• The duty of care owed by a school, whilst non_delegable, is not to ensure against injury.Ê The duty is to take such measures that are reasonable in all the circumstances.
• Psychiatric injury suffered by a student who has been the victim of bullying is both foreseeable and not insignificant for the purposes of sÊ5B of the Civil Liability Act 2002 (CLA).
• It is insufficient in the discharge of the duty of care to have a policy to deal with bullying but which also allowed the school a wide discretion.Ê Moreover, the policy needed to be followed.

Between 2002 to February 2005, Jazmine Oyston (the Plaintiff) was a student of StÊPatrick’s College, Campbelltown (the College). During that time, the Plaintiff alleged that she was the victim of continual bullying perpetrated by other students of the College.

The bullying included name calling on a daily basis as well as physical bullying, including pushing in the corridor 3Êor 4Êtimes per week and, on one occasion, being struck on the head by a plastic coke bottle. Bullying was not only confined to the schoolyard but also took place on the school bus and, on occasion, in public places, such as the local shopping centre,Macarthur Square.

The Plaintiff alleged that she reported the bullying behaviour on a number of occasions to her Year Coordinator, MrsÊIbbett, as well as 4 other teachers, but inadequate action was taken. Consequently she felt discouraged from reporting matters. On a number of occasions following bullying incidents the Plaintiff’s parents were contacted. The Plaintiff was also referred to the school counsellor but ceased seeing the counsellor after insisting she no longer required counselling.Ê The Plaintiff gave evidence of specific incidents of bullying and her subsequent psychological sequealea resulting in panic attacks and periods of depression.Ê She was admitted to hospital on occasions and referred to the mental health team for the local health district.Ê There was also one incident of self harm at school following an incident between the Plaintiff and some of her antagonists.

The College’s policies in relation to bullying were set out in 2Êdocuments titled ‘Student Conduct Ð Policies & Procedures’ and ‘Personal Protection & Respect Policy’. These policies set down a dispute procedure to be followed by the College when complaints of bullying or harassment were received or such behaviour was observed.Ê The procedure required that bullying incidents be recorded in the “Bullying Register”.Ê The College was forced to concede that no “Bullying Register” was ever implemented.

A bullying survey conducted by the College in 2004 revealed approximately half of the students who responded had been bullied by another student during 2004, and 15% of students reported bullying once or twice a month or more frequently. 2.1% stated they were bullied on a daily basis, whilst 2.4% reported that they had been bullied over several years whilst at the College.

The evidence showed that there was a culture of bullying at the College and that the College was aware of it.Ê The evidence also showed that the College was aware of the identities of some bullies, which included some of the Plaintiff’s antagonists.

One of the Plaintiff’s antagonists had been placed on a “behaviour contract” as a result of other behaviour.Ê The penalty for failing to comply with the behaviour contract was expulsion from the College.Ê OnÊ2Êor 3Êoccasions this person breached the contract, including in relation to her conduct towards the Plaintiff.Ê Notwithstanding this, she was not expelled.Ê The College argued that on the last occasion this was due to the fact that it was only 3Êweeks before the end of the school year and it was known that she would be leaving the school at the end of the year.

The Plaintiff argued that the breaches of the College’s duty of care included failure to devise, implement and maintain an adequate anti_bullying program; failure to act upon the Plaintiff’s complaints of bullying; and failure to adequately investigate and prevent the bullying of which the Plaintiff complained by supervising, disciplining and counselling the perpetrators.

The Plaintiff argued that a reasonable response by the College to bullying as required by the College’s own bullying policies would have comprised an investigation of the incident, interviewing the perpetrator, completion of an incident report, recording the incident in the ‘Bullying Register’, completing a student intervention slip, mediation, counselling for the perpetrator and counselling for the victim. ÊIt was noted the policies allowed for detention, suspension and expulsion, at the discretion of the College, for repeated offences.

