Education is a right offered to all children, but what about the cost of bullying and the schools duty of care to all students? One must first understand exactly what bullying is to understand this topic. A definition is: Repeated intimidation, over time, of a physical, verbal or psychological (including indirect and relational bullying) nature of a less powerful person by a more powerful person or group of persons.
Boys are more likely to engage in bullying more often than girls especially when it is by physical or direct means. Furthermore boys are more likely to bully girls than vice versa as studies have shown that boys are generally more aggressive.2 A child’s temperament has been said to play a part as to whether they are bullied or are the victim. Children who have an impulsive and aggressive temperament tend to be the bully while a child that has a shy or weak temperament would be more likely to be the victim.
Just being a ‘bit different’ due to being from an ethnic group or suffering from a disability can make children vulnerable to bullying. Children with high aggression are often from homes with a lack of affection, use of physical violence within the family and have a lack of clear guidelines for behaviour and monitoring of children’s activities. 3 It is not just the victim and bully that are affected but there is the distraction of the whole class which may lead to cases of negligence due to the education or lack there of that the student receives.
It is difficult to make a judgment as to when someone should be denied the opportunity to an education as a school cannot easily expel a student or take a student out of a class however there needs to be measures which balance the rights of the majority not to be bullied and to receive a proper education against the rights of the bully to be educated. Often other students suffer as the teacher may be preoccupied controlling the bully. In the case of Cox v State of New South Wales4 the plaintiff was bullied by way of harassment and physical assault, throughout his primary and secondary education, but eventually left school before the end of year 7 having also tried distance education.
Mr Cox now suffers from psychiatric conditions identified as Depression and Anxiety Disorder, Separation Anxiety Disorder, and Post-Traumatic Stress Disorder which are unlikely to decline. He is unemployable and is in receipt of a disability pension.5 The conduct of the school was such that it was not only foreseeable, but of which the school had actual and repeated notice.6 As such the judge found that his injury was a whole of life injury. Stephens J stated in Geyer v Downs 7:
“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.”
As cited in Geyer v Downs8 Murphy and Aickin JJ cited Williams v Eady 9 with regards to the schoolmaster:
” … 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.”
It has been found it the following two cases that a duty of care requires teachers to exercise reasonable care during the school day and outside those hours, as well as outside the school grounds. This duty is also non delegable meaning that the duty owed by education authorities is a direct one and the task cannot be delegated to another. Mason J found in The Commonwealth v Introvigne10 that the school owes a duty while the child is in the school grounds, while in Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman11 it was unsuccessfully argued by the school that it did not owe the student a duty of care. In that case, the student had left his primary school at the end of the school day and had walked some 300 to 400 metres to a bus stop outside a nearby high school, intending to board the bus to travel home.
The duty of care can be simply defined as an obligation that one party owes another to take reasonable care to prevent reasonably foreseeable injury. In the case of Donohogue v Stephenson Lord Aiken stated that:
You must take reasonable care to avoid acts and omissions that you can reasonable forsee would be likely to injure your neighbour. [That is] persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.12
In Australia it has been established that a duty of care is owed to students to ensure that they suffer no physical injury but this duty also extends to before school starting13 and while waiting for a school bus.14 Courts were once concerned about opening the ‘floodgates’ with litigation regarding negligence cases that do not fit within the traditional framework but more recently there has been an expansion in what the courts are willing to protect such as psychiatric wellbeing. An action in negligence could be established if there has been a careless action or inaction by an employee. A school may be liable in negligence either directly or vicariously.15 To establish that there has been liability in negligence there are four elements that need to be proved:
1. The school or school authority owed a duty of care
2. The school or teacher fell below the standard of care that is required in such a situation, so that they were in breach of the duty of care; and
3. The breach of the duty of care caused the injury to the student and the injury was not caused by some intervening factor; and
4. The plaintiff’s injury is compensable at law.16
In a 199317 study it was found that about 40 percent of bullied students in primary school and nearly 60 percent of secondary students had reported that teachers tried to put a stop to bullying only once in a while or almost never. It was also found that there was a clear negative association between relative ‘teacher density’ during break time and the amount of bully/victim problems. What this means is the greater the number of teachers then the lower the incidents of bullying/victim problems in the school.18 In a 1998 report19 into same -sex attracted young people it was found that 13 percent had been assaulted due to their sexual orientation which ranged from violent attacks such as a broken arm (as a one off attack) or rocks thrown at them every day as they walked home from school. Other attacks were being punched while the teacher was not looking or having bones in fingers broken by the desk being slammed shut.
