Counsel also relied upon another passage in which the Court observed that even constant supervision of that plaintiff's activities would have been unlikely to have prevented the injury to her ([27]).
80 Reliance upon Hadba is misplaced. The circumstances of the two cases are vastly different. Here TH was not engaging in a legitimate activity in an illegitimate or unauthorised way. On each occasion, in varying degrees, he was engaging in activity which was (or should have been) forbidden. Nor was any incident isolated. The conduct was, in various ways, repeated. Had the school staff decided, after the reports made by Mrs Cox, to implement more rigorous supervision of TH, there could have been no complaint of damage to the trusting relationship between teacher and pupils. Moreover, the suggestions that TH suffered from Attention Deficit Disorder imply that the staff were well aware of his behavioural problems. Neither the statements, not the result, in Hadba offer any comfort to the defendant.
81 I interpolate that in Hadba at [6], in a passage in which the facts were recounted, the Court observed (and presumably regarded as having some significance) that there was no evidence that the two children who had broken school rules had created any disciplinary problems in the past or had any tendency to behave dangerously. By contrast, TH's propensities were known to the school authorities independently of anything brought to their attention by Mrs Cox; and even if that were not so, the school was thoroughly on notice after Mrs Cox's repeated complaints about the behaviour of TH towards the plaintiff.
82 In [21] the Court also reminded itself that there was no evidence of any serious accident on the equipment in the past, no evidence of pupils having behaved as these pupils did, and there was evidence that the school had a well-known and enforced policy against that kind of behaviour.
83 That further diminishes the applicability of the observations in [25], in which the Court considered that trust between teachers and pupils was of some importance in the educational function. That, in Hadba, was a factor contraindicating increased supervision. It may be contrasted with the present case.
84 Hadba has little to say that bears upon the decision in the present case.
85 It was also submitted on behalf of the defendant that the plaintiff adduced no evidence "of witnesses" who observed any of the incidents; "of locations" where the incidents are alleged to have occurred; "of layout"; or "of signs of impending trouble". This was said to be significant because there was an absence of evidence from which it could be inferred that the conduct of TH was observable by any of those in authority at the school. Again, this submission must be rejected. It ignores the evidence that the conduct of TH was expressly and repeatedly brought to the attention of various teachers, including at the highest level in the school. Unlike Hadba, this was not an isolated incident, which occurred unexpectedly, and which the school could not reasonably be expected to have foreseen. This conduct was conduct which was not only foreseeable, but of which the school had actual and repeated notice. As a consequence, it was necessary that the school take greater than normal steps to eliminate the bullying in this case. This was not a case of attempting to prevent something which may or may not have occurred; what was called for were steps that would eradicate a known course of conduct.
86 On the evidence I have already recorded, alone, I would have been prepared to find that the school authorities failed to exercise reasonable care to circumvent the attacks upon the plaintiff.
87 However, that is not all the evidence. Dr Keith Tronc provided an expert report and gave oral evidence.
88 Dr Tronc has been a primary school teacher and principal, a secondary school teacher, a teacher educator and Associate Professor of Education training both primary teachers and secondary teachers. His expertise is in the area of educational administration generally with special emphasis on issues of safety. He has written widely on educational issues.
89 In his report Dr Tronc dealt with the need for schools to implement effective anti-bullying programmes. He set out 23 specific items of "professional expectations and criteria" directed to the implementation of such programmes. I do not propose to set out the whole of his catalogue; it largely involves education of both staff and students; enforcement of strict policies; a management plan for eradicating bullying; the involvement of students as active participants in anti-bullying committees; and many variants and gradations of these.
90 Dr Tronc was not cross examined in such a way as to suggest that his approach was anything other than orthodox and conventional. It appears, to me, to make perfect sense. Moreover, no evidence was called on behalf of the defendant to suggest that any of these measures had been taken or considered at the Woodberry Public School. It is of some significance that it was clear that the defendant had itself taken expert advice and had been furnished with a report, but that no such report found its way into evidence.
91 Dr Tronc identified a series of deficiencies in supervision and in the school's bullying prevention philosophy and methodology. He went so far as to express the view that, by reason of the persistence and seriousness of the assaults upon the plaintiff, TH ought to have been suspended from the school.
92 While I accept that the school had a delicate line to tread, it seems to me that there is considerable force in this view. Lurking in the background is the repeated suggestion that TH suffered from Attention Deficit Disorder. The defendant made no attempt to establish either that there was such a diagnosis, or even that the suggestion was reasonably based upon the observations of TH's conduct, whether towards the plaintiff or otherwise. But it must be recognised that, if there were even a reasonably based suspicion of that diagnosis, then the school had a difficult task in balancing its duty to TH against its duty to the plaintiff. If that diagnosis were correct, suspension may not necessarily have been the correct approach, or, at least, the only correct approach.
