Oyston v St Patrick's College - [2011] NSWSC 269

Supreme Court

New South Wales

Medium Neutral Citation: Oyston v St Patrick's College [2011] NSWSC 269
Hearing dates: 16 June 2010, 17 June 2010, 18 June 2010, 19 June 2010, 20 June 2010, 13 December 2010, 14 December 2010, 15 December 2010, 16 December 2010, 17 December 2010
Decision date: 13 April 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. Verdict for the plaintiff.
2. The parties are to bring in short minutes reflecting the conclusions and findings I have come to.

Catchwords:
TORT - NEGLIGENCE - personal injury - psychiatric/psychological harm - plaintiff bullied and harassed by other pupils at high school - complaints of bullying to school authorities by plaintiff, plaintiff's mother and other school students - observations made by school staff of bullying - symptoms of anxiety and depressed mood engaging in self harm, collapses and seizures - nature and content of duty of care owed - whether duty of care was breached - school aware of bullying - school's bullying policies and practices - inadequate implementation of bullying policies established - question of whether plaintiff suffered illness - psychiatric injury established - causation - reasonable foreseeability of damage - supervision - damages - relevance of plaintiff's vulnerability to psychiatric injury and experiences at home - contributory negligence
DAMAGES - measure of damages in action for tort - personal injuries - loss of earnings and earning capacity non-economic loss - past economic loss - future economic loss - domestic assistance - treatment - superannuation
Legislation Cited: Civil Liability Act 2002
Limitation Act 1969
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Amoud v Al Batat [2009] NSWCA 333
Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649
Cox v State of New South Wales [2007] NSWSC 471; (2007) 71 NSWLR 225
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Penrith City Council v Parks [2004] NSWCA 201
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31; (2005) 221 CLR 161
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
State of New South Wales v Burton [2006] NSWCA 12
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Woolworths Limited v Strong [2010] NSWCA 282
Category: Principal judgment
Parties: Plaintiff - Jazmine Oyston
Defendant - St Patrick's College
Representation: Counsel:
Plaintiff - Mr D Kennedy SC with Mr G Smith
Defendant - Mr R Sheldon SC with Mr N Chen
Solicitors:
Plaintiff - Lough Wells Duncan
Defendant - Makinson & d'Apice

File Number(s): 2007/265225

Judgment

TABLE OF CONTENTS Judgment	1
The issues	8
The nature and content of the duty owed to Ms Oyston	11
The College's policies	16
The Expert's views of the College's policies and the effectiveness of their implementation in practice	38
The College's policies and how they were implemented in practice failed to protect Ms Oyston from bullying	51
The College was aware that Ms Oyston was being bullied	62
Credit	62
Ms Oyston's account	78
Mr Oyston	110
Mrs Oyston	129
The counselling records	160
Mrs Ibbett	177
Mrs Carroll-Fajarda	237
Conclusion	249
The Medical evidence about Ms Oyston	258
Dr Phillips	266
Dr Apler	271
What the joint report and concurrent evidence showed	277
The nature and extent of the psychiatric injury Ms Oyston suffered	291
Ms Oyston's pre-existing condition and the contribution of other stressors to which she was subjected	295
Did the College breach its duty to Ms Oyston?	297
Foreseeability	306
Supervision	312
Causation	315
Contributory negligence	332
Damages	339
Non-Economic loss	340
Past Economic Loss	352
Future Economic Loss	361
Domestic assistance	373
Treatment	375
Superannuation	380
Orders	381

By statement of claim filed in 2007 the plaintiff, Jazmine Oyston, brought a claim in negligence, alleging that she had been injured while enrolled as a pupil at St Patrick's College, Campbelltown ('the College'), as a result of being exposed to bullying and harassment by other pupils of the school between 2002 and 2005. The College defended the claim and also pursued a claim of contributory negligence. The claim is governed by the provisions of the Civil Liability Act 2002 .

That the College owed Ms Oyston a duty of care was not in issue. There was no question that the College had foreseen that bullying could lead to a student being injured and that it took steps to prevent such harm from occurring, both through the policies which it had established and by their implementation in practice. The evidence showed that while Ms Oyston was a pupil at the College, amongst other things:

bullying was perceived to be a problem at the College, which required active steps to be taken;
The College recognised that bullying could be difficult to detect, but that it needed to be guarded against and if it occurred, addressed;
The College published policies directed at bullying and other inappropriate behaviour. Its policies were under ongoing review between 2002 and 2004, but were in some respects not in practical operation;
In 2004 the College engaged an expert to advise it and its staff on how to detect and deal with bullying;
In 2004 the College conducted a student survey in relation to their experiences at school of bullying, which showed that bullying was a problem for a significant number of students;
Year co-coordinators had particular responsibility to deal with bullying, in conjunction with other members of the College's executive team;
The College was aware, particularly in 2004, that Ms Oyston was complaining of problems in her personal life, as well as in relation to ongoing bullying at school from complaints made by Ms Oyston and her mother, from observations made by staff, from information provided by other students as well as information obtained from external sources;
Practical steps were taken to deal with bullying identified from time to time, including on some occasions in relation to Ms Oyston;
The College referred Ms Oyston to counselling in 2002 and 2004 and she self referred in 2005;
The College was aware that Ms Oyston engaged in self harm in 2004. The College ensured that Ms Oyston received medical attention, by having her taken from the school by ambulance, when she appeared to be suffering from seizures which caused her to collapse at school; and
The College was aware that Ms Oyston's medical problems were being investigated; that she was admitted to hospital on a number of occasions for treatment and later, for various testing; and that she was treated for anxiety and depressed mood.

Ms Oyston was withdrawn from the College in February 2005, her parents taking the view that her increasing problems stemmed from her experiences at the College. In the following April, her father took steps to bring this claim.

Expert evidence was called about the way in which the College dealt with bullying. There were divided opinions about the effectiveness of the College's policies and practices, especially those taken in relation to Ms Oyston.

The medical experts were divided over the question of whether Ms Oyston suffered a psychological illness and whether, if she did, it was an injury caused by the bullying she claims to have been subjected to at the College.

Ms Oyston's case was that the College's policies and practices in relation to bullying, as implemented in her case, failed to protect her from a recognised and foreseeable risk of harm when she was subjected to relentless bullying while a student at the College between 2002 and 2005.

The College's case was that Ms Oyston was not the subject of such bullying, or if she was, the circumstances were not such as to allow it to be aware of the bulling to which Ms Oyston was being subjected by other students. At the least, there was contributory negligence on Ms Oyston's part.

THE ISSUES

At the hearing the parties identified the issues in contest. For Ms Oyston they were identified as:

" LIABILITY

1. The adequacy of the defendant's anti-bullying policy prior to June 2004 to the extent that it existed.

2. Whether the defendant's anti-bullying policy was effectively utilised in relation to the plaintiff's complaints of bullying and harassment.

3. Casual acts of negligence on the part of employees of the defendant.

4. The plaintiff relies on the grounds of negligence as particularised in the statement of claim.

DAMAGES

1. The nature and extent of the plaintiff's injuries and disabilities.

2. The causal connection between the alleged bullying and harassment and the plaintiff's injuries and disabilities.

3. The plaintiff's capacity to work.

4. The plaintiff's need for domestic assistance.

5. The extent of any need for ongoing treatment.

6. The likely development of further problems causally related to the bullying at the school."

For the College the issues were identified as:

"1. The nature and content of any duty of care owed to the plaintiff, including a consideration of sections 5B and 5C and Part 3 of the Civil Liability Act 2002 .

2. Whether any duty of care owed was breached by the defendant, including a consideration of sections 5B and 5C of the Civil Liability Act 2002 ; and, if so, in what way or ways.

3. Whether any breach of duty so found relevantly caused the plaintiff's injuries, concluding a consideration of section 5D of the Civil Liability Act 2002 .

4. Whether the plaintiff was guilty of contributory negligence, and if so, in what respect(s).

5. The nature and extent of any injuries the plaintiff might suffer from, or have suffered from.

6. Whether the defendant is legally liable for some, all or no part of the plaintiff's injuries; and how such damages would be assessed in each circumstance.

7. The nature and extent of the plaintiff's pre existing psychological problems.

8. Whether the proceedings are barred - either in whole or part - by operation of s.18A and/or 50C of the Limitation Act 1969 .

9. The plaintiff's entitlement to, and assessment of, damages under Part 2 of the Civil Liability Act 2002 ."

In final submissions it was confirmed that the Limitation Act defence was no longer pressed.

THE NATURE AND CONTENT OF THE DUTY OWED TO MS OYSTON

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 det ermining whether a reasonable person would have taken precautions against a risk of harm, the court is to consi der 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."

Negligence has the meaning given by s 5 of the Civil Liability Act , namely 'failure to exercise reasonable care and skill ' .

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." "

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.

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.

THE COLLEGE'S POLICIES

The College's policies were the means by which the College met its duty of care in relation to student behaviour. It is convenient to deal with these policies, before turning to deal with the various evidence which the witnesses gave about what happened to Ms Oyston.

The evidence demonstrated that it was well known that bullying could not only put a student at risk of physical injury, but also psychological injury. Understanding of such risks had grown over time, with the result that at the time that Ms Oyston attended the College, it had taken steps to improve its policies and practices, in order to better ensure that it was able to meet its duty of care to its students.

The College published 'Student Conduct Policies & Procedures', as well as a 'Personal Protection & Respect Policy', in the diary which was given to each student each year and which they had to have with them daily. Both policies dealt with bullying. They were published in the diary in order to ensure that students were made aware of the College's encouragement of appropriate behaviour; its disapproval of misbehaviour and how it would be dealt with. The diary was used for a variety of purposes, including in connection with disciplinary matters. In 2003, 2004 and 2005 the 'Personal Protection & Respect Policy' was under review. As it was published in the diary each year it was labelled 'draft'.

