Adelaide injury lawyer Mal Byrne analyses an important Court decision where a school bullying victim was awarded compensation.
The decision of the New South Wales Supreme Court in the matter of Oyston v St Patrick’s College  (NSWSC 269 13 April 2011) reinforces that schools have to walk the walk and not just talk the talk on bullying. Having policies and procedures in place to deal with bullying isn’t good enough if the school fails to follow through and deal with the bullying and harassment of pupils according to those policies when incidents occur.
Ms. Oyston brought a claim in negligence against St Patrick’s College alleging that she had suffered psychiatric injury as a result of chronic bullying and harassment by other pupils at the school between 2002 and 2005.
The school did have policies and procedures in place in relation to bullying. The evidence showed that:
1. The college was aware that bullying generally was a problem at the school;
2. Bullying was difficult to detect in some circumstances;
3. The college had published policies directed at bullying;
4. In 2004, the college had engaged an expert to advise its staff in how to detect and deal with bullying;
5. In 2004, the college had conducted a student survey seeking information on the students’ own experiences of bullying. The results of that survey showed that a significant number of students had experienced bullying;
6. Year co-ordinators were delegated particular responsibility to deal with bullying in conjunction with other members of the College’s executive team.
In relation to bullying against the victim Ms Oyston, the evidence was that:
1. The college was aware particularly in 2004 that Ms Oyston was experiencing ongoing bullying at school both from Ms Oyston’s complaints and complaints made by her mother, from the observations of staff and information obtained from other students;
2. Practical steps were taken to deal with bullying including on some occasions in relation to the victim;
3. The college had referred Ms. Oyston for counselling in 2002 and 2004 and she herself attended counselling on her own instigation in 2005;
4. Ms. Oyston engaged in self harm in 2004 for which the college sent her for medical attention by ambulance when she appeared to be suffering from seizures which caused her to collapse at school;
5. The college was aware that Ms Oyston had been admitted to hospital on a number of occasions for treatment and she was being treated on an ongoing basis for anxiety and depressed mood.
6. Ms Oyston’s parents eventually withdrew her from the college in February 2005 and brought the claim against the college in April that year.
7. The college published a “personal protection and respect policy” in the student diary.
Unfortunately, not all of the college’s practices reflected the published policies and many of the published policies were not in practical operation at the college during the period when Mr Oyston was bullied. Furthermore, the college itself did not follow through with many of its policies and practices in its dealings with Ms Oyston’s complaint.
Ms. Oyston said the bullying began in Term 3, 2002 when she was in Year 7. The perpetrators were a “popular group” in her Form consisting of a group of girls. The bullying initially took the form of the girls simply walking past Ms. Oyston and making comments to themselves. This escalated to calling her a ‘bitch’ or ‘slut’. They would occasionally yell at her when walking past. The bullying would occur before and after school, during all school breaks, and while Ms Oyston was waiting for her bus home or her mother to pick her up. Name calling would even occur in class. Ms. Oyston estimated that she experienced bullying on average every second day. During a swimming carnival in 2002, Ms Oyston said that she was mocked for not wearing a bikini by the same girls. She never went to another carnival. She was mocked at an athletics carnival for wearing house colours. She was also picked on during Casual Clothes Day where one another girl said “oh dear, my mother has that skirt. Look what she has got on”.
Ms. Oyston said she first complained about the bullying to her English teacher Ms Mills either in 2002 or 2003. The teacher suggested that Ms. Oyston speak to the coordinator. Ms. Oyston said that the bullying intensified in 2003 when she was in Year 8. The girls would call her a ‘slut’, ‘bitch’, ‘dog’, ‘pimple face’ and ‘drama queen’ and continually elbow and jostle her. By now, the bullying was occurring every day. She would even be pushed while running or walking to class or walking downstairs. She was even harassed in public places such as a shopping centre. In August 2003, someone threw a plastic coke bottle and hit her on the head in the playground. She had to be sent by a teacher to the first aid room and ice put on her head.
