June 3, 2019

If your child is bullied and hurt on school grounds, can you sue the school? Many victims of school bullying suffer mental illness later in life.

 

Sally Varnham, University of Technology Sydney

The Victorian state government was recently reported to be investigating whether it could make it easier for bullying victims to sue schools. This was prompted by the case of a 13-year-old boy who had to undergo surgery after being bullied at a private school in 2016.

All forms of bullying have the potential to create long-term and often disastrous psychological as well as physical effects. Some young people who have died by suicide were found to have done so after persistent bullying.

Evidence is emerging of the links between school bullying and offending and depression in later life, for both the bullied and the bullies.

Schools have a legal obligation to address bullying behaviour of pupils and provide support for both the victim and the perpetrator.




Read more:
Teenagers who are both bully and victim are more likely to have suicidal thoughts


Assault and the law

Outside school, physical bullying behaviour such as pushing and punching would be assault and dealt with in the criminal justice system.

State lawmakers now further addressing different forms of bullying. For example, the Crimes Amendment (Bullying) Act 2011 (Vic) focuses on stalking and other behaviour designed to threaten or cause physical or mental harm, and the proposed Statutes Amendment (Bullying) Bill 2017 (SA) criminalises bullying behaviour including threatening, degrading, humiliating, disgracing or harassing another person face to face or online.

There is no reason any of these laws would not apply within schools.

Emotional bullying in all its varying forms poses greater difficulty wherever it occurs. Australian law is gradually introducing responses to emotional abuse. There are avenues for complaints of digital bullying, for example, under the Enhancing Online Safety Act 2015 and the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018.




Read more:
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External complaint avenues and criminal ramifications are one thing. But what about cases where a child was bullied persistently and whose complaints to the school went unheeded? Can a school be sued for the harm caused to a student?

Notable cases

The New South Wales courts have said yes. In three notable cases, former students received compensation by proving the school was negligent due to its inaction. Jazmine Oyston, David Gregory and Ben Cox proved they had suffered ongoing mental harm from bullying that their schools failed to address.

In holding the schools liable, the courts set valuable parameters of a school’s legal responsibility.

A school owes a legal duty of care to its students directly and through its staff. This duty exists when the situation is in the school’s area of control – on school grounds, on or waiting for school transport, and on school-organised excursions or activities.

Satisfying this requirement becomes more fuzzy when the harm occurred through digital media, or outside what could strictly be called school activities, such as sports or work experience.

Once control is established, the extent to which the school knew or ought to have known of the bullying is the next concern. In each of the above cases, the evidence details a litany of complaints and concerned parent contact with the school.

Jazmine Oyston’s school days were stained by pushing, name calling and harassment. The school was aware of this due to her complaints and her severe anxiety and panic attacks (at one stage an ambulance was called to the school).

David Gregory and Ben Cox had similar stories of physical bullying. Ben’s mother was called to the school on several occasions when he had varying degrees of physical harm. She had voiced her deep concerns to the principal.

What school personnel did or did not do is the next focus. In Ben’s case, even after these incidents, the school failed to recognise the bullying behaviour of the other pupil, even telling Ben “bullying builds character”.

Schools may point to their anti-bullying policies if conduct like this occurs, but these are not enough if the school can’t show policies were known and followed.




Read more:
Not every school’s anti-bullying program works – some may actually make bullying worse


For the school to be liable for damages, the school’s inactivity must be proven to have caused the harm. This can be easier to prove when it comes to physical harm, but the link between bullying and a psychiatric illness may be more difficult.

This is especially problematic when the psychiatric condition develops some time later as other factors in the person’s life may come into play. But it has been done.

David Gregory was in his 30s when he made the claim his psychiatric illness was a direct result of the persistent bullying he suffered when at school more than a decade earlier. He was awarded nearly half-a-million dollars compensation from the NSW government.

Greater recognition

The above cases and others where this kind of harm is central now show a much greater recognition of delayed development of psychiatric harm.

While the law for proving when and why a school should pay is now reasonably clear, argument on the facts may provide some wriggle room for educators and their insurers less inclined to accept liability, as is the case with the Melbourne schoolboy reported above.