On the evidence of Mrs Ibbett a year co-ordinator and Mrs Carroll-Fajarda, then the College's Deputy Principal, what was published did not reflect the College's practices. Significant aspects of the published policies were not in practical operation at the College.

It is convenient to refer to what the 2004 diary provided, by way of illustration. In the 'Student Conduct Policies & Procedures' section of the diary, students were advised that 'minor misdemeanours' would be immediately corrected by staff members. If the misbehaviour continued within the classroom the subject co-ordinator would be contacted, or if it continued outside the classroom, the year co-ordinator. A 'student intervention' slip would be completed and details entered into student records. The College maintained a file for each student for this purpose. Serious misconduct could result in afternoon detention; loss of early leave privileges for seniors; suspension; full day detention at school on pupil free days; exclusion from non-compulsory extra curricular activities; or expulsion.

Students who accumulated three detentions within a semester faced suspensions, after consultation with the subject or year co-ordinator and involvement of a member of the School Executive (which included the Principal and Deputies). Suspensions were also noted on student files. Expulsion was the responsibility of the Principal.

Unacceptable behaviour was identified. It included rudeness to staff and students; public misbehaviour; bullying; intimidation/violence; and all forms of harassment/being disruptive in class. It is unnecessary to refer to the other types of behaviour identified.

The diary specified particular procedures for inappropriate behaviour:

"Rudeness to Staff/Student Disobedience:

Both offences will be immediately corrected and noted on a Student Intervention Slip. Serious cases or continued rudeness or disobedience will result in an afternoon detention.

...

Public Misbehaviour:

This affects every member of our school community and will not be tolerated. It includes unruly behaviour, swearing, rudeness, dangerous behaviour on public transport and any other such actions that bring the College's name into disrepute. Students who publicly misbehave face possible suspension and/or review of enrolment.

Prefects are appointed by the College to assist students when in public. They have the authority to confiscate Student I.D. Passes from any student found misbehaving. Failure to comply with reasonable requests from Transport Prefects will result in afternoon detention.

...

Bullying/Intimidation/Violence/Harassment

Verbal bullying, intimidation or harassment will result in an afternoon detention for the first instance (refer to Personal Respect Policy). The College considers as inappropriate use of email or messages via a mobile phone, which intimidate, harass or defame another to be a form of bullying. Intentional physical violence of any kind will result in suspension. Students who bully others may also be required to participate in the College's Peer Mediation Program.

...

Disruptive Behaviour in Class - Lateness - Not Completing Homework OR Not Bringing Appropriate Equipment to Lessons :

The teacher concerned will deal with these subject-based misdemeanours immediately as they are detrimental to both the group and individual. If the problem is a recurring one it will be referred, via a Student Intervention Slip, to the appropriate Subject Co-ordinator who will take further action, which may result in detention or suspension."

The 'Personal Protection & Respect Policy' dealt particularly with bullying. It provided:

"St. Patrick's College does not tolerate bullying or harassment in any form. All members of the College are committed to creating a safe and positive environment, which promotes personal growth and positive self-esteem for all. The College recognises the impact of bullying and harassment on the well being of all members of the school community. This policy is reconciliatory in nature and seeks to avoid 'bullying the bully'.

What is Bullying and Harassment?

Bullying and harassment

Is an act of aggression causing embarrassment, pain or discomfort to another

Includes physical and verbal abuse, racial, religious or cultural prejudice, exclusion from a group, intimidating behaviour, interfering with another's property and forcing others to act against their will and sexual harassment (refer to the College policy on sexual harassment for further details)

Can be planned and organized or unintentional

Involves individuals and/or groups

May occur in the form of graffiti, offensive notes, e-mail messages and SMS text messaging.

What do we do to prevent bullying and harassment?

As a school community, we will report all cases or bullying and harassment. Students, parents and teachers can report bullying.

Usually, the most appropriate member of staff to deal with incidents of bullying had harassment is the relevant Year Co-ordinator."

While the policies envisaged that a student might be referred to counselling in the event of bullying, it did not envisage that a counsellor would investigate such misbehaviour. That was a matter for the year co-ordinator. Nor was it the counsellor's role to punish a bully.

Mrs Ibbett was the year co-ordinator for Ms Oyston's cohort in each year that she attended the College, apart from a period of long service leave in 2004. She was repeatedly cross-examined on the basis that her identification of particular misbehaviour, put to her as constituting bullying, as 'inappropriate behaviour', was inaccurate and had resulted in bullying directed at Ms Oyston not being addressed by the College. Mrs Ibbett's approach reflected an understanding that the College's policies dealt with both bullying and misbehaviour which did not amount to bullying. On her understanding, for misbehaviour to amount to bullying, there had to be a course of conduct, rather than just a single incident. On her approach in practice, until Mrs Ibbett had established that there had been ongoing inappropriate behaviour, she dealt with a student's misbehaviour as inappropriate behaviour, which might also warrant punishment under the policy, but not on the basis that it was bullying.

While the 'Personal Protection & Respect Policy' did not reflect that understanding explicitly in its terms, that it was one operating within the College must be accepted. The policies certainly contemplated that a single incident which was not seen as involving bullying, nevertheless could involve misbehaviour which was so serious that it warranted punishment in accordance with the 'Student Conduct Policies & Procedures'.

Despite what the policies provided, the evidence reveals that in Ms Oyston's case, in 2004, a difficulty emerged at the College in dealing with ongoing or repeated misbehaviour, whether or not it amounted to bullying. This was at a time when there was clearly ongoing concern at the College about persistent misbehaviour amongst students which did amount to bullying; the operation of the School's policies; and the need to take further steps to ensure that students were not bullied.

The College's policies envisaged that teachers and co-ordinators would have considerable discretion as to how they would deal with inappropriate behaviour. It could result in simply a discussion with a student, a warning, a phone call to a parent, or a more serious step such as a detention or suspension. Staff, including co-ordinators such as Mrs Ibbett, exercised their discretion in dealing with misbehaviour, depending on the circumstances which arose to be dealt with. They had to exercise judgment to ensure that they identified any course of conduct which might amount to bullying. What appears to have happened in relation to Ms Oyston, is that such judgment and discretions were exercised to the point where an effective bullying policy was not in practical operation.

In May 2004, the evidence shows unarguably that Ms Oyston was not only being bullied and complaining about the bullying, but that she herself also engaged in inappropriate behaviour when she started a rumour about a student who she complained was amongst those bullying her. This led to retaliation and resulted in her engaging in a serious act of self harm at school, which she sought to raise with Mrs Ibbett, but to which the counsellor attended. Ms Oyston's own misbehaviour, as well as that of the other students involved, was dealt with by way of detention. The parents were all notified.

Ms Oyston's parents reacted quite differently to these events. Her father wrote to the College advising that he believed that the punishment Ms Oyston had received was not severe enough, but he left the matter in the College's hands. On her evidence, Mrs Oyston did not read the College's letter, did not approve of the behaviour and was aware of her husband's letter, but regarded Ms Oyston's behaviour as involving an act of revenge for the bullying which she was herself being subjected to. This view was not communicated to the College.

In this year, Mrs Ibbett was dealing with a number of students who were engaging in misbehaviour. Some were engaging in inappropriate behaviour to the point where they were clearly involved in bullying others. In June 2004, Mrs Ibbett wrote a letter to year 9 students about bullying which the home room teachers read out in their classes. Still, the misbehaviour did not cease. This brought particular students to Mrs Ibbett's attention, including those who Ms Oyston complains in these proceedings were bullying her relentlessly. So far as Ms Oyston was concerned, I am satisfied that the steps which were taken were neither consistent with the College's policies nor adequate to ensure that she was protected from this ongoing misbehaviour.

It is unquestionably difficult for a school to determine whether misbehaviour of the kind about which Ms Oyston here complains, such as jostling and elbowing in a corridor is being engaged in between friends in fun, or done in order to intimidate or humiliate someone; or when calling someone a 'slut' or 'bitch', language nowadays used in popular songs and video clips, is being used acceptably between friends, or when such language is being used to vilify and humiliate someone. When dealing with potential bullying, context is unquestionably often everything, as was Mrs Ibbett's evidence. A school must judge such matters within the context of what is known about the students involved.

Furthermore, as well as meeting their legal duty of care to their students, schools must educate and support their students during their adolescence, a difficult time in the lives of many people. At the College, at the time that Ms Oyston was a student, the evidence suggests that there was an overemphasis on supporting certain students, while they continued to engage in misbehaviour, in order to help them to overcome that conduct. The policy at one point emphasised ensuring that the bullies were not themselves bullied. Unquestionably, the College faced a difficult task. Nevertheless, I am satisfied that it did not achieve the right balance, so far as Ms Oyston was concerned. The emphasis placed on caring for and supporting those who engaged in misbehaviour, came at the cost of not ensuring that Ms Oyston, the victim of that behaviour, was not injured as the result of being bullied.

Records of staff meetings record ongoing discussions amongst co-ordinators and other teachers about concerns over continuing bullying, including in Ms Oyston's year. In 2004, the College took expert advice on its approach to what it perceived to be a bullying problem at the school in 2004 from Mr Roberto Parada, who addressed staff. It also conducted a survey of students that year. The results became available in 2005.

While the College was active in its attempts to deal with what was recognised as a bullying problem amongst the school cohort, including in Ms Oyston's year, its response proved to be ad hoc, rather than systematic. Its record keeping was haphazard. Instead of the types of records which the policies envisaged would be maintained, the College's witnesses described 'a paper trail' intended to be maintained by documents placed on a student's file. Ms Oyston's file was not in evidence, although documents kept in that and other files were. From this material it became apparent that no clear record was maintained as to the course followed when complaints were received; what conclusions were drawn from any investigation conducted; and importantly, what was done by way of response, if bullying or other inappropriate behaviour towards the student was uncovered.

In Ms Oyston's case, the record, such as it was, showed that the types of responses which the College's policies envisaged would be implemented if complaints were received about bullying, did not result.