The Plaintiff argued that only counselling was provided in her case, and notwithstanding a number of incidents of bullying against the Plaintiff the relevant risk of harm went unaddressed. ItÊwas submitted this set a bad example for other students and caused psychological injury to the Plaintiff.Ê In particular, the Plaintiff pointed to the failure of the College to expel the student that was on the behaviour contract.Ê She argued that the expulsion of that student would have sent a clear message to other perpetrators of bullying.

At the original trial the College accepted that it owed the Plaintiff a duty of care.Ê However, it put in question whether the bullying had, in fact, taken place.Ê Even if it had taken place, the College argued that its response was adequate.Ê It further put in question whether the Plaintiff had suffered a psychological injury and, if she did, whether it was causally related to the alleged bullying.

Supreme Court Decision

The matter was originally heard by SchmidtÊJ. ÊHer Honour found the College negligent and entered a judgment in favour of the Plaintiff on 13ÊApril 2011.Ê She awarded the Plaintiff damages in the sum of $116,296.60 plus interest on 17ÊOctober 2011.

The primary judge was satisfied, despite the Plaintiff’s credit issues and some inconsistencies in her evidence, that the Plaintiff had been the subject of ongoing bullying and that such bullying came to the College’s attention in early 2004.

The primary judge found that the College considered bullying to be of sufficient concern to justify the development of the College’s policies in relation to bullying; namely ‘Student Conduct Ð Policies & Procedures’ and ‘Personal Protection & Respect Policy’.Ê Notwithstanding these policies, the primary judge found that the College failed to respond adequately, or in some instances at all, to the complaints of bullying relating to the Plaintiff.Ê In particular, her Honour found that the College failed to implement its own policies.

It was noted by SchmidtÊJ that the College was under an obligation to not only meet their legal duty but also to educate and support students through adolescence.Ê Her Honour acknowledged this was a difficult task but found the College had failed to achieve the right balance. She found there had been an overemphasis on supporting certain students who engaged in bullying at a cost to the Plaintiff.

Ultimately, the primary judge found that the College’s failure to deal with known bullies breached its duty of care to the Plaintiff. ÊIn coming to this conclusion, SchmidtÊJ was critical of the College’s failure to follow its own procedures and noted that the College’s response to bullying had been proved to be ad hoc rather than systematic.Ê Her Honour distinguished Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu & AnorÊ[2] finding that the signs of psychiatric illness in the Plaintiff’s case had clearly reached a level where it was necessary for the College to have intervened.

The primary judge rejected the College’s submission based on the observations of the High Court in Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v HadlaÊ[3] that it is unreasonable to require a school to provide supervision in all areas at all times, or to observe children during particular activities for every single moment of time. Rather, her Honour found that the College was well aware in 2004 of persistent bullying amongst students and that the Plaintiff was a particularly vulnerable student and was the victim of ongoing bullying. Accordingly, Her Honour stated[4] that: “[this was] not a case where an unrealistic standard of impractical perfection was being demanded of the College, but rather one where practical operation of the policies it had designed to protect its students against the risk of injury to which ongoing bullying exposed [them was required]”.

Court of Appeal Decision

The Plaintiff appealed the damages awarded by the primary judge. The College cross_appealed on liability.Ê The appeal was listed for 2Êdays which was wholly taken up with the argument on the issue of breach of duty. Thus, on 13ÊMarch 2013, the appeal and cross_appeal insofar as they related to the primary judge’s findings on causation, damages and costs, was adjourned to a date to be fixed.Ê This judgment simply dealt with the question of breach of duty of care.

