Insights

In brief - School failed to apply its own anti-bullying policies

In May 2013, the NSW Court of Appeal upheld the 2011 decision of the Supreme Court of NSW that St Patrick's College breached its duty of care to a student when it failed to apply its own anti-bullying policies when it became aware that the student had been bullied.

Student brings claim of negligence against school after being exposed to bullying

On 13 April 2011, in Oyston v St Patrick's College [2011] NSWSC 269, the Supreme Court of NSW released its decision awarding Ms Oyston, a former student of St Patricks College, $116,296 plus interest in damages arising from harm that she suffered as a result of bullying by other students of the school.

Ms Oyston attended at the school from year 7 to the beginning of year 10, from 2002 to early 2005.

In 2007 she brought a claim in negligence, alleging that she had been harmed as a result of being exposed to bullying by students of the school.

Did the school take adequate steps to satisfy its duty of care?

The issue before Justice Schmidt of the Supreme Court was whether the school took adequate steps to ensure that it satisfied its duty of care owed to Ms Oyston.

Ms Oyston gave evidence that she had been subjected to verbal and physical bullying over the course of three years, from 2002 to 2005, which included name calling, teasing, giggling, sniggering, physical attacks and exclusion.

Ms Oyston testified that she reported the bullying to a number of school staff members over that time period, but the school failed to respond reasonably to her complaints.

Ms Oyston alleged that in 2004 she became sad, anxious, depressed and suicidal. In February 2005, Ms Oyston made excuses not to go to school and her parents removed her from the school when she was 15 years of age.

School claims that student was not bullied or that it was unaware of the bullying

The school asserted that Ms Oyston had not been subjected to behaviour which amounted to bullying. In the alternative, if she had been, the school asserted that it did not have knowledge of the bullying behaviour.

The evidence revealed that the school had implemented two policies which dealt with bullying, contained in the school's Student Conduct Policies & Procedures and in its Personal Protection & Respect Policy.

However, during the relevant period from 2002 to 2005, the Personal Protection & Respect Policy was under review and was in draft form. Further, the evidence of the school was that the published policies were not in practical operation from 2002 to 2005.

Supreme Court finds that school was aware of bullying and failed to respond appropriately

Based on the evidence, the Supreme Court found that the school failed to take adequate steps to deal with and respond to Ms Oyston's complaints of bullying. In particular, it was found that in 2004 the school was aware that Ms Oyston had been bullied, noting that she repeatedly collapsed at school was taken to hospital in 2004.

However, the school failed to deal appropriately with Ms Oyston's bullying complaints, as required under its policies. This was found to be a significant cause of the harm that she suffered.

It was found that the school clearly recognised the risk that bullying could lead to harm to students, given that it had implemented policies dealing with bullying. However, the school breached its duty of care to Ms Oyston when it failed to apply its policies when it became aware that Ms Oyston had been bullied by students.

Ms Oyston appealed the damages awarded and the school cross appealed liability.

Schools must apply anti-bullying policies consistently to prevent harm to students

On 27 May 2013, in Oyston v St Patrick's College [2013] NSWCA 135, the NSW Court of Appeal affirmed the primary judge's ruling that the school breached its duty of care to Ms Oyston in failing to take reasonable steps to end the bullying that it was aware of in 2004.

This case demonstrates that the risk of psychological harm resulting from bullying is a foreseeable risk requiring schools not only to implement, but to apply anti-bullying policies consistently to prevent harm to students subjected to bullying.

Steps should be taken to ensure that staff and students understand, adhere to and enforce the policies.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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