The Expert's views of the College's policies and the effectiveness of their implementation in practice

Expert evidence was called from Dr Keith Tronc and Mr Peter McNair, as well as from Dr Ken Rigby, about the College's policies and practices and their effectiveness in Ms Oyston's case. There was a joint report produced and they gave concurrent evidence.

It was common ground that the College's anti-bullying program from February 2002 to February 2005 'was an acceptable written set of policies and programs', but Dr Tronc and Mr McNair were disagreed as to the effectiveness of the programs as implemented. Dr Tronc was of the view that the College's policies were inadequately actualized and implemented and while impressive looking, they failed to protect Ms Oyston. The survey of the College's students in 2004 in his view confirmed that the policies also failed other students. Mr McNair disagreed. He took the view that the policies were used effectively in relation to Ms Oyston, when appropriate.

The results of a student survey conducted in 2004 were also very differently perceived. Dr Tronc was of the view that they revealed a 'massive' bullying problem at the College. Mr McNair was of the view that the survey showed that the College's anti-bullying processes were effective. Mr Rigby and Mr McNair were of the view that the results did not show that the position at the College was worse than that at other schools, particularly those where a similar survey developed by Dr Rigby, had been undertaken. It is unnecessary to resolve this conflict. The evidence showed that even if the situation was not worse than at other schools, a significant number of students perceived bullying to be a problem. Ms Oyston was clearly one of those.

Dr Tronc and Mr McNair agreed that the matters about which Ms Oyston complained, came under the College's anti bullying program. Dr Tronc was of the view that there was inadequate response, even though there was obvious vulnerability shown early by Ms Oyston and that counselling did not resolve her problems. Her complaints were not taken seriously or acted on until November 2004. Mr McNair's view was that there were significant and immediate steps taken after Ms Oyston's self harm in May 2004, including communication with her parents and re-educating her school cohort about the nature of bullying and harassment and reinforcing procedures as to its unacceptability.

Dr Tronc and Mr McNair agreed that if any complaints about bullying arose:

"I. The complaint should have been investigated;

II. If shown to be true then any or all of the following actions may have followed:

a) Conflict resolution procedures such as restorative conferences or peer mediation arranged;

b) Counselling for the Plaintiff and for the perpetrators by the relevant pastoral care personnel (for example Year coordinators);

c) Arrangement of suitable peer support for the Plaintiff;

d) Parental notification to carers of all parties;

e) Counselling sessions by trained counsellors, remembering that participation in counselling is voluntary;

f) If appropriate, punishment sanction should have been imposed, such as the detention system and restorative questionnaires evidently in use. This could have included short suspension, but only in the case of repeated harassment of the Plaintiff and only as a last resort;

g) Follow-up monitoring of both the Plaintiff and alleged perpetrators;

III. Appropriate records should have been maintained in the student files of all students concerned.

IV. Consideration should have been given to cohort or school assemblies to address personal relationships."

In their concurrent evidence, given after they had access to exhibits and transcript of evidence received at the hearing, it was revealed that the experts' differences had resolved but little.

They were asked to comment on certain events which had occurred in 2004, including: complaints made by Mrs Oyston in February; an incident of self harm in May; and a memo sent by Mrs Ibbett to Ms Oyston's teachers in November. Dr Tronc was of the view that the above steps which he and Mr McNair had agreed on, ought then to have been taken. Mr McNair took the view that the year co-ordinator, Mrs Ibbett, needed to be free to vary the applicable procedures and that 'bullying the bully' had to be guarded against by the College. A zero tolerance approach to bullying was counterproductive. In his view, aspects of the College's published polices were also ineffective, for example maintaining a bullying register. This just created a useless bureaucracy and could result in the maintenance of inaccurate information, which leads to injustice. Good practice was to deal with incidents as they occurred, in order to solve problems. There were also problems with peer mediation, which was also contemplated by the College's policies.

Dr Tronc explained what he understood by 'zero tolerance', namely that the administrative team would not turn a blind eye to bullying. If peer mediation did not work, then a school would have to fall back on sanctions. Mr McNair agreed with such an approach, but was of the view that sanctions which were mandatory, did not work. What worked was thoughtful counselling, constructive culture and thoughtful intervention, which had to be explored before punishment was imposed as a last resort. Mr McNair was doubtful that counselling of a perpetrator, if forced, would be effective. Dr Tronc was of the view that schools had to have counselling, as well as effective discipline. What was done in a particular case was a matter of balance.

Dr Tronc believed that it was important for early steps to be taken to deal with bullying, to control it and stop it spreading. In his view, the longer bullying was uncontrolled, the more likely harm would result. In his experience, bullies tended to test waters, to see if there would be retaliation. They looked to the reactions of authorities, onlooker apathy and crony support. Investigation and even punishment reduced risk of harm to victims. Mr McNair was of the view that in Ms Oyston's case, steps were taken, and that the harm suffered was not as the result of those steps, or lack of them.

Whilst Dr Tronc and Mr McNair agreed that the survey data showed a bullying problem existed at the College, they disagreed as to its magnitude. Mr McNair said that what it revealed as to group bullying would have been of concern, but the result also showed that the global bullying index was less than that for similar sex single schools. Dr Rigby agreed that the results, while sad, showed that the College was not in an exceptional position. The survey was a diagnostic tool which showed that the College was doing a little better than average, or at least not worse; the comparisons being made between surveys not being perfect. That the 2004 survey revisited one undertaken in 1998 at the College was to its credit. Practically all schools now have anti-bullying policies, however, it was a matter of controversy as to whether there had been any improvement in bullying at schools as a result.

Dr Tronc remained of the view that the implementation of the College's policies in Ms Oyston's case was spotty and inconsistent. Mr McNair said that covert retaliation and social aggression depended on student or parent reporting, because it was largely unseen. The critical point in his view was that the behaviours of which complaint was made in these proceedings, was not known to the School.

Mr McNair was also firmly of the view that the best way of dealing with incidents of bullying was to strengthen the victim 'by allowing the victim to find ways to understand and deal with behaviours'. Immediate compulsory counselling of perpetrators could lead to resentment against the victim. If counselling was resisted by a perpetrator, the better way forward was to talk to the whole group, in order to bring peer pressure on the perpetrator. While as a last resort punishment would be imposed, in this case that situation was never reached.

Dr Tronc disagreed. On his approach there had been a failure to act sufficiently on Ms Oyston's reports. While this was not a situation involving violence, there had been repetition of bullying, which ought to have been dealt with in accordance with the policy. He agreed, however, that there had to be room for discretionary decisions in these types of serious situations. Dr Tronc remained of the view that there had been inadequate investigations in relation to the information which the College had. Mr McNair was of they view that they were adequate.

The College's policies and how they were implemented in practice failed to protect Ms Oyston from bullying

In my assessment of the evidence, the College's response to the bullying problem which existed at the school by way of its implementation of its policies was inadequate, so far as Ms Oyston was concerned.

Despite all of the work undertaken to develop policies and to train staff and students in what type of behaviour amounted to bullying and how to detect it and to deal with it, when confronted with persistent inappropriate behaviour and bullying, the College's response was ineffective to ensure that it met its duty of care to Ms Oyston, even though it was apparent that real harm was resulting for her. The College certainly did not respond to what came to its notice as to what Ms Oyston was being subjected, in the way in which Mr McNair and Dr Tronc agreed it should have responded.

The evidence given by the College's witnesses put beyond question that while the paper system which the College had under ongoing constant review between 2002 and 2004, may have been effective if implemented, it was in reality, not in practical operation. The College failed to respond adequately, or in some instances at all, to complaints of bullying relating to Ms Oyston which came to its attention from various sources. It failed to adequately document such complaints and its responses, as its systems envisaged; to act on them as Dr Tronc and Mr McNair agreed ought to have been its response when a complaint about bullying was received; or to adequately follow up or monitor Ms Oyston, to ensure that she was not being subjected to further bullying.

Such monitoring was particularly important at a single sex school like the College, given the subtle types of bullying behaviour which girls were known to engage in; behaviour of the type about which Ms Oyston complained. There was evidence of both active, direct bullying coming to the College's attention, as well as indirect bullying behaviour which left Ms Oyston isolated. The College had been advised about both types of bullying by Dr Parada. It was also recognised that victims were sometimes driven to retaliate.

In February 2004, Mrs Oyston raised a concern about bullying with the Principal. When in May 2004 Ms Oyston herself came to attention for inappropriate behaviour, no consideration was given to the possibility that she was involved in such retaliation, even though her actions were directed at one girl, JP whom Mrs Oyston had complained about in February 2004, along with another student, LM, who was already known to have engaged in inappropriate behaviour towards other students.

Later that year, a group of students, including Ms Oyston, complained that they were the targets of ongoing inappropriate conduct by other students outside their friendship group, including JP and LM. Ms Oyston herself made even further complaints. Clearly the College had to act to ensure that either the behaviour ceased, or was in fact not occurring as reported. If it was occurring, then College's policies designed to bring the misconduct to an end and prevent it from recurring, had to be acted upon.

Dr Tronc's view that a failure to act in accordance with policies such as those which the College published to its students, is likely to encourage such behaviour, must be accepted. It certainly cannot ensure that the school meets its duty of care to the victim. Counselling a victim to withstand the bullying, as Mr McNair suggested in his evidence was a way in which to deal with bullying, without also acting to ensure that the bullying ceases, will put a school at obvious risk of failing in its duty of care to the victim.

Insisting that bullying cease, and taking steps which ensures that happens, if the conduct does not cease voluntarily, cannot, in my view be viewed as wrongly 'bullying the bully', but rather as exercising an undoubted right to insist that conduct which school bullying policies provide students are not to engage in, must cease. If such a requirement is flouted by students, schools must take steps designed to ensure that the bullying ceases. Mere counselling of a victim dealing with the consequences of ongoing bullying, will not be sufficient for a school to meet its duty of care.

