The New South Wales Court of Appeal recently dismissed a cross-appeal by St Patrick’s College (College) to overturn a judgment from the New South Wales Supreme Court where it was found that the College’s failure to take reasonable steps to stop the bullying of a student, meant the College was responsible for the subsequent psychological injury suffered by that student. The College’s liability arose from its failure to act in accordance with its own bullying policies to prevent and stop acts of bullying.
Jazmine Oyston (Student) attended St Patrick’s College, an all girls’ school, in New South Wales. The College published two policies in its diary in relation to bullying entitled “Student Conduct – Policies & Procedures” and “Personal Protection & Respect Policy”. Although both policies were labelled “draft” in the College diary, the Court found that the existence of the policies demonstrated that the College considered bullying to be of such concern that it justified the development of policies outlining suitable responses.
The Court found that the College was aware that the Student had claimed she was being bullied in February 2004 and the evidence disclosed that the College was at least aware of further instances of bullying in April, May, November and December of that year. The bullying consisted of name calling and physical attacks such as being pinned against a wall as well an attempt to push the Student down a set of stairs.
The College also knew from about February 2004 that the Student was suffering from anxiety and panic attacks and was therefore at risk of psychological harm. The Student subsequently suffered a psychological injury which was later diagnosed as an Adjustment Disorder with Anxiety and Depressed Mood. The Student was successfully treated for the condition and had recovered by 2007.
Given the regularity and severity of the bullying that was taking place, the Court at first instance found 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].1
Consequently, the Court held that:
It was the College's negligence in not dealing with that ongoing misbehaviour when it came to its attention, as its own policies envisaged, which resulted in Ms Oyston suffering injuries. Those injuries were the direct result of the College's failure to take the very steps it had devised to prevent such injury being inflicted by one student upon another.2
The Court went on to find:
Even if the injury which she suffered was disproportionate to what might be expected to have result (sic) from the bullying to which she was subjected at school, I am satisfied on the evidence that is not a basis for concluding that the College was not responsible for the harm which resulted from the bullying to which she was then subjected. I am satisfied on the evidence that the necessary causation has been established. But for the bulling (sic) to which she was subjected at school, she would not have suffered the injury which she sustained. The scope of the College’s liability extended to the harm which was caused.3
The Court at first instance awarded the Student $124,938.48 in damages.
Court of Appeal decision
The Student appealed the amount of damages awarded and the College cross-appealed the primary judge’s findings in relation to causation. The College argued that even if the College had taken the steps outlined in the initial decision, the bullying behaviour the Student was subjected to would not have changed and secondly that the evidence did not establish that the harm the Student had suffered was a consequence of bullying.
The Court of Appeal found that the College:
Recognised bullying could affect the well being of a student and that those bullied were at risk of developing a psychological injury as a consequence of being bullied.
Was aware that bullying was taking place within the College and had an anti-bullying policy in place which required action to be taken in response to any complaints of bullying.
Was obligated in fulfilling its duty of care to take reasonable steps to ensure that those who reported being bullied were protected from bullying. This required the College to investigate claims of bullying to ascertain the identity of the bully and take reasonable action to prevent the bullying continuing.
Failed to take reasonable steps to stop the bullying in this case. It was not sufficient to merely ask teachers to keep an eye out for bullying once the complaint had been received by the College. It required the College to investigate the allegations and to act on them if substantiated.
During the appeal the College ultimately conceded that the Student had suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a consequence of what happened at the College. Therefore, in relation to the causation issue, the only matter to be decided “was whether, if the College had taken the appropriate measures, the bullying of the Student would have been prevented, such that she would not have suffered psychological injury.”4
In this regard, the Court of Appeal found that:
The application of common sense leads, in my view, to the conclusion that it is more probable than not that, but for the failure of the College to actively implement the policy, the psychological injury to the appellant would not have occurred or at least would have been minimised…there can be little doubt…that her psychological injuries were materially contributed to by the bullying that she was forced to endure during 2004 as a consequence of the College’s breach of its duty of care.5
The Court of Appeal also increased the amount of damages payable to the Student because the primary judge had failed to adequately account for the increased likelihood that the Student will be more susceptible to psychological injury in the future due to the negligence of the College in allowing the Student to be bullied at school. The increase in the amount of damages will be determined by the parties.
Lavan Legal comment
Although this matter involved bullying within a school environment, the legal principles involved apply to any organisation or business. Employers have an obligation to investigate claims of bullying and to act in accordance with their policies. Failure to act or to implement a bullying policy could incur liability for harm that may be consequently suffered. Liability for the injury will not be reduced merely because the person is overly sensitive.
1 Oyston v St Patrick’s College  NSWSC 269 at para 314
2 Ibid at para 320
3 Ibid at para 331
4 Oyston v St Patrick’s College (No 2)  NSWCA 310 at para 61
5 Ibid at para 71