QUT Digital Repository: http://eprints.qut.edu.au/

Butler, Desmond A. (2006) Liability for Bullying at Schools in Australia: Lessons Still to be Learnt. Education Law Journal, 7(4). pp. 243-254.

© Copyright 2006 Jordan Publishing

LIABILITY FOR BULLYING AT SCHOOLS IN AUSTRALIA:

LESSONS STILL TO BE LEARNT

Professor Des Butler1

1. Introduction

Despite the implementation of a wide variety of intervention initiatives, the experience

of bullying is common for children in schools in Western societies, whether

experienced as a victim, bully, onlooker or combination of the three. Bullying

behaviour has been seen as occurring in a broad range of socio-economic groups

and across urban and rural settings.2 In addition, bullying may be experienced

irrespective of the child‟s age, physical attractiveness, or socio-economic status.3

Although prevalence estimates may vary according to the data collection methods

used, a study by Nolin4 suggests that between 80 to 90 percent of preadolescents

and adolescents encounter physical and/or psychological bullying at some time

during their school life. Such figures show that bullying is a problem worldwide that

creates negative lifelong consequences for both bullies and victims.5

Like the United Kingdom, Australia is becoming a more litigious society. This includes

a greater willingness on the part of persons who have sustained injury to seek to

attribute legal responsibility for that injury to another, particularly where that other is

perceived to be well resourced, including government entities or organisations

supported by liability insurance, such as school authorities. Adverse effects resulting

from bullying have therefore been framed as damage resulting from a breach of duty

by the school in failing to prevent such bullying.6 The result, in some cases, is a

diversion of limited government resources or an increase in insurance in premiums.

1 LLB(Hons), PhD. Professor of Law, Faculty of Law, Queensland University of Technology,

Brisbane, Australia. 2 J Swain, “What does bullying really mean?” (1998) 40 Educational Research 358.

3 MM Vermande et al, “Structural characteristics of aggressor-victim relationships in Dutch

school classes of 4 to 5 year-olds” (2002) 26 Aggressive Behavior 11. 4 M Nolin, “Victimization at school” (1996) 66 Journal of School Health 216.

5 ME Muscari, “Sticks and stones: The NP‟s role with bullies and victims” (2002) 16 Journal of

Pediatric Health Care 22. 6 Reports of recent actions against schools which have appeared in the Australian media

include S Butcher, “Student wins $76,000 nine years on”, The Age, 21 June 2003; F Walker, “Trinity settles out of court with bullying victim”, Sydney Morning Herald, 9 February 2003; “Court awards $60,000 to bullied student” news.com.au 26 August 2003.

2

Many if not most cases of alleged failure to prevent bullying, particularly those

involving private schools, have been settled, perhaps through a desire of avoiding

undesired publicity or the setting of unwanted precedent. The cases that have

reached a court decision have revealed the difficulties that may be associated with

such claims. Of course, school liability for bullying is but an instance of the broader

issue of a school‟s duty of care, so that there are issues considered in non-bullying

cases that may nevertheless still be relevant. Added to the mix, a perceived

insurance crisis in 2002 led to hastily drawn tort reform legislation in all eight

Australian jurisdictions, which is not only not uniform but which may also have further

complicated this type of personal injuries claim. This article will offer a critique of the

current Australian position, drawing comparisons with the English position where

appropriate.

2. What is bullying behaviour?

One difficulty that besets psychological studies of bullying at schools is that different

researchers rely on different definitions of the behaviour they are studying. Despite

these inconsistencies, many definitions share common elements such as an intent to

harm, provocation, repetition of behaviour, an imbalance of power, and impact on the

victim.7 It is clear that initial thinking that may have been limited to acts of physical

aggression has now been expanded to include verbal aggression, such as name

calling, and aggression of a more psychological kind, such as deliberate exclusion

and rumour spreading.8 Nevertheless, the view that to constitute bullying aggression

must be repeated is not universal. Rigby,9 a leading researcher in the field, points

out that common usage permits bullying to be regarded as including single

encounters. Naturally, it might be observed that in other contexts, a single

traumatising incident may result in psychiatric injury.

One English judge accepted that bullying should be defined as unprovoked, intended

to hurt and persisting over a period of time.10 However, it was noted on appeal that

in law “there is no magic in the term bullying”.11 Thus, for example, Australian cases

7 S Guerin and E Hennessy, “Pupils‟ definitions of bullying” (2002) 17 European Journal of

Psychology of Education 249 8 K Rigby, New Perspectives on Bullying (Jessica Kingsley Publishers: London, 2002); D

Olewus, Bullying at school: What we know and what we can do (Blackwell Publications Ltd: Cambridge MA, 1993). 9 K Rigby, New Perspectives on Bullying (Jessica Kingsley Publishers: London, 2002)

10 Bradford-Smart v West Sussex County Council [2001] ELR 138 (Garland J).

11 [2002] ELR 139 at [38] per Judge and Hale LJJ and Sir Denis Henry.

3

have held a school to have breached its duty of care towards a student by an

inadequate response to one-off instances of physical contact12 or physical fighting.13

Some of these cases have referred to the contact in question as “bullying”

notwithstanding the absence of the element of repetition commonly required by

sociology or psychology researchers.

It has been suggested that instances of bullying behaviour are better viewed as a

continuum rather than all being of the same nature. Variables that may be taken into

account include the nature of the action (eg physical or mental), the duration (eg

short or long time), and the frequency (eg weekly or more frequently). Rigby14

suggests that this enables bullying to be described in terms of:

Low severity – commonly involving thoughtless periodic teasing, name calling and

occasional exclusion, and regarded as annoying and unpleasant.