Discretion, a very necessary part of any teacher's role, cannot operate to the point where misbehaviour, including bullying, is dealt with inconsistently, or worse, arbitrarily or not at all.

I accept the force of the submission that the difference in approach which the College adopted to its 'Uniform Policy', reveals how it failed in relation to its other behaviour policies. The 'Uniform Policy' was also published in the College's student diary. It dealt with a range of matters, including some which went to safety - the requirement that long hair be tied up, for example. Infractions of this policy led to a warning, a note being sent to the parents for repeated infractions and then a detention. This was a policy both clear and enforced at the College, including in relation to Ms Oyston, on the documents in evidence. What the various policies were dealing with was quite different, of course. Nevertheless, they each had important aims, the conduct policies being directed to misbehaviour which could result in a student's physical or psychological injury. The 'Uniform Policy' to other matters, some of which were also directed to ensuring safety. The College's failure to enforce its conduct policies in a similar way to its enforcement of its 'Uniform Policy', underlined its failure in the duty which it owed Ms Oyston.

The evidence shows that the result of the College's inadequate implementation of its own policies was that significant adverse consequences began flowing in 2004 for Ms Oyston.

THE COLLEGE WAS AWARE THAT MS OYSTON WAS BEING BULLIED

Credit

There were many conflicts and contradictions in the evidence, which require close consideration, in determining what in fact happened to Ms Oyston, while a student at the College. It was argued for the College that in this case much would depend on an assessment of the credit and reliability of Ms Oyston, she being, it was argued, an unreliable witness. The credibility of other witnesses, including those called in the College's case, was also challenged, particularly that of Mrs Ibbett. It is convenient to deal with those matters, at this point.

So far as Ms Oyston is concerned, the question of credit has to be approached by giving due consideration to the fact that at the time of the events in question, she was an adolescent, unquestionably suffering serious difficulties in her personal and school life. At the time of giving her evidence she was aged some 20 years. There is no question that she was subjected to significant stressors over a number of years whilst attending the College, which impacted on her mental state. That this may have also impacted her memory of particular events, appears possible.

Ms Oyston's memory of certain events was certainly not particularly good. In cross-examination she explained that before the hearing she had been shown documents produced by the College and that until she saw them, she had no memory of certain matters with which they dealt. Aspects of Ms Oyston's evidence was seemingly irreconcilable. As the College submitted, it appeared that at times her evidence in cross-examination was evasive and deliberately so, especially when contemporaneous records showed that evidence which she had given in chief could not be accurate. Her account of the times at which various events occurred was shown not to have been entirely reliable. She gave contradictory evidence in part.

What must also be considered, however, was that even though the College clearly failed to adequately implement the record keeping aspects of its bullying policy, documents which were maintained by the College and counsellors corroborated significant aspects of Ms Oyston's account of her experiences. Also to be considered was that evidence given by witnesses called in the College's case, especially concessions made in cross-examination, albeit reluctantly, also corroborated aspects of Ms Oyston's account.

What also required careful consideration was that on the one hand, Ms Oyston's evidence was that the bullying to which she was subjected over the years was relentless, to the point where it came to occur almost every day, with the result that she repeatedly complained to various members of staff, without receiving effective assistance. There was certainly documentary evidence of ongoing complaints, particularly in 2004, but not of such relentless bullying. In cross-examination, however, Ms Oyston also said that she did not like to complain about the bullying she was enduring and the effect it was having upon her and that she was even bullied in relation to receiving counselling and seeing Mrs Ibbett. That evidence also accorded with aspects of the counselling records, although they were criticised as not being very illuminating, given the brevity of the account recorded of what Ms Oyston revealed to the counsellor.

In her case Ms Oyston called evidence from her parents. She called no evidence from friends who attended the College with her and who might have corroborated her account of how she was bullied by other students. Nor did she call evidence from any of her teachers, from counsellors who she saw, from doctors who treated her at the time, or even the psychologist who treated her in 2005, after she left the College. Nevertheless, certain contemporaneous documents confirm that other students, teachers, counsellors and doctors all observed or were informed about Ms Oyston being bullied at school.

For its part, the College did not call evidence from its then Principal, Mr Green, teachers other than Mrs Ibbett and Mrs Carroll-Fajarda, or of any of the counsellors who dealt extensively with Ms Oyston and her mother. They were all obvious witnesses who could have shed light on what had occurred.

Having considered all of the material which was in evidence, I have come to the view that Ms Oyston was not deliberately exaggerating what had occurred to her, or that she set out to give false evidence. I have rather concluded that what occurred to her has in her mind assumed a very significant role in causing the problems which she suffered while at the College, perhaps more significant than a proper reflection of other contributing factors might warrant. Given that these factors appear to have stemmed from her difficult home circumstances, the shift is perhaps an understandable one, for a troubled adolescent mind to have made.

Ms Oyston was removed from the College in early 2005 when aged 15 years, at a time when she was unquestionably unwell. Beforehand she had repeatedly received counselling whilst at the College; she had engaged in a number of episodes of threatened and actual self harm; she had repeatedly collapsed and was taken from school by ambulance; she had been admitted to hospital; and she had received various testing and treatments. When Ms Oyston was finally removed from the College by her parents, they had came to the view that the College had not acted effectively to deal with ongoing bullying to which Ms Oyston had been subjected.

On any view these are not common experiences for adolescent school students. Having in mind the evidence to which I will turn as to Ms Oyston's experiences at the College, as well as the evidence of the medical treatment which Ms Oyston received and the view of the experts as to her condition at particular times, I am well satisfied that the view that Ms Oyston should be approached as an unreliable witness of little credit, is not open.

Mr Oyston and Mrs Oyston's credit was also challenged. It was Mr Oyston who took steps to obtain legal advice, soon after Ms Oyston was withdrawn from the College in 2005. Mr Oyston first made a statement, shortly before the hearing in 2010. His evidence was also given orally at the hearing. It emerged that before giving this evidence, he had read hospital records and a chronology of events which Ms Oyston's solicitor had prepared for the trial.

Mrs Oyston had also been provided with those documents and had shown them to her husband, but she denied herself having read them. She said that she had only flipped through them. The evidence did not disclose that Mrs Oyston had ever made any written statement. Her evidence in cross-examination revealed that she had an extraordinarily poor memory of the detail of events which one might expect a mother closely involved in the serious problems Ms Oyston was dealing with, to remember.

Mr and Mrs Oyston's evidence corroborated that given by Ms Oyston, in part. Their evidence also in part contradicted that given by Ms Oyston, especially as to the extent of the bullying which was directed to Ms Oyston prior to 2004 and in relation to difficulties in her home life. The accounts given Mr and Mrs Oyston, were however, also partially corroborated by documents maintained at the College and by evidence given by witnesses called in the College's case, especially in relation to the events of 2004 and 2005.

The evidence given by the witnesses called by the College, Mrs Ibbett and Mrs Carroll-Fajarda, especially that given in chief, contradicted the accounts given by Ms Oyston and Mr and Mrs Oyston, particularly in relation to complaints which Ms Oyston and Mrs Oyston claimed they had made about Ms Oyston being the victim of bullying at school. In cross-examination there were, however, significant concessions made which impacted on this picture. That was particularly so in Mrs Ibbett's case. Her evidence in chief was that she had never received any complaints about bullying in relation to Ms Oyston. Her evidence in cross-examination was to completely contrary effect, particularly when the distinction which she sought to draw between bullying and other impropriate behaviour is born in mind. That Ms Oyston and her mother were not drawing such distinctions when they raised complaints, is clear.

The evidence given in cross-examination, especially that given in relation to contemporaneous documents which revealed complaints about bullying and an inadequate response by the College, corroborated significant aspects of Mrs Oyston's evidence.

Having this in mind, together with the evidence as to Mrs Oyston's own condition in the aftermath of an accident in which she was involved in 2001, I am not of the view that Mrs Oyston gave false evidence. I accept that she gave her evidence truthfully, in so far as she could remember what had occurred. I had no reason to doubt Mr Oyston's evidence, otherwise than in relation to the evidence given about his son. That was inconsistent with the evidence which Ms Oyston and Mrs Oyston gave.

Ms Oyston's account

Ms Oyston attended the College from 2002, during years 7, 8 and 9. Her parents withdrew her in March 2005, when she was in year 10. She then went to another school where she repeated year 10.

In her initial statement it was Ms Oyston's evidence that while a student at the College she was bullied by certain girls whom she identified as being in the 'popular group' in her form, commencing in term 3 2002, when she was in year 7. They were looking at her, making comments amongst themselves and giggling or sniggering. When they walked past they would call her 'bitch' or 'slut' and giggle amongst themselves. Occasionally they gave her a nudge with their elbows, when walking past. There was such talk and jostling before school started, at recess and lunchtimes and while Ms Oyston was waiting for the bus after school, or for her mother to pick her up.

In class there was also name calling, giggling and sniggering, mostly during religion class, particularly whenever she stood up to read something. This also occurred in commerce, history, geography, science and English classes. Such bullying occurred on average every second day.

Ms Oyston had come to the College from a primary school with two of her friends. She had not experienced problems like this at primary school. She could recall nothing which had prompted this treatment in year 7. Others whom she identified in her group of friends were subjected to similar treatment, although to a lesser extent.

Ms Oyston identified who the girls in this 'popular group' were in year 7. On the evidence the identification of this group of girls in the year as the 'popular group' came from Ms Oyston. Over time, members of the group appear to have altered, including when one of her former friends joined that group. There was no evidence that anyone else so identified the group to whom Ms Oyston referred. When later cross-examined, Mrs Ibbett, the year co-ordinator for each year that Ms Oyston was at the College, did not agree with that description, at least in relation to one of the girls later identified by Ms Oyston to have been a member of this group.

