In Oyston v St Patrick's College (No 3) [2013] NSWCA 324 the New South Wales Supreme Court of Appeal has made final orders awarding damages in the sum of $ 162,207.34 to Jasmine Oyston, who was subjected to bullying and harassment by other students of St. Patrick's College in Campbelltown.
The final order reflected an increase in the amount awarded for non-economic loss and interest as agreed by the parties.
In Oyston v St Patrick's College (No 2) [2013] NSWCA 310 the Court considered Oyston v St Patrick's College [2013] NSWCA 135, which followed Oyston v St Patrick's College [2011] NSWSC 269 and Oyston v St Patrick's College [2011] NSWSC 826. The judgment in NSWCA 135 - noted here - found that the College's breach of duty of care to the Oyston was the institution's failure, particularly during 2004 when she was in Year 9, to take reasonable steps to bring to an end her bullying by other students.
In essence
a) The College, through Mrs Ibbett (the Year 9 Coordinator responsible for investigating any reports of bullying) recognised that bullying could affect the well-being of a student and could occasion a depressive condition in an adolescent girl already suffering from anxiety, as was Oyston to Mrs Ibbett's knowledge;
b) The College was well aware that bullying was taking place and of the impact of bullying upon individual students, which it had recognised by putting in place an anti-bullying policy which required action to be taken in response to any complaints about bullying;
c) Not only were complaints of bullying to be investigated, but a specific procedure was laid down in the policy depending upon whether the bullying by a particular perpetrator was the first, second or third incident of such conduct by that student;
d) Particularly during 2004, the appellant was regularly, if not relentlessly, bullied, in particular by JP and LM;
e) The College was aware that the appellant claimed that she was being bullied at least from 6 February 2004. The evidence disclosed a number of particular incidents of bullying during 2004, particularly in April, May, November and December, all of which put the College on notice that bullying of the appellant was continuing;
f) The College was obligated in performing its duty of care towards Oyston to take reasonable steps to ensure that she was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct. In particular, Mrs Ibbett was well aware that bullying was a serious ongoing problem in the school, to eradicate which it was necessary to take such active steps as the College's policy contemplated;
g) The College was aware from February 2004 that the Oyston was vulnerable, that she suffered from anxiety and panic attacks and, therefore, that she was likely to be susceptible to psychological harm if bullied;
h) The steps taken by Mrs Ibbett during 2004 did not provide a reasonable response to the not insignificant risk of harm to students such as Oyston 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 Oyston was regularly bullied by JP and LM and, to a lesser extent, by AM. However, no reasonable steps were taken by Mrs Ibbett to investigate Oyston's allegations of bullying by those students and to act on them if she was satisfied that they were justified;
i) Accordingly, the primary judge's conclusion that Oyston was subject to ongoing bullying in 2004, that the College was aware that this was so, and that it failed to take reasonable steps to bring that conduct to an end, was amply justified by the evidence.