Intermediate severity – victim is subjected, for a time, to forms of harassment that

are both systematic and hurtful including cruel teasing, continual exclusion and

some threats or other relative mild physical abuse eg pushing or tripping.

High severity - where the harassment is particularly cruel and intense especially if

it occurs over an extended period and is very distressing to the victim, frequently

involving serious physical assaults but may still be severe when the bullying is

non-physical as in total or almost total exclusion from groups.

The notion of a continuum of seriousness is valuable since having regard to only so-

called “real” acts may overlook behaviour that is nevertheless clearly undesirable and

causing the target to suffer stress, anxiety and/or feelings of powerlessness.

Technology has presented new opportunities for bullying. So-called “cyberbullying”15

may involve, for example, the use of email, mobile telephone calls, SMS text

12

See, eg, Copping v State of South Australia (1997) 192 LSJS 109; Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399. 13

See, eg, Warren v Haines (1987) Aust Torts Reports 80-115 (NSW CA); Gray v State of New South Wales (unreported, NSW Sup Ct Grove J, 17 February 1998); Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Reports 81-577. 14 K Rigby, New Perspectives on Bullying (Jessica Kingsley Publishers: London, 2002), 41-42. 15

A term attributed to Canadian Bill Belsey. See website <http://cyberbullying.ca/> and in particular the featured article B Belsey “Cyberbullying: An Emerging Threat to the Always On Generation”, 8 (accessed 19 June 2006).

4

messaging, chat rooms, web sites and “happy slapping”16. Technology, however, has

attributes that may increase the impact of the behaviour. These include anonymity,

ease of access, size of audience, an increased sense of helplessness on the part of

the victim, and the ability to reach the victim even when he or she is in a place

previously considered safe, including home. The use of technology also means an

absence of non-verbal cues which ordinarily assist in determining whether behaviour

is intended to be playful or hurtful.

Bullies may act individually or in a group, while targets may also be individuals or

groups.17

3. Tort reform legislation in Australia

In 2002 Australia experienced widespread dramatic increases in insurance rates.

The increases threatened the viability of many activities including school fetes, pony

rides and sporting activities. While the media was replete with stories of a crisis

befalling an insurance industry struggling to cope with the weight of excessive

compensation awards, the increases were more likely due to factors which included

the collapse of a major insurance company and of a medical insurance fund, both as

a result of poor management practices, artificial suppression of insurance rates

through undercharging by that insurance company, the financial after-effects of the

September 11 terrorist attacks and a cyclical increase in premiums.18 Nevertheless,

the Federal Government convened an inquiry chaired by Supreme Court judge

Justice Ipp and also consisting of a legal academic, medical doctor and city mayor

with the task of reviewing the law of negligence as it applied to personal injury claims.

A preliminary report was due after only two weeks and a final report after only seven

weeks, these periods to include all consultations and consideration of submissions.

The task was made even more difficult for the panel by the absence of any empirical

evidence produced by insurance companies to substantiate claims that the industry was

16

A term used to describe an assault, often violent, upon an unsuspecting target which is video-recorded and later displayed for supposed comedic purposes, increasingly on the Internet: see, eg, M Shaw, "Bullies film fights by phone", The Times Educational Supplement, 21 January 2005. 17

While it might be that bullying behaviour will more frequently arise in the context of student protagonists, it is possible to conceive of a power imbalance and misuse of power in the context of a teacher bullying a student or group of students, or a student or group of students bullying a teacher. The liability of schools in such cases will involve issues such as vicarious liability and workplace stress which are beyond the scope of the discussion in this article. 18

See JJ Spigelman, “Negligence and insurance premiums: Recent changes in Australian law” (2003) 11 Torts Law Journal 291.

5

indeed in crisis. The final report was devoid of any justified foundation, economic or

otherwise, and instead expressly claimed to be “based primarily on the collective sense

of fairness of [the four panel] members, informed by their knowledge and experience, by

their researches and those of the Panel‟s secretariat”.19

The panel‟s final report made a set of recommendations that could be enacted as

uniform legislation by Australia‟s six States and two territories. The result was been

far from a uniform response, the recommendations only being enacted to varying

degrees by the eight jurisdictions. Indeed, in some cases legislation has been

enacted that is either contrary to the recommendations, or which is a variation or

embellishment upon what was recommended. In addition, all jurisdictions have

enacted reform measures which were not recommended by the panel. The resulting

is a hotchpotch of legislative provisions which present a challenge for anyone

seeking to compare the law on a particular issue across the jurisdictions.

3. Liability for students bullying students: some difficulties

At common law an Australian school authority – which will be either a State or

Territory in the case of a public school, or typically a church diocese, trust or

incorporated company in the case of a private school – owes its pupils a non-

delegable duty to ensure that reasonable care is taken of them while they are on

school premises at a time when the school is open for attendance.20 The school

authority is obliged not only to employ proper staff but also to take reasonable care of

the child.21 In the High Court of Australia it has been acknowledged that this duty

“extends to protecting the pupil from the conduct of other pupils.”22

The duty was once seen as arising by virtue of any implied delegation of authority

from the parents. Classic descriptions of the duty of a schoolmaster include that of

Lord Esher: “such care … as a careful father would take of his boys”.23 However, this

formulation has been criticised in the High Court as being unrealistic in the case of a

19

Review of the Law of Negligence, Final Report (2002), 32. 20

Commonwealth v Introvigne (1982) 150 CLR 258 at 264, 269. In Australia the liability of a school authority for failure to prevent a student being bullied by a fellow student has been addressed exclusively in terms of this common law duty. There has been no attempt to frame the action on the basis of, for example, a breach of any statutory duty cf breach of the English School Standards and Framework Act 1998, s 64(1)(b). 21

Ramsay v Larsen (1964) 111 CLR 16 at 28 per Kitto J. 22

New South Wales v Lepore (2003) 212 CLR 511 at 565 per McHugh J. 23

Lord Esher in Williams v Eady (1893) 10 TLR 41 at 42.