Ms Oyston also gave evidence that in 2002 she was mocked at the swimming carnival for not wearing a bikini, with the result that she never attended another such carnival. At the athletics carnival she was mocked for wearing house colours, with the result that she never attended another athletics carnival. She was also picked on during mufti day, either in year 7 or 9, where one of the girls said 'Oh dear my mother has that skirt. Look what she's got on'. She did not attend later school mufti days.

In her statement, Ms Oyston said that she first complained about this bullying in either year 7 or year 8, to her English teacher Ms Mills. There was only one of the popular girls in this class and Ms Mills would sit her away from that girl. Ms Mills suggested that she speak to the year co-ordinator.

In her statement Ms Oyston said that the bullying, both verbal and physical, intensified in 2003 when she was in year 8. The name calling by the popular group was worse during term 1. She was called 'slut', 'bitch', 'dog', 'pimple face' and 'drama queen' and was being elbowed, pushed and jostled. This occurred every day. On average about 3 or 4 times a week she was pushed while lining up for class, while walking to class and while walking downstairs. The members of this group would loudly scream out her name, while running past. She was also harassed in public places such as a shopping centre, Macarthur Square. In August 2003, she was hit by a plastic coke bottle in the playground. She was sent by a teacher to sick bay and ice was put on her head.

Again, Ms Oyston identified the students involved. One of them had initially been in her group of friends, but left, Ms Oyston later said, because she was sick of being picked on and then joined in the bullying herself.

In her statement, Ms Oyston said that she reported the bullying to Mrs Ibbett, who asked her to write down what had happened, but took no action. She did refer her to the school counsellor, who she saw regularly in parts of the year, but was not much help. The counsellor told her to focus on something that she liked and to ignore the other girls. She also reported the bullying to the Deputy Principal Mrs Caroll-Fajarda, to Ms Mills and other teachers, Mr Ashcroft and Ms Barr. Another teacher, Mr Clark was able to control his class better than other teachers and did not allow the bullying to go on in his class. She did not report a deal of other bullying, because reporting it did not help her.

It should be observed at this point that the records in evidence do not accord with this account. Given the evidence which shows that the College polices which required various record keeping were not in practical operation, that Ms Oyston's account was inaccurate, is not necessarily the case.

Ms Oyston could not account for this treatment, which she found very upsetting and eventually led her to become ill. In 2003, she said that she became sad, anxious, depressed and confused. She felt helpless and suffered from very bad mood swings, snapping without provocation. She became angry with people around her. She also became fearful of the dark and began having nightmares. Her parents' evidence corroborated her account.

Ms Oyston told her parents about her problems and believed that her mother approached the College in 2003.

In 2004, the verbal and physical abuse continued. This was the worst year. Ms Oyston said her academic performance dropped. In February 2004, she became more anxious about what was happening and began suffering panic attacks. Her parents took her to McArthur Health Service for treatment for panic attacks and anxiety. She wrote a report about one incident in the toilets, where she was grabbed and pushed against a wall. There is a record of such an account, given to Mrs Carroll-Fajarda.

Ms Oyston said she was afraid of being assaulted and in early 2004 became suicidal. She was admitted to Campbelltown Hospital experiencing a panic attack on 5 February and was discharged on 6 February. She was taken to the emergency department again on 17 February and was later admitted for neurological examination and investigation. She also underwent testing at Westmead Hospital.

On a number of later occasions girls would make remarks to her about needing an ambulance. In May 2004, Ms Oyston said that she was accused of spreading a rumour about one of the popular girls. She was confronted by that girl and another in the corridor and told to watch her back. They would not let her pass and when they went to class, asked the teacher about the consequences of spreading rumours, without telling him what had occurred. There was a class discussion about rumours, which made her uncomfortable. She was told 'it must be nice to have the whole class hate you'.

Ms Oyston became depressed and felt that life was not worth living. She had a lot of time off and left school early. She had to sleep with a night light, petrified of being attacked while she slept and did not want to get up in the morning. She lost her appetite and weight and would shake uncontrollably for minutes.

In February 2005, Ms Oyston was withdrawn from the College after a meeting with Mr Green, Mrs Caroll-Fajarda and her parents. She had been pretending to be sick and had made excuses not to go to school.

In March 2005, she was depressed, harming herself and threatening to hang herself. She commenced being treated by Mr Benad, a psychologist ,and saw him regularly until June 2007. In April 2005, she took an overdose and was admitted to Campbelltown Hospital. She was having panic attacks and seizures and hearing voices telling her to harm herself.

Ms Oyston was enrolled at another school in April 2005, which she left in 2007, without completing year 11. She did not experience bullying there and had a good circle of friends and did reasonably well. In October 2005 she was again admitted to Campbelltown Hospital suffering from seizures, but gradually her condition improved, with ongoing treatment.

She took up a TAFE course in tourism in July 2007, which she did not complete, worked part-time and has pursued other studies, but not yet completed any. She has engaged in various employment since then .

In August 2009 when she swore her affidavit she remained afraid of the dark; had ongoing nightmares about people trying to hurt her; was sensitive to criticism, which made it difficult to remain in a job, as she took the slightest comment about her capacity to work very personally; was nervous in crowds; uncomfortable in shopping centres if alone; was vigilant to dangerous situations; had a habit of biting her lip; and suffered mood swings.

In cross-examination a somewhat different picture began to emerge. That picture showed that Ms Oyston certainly had a troubled adolescence. She developed body image issues while still at primary school. In year 7 she stopped eating and lost weight. A PE teacher at the College became concerned about her and referred her to a counsellor, Ms Cheung. Ms Oyston then saw Ms Cheung and received counselling about her issues with eating during 2002.

There was much which Ms Oyston said that she could not recall when giving her evidence, but she was adamant that she had made many reports to Mrs Ibbett about the ongoing bullying and that nothing had been done to help her.

Ms Oyston initially explained that at first, she thought what was happening to her with bullying in year 7 was normal and would settle down the next year. She did not then speak to Mrs Ibbett. When the hearing continued the following day, Ms Oyston changed her evidence. Having thought overnight, she said that she could remember speaking to Mrs Ibbett in 2002 about bullying.

She also insisted that she had completed written incident reports which Mrs Ibbett required of her in 2003, which she had been shown by her solicitors after the production of documents by the College. Those documents were called for, but were not produced.

Ms Oyston said at one point that in 2003, she had not approached the counsellor Ms Cheung about the bullying, because she was a counsellor who could do nothing. Later she said that she had seen Ms Cheung about the bullying, because Mrs Ibbett was doing nothing.

Contrary to her earlier evidence, it emerged that Ms Oyston had attended the swimming carnivals in years 7 and 8 and had missed the carnival in year 9, because she was then in hospital. She had attended the athletics carnival each year.

Ms Oyston was closely cross examined as to her relationships with various students; what had occurred in various classes; and the reports which she claimed to have made to Mrs Ibbett at various times; what she told the counsellor about bullying, including in relation to triggers which might have caused her collapses and occasions when she spoke to Mrs Arena and other teachers. She had limited recollection of the details of what she said on particular occasions, but did not agree that Mrs Ibbett was very approachable. She recalled repeatedly speaking to Mrs Ibbett and that nothing was done. She was also cross examined about her own behaviour towards JP. In 2004 she recollected being moody about her brother's behaviour and everybody else's. She also recollected ranting and raving at home after a bad day.

Ms Oyston denied having started the rumour for which she was punished in May 2004, claming that she had told two friends something which she had made up about LM, which she didn't intend them to spread. She agreed that she had then wanted to make herself sound better and LM bad and that she had wanted herself to be a part of the popular group. She said that she was 14 years old, being downgraded every day and wanted to make herself appear better. Her friends had broken her confidence, with the result that she was confronted by LM and JP. LM said that she should watch her back and in class raised with the teacher the consequences of spreading a rumour. She was upset, and fearing that LM would laugh at her, left the class and injured herself in the toilets, knowing that what she did would not cause her lasting harm. She could not recall what she then told the counsellor, or the punishment which LM and JP received.

Ms Oyston was also cross examined about occasions when she cut herself and denied that it was in order to gain attention from her mother. She said that she cut herself at times in places which couldn't be seen and knew that the cuts she made on her wrists, were unlikely to cause her great harm. She was also cross examined as to her state in 2005 and what she then told the counsellor. She could not remember discussing problems in her home life as then being her major problem, although problems existed at home which worried her and she felt alone in class. By then she was not getting on with anybody. She could remember her mother collecting her and taking her to hospital and that she was concerned that she would be placed in a mental institution. She agreed that by August 2006 her symptoms had significantly receded after medication and treatment by Mr Benad. She joined a surf club and pursued bronze medallion training, became involved in a swimming club and dancing.

Ms Oyston was also taken to discrepancies between things which she had told Mr Benad about her experiences and what she had later told others. She had not revealed to Mr Benad that there had ever been any physical violence directed towards her, for example. She explained that in 2005, she had not wanted to believe what had happened to her. She did not like telling strangers about her experiences, even though he was trying to help her. By the time she saw Dr Phillips she had learned to deal with it, by then she had seen Mr Benad 32 times and had been hospitalised,

Mr Oyston

Mr Oyston's evidence was that in year 7 he picked Ms Oyston up from school most days. She was very happy in the early part of the year, but as time went by began complaining that girls were picking on her, complaints which he dismissed. They ate their evening meal together at home as a family and he never observed any problems with her eating habits that year. By the end of the year she did not seem as happy as she had been and he impressed on her that the College was a good school and that she should make a fresh start the next year.

In 2003, going to school became an issue. His wife usually took Ms Oyston to school and she began contacting him, saying that Ms Oyston did not want to go to school; complaining about bullying. He told Ms Oyston to get up and go. When he collected her from school in the afternoons she was complaining about being sick, and tired of being picked on. She said that she hated the girls and hated the school. He told her she had to continue, but she seemed to him a completely different, unhappy child.