In 2003, Ms. Oyston reported the bullying to another class teacher who asked her to write down what happened, but took no action. She did refer Ms. Oyston to the school counsellor who was not of much help. The bullying was reported to the Deputy Principal and other teachers. By 2003, Ms. Oyston was starting to suffer from symptoms of psychiatric injury.
In 2004, the verbal and physical abuse escalated further. Ms. Oyston was grabbed and pushed against a wall in the toilets. By this stage, Ms Oyston was afraid of being assaulted every time she went to school and became suicidal. She was admitted to hospital in February 2004 after a panic attack but then had to be taken to hospital again on 17 February 2004. On a number of occasions, the girls would make remarks to her about being in an ambulance. In May 2004, Ms. Oyston was accused of spreading a rumour by one of the girls in the group. She was confronted by that girl and one of her friends and told her to watch her back. She was not allowed to pass. The girls then raised the issue without telling names in a class about the consequence of spreading rumours. This led to a class discussion about rumours which made Ms. Oyston feel very uncomfortable. One of the girls then told her that “it must be nice to have the whole class hate you”. Ms Oyston by this stage was becoming depressed and thought that life was not worth living. She was taking time off school and leaving early. She had to sleep with a night light and was petrified of being attacked while she slept and did not want to get up in the morning. She lost her appetite and weight and would shake uncontrollably. By the time she was withdrawn in February 2005, Ms Oyston was pretending to be sick and making excuses not to go to school. She was withdrawn after a meeting at the college with the Principal and Deputy Principal and her parents. By April 2005, even though she had left the school, Ms. Oyston took an overdose.
The Court accepted Ms. Oyston’s evidence that she was the subject of ongoing bullying. The Court found that the college became aware of the bullying from various sources in 2004. The Court also found that the school was aware that Ms. Oyston was at risk of harm and was suffering from injury due to the bullying that she had received that year. The college referred her for counselling in February 2004. A staff member had conducted an investigation in May which established that bullying had taken place and punishment was imposed. However, the bullying continued. It was from this point that the Court found the college’s response was inadequate. It was not until late November 2004 that the staff agreed that they realised that a pattern of bullying was emerging. The Court was very sceptical about that evidence given what Ms. Oyston had reported in the six months from May to November. The college was aware of Ms. Oyston’s vulnerability in February when she had first collapsed at school. There were ongoing problems of that kind. There were discussions between two staff members and a counsellor and Ms. Oyston’s mother. However, the school had closed the file in June stating that Ms. Oyston was not being further troubled by bullying. Even though that may have been the case, the situation altered soon thereafter but nothing was done. Ms. Oyston eventually wrote a note exhibiting suicidal ideation in November. Nothing was done. Ms Oyston’s health deteriorated further in 2005 and the bullying continued. She stopped notifying the school of the bullying because she didn’t believe they would do anything.
It goes without saying that Schools have a duty of care to pupils. The New South Wales Supreme Court found that the College breached its duty of care to Ms Oyston. The Court found that the College was aware of the bullying. It failed to keep adequate records of all complaints reported by Ms Oyston. The school had referred Ms Oyston for counselling in 2004 and was therefore well aware of the effect the bullying was having upon her. This was following a meeting which Ms Oyston had with the Principal where she raised her concerns about the bullying and identified a perpetrator. The Court found that whilst the College had made some efforts to deal with the bullying in 2002 and 2003, the College completely dropped the ball in 2004 and seemed to become weary of the whole matter.
What this decision demonstrates is that the Courts consider that dealing with bullying is one of the fundamental duties of schools, as the effects of bullying can be so destructive in a child’s development and physical and mental well being. Policies need to be in place, but they must also be implemented and implemented vigilantly, not in a half-hearted or piecemeal fashion as happened in this case. Whether it’s at school, the workplace, the internet, bullying is a cancer eating away at the social fabric, and it’s clear that the Courts have had enough.
Mal Byrne is a Consultant at Tindall Gask Bentley Lawyers. For advice about your bullying issue, contact (08) 8250 6668.
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