If your kid is bullied and hurt on school grounds, can you sue the school?
Sally Varnham/ The Conversation
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.
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.
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.
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.