6

schoolmaster who has the charge of a school with some 400 children, or of a master

who takes a class of 30 or more children.24 It is now recognised that rather than

being based on any notion of the school authority or teacher being in loco parentis25

in the case of a State/Territory authority the duty is based on the exercise of

governmental power and setting up a system of compulsory education, while in the

case of a private school authority it arises from the contractual arrangement between

the school and the pupil‟s parents or guardian.26 The duty arises due to the potential

for harm of those who may be vulnerable and due to the school authority assuming

responsibility for the child‟s protection.27 This has implications for issues such as the

standard of care expected from school authorities and teachers as trained

professionals.

The common law in Australia, like the United Kingdom, requires a plaintiff to show a

duty of care, breach of the duty and resulting damage. Liability for bullying raises

issues relevant to each of these elements, as well as the defence of contributory

negligence.

Scope of the duty

The scope of this duty is problematic. It is not confined to school hours or to the start

of the teachers‟ hours of employment at the school. This is particularly significant if

pupils are allowed to be in the school grounds prior to the time during which teachers

are on classroom duty: in Australia the scope of the duty depends upon not so much

the teacher‟s ability to effectively perform the duty as “whether in the particular

circumstances the relationship of school teacher and pupil was or was not then in

existence”.28 This test is intended in the meaning of whether in a temporal sense the

relationship had arisen or ended for the particular day as opposed to, for example,

whether the pupil was properly enrolled or not. On this rationale, the duty is seen as

extending to school activities that take place outside the school premises such as

school excursions whether for educational, recreational or sporting purposes. School

24

Geyer v Downs (1977) 138 CLR 91 at 102 per Murphy and Aickin JJ. 25

Ibid. 26

Ramsay v Larsen (1964) 111 CLR 16 at 25-26; New South Wales v Lepore (2003) 212 CLR 511 at 563. 27

Richards v Victoria [1969] VR 136 at 138-139. 28

Geyer v Downs (1977) 138 CLR 91 at 94 per Stephen J.

7

policies and procedures, including any prohibition on bullying, should therefore

extend to such excursions.29

However, perhaps the most difficult issue for schools in practice is in knowing how far

they should intervene in other matters occurring beyond the school gate. An English

judge once observed: “One can think of circumstances where [the duty] might go

beyond [the school gates], for example if it were reasonable for a teacher to

intervene when he saw one pupil attacking another immediately outside the school

gates.”30 Nevertheless, in cases involving bullying on the way to or from school,

British courts have found that either the incident occurred at a time when the student

had “left the charge” of the school,31 or that the teacher involved had taken

reasonable care in the circumstances.32

There is also Australian authority recognising that liability in a case involving an

incident after school hours and outside school premises. In the New South Wales

case Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman33

the 12 year old plaintiff was struck in the eye with a stick while he was waiting to

catch a bus home from school at a bus stop situated 400 metres from school

grounds. The plaintiff and his friend had been playing in a tree near the bus stop

when they were pelted with sticks and rocks thrown by high school students. The

incident was regarded as falling within the school‟s duty of care. It was held that the

extent and nature of the duty of the teacher to the pupil is dictated by the particular

circumstances, rather than the ring of the school bell or the closing of the school

gate. While, for example, older children might leave the environs of a small country

high school located on a quite street in comparative safety, young children leaving a

primary school located on a busy highway in a big city, as occurred here, may

confront a variety of dangers. For example, school busses and parents may arrive

late, major streets may have to be crossed or, as in this case, high-spirited children

may congregate outside the school waiting to be taken home.34 In the final result,

Shellar JA (with whom Priestley JA) agreed that the trial judge had not erred in

29

Cf Cotton v Trafford Borough Council (unreported, Manchester County Ct, Holman J, 6 October 2000). 30

Bradford-Smart v West Sussex County Council [2002] ELR 139 at [32] (CA). 31

Ibid. 32

See, eg, Scott v Lothian Regional Council (1998) Scottish Outer House Cases, 29 September 1998. See also Bradford-Smart v West Sussex County Council [2002] ELR 139 at [36] (CA). 33

(1996) Aust Torts Reports 81-399. 34

Ibid at 63,597.

8

finding that the circumstances the school authority had breached its common law

duty due to its knowledge that its students routinely used the bus stop and because it

ought to have known of the mischief that is likely when children of different ages and

from different schools mix without adequate supervision.

In that case Shellar JA also remarked obiter that depending on the circumstances a

school authority‟s common law duty could extend to pupils on the journey on the bus

or while they were walking to or from school. Thus, if the school authority “were

aware … that on a particular journey older children habitually and violently bullied

younger children, the duty may well extend so far as to require the school to take

preventative steps or to warn parents. This duty would be founded in the relationship

of teacher and pupil.”35

The test of whether the relationship of school teacher and pupil was or was not in

existence at the relevant time was first proposed in a case involving students who

were allowed onto school grounds before official school hours and before supervision

was available, primarily for safety reasons.36 The relationship was nonetheless found

in that case due to the principal prescribing rules of conduct for the students involved

(eg sit quietly, no playing of sports etc). It may be true in Australia as in England that

a “school cannot owe a general duty to its pupils, or any one else to police their

activities once they have left its charge …that is principally the duty of parents and,

where criminal offences are involved, the police.”37 However, where a school,

perhaps through fears for the safety of its students at a particular bus, train or ferry

stop – whether due to physical risk or perhaps risks associated with others who may

frequent that stops – directs its students to use another, particular stop, it may be

possible to argue that the school is prescribing the conduct of its students and

thereby creating the relationship of schoolmaster and pupil such that a duty of care

would be owed.

