Australia: Duty of care to deal with bullying at school

In Oyston v St Patrick's College [2011] NSWSC 269, the Plaintiff successfully claimed damages from St Patrick's College (the College) for psychological injuries she suffered as a result of bullying and harassment by other students between 2002 and 2005.

It was not in issue that the College owed Ms Oyston a duty of care; the issue was whether the steps taken by the College were adequate in the circumstances to ensure that its duty was satisfied.

Background

It was alleged by Ms Oyston and accepted by the court that she was continuously subjected to verbal and physical bullying and harassment by certain fellow students. There was evidence of both active, direct bullying coming to the attention of the college, as well as indirect bullying that left Ms Oyston isolated.

The college had in place two policies that dealt with bullying: the "student conduct policies & procedures" and the "personal protection and respect policy". Both policies were published in the student diaries, which all students were required to have with them daily.

It was the joint view of two experts that good practice required that certain steps be undertaken when a complaint about bullying arose. If, after an investigation, a complaint had been shown to be true, appropriate responses would include implementation of mediation, counselling and peer support, parental notification, imposition of punishment and follow-up monitoring. Appropriate records should be maintained in the student's files.

However, it was found that significant aspects of the college's published policies were not in practical operation. the approach to a recognised bullying problem within the College, including Ms Oyston's year, was ad hoc.

With respect to Ms Oyston, the College failed to respond adequately, or in some instances at all, to the complaints of bullying, which came to its attention from many sources, particularly in 2004. It failed to document adequately her complaints and responses, as envisaged in its policies, and to act on them in the manner agreed upon by the experts. Additionally, it failed to follow-up adequately on Ms Oyston's progress, to ensure that she was not being subjected to further bullying. Although counselling was provided, it was held that mere counselling of a victim dealing with the consequences of ongoing bullying will not be sufficient for a school to meet its duty of care.

Judgment

It was the court's view that the college failed to implement its bullying policy, or to take other adequate steps, to bring the ongoing bullying directed at Ms Oyston under control. Its failure to undertake the very steps that its policies envisaged in dealing with the bullying when it came to its attention resulted in Ms Oyston suffering injuries. The college was aware that she was not only at risk of harm, but that she was in fact suffering from a psychiatric injury. Thus the college failed in its duty of care to Ms Oyston.

Schmidt J applied the causative test, as discussed in Woolworths Limited v Strong [2010] NSWCA 282, to find that the element of causation was satisfied:

it was more probable than not that Ms Oyston would not have suffered a psychiatric injury if the college had been exercising the minimum level of care required to satisfy its duty to take reasonable care in relation to the risk of bullying. Despite the stressors in her home environment, and her parents' inability to deal effectively with the consequences of the bullying, the court found that it was the college's failure to deal appropriately with its students' misbehaviour when it came to its attention, as its own policies envisaged, that was the significant cause of Ms Oyston's injuries.

The court rejected the college's argument that Ms Oyston was contributorily negligent for the harm that she suffered because she failed, at the relevant time, to complain about the ongoing bullying. Complaints were made in 2004, and this sufficed in the circumstances, despite the fact that no further complaints were made in 2005, as the college at that stage had abundant notice of her ongoing problems and had failed to act and monitor her in accordance with its own policies and good practice.

Ms Oyston established entitlement to damages for non-economic loss, past and future economic loss as well as medical expenses. With respect to the assessment of damages for noneconomic loss, the court considered the principles discussed by Basten Ja in State of New South Wales v Burton [2006] NSWCA 12, and concluded that no apportionment could be made because of the indivisible nature of the contributing causes. However, it accepted the college's submission that non-economic loss of no greater than 20% of a most extreme case was established.

Past economic loss was awarded on the basis of one year's total loss of earnings, resulting from the need for Ms Oyston to repeat a year of schooling, calculated at her current weekly earnings as opposed to the higher average rate for all females. A buffer for future economic loss was assessed at $50,000, having regard to factors such as Ms Oyston's age, current and expected rates of earning, likelihood of further injury and expected participation in the workforce.

In an interesting subsequent judgment on costs in this matter, Oyston v St Patrick's College [2011] NSWSC 826, Ms Oysten was subject to an indemnity costs order in the college's favour from the point at which she rejected an offer of compromise that turned out to be more favourable than the result in the proceedings (only by a small amount). However, the court exercised its discretion, and ordered that the parties pay their own costs in respect of 75% of the hearing, which it held were occasioned by the college contesting liability, which the court concluded it ought to have admitted consistent with its obligations under s 56 of the Civil Procedure Act 2005 (NSW).

Implications

The risk of psychological injury resulting from ongoing bullying is a foreseeable risk, and requires the implementation of adequate safeguards and steps to prevent injury to those subject to bullying. in this case, the duty of care owed to Ms Oyston required a person in the position of the college, who was made aware of the ongoing bullying, to ensure the practical implementation of a system specifically targeted to deal with bullying and harassment, to bring such behaviour to an end in accordance with good practice and to monitor Ms Oyston to ensure that the bullying did not continue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.