Ms Oyston complained that she wasn't up to date fashion wise and after a swimming carnival said that she had been mocked and ridiculed by the 'so called popular girls' for wearing a one piece, as had been required. She was a very sociable girl in primary school, but that reduced significantly to the point that she wouldn't attend parties she was invited to. She only felt safe at home. She developed a habit of biting her lips.

Mr Oyston explained that it had been his decision to send Ms Oyston to the College, as he was anxious for her to have a good education. However, 2003 developed into a pretty stressful year. Getting Ms Oyston to do her homework was getting harder and harder. There was conflict at home and she was argumentative with her parents.

In 2004, Ms Oyston did not want to go to school any more. Her parents tried to reassure her, but learned when she was admitted to hospital in February that she had suffered an episode of collapsing or panic attack at school. The cause of her problems was investigated. Mr Oyston had no idea what was going on, but learned from the counsellor Ms Oyston was referred to, that she was cutting her wrist, which she was concealing with a band.

Ms Oyston's reluctance to go to school continued and his wife dealt with the situation with the College, because he was going to work. Ms Oyston was referred to a paediatrician, Dr Freelander and was referred for testing by a neurologist at Westmead Hospital, in an attempt to establish a cause of her ongoing collapses and whether they were the result of epileptic fits. That was excluded. It came to be believed that Ms Oyston was suffering stress reactions.

In 2005, Mr Oyston went to see the Principal of the College with his wife and Ms Oyston. Mrs Carroll-Fajarda was also present. He was angry and complained that the College had a duty of care towards Ms Oyston and pointing at Ms Oyston, said 'look what you've done you've nearly killed her'. There was no response and no discussion of bullying. Ms Oyston was then withdrawn from the College

They then enrolled her in another school and as time went by her problems eased, although she still had problems even then sleeping at night and not dealing very well with criticism. At first she was basically flat, she did rise, but then she'd go back to the bottom of the hill again. Even minor comments about her dress or shoes would make her crumble and go off into her own little world. To his observation Ms Oyston had a fairly normal relationship with her brother. He or his son would accompany her to shopping centres, when she did not feel comfortable going alone.

In cross-examination, Mr Oyston denied that his son had slept outside the house in a tent for a period, as a consequence of his behaviour inside the house, or that he had punched a hole in the wall.

His evidence was interrupted by evidence called from Ms Oyston's solicitor. Mr Oyston had given evidence that he had recently read a statement that he had made some time earlier. Mr Well's evidence was that he had only recently taken a statement from Mr Oyston and had not yet provided it to him. He had earlier made notes of meetings with Mr Oyston. He could not recall giving that material to Mr Oyston, but that could have occurred. There was another solicitor who had day to day conduct of the matter, but it was he who had taken his statement and he did not believe that it had been provided to him. It was then clarified with Mr Oyston that he had not read a statement, but other documents, which he was shown. He agreed that he had used those documents to refresh his memory and that he had earlier forgotten some of what he had read there.

He, nevertheless, denied that he had forgotten that his son had punched a hole in the wall, claiming that he would have had to fix the hole. He was confident about the matters he was giving evidence about.

In cross-examination, Mr Oyston said that he began to see a change in Ms Oyston at the end of 2002. She was different in 2003, flat and not enjoying life. He first heard Ms Oyston describe certain girls as the popular girls in 2003. She became fearful of encountering them outside of school and at a shopping centre. He agreed that she had been able to participate in a group of six or seven hundred dancers at a football game, but to his observation, since 2005 she avoided crowds, other than when in company with him, for instance at a football game.

Mr Oyston also agreed that when Ms Oyston complained about wearing 'daggy clothes', he believed that she was hinting for him to buy her new clothes. He could remember discussing a letter from the College with Ms Oyston, who said 'that the other girls were allowed to wear a two piece why can't I' and that his response was well, because the letter stated that 'you had to wear a one piece'. He drew the conclusion that she had been embarrassed as the result of having been mocked and ridiculed.

Mr Oyston explained that he began receiving phone calls from his wife about Ms Oyston's reluctance to go to school some time at the start of first term. The substance of his discussion with his wife was that 'it looks like it's beginning again, what happened last year is starting all over again'. His response was 'get her up and get her going'. He thought that was the best remedy and told Ms Oyston 'put up with it, go and see someone at school and see if they can sort this out'. She told him she was being picked on, pushed, stared at, name calling all types of stuff.

Mr Oyston agreed that he did not himself go to the school to deal with what she was telling him. Initially, he denied that he was aware that his wife had not gone to the school in 2003, she told him that she had, but then accepted that this had not occurred until 2004.

Mr Oyston could not recall writing to the school in 2003 about an inappropriate note sent by Ms Oyston in class. He could not remember what provoked his reply, but agreed that he was angry at the time. The letter concerned a note written by Ms Oyston during German, which was behaviour which he did not expect of her. He regarded it to be a serious matter.

He was not aware of Ms Oyston having made a claim at school that she was pregnant and that she was taken from Australia's Wonderland to Mt Druitt Hospital because of hyperventilation. He was aware that she collapsed at school on a number of occasions in February 2004. It was his wife who then attended a meeting at the school.

He explained that he had first seen Ms Oyston have a seizure at Campbelltown Hospital in 2004 and had later seen them more than once. Before February 2005, he had not discussed with her what might have been causing them. He was aware that in the latter part of 2004 his wife was going to talk to the school. His wife told him she had gone half a dozen times, but did not tell him who she then spoke to.

Mr Oyston explained that he referred to the College's duty of care to his daughter at the meeting in February 2005 because he had come to the conclusion that they hadn't taken care of her and that he believed that it was under a legal obligation to do so, just as he was for the guys who worked for him. That was a part of the College motto and he believed that they had not done all they could to take care of his daughter. At the time he did not appreciate that there might be a legal remedy, if the College had failed in that duty, but that was what he learned in April, when he went to see a solicitor, while Ms Oyston was resident at Gna Ka Lun, an Adolescent Mental Health Inpatient Unit, at Campbelltown Hospital.

Mrs Oyston

Mrs Oyston was the final witness called in the plaintiff's case. Her evidence was that Ms Oyston was a happy, bubbly child at primary school, who applied herself, had a circle of friends, enjoyed and was active in dance. Her son was a challenging, active child involved in sport. She was not then in employment. Her children generally got on.

Ms Oyston was keen on going to an all girls high school and Mr Oyston was keen for her to attend the College. In early 2002, Ms Oyston was eager to go to school and do her homework. She generally took the bus and on occasions, Mrs Oyston drove her.

This picture changed. Ms Oyston wasn't as keen to go to school, complaining that she was being picked on. She advised her to brush the girls off and concentrate on what she was there for. In August, Mrs Oyston was contacted by the school counsellor about a concern in relation to Ms Oyston's eating habits. She thereafter kept an eye on her and a record of what she was eating. She was not overweight and did not seem to be losing weight and to her there appeared to be no real problem. She also reassured Ms Oyston about her appearance, but Ms Oyston seemed less happy to go to school, flat and with her attention to homework, not as keen.

The following year Ms Oyston began to make excuses for not going to school; she just didn't want to be there. She complained about being picked on. During the year Mrs Oyston spoke to the counsellor at the school. Towards the end of 2003, Mrs Oyston spoke to Mrs Ibbett and told her about Ms Oyston being annoyed and bullied by other girls and asked her to do something, because she was there for an education and her being unhappy was not getting her school work done. Mrs Oyston said that she could not understand what was going on and Mrs Ibbett said they would investigate.

Ms Oyston had got to the stage where she did not want to go to school at all. She would burst into tears, refuse to get out of the car, claiming to be unwell and making excuses. Mrs Oyston was working and would insist that she go to school. She rang her husband who also said that Ms Oyston had to go to school. Mrs Oyston claimed that she also went to the College in 2003 and spoke to Mrs Ibbett and the Principal. She told the Principal that she was unhappy with what was going on, that Ms Oyston was being picked on and that nobody was doing anything about it. He invited two other students in, who confirmed that Ms Oyston was being singled out and picked on. He said that he would try and arrange for her to have a buddy in each of her classes.

In February 2004, Mrs Oyston was called by the College and informed that Ms Oyston had been taken to hospital. She was admitted. The hospital provided her with a note to give to the College. Mrs Oyston went to see Mrs Ibbett. She was angry and told her that Ms Oyston was not in a great state and that all she knew was that it was girls picking on her, bullying her and annoying her. She was told they would try and address the girls to sort something out.

The College was aware that Ms Oyston had a difficult home life. It was known to the College that her mother had been seriously injured in a car accident and Ms Oyston was concerned about her. Ms Oyston was the subject of physical abuse from her brother at times. Her mother and grandmother were known to have suffered from panic attacks. Both that and the bullying which she was complaining about at school provided possible explanations for an emerging eating disorder in 2004.

The lack of response to Mrs Oyston's advice in February 2004 and 2005 about bullying at school, may be explained by evidence that a somewhat difficult relationship developed between the College and Mrs Oyston. She was clearly not very articulate or effective in raising her concerns about Ms Oyston. She also had a view at times that Ms Oyston was exaggerating, which she certainly communicated to the counsellor. Perhaps that had an impact on the College's response, but it did not provide a basis on which the College could fail to meet its duty of care to ms Oyston. That Mrs Oyston may have had a basis for the view which she expressed at times, must be accepted. Ms Oyston herself gave evidence that at times she had exaggerated some of her symptoms, in order to extract herself from situations at school that she could not deal with.

Mrs Oyston's evidence in cross-examination also suggested that she did not always pay the kind of attention which one might have expected to Ms Oyston's ongoing and escalating problems, even when raised directly with her by Ms Oyston and the College. Perhaps Mrs Oyston's own medical condition had an impact on her approach. Whatever be the explanation, even in February 2005 she seems initially to have been somewhat dismissive of the seriousness of Ms Oyston's situation, which the counsellor was then seeking to raise with her in the light of concerns about problems at home which Ms Oyston had revealed, which may have been causing or contributing to her difficulties. That approach altered, as Ms Oyston's condition worsened. Mrs Oyston then insisted that Ms Oytson's problems were being contributed to by ongoing problems at school. That was not a view which the College accepted.

