In most common law jurisdictions it is possible to seek compensation from either the bully or the school for the harm suffered as a result of school bullying.
Until recently overseas cases have had limited success however this appears to be changing. There is a recent case in Australia Oyston v St Patricks College 2011 where the Supreme Court considered this matter. The plaintiff Miss Oyston suffered relentless bullying while a student at the College from 2002 to 2005. At the same time there were also stressful family problems at home. She suffered panic and anxiety attacks and there were a number of incidents of self-harm, Hospital admissions and visits to psychologists and psychiatrists. She and her parents raised the issue with the College on a number of occasions but while she was given counselling and advice about what to do to handle the bullying, very little was done to stop it.
The Court had no difficulty in finding that the school did owe a duty of care to Ms Western and in the particular circumstances of that case was liable for damages because psychiatric harm had been caused to the student as the result of bullying experienced whilst at school. The school was heavily criticised for the following:
- School policies were appropriate and adequate but significant aspects of the published policies were not in practical operation.
- The Year coordinator who had responsibility for dealing with the complaints of bullying was aware of the particular group of students who were doing the bullying but the steps she took in response to the complaints were neither consistent with the policies nor adequate.
- The focus of the school was put on what Oyston should do to solve her problems and not the behaviour of the bullies. The school supported the bullies at the expense of not protecting the victim.
- The school did not keep adequate records of its response to complaints.
- Not monitoring whether Ms Western was continuing to be bullied.
In a particularly damning part of the judgement the Court stated that the College spent more time and energy enforcing its uniform policy than it did its anti-bullying policy.
Could such a claim be successful in New Zealand? To date no school in New Zealand has been sued for breach of duty of care to prevent harm as a result of bullying. In addition the ability to sue for damages for physical harm is very limited in New Zealand because of ACC. In the Oyston case the plaintiff was awarded just over $100,000 for general damages for suffering and specific damages. The specific damages covered loss of past earnings and future earning capacity as the result of the psychiatric illness as well as payment for past and future treatment costs. Although in New Zealand a complainant could not sue for general damages and costs incurred as a result of harm, ACC legislation does not prevent a victim suing for exemplary damages. Exemplary damages have in the past been difficult to obtain. It is important to note however where the harm is purely mental or psychological and amounts to a recognised psychiatric condition it is not covered by ACC so there is legally nothing to prevent such a case being taken in New Zealand.
Something to note is that in Australia such awards are not made against school boards but against the state government which is the relevant school authority. Such award if made against a Board in New Zealand would have a significant impact on the school’s financial position.