It is suggested that this ought to be the approach to cases of cyberbullying, an issue

yet to be considered by the Australian courts. Certain instances of such behaviour

may occur within the scope of the school‟s duty. For example, use of school

computers to send offensive or aggressive emails or to be offensive or aggressive

towards another student in a chatroom would be caught by the duty. Similarly

35

Ibid. 36

Geyer v Downs (1977) 138 CLR 91. 37

Bradford-Smart v West Sussex County Council [2002] ELR 139 at [32] (CA).

9

students using mobile phones to SMS offensive or aggressive messages to a fellow

student whilst on school premises or otherwise under school supervision would also

be within the scope. This should include where the recipient of the message or

posting is at home. In such cases, it would be reasonable to expect a school

authority or teacher to, for example, implement appropriate policies such as banning

the unauthorised use of mobile telephones on school premises or excursions and

otherwise monitor the use of facilities like email and chatrooms so far as possible.

Even then there may be some cases of cyberbullying that will be beyond the best

endeavours of a reasonable school authority or teacher, such as bullying by omission

including deliberate refusal by one or more students to respond or even acknowledge

the chatroom postings of another student. The school authority should not be liable in

such cases. Further, instances of electronic communications occurring between

students but not occurring on school premises or a school excursion should fall

outside the school authority‟s duty and instead be the concern of parents, and if

necessary, the police.

Normal fortitude

Bullying frequently results in psychological harm independent of bodily injury. In

Australia, in a “primary victim” type relationship,38 the duty of care in such a case

depends upon foreseeability of the risk of recognisable psychiatric illness being

suffered by the plaintiff,39 not merely some form of personal injury, whether physical

or psychological, as is currently the case in England.40 Further, the High Court in

Tame v New South Wales has now rejected a requirement of normal fortitude as a

pre-condition in all psychiatric injury claims.41

38

As opposed to a “secondary victim” scenario which involves a plaintiff suffering psychiatric injury as the result of perceiving the death, injury or imperilment of another person as the result of the defendant‟s conduct. 39

Mount Isa Mines v Pusey (1970) 125 CLR 383. 40

Page v Smith [1995] AC 155. 41

Tame v New South Wales (2002) 211 CLR 317. This is true also in relation to primary victim claims in England following Page v Smith [1995] AC 155. “Normal fortitude”, or an expectation that the plaintiff in some way conform to the fortitude expected of a “normal” person had been proposed by some judges as a precondition to a duty of care being owed: see, eg, Morgan v Tame (2000) 49 NSWLR 21 at 42 (per Mason P); Bourhill v Young [1943] AC 92 at 110 (per Lord Wright), 117 (per Lord Porter). The concept differs from the “egg shell skull rule”, which is a rule concerning recovery of damages. If an extra-sensitive plaintiff is able to establish that a duty ought to be recognised, either because a “normal” person would have suffered psychiatric illness in the circumstances or because the defendant knew or ought to have known of the plaintiff‟s extra-sensitivity, the fact that the extra-sensitivity results in the plaintiff suffering greater damage than a “normal” person will not, by virtue of the egg shell skull rule, prevent the plaintiff recovering with respect to the whole of that damage.

10

The Ipp inquiry had no specific term of reference concerning claims for psychiatric

injury. However, there were general terms of reference concerning the elements of

the negligence action and the panel saw fit to make a number of recommendations

limiting claims for mental harm. One recommendation enacted by all Australian

jurisdictions except Queensland and the Northern Territory was that there should be

no duty of care not to cause pure mental harm (now described in the legislation as

“recognised psychiatric illness”) unless, absent knowledge of particular susceptibility,

the defendant ought to have foreseen that a person of normal fortitude might suffer

psychiatric illness if care was not taken.42 The recommendation was purportedly

intended to give effect to Tame v New South Wales which was handed down shortly

before the inquiry was held43 but evidently represents a misreading of the case and in

fact gives effect to the views of only two of the seven judges (McHugh and Callinan

JJ).

Normal fortitude is an inherently difficult concept, largely stemming from the fact that

it is medically invalid: society is made up of people of varying susceptibilities and

breaking points and no one person can be said to be “normal” or “average”. Little

wonder, then, that where the court has taken evidence on the matter it has not ventured

beyond psychiatrists giving evidence in the nature of ex cathedra assertions without

any attempt at justification or explication,44 or to “normal fortitude” being a matter of

judicial notice45 or now, in McHugh J‟s terms, an application of a community

standard.46 Rather than leave the foreseeability of normal fortitude as a matter of

unguided intuition, the Ipp panel recommended that the following factors should be

taken into account: whether there was sudden shock; proximity to the scene;

perception with unaided senses; any pre-existing relationship between plaintiff and

defendant; and the nature of the relationship between the plaintiff and the victim killed,

injured or imperilled. In other words, considerations which the High Court of Australia

decided in Tame v New South Wales and later Gifford v Strang Stevedoring Ltd47

were merely factors informing the reasonable foreseeability test, some of which are

regarded in England as prerequisites to recovery, were appropriated by the panel to

42

Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 2002 (NSW), s 32; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), s 72; Civil Liability Act 2002 (WA), s 5S. 43

