QUT - The Australian School of Philanthropy and Non Profit Studies Implications of this case While recognising the difficulties involved, this case shows the importance of addressing bullying at school in order to meet the duty of care to prevent harm to students. But it is also a reminder of the importance of addressing bullying effectively wherever it occurs. The College’s policies may in fact have been adequate to prevent bullying and to deal with misbehaviour before it escalated to bullying, but inadequate training and implementation meant the policies were not effective to prevent foreseeable harm. The year coordinator who had primary responsibility in this case appeared reluctant to see repeated offensive behaviours as bullying, and more concerned to avoid bullying the bully than to correct the behaviours complained of. While the Court accepted the need for flexibility and discretion to deal with instances of misbehaviour, Her Honour said: ‘Discretion, a very necessary part of any teacher’s role, cannot operate to the point where misbehaviour, including bullying is dealt with inconsistently, or worse arbitrarily or not at all’. While there are obvious challenges in meeting the duty of care in educating a large group of adolescents, the Court said ‘This is not a case where an unrealistic standard of impractical perfection was being demanded of the College, but rather one where practical operation of the policies it had designed to protect its students ... against the risk of injury to which ongoing bullying exposed her, were not effectively implemented.’

1. Oyston v St Patrick’s College [2011] NSWSC 269 (Supreme Court of New South Wales, Schmidt J,
13 April 2011)
This was a claim in negligence against St Patrick’s College (the College) alleging psychiatric harm as a
result of bullying and harassment directed against the plaintiff, a former pupil, Ms Oyston, by other pupils
at the school. The Court found that the College had breached its duty of care to Ms Oyston and that the
breach caused her to suffer psychiatric injury. She was awarded damages for non-economic loss and for
past and future economic loss.
The College clearly recognised the risk that bullying could lead to harm to students and had policies in
place during the time that Ms Oyston was a pupil there. The evidence showed that during 2002 to 2004,
the policies were under review and not really operational. The College had conducted a survey of
students in 2004 which showed that bullying was experienced by a significant number of students. This
was also a year when Ms Oyston made frequent complaints about being bullied by a group of students in
her year. Ms Oyston’s parents took her out of the school in February 2005. This claim was filed in 2007
and alleged that the College’s policies and practices as implemented in her case failed to protect her
from a recognised and foreseeable risk of harm from relentless bullying during 2002 to 2005.
The College’s duty to protect its pupils from foreseeable risk of injury from bullying was not in issue, nor
was the fact that harm from bullying can include psychiatric injury. The Court stated: ‘There was no issue
that a reasonable person in the College’s position would have taken steps to protect a student such as
Ms Oyston from the risks which bullying posed. Whether the steps taken from time to time were
adequate to ensure that the duty was met was in issue.’ (para 15)
Ms Oyston was a pupil at the school from 2002 to early 2005 – from year 7 to the beginning of year 10.
Her evidence was that she had had no experience of bullying in primary school, but began to be bullied
by a certain group of students in her form, in term 3 of 2002. The bullying included name calling, jostling
and pushing, giggling and sniggering in class, mocking her at school events. She reported it on a
number of occasions over the three years, to the year coordinator, the deputy principal, the school
counsellor and some of the teachers, but said that nothing was done. She became sad, anxious,
suffered panic attacks and collapses, and became suicidal in 2004.
The Court found the College’s evidence showed poor recognition of behaviours as bullying rather than
the lesser ‘inappropriate behaviour’. Although the College recognised the problem of bullying – it had
policies on: unacceptable behaviour; bullying, intimidation, violence and harassment; and personal
protection and respect, all of which were clearly set out for pupils in their school diary, and which were
reinforced to students in class – the Court found its response to be ‘ad hoc, rather than systematic’ and
its record keeping to be ‘haphazard’. Although Ms Oyston’s file was not put in evidence, the Court found
from the material presented that (paras 36–37)
it became apparent that no clear record was maintained as to the course followed when
complaints were received; what conclusions were drawn from any investigation conducted; and
importantly, what was done by way of response, if bullying or other inappropriate behaviour
towards the student was uncovered.
In Ms Oyston’s case, the record, such as it was, showed that the types of responses which the
College’s policies envisaged would be implemented if complaints were received about bullying,
did not result.
Her Honour analysed the evidence, including expert evidence, on the College’s policies and their
implementation and found that ‘the College’s response was ineffective to ensure that it met its duty of

2. care to Ms Oyston, even though it was apparent that real harm was resulting for her’ (para 52). Her
Honour pointed to the difference in the College’s enforcement of its policy on school uniforms: ‘This was
a policy both clear and enforced at the College, including in relation to Ms Oyston, on the documents in
evidence. …. The College’s failure to enforce its conduct policies in a similar way to its enforcement of its
‘Uniform Policy’ underlined its failure in the duty which it owed to Ms Oyston’ (para 60).
Her Honour found that the evidence established that Ms Oyston suffered a psychiatric injury during 2004
and 2005. The evidence also showed that students about whom Ms Oyston complained were known by
the College to have been involved in bullying students; and that despite knowing of her mental and
physical state in 2004 the College continued to treat the conduct complained of as only inappropriate
behaviour that required investigation: ‘The College’s failure to deal with known bullies whose conduct
needed to be brought to a halt, resulted in the College’s failure in its duty of care to Ms Oyston. Injury
resulted’ (para 304).
On the issue of foreseeability, Her Honour found that the risk of psychiatric injury resulting from bullying
was foreseen and responded to in various ways by the College, and it must be accepted that the risk of
psychiatric injury from students being bullied at the College was ‘not far fetched or fanciful, either in a
general sense, or in Ms Oyston’s case’ (para 308).
The issue of causation was complicated by the fact that Ms Oyston had a difficult home life during this
period. Her Honour considered whether it had been shown that ‘it was more probable than not that Ms
Oyston would not have suffered a psychological injury if the College had been exercising care in relation
to the risk of bullying to the minimum extent at which it would have been performing its duty to take
reasonable care’ (para 318). Her Honour considered the fact that Ms Oyston may have been particularly
vulnerable to psychological injury from bullying at school did not mean that causation had not been
established; the evidence did not show that she would have suffered the injury in any event: ‘But for the
bullying to which she was subjected at school, she would not have suffered the injury which she
sustained. The scope of the College’s liability extended to the harm which was caused’ (para 331).
This case may be found at http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/269.html
Implications of this case
While recognising the difficulties involved, this case shows the importance of addressing bullying at
school in order to meet the duty of care to prevent harm to students. But it is also a reminder of the
importance of addressing bullying effectively wherever it occurs. The College’s policies may in fact have
been adequate to prevent bullying and to deal with misbehaviour before it escalated to bullying, but
inadequate training and implementation meant the policies were not effective to prevent foreseeable
harm. The year coordinator who had primary responsibility in this case appeared reluctant to see
repeated offensive behaviours as bullying, and more concerned to avoid bullying the bully than to correct
the behaviours complained of.
While the Court accepted the need for flexibility and discretion to deal with instances of misbehaviour,
Her Honour said: ‘Discretion, a very necessary part of any teacher’s role, cannot operate to the point
where misbehaviour, including bullying is dealt with inconsistently, or worse arbitrarily or not at all’. While
there are obvious challenges in meeting the duty of care in educating a large group of adolescents, the
Court said ‘This is not a case where an unrealistic standard of impractical perfection was being
demanded of the College, but rather one where practical operation of the policies it had designed to
protect its students ... against the risk of injury to which ongoing bullying exposed her, were not
effectively implemented.’