A 16 year old student was severely bashed in the classroom while the teacher was writing on the blackboard and failed to intervene and protect the student, who ended up with brain damage and spastic paralysis as a result of the altercation. The teacher was alleged to have failed to maintain discipline in the class on more than one occasion.20 The Civil Liability Act (NSW)21 provides that a person will not breach a duty of care unless the risk was foreseeable; and the risk was not insignificant; and a reasonable person in that position would have taken precautions. Once it is established that a duty of care Is owed, it needs to be determined whether it has been breached. Once foreseeability of harm is established then the probability of harm need to be determined. If the school failed to take care in a situation then it will breach its duty of care. The most common type of breach is through a teacher’s inaction.22
In a 1991 study by Irene Whitney, Peter K. Smith and David Thompson it was found that 78% of children with moderate learning difficulties were bullied and 29% of these children also bullied other children. It was also found that 100% of children with a hearing impairment were also bullied with 50% of these children also bullying other children.23
The legal challenges for teachers, education authorities and schools are considerable if they do not take reasonable steps to protect students in their care from being physically and mentally abused. There needs to be an educational strategy that will protect students from all forms of bullying. Silence on the part of bullying allows it to continue in all aspects of daily life. Any successful action will need to prove that the duty of care was breached and the satisfaction of tests of causation and remoteness of damage.
Schools can reduce the incidence of bullying and change a culture of anti-social behavior by determined intervention this cannot occur without training which is a vital part of any whole school plan to address the ever present issue of bullying. To be effective in the long term, training to counteract bullying must be continuous. Many reports (Olweus 1991, 1993b; Besag 1989; Johnstone, Munn and Edwards 1992) have recommended that there needs to be a whole school approach in the intervention of anti- bullying programmes.24 Specific training of teachers would be required for this approach to work correctly with teachers and they would need to feel confident in what they are communicating. Communication and re-communication needs to be repeated at every opportunity (assemblies, staff and family meetings, classes) in order that the anti-bullying policy remains a focus.25
An idea borrowed from industry is that of the ‘quality circle'(QC). Cowie and Sharp26 found that when groups of 5 or 6 students get together on a weekly basis to identify common problems which are analysed and then solutions are created and presented to a panel of adults (head of the school, teachers and parents). The QC participants are trained by someone with experience. It has been found that if students are provided with skills to be assertive and to be supportive of each other, schools will be helping the students to help themselves. An interesting point is that bullying is a social phenomenon but over time this behaviour can be refined as the school population shifts.27 Most bullies would not see that what they are doing is a shameful act and this requires a focus shift so they the bully will become aware of what they are doing.28 If the bullying does not cease then the bully may suffer later on from depression and engage in suicidal thoughts but often grow up to be violent adults in the home and in the workplace. Those that have been both the victim and bully are more susceptible to suffer from mental illness.29
There is now the issue of cyber bullying which incorporates texting on mobile phones as well as via the internet with e-mails, chat rooms, discussion groups and instant messaging. This bullying starts at school and continues outside the school grounds – where does the duty of care end? Sometimes teachers are aware of the bullying but more often teachers hear about it second hand. As there will be no adult witnesses the parents will have no idea that the bullying is occurring and both the bully and victim are likely to remain silent as there is still the stigma in our society regarding ‘dobbing’.30
There is a duty owed by teachers and educational facilities to protect students from all forms of bullying but in order for this to be successful change in staff and students attitudes must come from a whole school as well as whole community approach. The approach should include focusing on the problem, encouraging students to propose solutions to problems, employ assertive forms of communication (rather than aggressive forms of communication) and focus on both immediate short term action as well as tackling the bullying on a long term basis.
Besag Valerie E, Bullies and Victims in Schools, Open University Press Great Britain, 1994
Cowie Helen & Sharp Sonia, Tackling Bullying through the curriculum – School Bullying, Routledge (1994)
Hillier Lynne et al, Writing themselves in: A National Report on the Sexuality, Health and Well-being of Same Sex Attracted Young People, La Trobe University: National Centre in HIV Social Research, 1998
Jim Jackson & Sally Varnham, Law for Educators – School and University Law in Australia, LexisNexis (2007)
Olweus Dan, Bullying at School: What we know and what we can do, Blackwell Publishers Ltd UK,
Olweus Dan, Bullying among school children: Intervention and prevention (1992.) In RD Peters et al (eds), Aggression and violence throughout the life span
Rigby Ken, New Perspectives on Bullying, Jessica Kingsley Publishers (2002)
Sharp Sonia & Thompson David, the role of whole-school policies in tackling bullying behaviour in schools – School Bullying
Slee, PT and Ford, DC, “Bullying is a Serious Issue – It is a Crime!” (1999) 4(1) Australia & New Zealand Journal of Law & Education
Whitney Irene, Smith Peter K & Thompson David, Bullying and children with special educational needs – School Bullying, Routledge (1994)
Commonwealth v Introvigne  HCA 40; (1982) 150 CLR 258
Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) at 81-399