David Ipp. “Negligence – Where lies the future?” (2003) 23 ABR 158 at 163. 44

Morgan v Tame (2000) 49 NSWLR 21. 45

Page v Smith [1994] 4 All ER 522, 549-50 per Hoffman LJ. 46

(2002) 211 CLR 317 at 359. McHugh J stated that normal fortitude was “not a matter for expert evidence.” 47

(2003) 214 CLR 269

11

serve as guidelines to its normal fortitude precondition. A major defect in this

approach is that most of these factors are only relevant in so-called “secondary

victim” cases, and have no relevance whatever to “primary victim” cases, which

would include cases of children being bullied. Only sudden shock and pre-existing

relationship between plaintiff and defendant have any possible application to both

secondary and primary victim scenarios, which is the likely reason that one of the six

jurisdictions to have legislated, Tasmania, chose to only enact these two factors and

not any of the others as the relevant guidelines.48 Even then existence of a pre-

existing relationship between the school and the bullied student adds nothing to the

issue, while trying to pinpoint a single “shocking event” is inappropriate and unhelpful

in a case like bullying which typically involves an accumulation of instances of

objectionable behaviour.

The value or otherwise of the guidelines aside, the statutes require proof as a

precondition that it was reasonably foreseeable that a person of normal fortitude

would suffer psychiatric injury in the circumstances, unless there is knowledge of

susceptibility. How is this requirement to be satisfied in the case of a child plaintiff?

It is possible that infancy could be recognised as vulnerability in itself, so that the

requirement would be satisfied in all cases involving the bullying of a child. However

this does not seem consistent with the intent of the legislation. It would allow

recovery by the meekest of children who might decompensate at the slightest brush

with perceived hostility or horseplay. Under the common law, which subsists in

Queensland and the Northern Territory, such a case would be deemed to be outside

the scope of reasonable foreseeability. Since it would be unreasonable to expect a

child to display the maturity of an adult, it would seem that the requisite "normal

fortitude" should instead be the normal fortitude of a child of similar age and

maturity.49 Support for this view might be found in Nader v Urban Transit Authority of

New South Wales50 where the court made allowance for the fact that at 10 years old

the plaintiff was unable to resist the influence of his family to adopt a sick role, while

other cases have noted that on their facts the particular plaintiff was of “tender years”

and have taken this fact into account in their determinations.51

48

Civil Liability Act 2002 (Tas), s 34. 49

Cf Copping v The State of South Australia (1997) 192 LSJS 109 at 119 where “reasonable and prudent person” for the purposes of contributory negligence was taken to mean a reasonable child of comparable age. 50

(1985) 2 NSWLR 501. 51

See also, eg, Hanley v Keary (unreported, ACT SC, 28 January 1992) (6 year old and 3 year old plaintiffs); Coates v Government Insurance Office of New South Wales (unreported, NSWCA, 15 February 1995) (14 year old and 11 year old plaintiffs); Duwyn v Kaprielian (1978)

12

However, this does not necessarily make the task any easier. School years are

formative years in terms of social interaction, and exposure to a certain degree of

aggression may be considered to be beneficial and a part of natural development if the

child is to develop into an adult who is able to cope with the pressures and demands

associated with living in a modern society. For example, it might be thought that a

“normal child” should be expected to cope with bullying of a “low severity” as discussed

above without decompensating. In addition, as one judge observed in a different

context, rough horseplay “symbolise[s] the play activities of teenagers, especially

younger males.”52 There will be a point, however, where playfulness becomes

unacceptable aggression. This threshold, like a person‟s threshold of pain, is likely to

differ from child to child. However, even if it were possible to talk in terms of a “normal”

child, perhaps reflecting an “average” reaction the issue remains problematic. This is

because it may well be the case (and empirical research may be required to confirm

the point) the threshold of the amount of aggression that a child of “normal fortitude”

might be expected to endure may differ according to the background and character of

the person perceiving the behaviour and the context. Thus it may be that the threshold

according to, for example, a senior male teacher in an all boys school will be more

tolerant and allow a higher degree of aggression than a newly graduated teacher in a

co-educational school, for whom bullying and anti-bullying techniques may have

formed part of his or her formal training. When the one school has a mix of teachers,

which view is to be taken as the school‟s view?

Breach of duty

There are, however, a number of recommendations that have been adopted by

almost all jurisdictions. Three worth highlighting concern determination of breach of

duty: the first changing the definition of “reasonable foreseeability”, the second

reinforcing the common law approach to determining whether there is a breach of

duty, and the third changing the method of determining the relevant standard of care.

One of the triggers for the Ipp inquiry was a series of lower court decisions in which the

plaintiff succeeded in circumstances indicating a failure by the plaintiff to take personal

94 DLR (3d) 424 (four month old plaintiff); Mellor v Moran (1995) 2 MVR 461 (9 year old plaintiff). 52

Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Reports ¶81-577 at 64,133.

13

responsibility for his or her actions. The panel‟s report in this respect53 reflected an

attitude that was common in legal circles that an explanation for these decisions was

the definition of reasonable foreseeability, when determining whether there was a

breach of duty, in terms of a risk that was “not far fetched or fanciful”.54 This enabled a

court to expect a defendant to take precautions against a risk of very low probability

merely because it was foreseeable. The panel addressed this problem by two

recommendations. The first was to redefine reasonable foreseeable risk as a risk

which is “not insignificant”. The second was to reinforce the common law notion that

breach of duty is a two tier inquiry: it must be the case both that the risk is reasonably

foreseeable and that a reasonable person would have taken precautions in the

circumstances. Mere foreseeability of risk is not sufficient if a reasonable person would

not have taken precautions. Whether a reasonable person would have taken

precautions depends upon the “negligence calculus” which involves an assessment of

the probability that harm would occur absent care; the likely seriousness of that harm;

the burden of taking precautions; and the social utility of the risk-creating activity. If

these factors indicate that a reasonable person would have taken precautions in the

circumstances the breach question will resolve to whether the defendant in fact

exercised the appropriate standard of care. These recommendations have now been

enacted in all jurisdictions except the Northern Territory.55 However, since the second

recommendation only reflected the common law, it should already be in operation in

this jurisdiction.