Even taking all of these matters into account, that the College's failure to deal adequately with ongoing problems Ms Oyston was having at school which she, Mrs Oyston and others raised in 2004 and 2005, resulted in injury which that unaddressed behaviour caused, must be accepted.

It was in early 2005 that Mr Oyston became involved, having observed first hand the seizures she was suffering. He eventually withdrew Ms Oyston from the College, after a heated confrontation with the Principal, having come to the view that it had not done enough to protect her from harm. This followed a series of encounters between the counsellor, Mrs Ibbett and Mrs Oyston, over Ms Oyston's then spiralling problems. Mrs Oyston insisted that there were problems at school, as well as at home, but that concern was not acted on by the College. Mrs Oyston finally told the counsellor that the College was responsible for half of Ms Oyston's problems, but for its part the College never seems to have come to an acceptance that there was any ongoing problem at school which it ought to have dealt with. That reflects, it seems, the failure in the latter half of 2004 to implement the College's policies in relation to the concerns about Ms Oyston being the victim of ongoing bullying, which repeatedly came to Mrs Ibbett's attention from various sources, but were not shared with the Executive.

That Ms Oyston may have been particularly vulnerable to psychological injury from bullying at school may be accepted, but that is not a basis on which it may be concluded that causation has not been established. I am satisfied that the evidence did not show that the injury which she sustained, would have occurred in any event, had the bullying not occurred or had it been addressed.

Even if the injury which she suffered was disproportionate to what might be expected to have result from the bullying to which she was subjected at school, I am satisfied on the evidence that is not a basis for concluding that the College was not responsible for the harm which resulted from the bullying to which she was then subjected. I am satisfied on the evidence that the necessary causation has been established. But for the bulling to which she was subjected at school, she would not have suffered the injury which she sustained. The scope of the College's liability extended to the harm which was caused.

CONTRIBUTORY NEGLIGENCE

Section 5R of the Civil Liability Act provides:

" 5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."

I am unable to conclude that Ms Oyston was contributorily negligent for the harm which she suffered, as the College argued, because she failed to complain about bullying at the relevant time. There was clear documentary evidence of such complaint. In any event, the College's attention was also drawn to ongoing bullying by others, information to which it also did not respond.

The College's case in relation to contributory negligence has to be considered in the context of the duty the College owes its students. On the authorities, that is clearly a substantial one. The allegation of contributory negligence is advanced against an adolescent aged between 14 and 15 years, a girl succumbing to psychological injury as the result of ongoing stressors to which it was known she was being subjected at home and school. The standard of persistent complaint about bullying suggested by the College to be necessary, in order for an allegation of contributory negligence to be resisted by such a student, simply cannot be accepted.

That Ms Oyston was not always frank with the counsellor in 2004 as to bullying to which she was being subjected, was consistent with evidence that she wanted to cease counselling, which she found unhelpful in bringing bullying to an end. The counselling itself came to be a basis for bullying. Whatever may have been Ms Oyston's failure to have voiced issues which she was having 'in clear, unequivocal terms to enable the School to action them', at any particular time, any such failure has to be considered in light of the evidence that in 2004, when she unquestionably repeatedly raised her ongoing problems with Mrs Ibbett, still no active steps to bring the behaviour about which complaint was being made to an end, were taken.

Ms Oyston's evidence that she finally desisted in making further complaint because she despaired of getting help, must be accepted. That was a view to which she came at a time when she was clearly succumbing to injury, as was apparent to the College.

In Woolworths Limited v Strong, Hodgson JA observed:

"36 The questions for a judge deciding whether a plaintiff has been guilty of contributory negligence arise as a matter of construction of the statute enabling apportionment of damages. Following the Law Reform (Miscellaneous Provisions) Amendment Act 2000, section 9 Law Reform (Miscellaneous Provisions) Act 1965 includes:

"(1) If a person (the claimant ) suffers damage as the result partly of the claimant's failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person:

(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and

(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

37 The first questions that emerge for a judge to decide are whether the claimant has failed to take reasonable care, and if so, whether that failure to take reasonable care caused the claimant to suffer damage that also is partly the result of the wrong of another person. The relevant type of "failure to take reasonable care" is still that described in Astley v Austrust Ltd (1999) 197 CLR 1 at [30], in explaining the pre-2000 version of the statute, namely: "failing to take reasonable care of his or her person or property." In the context of the present case, it is the First Respondent failing to take reasonable care for her own safety."

On the evidence, I am satisfied that it has not been established that in 2004 and 2005 Ms Oyston failed to take reasonable care for her own safety. There was unquestionably repeated complaint made in 2004. While Ms Oyston herself made no further complaint in 2005, given the complaints she had made at the end of 2004 and the College's failure to act or monitor her, notwithstanding what its own policies and good practice required be done, that the harm Ms Oyston suffered in 2005 was the result of, or contributed to, by Ms Oyston's failure to make further complaint, may not be accepted. In 2005 the College failed to respond to the abundant information which it already had. It then also received further complaint from Mrs Oyston, to which it also did not respond. On the evidence Ms Oyston's capacity to make further effective complaint was questionable. Her worsening condition, of itself should have provided the College with ample notice of her ongoing problems, which remained unaddressed from 2004.

DAMAGES

The damages claimed were:

"1. GENERAL DAMAGES

$200,500.00

2. EARNING CAPACITY

2.1 PAST

$39,000.00

2.2 PAST SUPERANNUATION

$4,290.00

2.3 FUTURE

$201,960.00

2.4 FUTURE SUPERANNUATION

$22,215.60

3. DOMESTIC ASSISTANCE

Claim is made by way of general allowance

$30,000.00

5. TREATMENT

5.1 PAST

$3,876.30

5.2 FUTURE

$37,942.60

TOTAL

$539,784.50"

Non-Economic loss

The award of damages for non-economic loss is governed by s 16 of the Civil Liability Act . 'Non-economic loss' is defined as:

" non-economic loss means any one or more of the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement."

No damages may be awarded under this head unless the severity of the non-economic loss is at least 15 % of the most extreme case. A table prescribes the amounts that may be awarded in respect of such loss, proportionate to the most extreme case.

It was argued for the College that if its case that no award on this basis would be made was not accepted, that an award no greater than 20% of a most extreme case would be entertained. It was also submitted that there should be an apportionment of any damage, because it had been shown that some of the harm Ms Oyston suffered occurred when there was no negligence on its part; some of her symptoms related to familial issues; and some symptoms and vulnerability were the result of the distinct event described by Ms Oyston as having occurred in 2007, after she had left the College. It was accepted, however, that to the extent that it was concluded that Ms Oyston had a future vulnerability to psychiatric disorder because of the erosion of her psychological resilience, as the result of its negligence, that had to be taken into account in determining the award to be made.

The defendant submitted that this was a case where the principles discussed by Basten JA in State of New South Wales v Burton [2006] NSWCA 12 had to be applied. There his Honour dealt with an argument that once it was established, as a matter of probability, that a failure to provide early psychological intervention materially contributed to a psychiatric condition, the respondent was entitled to recover damages for the full extent of that condition, unless the appellant was able to demonstrate, with a reasonable degree of precision, the extent to which his condition was the result of a pre-existing factor, for which the appellant was not responsible. The appellant's case was that the respondent had lost an opportunity which may have reduced the severity and duration of his condition, but there was no evidence that its failure to provide early psychological intervention had caused the condition or indeed necessarily contributed to it in any particular degree.

Basten JA discussed the difficulty of reconciling the application of the principles stated in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at 160 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168 and those in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, as explained in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [101] - [112]. His Honour identified a number of basic principles, to be used to evaluate the parties' conflicting positions (at [71] - [75]):

- 'First, although it is sufficient that tortious conduct of a defendant materially contributes to an injury suffered by the plaintiff, there may be other causes and, in assessing loss, there are circumstances where it is appropriate to visit on the defendant liability for a proportion only of the loss suffered.'

- 'Secondly, contributing causes may occur in a sequence, or have a continuing concurrent operation at the time the injury is suffered. Where they operate sequentially, the defendant may be liable for the whole of the loss suffered'.

- 'Thirdly, according to the 'egg-shell' skull principle, the defendant will take the victim as she or he is found, and will bear the full extent of the loss suffered, even if the injury is more severe than would have been the case with a person within the normal range of physical or mental attributes. On the other hand, it may be necessary to make allowance, in diminution of the defendant's liability, for harm which would at some stage have been likely to occur in any event, sometimes expressed as a variation of the egg-shell skull principle, namely the 'crumbling skull' principle. This was explained by Major J in the Canadian Supreme Court in Athey v Leonati [1996] 3 SCR 458 at [35]:

"The so-called 'crumbling skull' rule simply recognises that the pre-existing condition was inherent in the plaintiff's 'original position'. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage ... ."

This is, perhaps, merely a colourful way of expressing the principles established in Australia in Watts , Purkess and Malec .'

- 'Fourthly, where it is appropriate to apportion loss, that can only be done if the injury is in some sense divisible.'

- 'Fifthly, where a plaintiff proves that tortious conduct materially contributed to his or her injury, an evidentiary onus will lie on the defendant to establish that other causes, including both concurrent causes and pre-existing, but on-going, conditions, also materially contributed.'

Basten JA concluded:

"76 In Purkess v Crittenden at 168, the Court spoke of the burden on the defendant to disentangle the extraneous condition "with some reasonable measure of precision". In relation to psychiatric conditions, precision, in any scientific sense, tends to be an aspiration rather than a reality. In keeping with the principle stated in Watts and Purkess , the evidence relied on by the defendant must demonstrate a substantial likelihood, rather than a speculative chance. As Barwick CJ stated in Purkess :

"That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."