93 But this is without real present significance; the fact is that the defendant made no attempt to explain the conduct of the school authorities or to show that they acted reasonably in all of the circumstances. And the evidence establishes to my satisfaction that the school's responses to Mrs Cox's repeated reports was dismally inadequate. The staff made no attempt to deal with a serious problem. In ignoring the behaviour of TH they grossly failed in their duty to the plaintiff.
94 Dr Tronc also criticised the school for failure to implement guidelines issued by the Department of Education for the management of critical incidents in schools. A "critical incident" is defined to include violence between students, or an assault upon a student. Two at least of the incidents may well have come within this definition. Dr Tronc commented upon a contrary view apparently contained in an expert's report served by the defendant. This report was not evidence, and, apart from Dr Tronc's response to it, I am in the dark as to its content. I do not find it necessary to enter into the debate, or to resolve the debate, as whether any of the assaults amounted to "a critical incident".
95 In oral evidence, Dr Tronc expanded upon his answers, setting out where he considered the responses of the school to have been inadequate, and identifying what he considered would have been adequate or appropriate responses. For example, in relation to the 23 February incident (referred to in the evidence as the "choking" or "strangling" incident), Dr Tronc said:
"In my opinion an appropriate response would have been a fairly multi-faceted approach rather than mere reassurances of an oral nature. There should have been, in my view, conferences called with the parents of the alleged perpetrator of the bullying. In my view official reports should have been made to the Education Department by the school on the basis that such a serious incident as the causing of unconsciousness, that kind of assault is serious enough to constitute what is described as a critical incident in the New South Wales Department of Education's policy at that time, and required witness statements and reports to go to the Education Department, so I would have thought that the school had an obligation to do that at the time.
It would have been more appropriate, or it would have been appropriate in my view for a good deal of communication to have occurred within the school so that all teachers were alerted to what had been alleged, and required to take special concern in observing the boy who had been named on a number of occasions as the perpetrator of the bullying. It would have been more appropriate to arrange for some sort of counselling of both boys, again in accordance with the Department of Education's Critical Incidents Policy, where that is one of the fairly standard victim approaches that is recommended.
Certainly I am of the view, again in terms of the regime of sanctions which were then available in terms of behaviour management and disciplinary projects, that these incidents, particularly the repetitiveness of them and the seriousness of one or two of them, were enough to warrant suspension of the boy."
96 In relation to the subsequent reports, up to the middle of 1995, Dr Tronc was of the view that the school response was insufficient and inappropriate; he would have expected for "something positive and active" to have been done, rather than the giving of mere reassurances. In relation to the July incident (the plaintiff being hit with a stick), Dr Tronc considered that the foreshadowed detention of TH was insufficient; that writing a letter to TH's parents was one appropriate course of action; but that involving his parents in his supervision at the school was "totally inappropriate".
97 Similarly, he considered that a response of detention and a letter to TH's parents in relation to the incident of 8 August 1995 (attempting to stuff a jumper into the plaintiff's mouth) was inadequate. He considered that the letter should have vigorously required TH's parents to attend the school for a conference about his behaviour, and for some planning to take place about how best to protect the plaintiff. He considered that there should have been a good deal of communication with other members of staff so that teachers would be alert to the safety of the plaintiff and to scrutinise TH's behaviour.
98 The approach taken on behalf of the defendant to Dr Tronc's evidence, in cross examination, was somewhat disconcerting. In substance, the approach was that there was, in truth, nothing that the Woodberry School authorities could realistically have done to prevent the continued attacks. For example, Dr Tronc was asked if bullies are sometimes able to conceal their tendencies or behaviour; it was put to him that, on the assumption that TH had been spoken by police, and had continued to perpetrate the attacks, this suggested that he was "not easily deterred"; and, that being the case, that it was unlikely that he would be deterred by parallel action on the part of a teacher (it being implicit in the question that a teacher is a person of lesser authority and having fewer sanctions available than a policeman). Dr Tronc rejected the last part of the questioning; he placed some reliance on the fact that teachers are trained to deal with children and their discipline. The line of cross examination also overlooked the possibility of suspension of TH, or his removal from the school if he truly could not be controlled.
99 Considerable attention was also paid to the question of whether, on 23 February, the plaintiff had indeed lost consciousness. This was directed largely to the related question of whether the incident qualified as "a critical incident". To my mind the issue is, at most, peripheral. Certainly, whether the plaintiff did lose consciousness, or did not, or whether it cannot be known, it is not determinative of any issue in the proceedings.
100 The evidence of Dr Tronc reinforces the view to which I would, in any event, have come. The school authorities responded quite inadequately to an escalating problem and failed to take such steps as were reasonably required to protect the plaintiff from the conduct of a plainly behaviourally disturbed older pupil.
101 Some gauge of the attitude of the school (and departmental) authorities is to be found in two items of evidence. These are the assertions (not denied) by Mr Wilson, on two occasions, that bullying builds character, and the remark by the school principal to the effect that some pupils would be lost to a school. These are revealing because they denote an attitude that does not suggest that any attention was paid to the amelioration of a serious situation.
102 The conclusion that the school authorities failed to discharge their duty of care to the plaintiff is therefore inevitable.