The essential point underlying this two tier approach to breach of duty is that a school

authority will not be in breach of its duty simply because bullying is reasonably

foreseeable in the circumstances. Thus, for example, in Australian Capital Territory

Schools Authority v El Sheik56 the Full Court of the Federal Court accepted that while

a school authority may have a duty to take reasonable steps to protect students from

significantly violent behaviour or from prolonged unwelcome physical attention, it was

not realistic that the duty extended to protecting an apparently normal 15 year old

boy from receiving over a short period of time play fight kicks, even painful play fight

kicks, from his friend.57 While the risk of injury from such “horseplay” may be

reasonably foreseeable, an application of the negligence calculus showed that the

53

Review of the Law of Negligence, Final Report (2002), 104-105. 54

Wyong Shire Council v Shirt (1980) 146 CLR 40. 55

Civil Law (Wrongs) Act 2002 (ACT), s 42-43; Civil Liability Act 2002 (NSW), s 5B; Civil Liability Act 2003 (Qld), s 9; Civil Liability Act 1936 (SA), ss 31-32; Civil Liability Act 2002 (Tas), s 11; Wrongs Act 1958 (Vic), s 48; Civil Liability Act 2002 (WA), s 5B. 56

(2000) Aust Torts Reports ¶81-577. 57

Ibid at 64,134.

14

preventative precautions that would have been required would not have implemented

by a reasonable school authority. As Wilcox J, with whom Spender and Higgins JJ,

remarked:

It would require an army of supervisors to prevent any incident that might give

rise to a physical injury: an injury might be sustained from something as

quick, simple and common as one pupil pushing or tripping up another ….

Unless an educational authority was prepared to impose a degree of

regimentation that would be likely to provoke adverse community reaction, it

would be impossible for it to prevent such incidents occurring. An educational

authority can, and should prevent rough “horseplay” incidents going on for a

significant time or escalating to a level of violence that is likely, under normal

circumstances, to constitute a danger to life or limb: but it seems to me that it

is all it can do.58

How the standard of the skill and care of a reasonable school authority or teacher

translates into practice naturally depends on the particular circumstances of the case.

There will be cases where the expectation may be fairly clear, but others which do not

easily yield an answer. The duty may variously be discharged by proactive steps, such

as the provision of proper supervision59 and implementation of appropriate policies and

procedures,60 or reactive measures, including investigation of complaints, conducting

interviews with the children and/or their parents, and taking disciplinary action as

appropriate.61 Naturally, the development and adoption of such policies and

procedures alone will normally not be enough if they are left to gather dust on

shelves or remain hidden among the files on a computer hard drive.62 Any policy

needs to be reinforced both by constant reminders to pupils and by implementation,

including the taking of disciplinary action where necessary. Indeed, many schools

58

Ibid at 64,133. 59

See, eg, Gray v State of New South Wales Unreported, NSWSC, Grove J, 27 February 1998; Copping v The State of South Australia (1997) 192 LSJS 109. 60

Some anti-bullying policies and procedures have been promoted by Governments or other bodies: see, eg, “Taking Action, Keeping Safe: a resource for student leaders to counter bullying” (2005) and “The Anti-bullying Plan for Schools” (both New South Wales Government); cf “Don‟t Suffer in Silence? – an anti-bullying pack” 2000) and „Tackling Bullying‟ (2003) (both UK Department for Education and Skills). 61

A Melbourne County Court upheld a claim for bullying in a case involving name calling which unchecked escalated to death threats and finally two acts of violence against the victim, based on a year group co-ordinator‟s failure to investigate, a failure to properly discipline the bullies and a failure to contact the parents of the bullies or to organise a meeting with the principal: S Butcher, “Student wins $76,000 nine years on”, The Age, 21 June 2003. 62

See also Bradford-Smart v West Sussex County Council [2002] ELR 139 at [38] (CA).

15

have had success with so-called “zero-tolerance” policies which involve a remedial

response to every instance of bullying behaviour, no matter the degree of

seriousness.63

However, as with all matters of fact and degree, there may be some cases where

there is disagreement concerning the appropriate response. An excellent example is

Warren v Haines64 where, during morning recess in an unsupervised area, a known

bully picked up the plaintiff, a 15-year-old girl, and dropped her on her tailbone. The

plaintiff succeeded both at trial and appeal, although there were wide divisions in the

New South Wales Court of Appeal. Priestley JA thought the injury would have been

prevented if there had been adequate supervision of the area where the incident took

place. By contrast, Glass JA held that while assigning a teacher to act as a

permanent restraining influence on the boy would have exceeded the requirements

of the duty of care, the precaution of detaining him in the classroom during the recess

until his behaviour improved would have been a practical step which, if adopted,

would probably have meant that at the time of the incident he would either have

improved his conduct or would have been detained. Either way the plaintiff would not

have been subjected to the treatment which caused her injury. The dissenting judge

Samuels JA rejected both supervision and discipline as practical precautions. He

thought that the argument that disciplining the bully during recess would have had

the cumulative effect of eliminating his anti-social behaviour was entirely speculative.

