NSW Court Dismisses School’s Bullying Appeal

TGB Partner Mal Byrne continues his analysis of school bullying case Oyston v St.Patrick’s College, where the school was found to have breached its duty of care to a student.

In a recent blog, I discussed the New South Wales case of Oyston v St. Patrick’s College.  In that case, a single judge of the NSW Supreme Court found that the college breached its duty of care to a student who had been bullied over a period of four years.  While the school had policies in place on bullying, the court found that the school was liable for the psychiatric injury suffered by the bullied pupil because it had failed to consistently implement its policy when the many instances of bullying that the pupil suffered were reported. Subsequent to that decision, the College appealed to the Full Court. The appeal was unsuccessful.

The facts of the case were disturbing.  The victim Jazmine Oyston began to be bullied in the latter half of 2002 by several girls in what was described as the “popular group” within her class.  Initially, the bullying took the form of sniggering, name calling, nudging and jostling.  However, while the bullying was low level, it was constant and took place before during and after school every second day on average.  The bullying even occurred during swimming carnivals and school sports days.

In 2003, the bullying intensified.  It occurred on a daily basis and escalated to physical bullying which included Ms. Oyston being pushed in the corridor three or four times a week and on one occasion, being struck in the head by a plastic coke bottle.

Ms Oyston reported the bullying to her Year Coordinator who simply asked her to write down what happened and referred her to the college counsellor.  No further action was taken.  Understandably, Ms Oyston became reluctant to report any further incidents to the same Year Coordinator.

Towards the end of 2003, Ms Oyston reported the bullying to another teacher.  She continued to report the various incidents that occurred once or twice a fortnight.  Several incident reports were completed.  Ms Oyston’s mother also complained.  Ms Oyston began towards the end of 2003 to express suicidal ideation.

The most severe bullying took place during 2004. At this stage, Ms Oyston was clinically depressed, experiencing panic attacks and engaging in episodes of self-harming with a razor blade.  On 5 February 2004, Ms Oyston attended a public hospital with what looked like a panic attack.  She reported the bullying to a doctor who wrote a letter to the school.  The school scheduled a meeting the following day. All that was decided at the meeting was that various teachers at the school keep an eye on Ms Oyston and watch out for any bullying incidents.  The perpetrators were not approached or dealt with.

The bullying continued and Ms Oyston became even more unwell.

On April 2004, Ms Oyston was attacked by several girls in the school toilet.  Ms Oyston reported the incident.  Once again, the perpetrators were not approached even though school policy dictated that they should be suspended at the very least.  The school did not take action against any of the alleged perpetrators until August 2004.  All that happened was that the girls were required to enter into a behaviour contract.  One of the girls breached the behaviour contract shortly thereafter.  Towards the end of 2004, it was quite clear that Ms Oyston had developed an eating disorder as part of her overall illness.  The bullying was continuing.  The Year Coordinator arranged various meetings this time with the perpetrators but no action was taken.  Once again, the Year Coordinator simply asked teachers to keep an eye on things.

By early 2005, Ms Oyston was suicidal.  Ms Oyston was admitted to Campbelltown Hospital on 2 March 2005 and was withdrawn from the school shortly thereafter.

The primary judge had found that the college’s responses to the bullying were inadequate.  It had failed to document complaints, act on complaints and to monitor the situation to ensure that Ms Oyston was not subjected to ongoing bullying.  Whilst the bullying policy on paper was fine, it was not being implemented.  The judge pointed out that the school was giving too much emphasis to supporting students engaging in misbehaviour at the expense of protecting the victim.  Instead of insisting that the bullying cease, the school’s approach was to provide the victim with counselling to help the victim better deal with the bullying.

The college appealed the decision to the Full Court arguing that:-

1. Ms Oyston was not being bullied on an ongoing basis and that the episodes were more isolated;

2. That the college was not aware of the full extent of the bullying;

3. That there were no “known bullies” and that the incidents were more isolated;

4. That the college’s policies conferred a discretion upon teaching staff as to how complaints of bullying should be dealt with and that on each occasion that bullying was reported, the relevant teacher exercised the discretion properly, or at least without negligence;

5. That the steps taken by the college were consistent with its written policy;

6. That there was ample evidence that Ms Oyston’s health was monitored.

The appeal court of three judges did not agree with the school.  The Court found that the Year Coordinator drew a “spurious distinction” between what she described as bullying and “inappropriate behaviour”.  Incidences of bullying were classified as inappropriate behaviour and not dealt with as bullying. The Court also found that the bullying experienced by Ms Oyston was relentless, that the college was on notice early in the piece, that the complaints were not adequately investigated and little action was taken.

While the court found that it was not reasonable to expect the school to ensure or guarantee that the student was not bullied, that it was required to take reasonable steps to protect the victim including identifying the perpetrators and to take such action as reasonable to prevent repetition of the bullying by those perpetrators.

Such reasonable steps required that perpetrators be made well aware of the unacceptability of their contact and if that required expulsion, so be it.  At no point did the college really engage in any action that would have deterred perpetrators from re-offending.

What his decision reinforces is that schools must not only have a policy to deal with bullying, but must fully enforce that policy on each and every occasion that an incident is reported.  Where bullying occurs, there is a victim and a perpetrator.  In my experience, schools make the mistake of treating bullying reports as a dispute between two students that has to be mediated and resolved rather than wrong doing where a victim needs to be supported and a perpetrator needs to be made well aware that his/her conduct is unacceptable and that s/he will be punished if s/he doesn’t stop.  The priority should be protection, not peacemaking.

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