The appeal against the decision of the judge at first instance in a claim for damages against St Patrick's college by Ms Oyston is not controversial but is worthy of careful note by school administrators and their insurers.

Ms Oyston was a year 9 student who suffered bullying from other students at her school that resulted in episodes of self harm, suicidal ideation and mental trauma.

She sued the school and was awarded damages of some $116,000. Ms Oyston appealed the quantum of the decision and the quantum of judgment and the school appealed on liability.

The decision of the NSW Court of Appeal is in relation only to the issue of the school's breach of its duty of care. The appeal was dismissed because the Court of Appeal agreed with the Judge at first instance that the school had done insufficient to stop the bullying.

The decision underlines that fact that the duty to take reasonable precautions may (or probably does) include a duty to ensure that positive steps are taken to prevent or eliminate the bullying behaviour. If there is bullying, and the school is aware of it, it is of course reasonable to conclude that harm is foreseeable. If the school does not then take positive steps to prevent it, any defence that it has acted reasonably is likely to fail. This is very close to saying that anything falling short of actually fixing the problem will not be regarded as amounting to reasonable steps.

The line between taking reasonable preventative action and taking whatever action is necessary to prevent harm may or may not be a fine one, but on the basis of this decision it is one that will need to be identified.

The court has made it quite clear that it is simply unacceptable that any students should have to face the misery of incessant bullying and if it is found to have continued in circumstances that result in the matter coming under judicial review, that state of affairs may well be regarded as determinative of the liability of the school administration in question.

Oyston v St Patrick's College [2013] NSWCA 135

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