Supervision would probably not have deterred the bully‟s behaviour, which may have

taken no more than 10 seconds to complete, since in that time the supervisor would

probably not have been able by admonishing words to discourage or to physically

intervene to prevent the plaintiff being picked up and dropped as she had been.

When the thoughts of the trial judge – who thought that both supervision and

discipline were necessary – the overall outcome was that two judges thought that

supervision was needed, two thought that discipline was needed and two thought

that neither supervision nor discipline would have been effective!

The third recommendation related to the determination of the relevant standard of

care in the circumstances. The common law in Australia preceding the Ipp inquiry

required the court to determine what would be required by an exercise of reasonable

63

While it might be argued that a “normal child” should be able to cope with a low severity of bullying (see above), the difficulty of drawing bright lines in a continuum between what might and what might not be permissible may best be addressed by a policy eliminating all degrees of bullying. 64

(1987) Aust Torts Reports ¶80-115.

16

care in the circumstances. This could lead to a defendant being held liable, even

where he or she had acted in accordance with, for example, responsible medical

opinion. In lieu of this position, the panel recommended the adoption of the English

Bolam rule with a minor modification.65 This rule requires the court to defer to a

“responsible body” of expert opinion, the panel adding the caveat “unless no

reasonable court would do so.” This recommendation was made law in six of the eight

jurisdictions, although in all except one of these the rule was made applicable to all

professionals, and not restricted to medical professionals.66 This would include

teaching professionals. Accordingly the duty will be to exercise the skill and care of a

reasonable school authority, head teacher and/or teachers in accordance with what

is seen as current teaching practices accepted by the teaching profession.

It may well be that a case like Warren v Haines would benefit from an application of

the Bolam approach,67 if there was an accepted best practice or policy recognised

among the teaching profession for the handling of pupils who have the propensity for

hurting other children, including their disposition during recess times.68 Expert

professional opinion will no doubt be needed to formulate the expected kind of

response to cyberbullying, including for example the monitoring of chat rooms and

other computer usage and a ban on using mobile telephones during school hours or

even, more drastically but certainly more effectively, the surrender of all mobile

telephones while on school premises.

Causation

A study of 3918 New South Wales school children in grades 6 to 10 from 115

government and non-government schools showed that bullying behaviour was

associated with increased psychosomatic symptoms including, headache, stomach

ache, backache, feeling low, irritable or bad temper, feeling nervous, difficulties

65

Bolam v Friern Hospital Management Corporation [1957] 1 WLR 582. 66

Civil Liability Act 2002 (NSW), s 5O; Civil Liability Act 2003 (Qld), s 22; Civil Liability Act 1936 (SA), s 41; Civil Liability Act 2002 (Tas), s 22; Wrongs Act 1958 (Vic), s 59. Cf Civil Liability Act 2002 (WA), s 5PB which only applies to medical professionals. 67

This not being the recognised approach to determining the required standard of care in New South Wales at the time. 68

Cf An English example where the school authority‟s response was held to have conformed with accepted teaching practices: S v London Borough of Redbridge [2005] EWHC 150 (QB), [2005] ELR 320.

17

getting to sleep and feeling dizzy.69 Other difficulties reported as resulting from

bullying include low self-esteem, low self-worth, depression, anxiety and loneliness,70

psychosocial problems,71 physical and psychological harm, social isolation and poor

adjustment to school.72

However, there must be a causal link established between the alleged breach of duty

and the particular damage. As an English court remarked about cases involving

bullying at school:

[In] all these cases it is necessary to identify with some precision any breach

of duty found. It is also important to consider whether the steps proposed

would have been effective in preventing the bullying. It is not enough to find

that there has been bullying, to find some breach of duty, and then to find that

the bullying caused the injury. There must be a causal connection between

the breach of duty and the injury. That will often be difficult to prove.73

In Australia, the “but for” test for causation was enshrined in tort reform legislation in

most jurisdictions.74 Accordingly the child plaintiff is required to show that any injury

would not have been suffered but for the school‟s particular breach of duty. It would

be insufficient to merely identify a breach of duty such as a failure to supervise if the

failure to supervise did not materially contribute to the injury.

An additional issue concerning causation is that some of the common symptoms

might reasonably be expected to be displayed by an adolescent as a result of a

variety of causes, including simply those associated with growing up, rather than any

bullying behaviour. There may be a tendency, consciously or subconsciously, to

attribute all ailments of a psychological or psychosomatic nature to the bullying.

Accordingly, distinguishing between psychological or psychosomatic injuries linked to

69

R Forero, L McLellan, C Rissel and A Bouman “Bullying Behaviour and Psycho-social Health Among School Students in New South Wales, Australia: Cross Sectional Survey” (1999) 319 British Medical Journal 344 70

SK Egan and DG Perry “Does low self-regard invite victimization? (1998) 34 Developmental Psychology 299. 71

TR Nansel et al “Bullying Behaviors among UW Youth: Prevalence and Association with Psychosoical Adjustment” (2001) 285 Journal of American Medical Association 2094. 72

P Slee P and D Ford, “Bullying is a Serious Issue - It is a Crime!” (1999) 4 Australia and New Zealand Journal of Law and Education 23. 73

Bradford-Smart v West Sussex County Council [2002] ELR 139 at [37] (CA). 74

Civil Law (Wrongs) Act 2002 (ACT), s 45; Civil Liability Act 2002 (NSW), s 5D; Civil Liability Act 2003 (Qld), s 11; Civil Liability Act 1936 (SA), s 34; Civil Liability Act 2002 (Tas), s 13; Wrongs Act 1958 (Vic), s 51; Civil Liability Act 2002 (WA), s 5C.