Court action may go over many years with several appeals before final determination – in Jazmine’s case from 2007 to 2013.

It rarely serves the parties well, particularly when weighed against the cost, time, energy and anxiety already on top of significant harm.

When the facts point to a school’s liability, its priority and that of its insurers should be to acknowledge shortcomings and accept responsibility for the harm. They should focus on reaching a fair and just settlement rather than devising means to oppose or delay the claim.


If you are being bullied and need help, contact kidshelpline on 1800 55 1800.

If you or anyone you know is experiencing suicidal thoughts, contact Lifeline on 13 11 14.The Conversation

Sally Varnham, Professor of Law, University of Technology Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.


  • More accountability would be great. My cousin’s daughter was constantly bullied by a pair of boys which continued until it turned physical…..the vice principal’s response was “they’re just showing they like you”. After being punched in the stomach among many other things she moved school. It took her years to be a happy child again.

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  • I hope this does become a thing as it will force schools to take action knowing that there will be consequences if they don’t. My son is having to go to another school due to nothing being done for 1.5 years, and he’s not the only one leaving. Others have already left. It shouldn’t happen. If it was up to me (his friends are going or will be going to his new school so he’s happy to transfer) I’d take it as far as I could and MAKE the school do something. They shouldn’t feel like their only option is to go to another school.

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  • If the child is in the school yard too early before staff arrive at the classroom at all or late in the day when they should have gone home I’m sure the school would not be accountable. During school hours it definitely is. If a child is physically hurt the school should address the issue – not wait for it to happen several times, especially if it is the same bully. The school should also request a meeting with the bully’s parent/s, or guardian/s. I would take it up with the Head of the state Education Dept in your state…and your local MP if you get no satisfactory response. Many MPs are lawyers and may be able to advise you of your legal rights including suing the school. I know a girl whose Mum spoke to a school member about her daughter being bullied. The response was that it was her daughter doing the bullying. Yes, she may eventually have got upset enough to defend herself and retaliate. When her Mum asked why she wasn’t notified the staff member didn’t reply and walked out of the office.

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  • A difficult and important topic and yes I think it should be possible to sue the school when your child is hurt and bullied on the school ground and no sufficient actions have been taken.

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  • This opens a can of worms. Wheres the responsibility of the parents in this. If my daughter was doing the bullying it would cease immediately

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  • I remember being what we used to call “being picked on ” at school. I was already a really quite child, a bit of a nerd, goodie too shoes. Left myself wide open for all the snide , nasty . soul destroying remarks that kids can throw at you.It was horrible. My heart goes out to any child who is being bullied because today the bullying is way and above anything l endured. Parents and schools really have to come together and invest in these children’s future big time. This is a huge problem that is not going away we have to something now.

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  • a tough one as it is very complex

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  • Definitely needs more accountability in schools. I hear stories too often.

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  • It’s my worst nightmare that my son would get bullied at school, and if he ever was hurt in a bullying incident then I think the school should be held responsible

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  • This is a tough one. Often schools do everything in their power to stop bullying. We have read articles where teachers and even the principal have been stood down when trying to maintain situations. I believe the parents and children themselves should be the ones that need to have action taken against them, not the schools.

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  • This topic is so important to discuss and I would love to see more articles on this issue. It is a complex problem.

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  • This seems fair – a genuinely negligent school should be liable.

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  • You can make a complaint to Police about the child who assaulted yours and then sue their family. You could only sue the school if they were negliable in trying to stop the bullying?

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  • in primary school my son was being bullied, two teachers (over two years) didn’t believe him. I spoke to the principal who believed the teacher saying it never happened. By the third year of it happening he spoke to his teacher and she stamped it out that day,never happened again. Listen to the kids not the teacher trying to protect their reputation. In his first year of high school it started again at the swimming sports day, the teachers saw it happening and called the school to tell the principal what was happening and she was straight on the phone to me before the kids were even back at school making an appointment for us for the next morning and letting us know what measures they would be taking, never bullied again, my son is now 6ft 2 (a gentle giant) and no one has tried bullying him again

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  • It will always come down to whether or not the school was negligent with their duty of care. If they were litigation will be an option.

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