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
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.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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