Insights

In brief - Schools which fail to implement their anti-bullying policies risk legal action

In September 2013, the NSW Court of Appeal upheld the decision of the Supreme Court of NSW in Oyston v St Patrick's College, finding that the school was aware that a student was being bullied but failed to respond to her complaints.

Jazmine Oyston v St Patrick's College

The decision on 23 September 2013 in Oyston v St Patrick's College (No 2) [2013] NSWCA 310 is the culmination of events spanning a period of eleven years, where bullying occurred from 2002 until 2005 and was then followed by litigation which commenced in 2007 and continued until 2013.

This decision highlights that bullying is not necessarily a clear cut phenomenon that is easy to identify. More often than not, it forms part of a complex social interchange impacted by a student's home life and school life. (Please see also our article We must bully-proof our schools if we want to bully-proof the workplace and our society.)

Student brings claim in negligence, school pursues claim of contributory negligence

By statement of claim dated 2007, Ms Jazmine Oyston brought a claim in negligence alleging that while a student at St Patrick's College, Campbelltown ("the College"), she was injured as a result of bullying that she had been subjected to by other students between 2002 and 2005.

The College defended the claim and pursued a claim of contributory negligence. In its defence, the College asserted that Ms Oyston had not been subjected to behaviour which amounted to bullying. In the alternative, if she had been, the College asserted that it did not have knowledge of the bullying behaviour.

That the College owed Ms Oyston a duty of care was not in issue. There was no issue that the College had foreseen that bullying could lead to a student being injured and it took steps to prevent such harm from occurring through establishing and implementing anti-bullying policies.

Student testifies that bullying increased over time and school did not take action

Ms Oyston attended the College, a girls' school, for years 7, 8 and 9.

She had come to the College with two friends from primary school, where she had not experienced bullying.

Ms Oyston gave evidence that she was bullied by girls in the popular group.

Ms Oyston testified that initially in 2002, the bullying occurred on average every second day and involved name calling and giggling, especially when she got up to read in class.

She was also mocked in 2002 for not wearing a bikini at the athletics carnival and then teased about the shirt she wore on mufti day.

The bullying intensified in 2003. Ms Oyston testified that she was called "bitch", "dog" and "pimple face" and that she was elbowed, jostled and pushed. She also testified that she joined in the bullying and then became sad, anxious, depressed and confused.

In 2004 the verbal and physical abuse continued. She was grabbed and pushed against a wall, resulting in her becoming anxious about being assaulted. This was the worst year, when Ms Oyston's academic performance dropped, so her parents sought medical advice.

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

Ongoing bullying significantly detrimental to student's health and studies

Ms Oyston testified that in 2004 she became, sad, anxious, depressed and suicidal and made excuses not to go to school.

Finally her parents removed her from the College when she was 15 years of age.

She changed schools and in 2007 commenced a TAFE course in tourism, which she did not complete.

She has pursued other studies which she has not completed. She remains unable to hold down more than part time work.

Ms Oyston called evidence from her parents, but did not call evidence from her friends at the College, nor did she call evidence from her teacher or counsellors she saw at the College, from doctors or from the psychologist who saw her in 2005 after she left the College.

Despite this, contemporaneous documents confirm that other students, teachers, counsellors and doctors were informed of or observed Ms Oyston being bullied at the College.

School admits that its anti-bullying policies not in practical operation from 2002 to 2005

Ms Oyston's year co-ordinator and the deputy principal gave evidence on behalf of the College.

The evidence revealed that the College had implemented two policies which dealt with bullying, contained in its 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 College was that the published policies were not in practical operation from 2002 to 2005.

School perceived bullying to be a problem

The evidence demonstrated that bullying was perceived to be a problem at the College, requiring active steps to redress it.

In 2004 the College engaged an expert to advise it and its staff on how to detect and deal with bullying.

In the same year the College conducted a student survey in relation to bullying.

