Oyston v St Patrick's College

Judgment 1MACFARLAN JA: I agree with Tobias AJA. 2BARRETT JA: I agree with Tobias AJA. 3TOBIAS AJA: The appellant, Jazmine Oyston, was a student at St Patrick's College, Campbelltown ("the College") from 2002 to February 2005. In 2007, she brought a claim in negligence alleging that she had suffered psychological harm as a result of bullying by other students at the College. 4On 13 April 2011, the primary judge, Schmidt J, gave judgment for the appellant. On 17 October 2011, her Honour made orders awarding damages in the sum of $116,296.60, plus interest. In these proceedings, the appellant appeals against that award. The College cross-appeals on liability. The appeal was set down for a two-day hearing which was wholly taken up with argument on the issue of breach of duty. Accordingly, the Court determined, and the parties agreed, that that issue be determined before the other issues including that of causation. Thus, on 13 March 2013 the appeal and cross-appeal in so far as they related to the primary judge's findings on causation, damages and costs, were adjourned to a date to be fixed. 5As the nature and content of the duty owed to the appellant was not in issue at trial or on the appeal, an appropriate starting point is to record the primary judge's exposition of that duty. It is contained in paragraphs [11]-[15] of her Honour's reasons and, for convenience, I set it out in full. [11] As discussed in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, ss 5B, 5C, 5D and 5E of the Civil Liability Act are central to the questions of breach of duty and causation. Sections 5C and 5D provide: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." [12] Negligence has the meaning given by s 5 of the Civil Liability Act, namely 'failure to exercise reasonable care and skill'. [13] In Cox v State of New South Wales [2007] NSWSC 471; (2007) 71 NSWLR 225, another bullying case, Simpson J discussed the nature of the duty which a school owes a pupil: "72 That the defendant, through the Woodberry School authorities, owed a duty of care to the plaintiff cannot be seriously doubted. The nature of the duty has been considered on more than one occasion but, again, is not controversial. In Geyer v Downs [1977] HCA 64; 138 CLR 91, both Stephen J in his individual judgment, and Murphy and Aickin JJ, in their joint judgment, with which Mason and Jacobs JJ agreed, cited, with approval, passages from Richards v Victoria [1969] VR 136. Murphy and Aickin JJ excerpted that part of the judgment concerned with the content of the duty of care, as follows: "The duty of care owed by [the teacher] required only that he take such measures as in all the circumstances were reasonable to prevent physical injury to [the pupil]. This duty not being one to ensure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex-hypothesis [the teacher] should reasonably have foreseen." 73 The passage excerpted by Stephen J sought to explain the rationale for the duty, as follows: "The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours, the child is beyond the control and protection of his parents and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury." 74 Stephen J said: "The duty which a schoolmaster owes to his pupil arises from the relationship between them and its temporal ambit will be determined by the circumstances of the relationship on the particular occasion in question. Children stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school; instead it is those then in charge of them, their teachers, who must provide it." His Honour also said: "It is for schoolmasters and for those who employ them, whether government or private institutions, to provide facilities whereby the schoolmasterly duty can adequately be discharged during the period for which it is assumed. The schoolmaster's ability or inability to discharge it will determine neither the existence of the duty nor of its temporal ambit but only whether or not the duty has been adequately performed. The temporal ambit of the duty will, therefore, depend not at all upon the schoolmaster's ability, however derived, effectively to perform the duty but, rather, upon whether the particular circumstances of the occasion in question reveal that the relationship of schoolmaster and pupil was or was not then in existence. If it was, the duty will apply. It will be for the schoolmaster and those standing behind him to cut their coats according to the cloth, not assuming the relationship when unable to perform the duty which goes with it." 75 Murphy and Aickin JJ also cited as "the classic formulation of the duty owed by a schoolmaster to a pupil" that drawn from Williams v Eady (1893) 10 TLR 41, in the following terms: " ... The schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster." 76 This was restated by Kitto J in Ramsay v Larsen [1964] HCA 40; 111 CLR 16 in the following terms: "The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances."" [14] Simpson J concluded in the face of the evidence led in that case as to bullying, that the plaintiff had demonstrated that the school authority had failed to discharge its duty of care to the plaintiff. [15] In this case, that bullying at school may result in harm, including psychiatric injury, was not controversial. Such a risk is not only foreseeable, on the evidence it was foreseen by the College; it being well understood that such a risk was so significant that it required the College to take active steps to protect its students from bullying by other students. That approach appears to have become a common one amongst both Government and non-Government schools in this State. 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." 6Thus, at first instance, it was not in issue that the College owed the appellant a duty of care, or that the risk of harm resulting from bullying was of such significance that it required the College to take active steps to protect its students therefrom. Of course, the duty did not require the College to ensure that its students were protected from bullying but only to take reasonable steps to that end. At first instance, issue was joined over the adequacy of the College's policies in relation to bullying and, in particular, the effectiveness of their implementation. Furthermore, the College contested whether the appellant suffered a psychological illness and, if she did, whether it resulted from the bullying which she claimed to have experienced at the College. The College also argued that the appellant was guilty of contributory negligence. The primary judge found that she was not and there is no challenge to that finding.