18

the breach of duty and those resulting from other causes will be an important

threshold task.75

Contributory negligence

If a school is to have any defence it will lie in contributory negligence. The traditional

test for contributory negligence is a failure to take reasonable precautions for one‟s

own safety. It had been held that the standard of care in contributory negligence, like

the standard of care in negligence, depended on foreseeability of a reasonable and

prudent person.76 The test has now been modified in the six Australian States but

not the two Territories by the tort reform enactments. In the States a plaintiff‟s

contributory negligence is now to be based on the same approach to a defendant‟s

negligence, that is reasonable foreseeability of risk and the precautions a reasonable

person would take (if any) to that risk, taking into account the “negligence calculus”.77

The relevance of the foreseeability of a reasonable and prudent person has therefore

been reinforced.

The instances of the defence being raised against child plaintiffs are rare.78 The issue

was, however, addressed in the District Court of South Australia in Copping v The

State of South Australia,79 a case involving a 9 year old struck in the eye by a stone

thrown by a 16 or 17 year old secondary student who had been provoked by younger

students including the plaintiff during unsupervised recess time. Robertson J held that

that the “reasonable and prudent man” in that case was an ordinary child of

comparable age to the plaintiff, namely a child of 9 years. Here the plaintiff should

have foreseen that one of the senior students would have responded as this senior

did and that such a response may have caused injury. In that event, the plaintiff in

the exercise of taking reasonable care for his own safety should have left the

immediate vicinity of where the younger students were throwing the stones. The

plaintiff failed to do so and was therefore held to be guilty of contributory

negligence.80

75

See also Bradford-Smart v West Sussex County Council [2002] ELR 139 at [37] (CA). 76

Commissioner of Railways v Ruprecht (1971) 142 CLR 563 at 570 per Mason J. 77 Civil Liability Act 2002 (NSW), s 5R; Civil Liability Act 2003 (Qld), s 23; Civil Liability Act

1936 (SA), s 44; Civil Liability Act 2002 (Tas), s 23; Wrongs Act 1958 (Vic), s 62; Civil Liability Act 2002 (WA), s 5K. 78

It was pleaded but not pursued in Gray v State of New South Wales Unreported, NSW SC Grove J, 27 February 1998. 79

(1997) 192 LSJS 109. 80

Ibid at 119. The plaintiff was apportioned 15% of the responsibility for his injury.

19

However, application of a test based on the foreseeability of a child of comparable

age may lead to different results. In particular, the court should not lose sight of the

particular pressures and influences that may affect such a child‟s judgment. For

example, in New South Wales v Griffin81 the 13-year old plaintiff was injured in a fight

with another student. The boys were seen arguing in Art class earlier that day and

talk soon spread around the class and then the school that there would be a fight

during recess. A note to this effect was even written on the Art classroom

whiteboard. Counsel for the defendant argued that the plaintiff had failed to exercise

due care for his own safety by fighting when even as a 13 year old he knew that the

fight was against school rules and that there was a real risk of being hurt.

Ipp JA (with whom Giles and McColl JJA agreed) considered such thinking to be

divorced from the reality of the situation and what should be expected of a 13 year

old boy. There was an excited expectation that the fight would take place which had

permeated throughout the school. Peer pressure on the plaintiff must have been very

strong. Accordingly, to suggest in such circumstances that he would not turn up for

the fight was “quite unreasonable” because he would have become notorious

throughout the school and would have had to face the charge of cowardice. Instead,

the plaintiff„s behaviour fell within “the foreseeable folly of

youthful exuberance.”82 At the same time, the dangers associated with boys fighting

in the school yard were precisely the kind of risk against which a school authority

must take reasonable steps to protect the plaintiff.83

It may be easy in a particular case to regard a child‟s failure to even alert the school

or parents that he or she is being bullied as a failure to take a reasonable precaution

to a reasonably foreseeable risk, and therefore as constituting contributory

negligence. However, care must be taken not to divorce this test from its proper

context and to instead pay due recognition to the daily pressures which may help

shape a child‟s view of what might be the appropriate course of action in the

circumstances.

4. Conclusion

81

[2004] NSWCA 17. 82

The Commonwealth v Introvigne (1982) 150 CLR 258 at 280 per Brennan J. 83

[2004] NSWCA 17 at [9]-[10].

20

The willingness of aggrieved students to bring actions against their schools or former

schools based on alleged breach of their duty of care is an increasing phenomenon in

Australia, just as it is in the United Kingdom. Claims of failure to prevent bullying are

one such area of growth. Naturally, however, the mere fact that a student suffers injury

does not mean that the school will automatically be liable. Liability in bullying cases

may involve one or more issues across the negligence equation, including the scope of

the duty of care, normal fortitude of the plaintiff, the requisite standard of care,

causation and contributory negligence.

The Australian context has been altered by recent tort reform legislation. In the case of

some of the relevant issues, such as the expected standard of care, this has seen

Australia adopting a position comparable to that prevailing in the United Kingdom. In

other respects, the law in the two countries is now divergent. For example, in most

Australian jurisdictions the need to show that the defendant could reasonably foresee

that a person of normal fortitude would be injured in the circumstances, has now set

courts the difficult task of determining the point at which aggressive behaviour directed

at the plaintiff child goes beyond what may be regarded as healthy and formative and

instead becomes damaging. Taken as a whole, the legislative changes had the

deliberate design of tilting the field more in favour of defendants. As a consequence,

victims of bullying at schools who may be powerless against their aggressors may find

it more difficult to find any consolation in actions against their schools for failing to take

steps to protect them from such behaviour.