The New South Wales Court of Appeal found that St Patrick's College breached its duty of care to a student by failing to adequately address bullying during her time there. While the student's family situation also contributed to her psychological injuries, the court determined that the bullying was a necessary condition and materially contributed to the harm. The College was therefore liable for damages. This case highlights that policies against bullying must be actively implemented and investigated, not just passively relied upon, in order to satisfy a duty of care.

1. Oyston v St Patrick's College (No 2) [2013] NSWCA 310 (New South Wales Court of Appeal,
Macfarlan, Barrett JJA, Tobias AJA, 23 September 2013)
On 27 May 2013 the New South Wales Court of Appeal delivered judgment on the issue of St Patrick
College's (the College’s) breach of its duty of care to the appellant: Oyston v St Patrick's College
[2013] NSWCA 135. The breach of duty found by the court was the College's failure, particularly
during 2004 when the appellant was in Year 9, to take reasonable steps to bring the bullying of the
appellant by other students to an end.
The breach of the College’s duty of care consisted of knowing that the appellant was vulnerable, and
that she suffered from anxiety and panic attacks. She was, therefore, likely to be susceptible to
psychological harm if bullied. The steps taken by the College during 2004 did not provide a
reasonable response to the not insignificant risk of harm to students such as the appellant, if bullying
of them continued. It was insufficient for the College merely to request teachers to keep an eye out for
bullying once a complaint of bullying had been received. Once such a complaint was received it
required investigation and, if substantiated, action against the perpetrator. In this context, the
evidence established that the appellant was regularly bullied by three identified students. However, no
reasonable steps were taken by the College to investigate the appellant's allegations of bullying by
those students and to act on them.
This second judgement dealt with the issues of causation and damages. As to causation, the court
said that the principles applicable were now well established. Section 5D(1)(a) of the Civil Liability Act
2002 (NSW) (the Act) requires that the relevant negligence must have been a necessary condition of
the occurrence of the harm sustained by the plaintiff. The relevant approach to factual causation was
articulated by the High Court in Strong v Woolworths Ltd [2012] HCA 5 at [32]. However, the primary
judge in this case accepted that the appellant's family situation was also a contributing cause to her
psychological injury. Therefore, the question arose whether this affected causation of the harm. The
answer was no. The High Court said in Strong at [20]:
Under the statute, factual causation requires proof that the defendant's negligence was a
necessary condition of the occurrence of the particular harm. A necessary condition is a
condition that must be present for the occurrence of the harm. However, there may be more
than one set of conditions necessary for the occurrence of particular harm and it follows that a
defendant's negligent act or omission which is necessary to complete a set of conditions that
are jointly sufficient to account for the occurrence of the harm will meet the test of factual
causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as
contributing to the occurrence of the harm.
Even more recently, in Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10,
the majority (French CJ, Hayne and Kiefel JJ) observed at [43], [45]:
The proper identification of damage should usually point the way to the acts or omissions
which were its cause. Causation is largely a question of fact, to be approached by applying
common sense to the facts of the particular case...[T]he law's recognition that concurrent and
successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the
proposition that a plaintiff must establish that his or her loss or damage is ‘caused or
materially contributed to’ by a defendant's wrongful conduct. It is enough for liability that a
wrongdoer's conduct be one cause. The relevant inquiry is whether the particular
contravention was a cause, in the sense that it materially contributed to the loss. Material
contribution has been said to require only that the act or omission of a wrongdoer play some
part in contributing to the loss.

2. In this case, the application of commonsense led the Court of Appeal to the conclusion that it was
more probable than not that, but for the failure of the College to actively implement its own bullying
policy, the psychological injury to the appellant would not have occurred or at least would have been
minimised. The court accepted that domestic issues contributed to the appellant’s condition, but held
that there could be little doubt, upon the medical evidence accepted by the primary judge and not
challenged on appeal, that her psychological injuries were materially contributed to by the bullying
that she was forced to endure during 2004 as a consequence of the College's breach of its duty of
care. Therefore, the appellant was held to have established causation.
As to damages, the primary judge awarded the appellant $124,938.48. This part of the judgement
was set aside on appeal and remitted for further calculation which took into account a larger sum for
non-economic loss and interest.
The case may be viewed at: http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/310.html
Implications of this case
This case again illustrates that it is not enough for a nonprofit organisation to have policies about
bullying (or indeed any other workplace issue) ‘in place’. Such policies must be implemented actively.
The College submitted that nothing it could or should have done would have prevented the bullying of
the appellant from continuing as it allegedly did. Moreover, there was an attempt in the College’s
submissions, at least in part, to blame the appellant. These submissions were rejected at [70]:
It was no answer to the College's otherwise inadequate efforts that it was pursuing what can
only be characterised as a fairly passive approach on the basis that to do otherwise would
cause resentment amongst the perpetrators and cause them to increase their bullying
activities rather than abandon them.
Expert evidence, which was not challenged on appeal, was to the effect that bullying needed to be
‘nipped in the bud’ at an early stage by effective measures. The College had comprehensively failed
to do that in this case.