The College’s submissions with regards to breach of duty included:

• The primary judge did not grapple with the “inherent contradiction” between the evidence of the Plaintiff and her mother and the contemporaneous records.
• There was no basis for concluding that the Plaintiff was being bullied on an “ongoing” basis or at all.
• There was no basis for concluding the College knew or ought to have known that the Plaintiff was being bullied.
• The primary judge erred in finding that the College breached its duty of care by failing to deal with known bullies.
• The primary judge erred in finding first, without sufficient reasons, that the steps taken to respond to complaints of bullying were inadequate and, secondly, that “good practice” required that other steps be taken without identifying what was “good practice”.
• The primary judge erred in finding that the steps taken by the College were neither consistent with the College’s policies nor adequate to ensure that the Plaintiff was protected from ongoing misbehaviour.
• The primary judge had conflated the non_delegable nature of the duty with the content of the duty, such that the duty to ensure reasonable care was taken became a duty to ensure that an outcome was procured.
• There was ample evidence the Plaintiff had been “probed” by the College in an effort to ascertain the truth of her insistence that she no longer needed counselling.

The Plaintiff submitted with regards to breach of duty that:

• It was never put to the Plaintiff that she was not bullied or what she said had occurred did not occur.
• The Plaintiff was a reliable witness which was supported by documentary evidence, despite the Plaintiff’s difficulties of memory. The College made no submissions that the Plaintiff’s evidence ought not be accepted unless it was independently corroborated.
• To the extent that documents were lacking, this was a shortcoming of the College.
• The College was aware the Plaintiff was vulnerable and that there was a relationship between that vulnerability and the bullying to which she was subjected and despite this knowledge the College failed to investigate multiple complaints of bullying.
• The College failed to take steps, which a reasonable school would have taken, as demonstrated by the discrepancy between the College’s actual response and the three step processes outlined in the College’s policy.

TobiasÊAJA in the Court of Appeal delivered the unanimous judgment.

TobiasÊAJA held that the approach “in practice” adopted by MrsÊIbbett and her interpretation of the College’s policies was properly rejected by the primary judge as clearly inconsistent with the clear words of the College’s policies.

The Court found it was open to the primary judge to find that the Plaintiff was, particularly during 2004, regularly, if not relentlessly, bullied.Ê Moreover, the Court agreed with SchmidtÊJ’s rejection of the College’s submission that the bullying of the Plaintiff only occurred on isolated occasions and finding that the College was aware of the bullying from early 2004.

Whilst the Court agreed with the College’s submission that it was not required to ensure or guarantee that the Plaintiff would not be bullied, the Court found that in performing its duty of care towards the Plaintiff the College was required to take reasonable steps to ensure the Plaintiff was protected from bullying. This included taking reasonable steps to identify the perpetrators and take action as was reasonable to prevent repetition by those persons. ÊThe Court further found the College was aware of the scope of its duty.

The Court accepted that the risk of psychological harm to the Plaintiff from bullying was both foreseeable and not insignificant within the meaning of sÊ5B of the CLA. In the Court’s view, the steps taken by the College did not provide a reasonable response to the not insignificant risk of harm. ÊIn coming to this conclusion the Court relied upon the following:

• That the steps taken by the College were insufficient when measured against the College’s own policies;
• There had been a failure by the College to carefully investigate the Plaintiff’s allegations and to act on them if they were substantiated;
• The College had accepted that a failure to follow its own procedures would send the wrong message to others yet it did not follow through on its policies and in particular threats of expulsion to one student.Ê As TobiasÊAJA stated[5] “Empty threats were of no use”.

Accordingly, the Court held that the appeal by the College to the primary judge’s finding on breach of duty failed. The question of costs was adjourned to be heard with the outstanding issues of causation and damages.

This case reaffirms that whilst a school has a non_delegable duty of care, that duty of care is not a strict duty.Ê The school need only take measures that are reasonable to prevent injury in all the circumstances.

That said, the case puts schools on notice that in circumstances where the school is aware of bullying it is not enough to have in place anti_bullying policies.Ê Those policies need to be implemented by the school to ensure they do not breach their duty of care.

From a wider perspective, the case demonstrates that if a defendant relies upon policies to defend a claim in negligence then not only is it best practice for the policies to be documented but also there should be a clear contemporaneous record of the policies being followed and implemented.