School was aware of student's anxiety but anti-bullying policy was not implemented

Year co-ordinators had responsibility to deal with bullying in conjunction with members of the College's executive team, including the College's deputy principal.

The evidence demonstrated that Ms Oyston's year co-ordinator failed to implement the anti-bullying policy as required.

The College was aware from at least 2004 that Ms Oyston complained of problems in her personal life, as well as bullying at school, and was therefore vulnerable.

Practical steps were taken to deal with bullying on some occasions. The College was aware that Ms Oyston engaged in self harm in 2004 and it ensured that Ms Oyston received medical attention when she collapsed at school due to anxiety attacks.

The College was also aware that Ms Oyston was being tested and then treated for anxiety and depressed mood.

First instance decision finds school's response to bullying of student inadequate

Based on the evidence, at first instance Justice Schmidt of the Supreme Court of NSW found that the College's response to bullying by way of its implementation of its policies was inadequate so far as Ms Oyston was concerned. In particular, the College did not respond in the way that the expert witnesses agreed that the College should have responded, which was to:

• Investigate the complaint

• If shown to be true then any of the following

- Conflict resolution

- Counselling

- Peer support

- Parental notification

- Punishment

- Follow up

• Maintenance of records

Based on the medical evidence, Justice Schmidt found that Ms Oyston had suffered a psychiatric injury in 2004 and 2005 for which she was successfully treated and recovered in 2007. It was found that Ms Oyston was predisposed to the injury which she sustained as a result of a combination of stressors at home and at the College.

Court of Appeal upholds Supreme Court decision

On 27 May 2013, the unanimous decision of the Court of Appeal of NSW (Macfarlane, JA, Barrett, JA, and Tobias AJA) was released, which upheld the April 2011 decision of Justice Schmidt that the College breached its duty of care by failing to implement in practice the steps contained in its anti-bullying policies.

Outstanding issues of causation, damages and costs were heard on 29 and 30 July 2013.

Court of Appeal increases damages award and orders school to pay student's costs

In a unanimous decision, on 23 September 2013 the Court of Appeal of NSW increased the damages award to Ms Oyston from $116,296 plus interest to $124,938.48. In addition, the College was ordered to pay Ms Oyston's costs at first instance and on appeal. In a further decision released on 3 October 2013, by agreement, the judgment in favour of Ms Oyston in the sum of $124,938.48 was set aside and in lieu judgment was entered for in favour of Ms Oyston totalling $162,207.34.

The preliminary decision of Justice Schmidt of the Supreme Court of NSW involved 10 hearing days over a six month period from 16 June 2010 until 17 December 2010. There were five days of hearing from 11-13 March 2013, 29 and 30 July 2013 relating to the appeal hearing.

In its 23 September 2013 decision, the Court of Appeal highlighted that the College was aware from at least February 2004 that Ms Oyston was vulnerable, suffered from anxiety, and was therefore susceptible to psychological harm if bullied.

Once a complaint of bullying was received, the Court of Appeal held that the College had to follow the steps contained in its anti-bullying policy. It was held that the steps taken by Ms Oyston's year co-ordinator did not provide a sufficient response to Ms Oyston and it was insufficient for teachers merely to be asked to keep an eye out for bullying.

What should schools do about bullying?

In light of Oyston v St Patrick's College, schools should ensure that they take steps to prevent bullying within the school community and reduce the risk of facing legal action for negligence.

• Schools should implement and enforce anti-bullying policies that are drafted with input from staff, students and experts.

• Staff and students should receive regular training on the school's anti-bullying policies.

• Schools should implement a consistent and coordinated approach to managing bullying.

• Training should be provided to the individuals who are responsible for managing bullying.

This article is a condensed version of a paper presented at the Australia and New Zealand Education Law Association's 22nd Annual Conference in Hobart in October 2013. Colin Biggers & Paisley was a sponsor of the conference.

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.​