against Geelong Grammar School during Rose’s first year of university, rather than to concentrate on doing well in her Arts/Science degree so that she can transfer into Law. (The latter would have been the sensible option to take in these circumstances, by the way). Please don’t appeal this decision and keep on going with your attempt to blame others. Rather I’d suggest that Rose and mother have two options:
- Make peace with Rose’s shortcomings and accept that Rose has done well given that she has those shortcomings, and that she may not achieve what she wants; or
- Face Rose’s shortcomings, help her to try to overcome them, and get up and try again. There’s no guarantee that Rose will succeed. But both Rose and her mother will feel better for trying their best, not blaming others.