77 The real issues are when apportionment is deemed appropriate and how it is achieved. As noted by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.11] the relevant principle was concisely stated in Savini v Australian Terrazzo & Concrete Co Pty Ltd [1959] VR 811 (Full Court). At 821, Sholl J identified the relevant context as that where -

"the loss is ultimately shown to be distributable between two actual causes - first, the defendant's tortious conduct, and, secondly, an act of God or other event for which the defendant is not responsible. Damage flowing from two sources has joined, so to speak, to form one stream, but if it is found still to be possible to measure the respective volumes of the components the law will take notice of the measurement and treat them as distinct. Otherwise, it will not; for it does not lie in the mouth of the defendant to say that, although he originated one stream of damage, its inseverable admixture with another means that none can be traced back to him." "

The onus fell on the College to establish that Ms Oyston had a pre-existing condition or that it was an injury, which she would have suffered in any event. I am satisfied that this was not established on the evidence.

Mr Benad's assessment in 2005 was that while at the College, Ms Oyston came to suffer from an adjustment disorder. He treated her, with the result that he came to the view that she had recovered by 2007; a view Dr Apler and Dr Phillips accepted, as I have explained. Dr Phillips regarded her symptoms to reveal a major depressive disorder. Those symptoms resolved, but Ms Oyston's account of her ongoing problems were being afraid of the dark; having ongoing nightmares about people trying to hurt her; being sensitive to criticism; being nervous in crowds; being uncomfortable in shopping centres and tending to avoid such places; being vigilant to dangerous situations, avoiding parties, nightclubs and drunken or violent people; a habit of biting her lip; and suffering from mood swings.

That these were all the consequence of other stressors to which Ms Oyston was subjected, including that to which she was subjected in 2007, rather than the College's negligence, was not established.

Her problems with bullying resolved when she left the College. There was no evidence that all of her other problems also resolved. Ms Oyston's condition improved over time, with treatment, to the point where she had recovered by 2007, when she left school. There was a further serious stressor to which she was later subjected, but another recovery. These are matters which must be taken into account, in assessing damage, but do not leave to the conclusion that the cause of the injury to which Ms Oyston succumbed while at the College, was not the result of its negligence. Nor can I see how the contributions to that injury can sensibly be untangled in this case. On the evidence I am satisfied that the onus which fell on the defendant in that respect was not met.

What must thus be determined is whether the severity of Ms Oyston's non-economic loss is or is not at least 15 % of a most extreme case. I have no difficulty in finding that it is, albeit not significantly greater than the statutory minimum. Ms Oyston's adolescence was seriously affected during 2004 and 2005. She had to repeat year 9 at her new school. With treatment she improved to the point where there was no longer any need for ongoing treatment. I accept, however, that the evidence shows that while she recovered, she has a future vulnerability to psychiatric disorder, because of the erosion of her psychological resilience.

Having considered all of the evidence I have concluded that there can be no apportionment as the College sought, but that its submission that non-economic loss of no greater than 20% of a most extreme case was established, must be accepted.

Past Economic Loss

Ms Oyston claimed an award for past economic loss on the basis of one year's total loss of earnings, resulting from the need to repeat year 9, together with approximately three years of casual and intermittent earnings, followed by another loss of 12 months employment,

Ms Oyston's evidence was that she had originally intended to complete her HSC; to engage in tertiary studies and to become a lawyer. She left school in 2007 at the beginning of year 11. There was evidence that beforehand, Ms Oyston had received adverse notices for not completing assignments, but her evidence was that she did well there, had a good circle of friends and left to take up a TAFE course. Ms Oyston undertook part time work between November 2005 and March 2006.

From early 2007 to July 2007 she worked four or five hour shifts over four days per week in a pharmacy; employment which she left because she did not like the working environment, which required her to deal with methadone users, and did not get on with her boss. It was in April 2007 that she was subjected to another serious stressor, unconnected with the College or that employment. She took up an 18 month TAFE course in tourism in July 2007, which she did not complete. In January and February 2008 she worked full-time as a shop assistant.

From September 2008 to November 2009 she worked as a swimming instructor working 6.5 hours per week. From March 2010, she had employment full-time as a personal assistant.

Ms Oyston's case was that this work pattern reflected ongoing problems flowing from the College's negligence, including her sensitivity to criticism. But for her injury, she would have been capable of earning the average weekly earnings for all females in New South Wales, currently $680 per week, by comparison to her current weekly earnings of $490; reflecting a difference of $190 per week. Past loss of earnings should thus be awarded at the sum of $250 per week, for the four years since she had left school, that being a higher sum than that earlier specified.

The defendant's case was that Ms Oyston had not established that her earnings in the past were the result of any negligence on its part. Nor did the evidence establish a basis on which any past economic loss could be assessed. There was no evidence of academic performance which readily suggested capacity to undertake tertiary studies, notwithstanding a stated ambition to study law. The calculations based on average weekly earnings paid no regard to Ms Oyston's inexperience as a worker, let alone in the work she was undertaking as a personal assistant at the time that she gave her evidence. Given her age and inexperience, it would be expected that she would earn less than the average person.

I accept that an award for past economic loss on the basis of one year's loss of earnings, has resulted from the need to repeat year 9 at her new school. That figure should be calculated at Ms Oyston's earnings of $490 per week in her full-time work as a personal assistant, rather than the higher rate of average weekly earnings for all females, given her age and inexperience. The evidence establishes her capacity for work of that kind. Otherwise, I am not satisfied that it was established that the loss claimed was the result of the negligence established.

In March 2010, Ms Oyston took up employment as a personal assistant. There was no evidence from which it could be concluded that the rate which she was paid for that work, or the other work which she had previously undertaken, did not properly reflect her age and experience in such employment. There was no evidence from which it could be concluded that but for the injury which she suffered in 2004 and 2005, she would have been capable of earning income at the rate claimed, having in mind her age and experience at that point of her life.

The evidence also did not establish that her leaving school, or her intermittent earnings afterwards until she took up her present full time employment, was the result of the College's negligence. To the contrary, the evidence suggested that by the time she left school she had recovered from her injury, albeit being left vulnerable to further injury. She took up employment which she continued until she commenced the TAFE course. This work ceased when she went to TAFE in July 2007. She seems to have worked full-time during the TAFE holidays. From September 2008 to November 2009, she worked only very short hours as a swimming instructor. She was then involved with caring for her brother's child. That her interrupted working life for that period prior to her full-time employment as a personal assistant was as the result of the College's negligence, as opposed to the result of the further stressor to which she was exposed in April 2007, or other factors, was not established. Her evidence was that this event affected her ability to work for some months.

Future Economic Loss

Section 13 of the Civil Liability Act provides:

"13 Future economic loss-claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

Ms Oyston's case was that the evidence established that in future there was a real likelihood (assessed to be in the order of 60-75%) that she was likely to be incapacitated from time to time with moderate depression and anxiety, which would prevent her from working or cause the termination of her employment or resignation. She had difficulty dealing with criticism and might face further hospitalisation, which would have a snowballing effect, creating difficulty in her obtaining and retaining further employment, which would all result in substantial loss of earning capacity and pecuniary loss. This submission finds support in Dr Phillip's opinion that Ms Oyston's injury as an adolescent, a crucial time in her adolescent development, has left her in a position where she may in future succumb to further life stressors which she may encounter. There was tendency for such a disorder in women to worsen with each episode, which could become chronic and last for years.

Ms Oyston has a working life of 44 years ahead of her and thus, it was submitted, the award on this head had to be substantial. The award should be based on average weekly earnings, but had to factor in that Ms Oyston may have been capable of earning a greater amount and may from time to time be deprived of the opportunity to work. It was argued that a substantial award was thus warranted by way of a buffer, in accordance with s 13 of the Civil Liability Act as discussed in Penrith City Council v Parks [2004] NSWCA 201 (at [5] and [58]).

For the defendant it was submitted that the mere availability of a buffer, did not relieve the Court from undertaking the s 13 process. A figure of $200,000 could not be plucked from the air. Assumptions had to be identified, which represented Ms Oyston's most likely future circumstances. That identification had not been attempted for Ms Oyston.

A figure of $200,000 reflected a weekly loss of $211, without making any allowance for vicissitudes. That allowance reflected a weekly figure of $250 with a 15% reduction, throughout the plaintiff's working life on the basis of a comparison between present earnings and the average of all earnings, without taking account of possibilities such as the statistical likelihood that Ms Oyston would have children and then be out of the workforce, or the likelihood that her earnings would increase with expertise.

The approach urged also failed to pay attention to matters such as her academic record; Ms Oyston's youth and inexperience when she initially took up employment; paid no attention to her failure to pursue tertiary studies; or to the possibility that she might have periods of time outside the workforce, when having children.

In Amoud v Al Batat [2009] NSWCA 333 Basten JA explained the process which the calculation of damages in accordance with s 13 requires as:

"23 It is clear that the section is not a code, but assumes the continued operation of general law principles. Whether it merely encapsulates, rather than qualifying, the general law, and if the latter to what extent, is less clear. Subsection (1) is formulated as a prohibition on an award of damages for future economic loss, unless its terms are satisfied. The section imposes a burden of proof on the claimant to satisfy the court as to the matters identified in the provision. Those matters are twofold, namely:

(a) the claimant's most likely future circumstances but for the injury, and

(b) the assumptions about future earning capacity (and other events) which will form the basis of calculation."

The evidence as to Ms Oyston's most likely future circumstances but for the injury includes material which shows that Ms Oyston never excelled at school, before or after 2004. An interest in pursing a legal career was referred to in her evidence, but a capacity to do so, was not established. She left school before she had completed her Higher School Certificate. She pursued, but did not complete her TAFE studies. She intends to complete her studies in future. She engaged in various part-time employment, which she did not find congenial. She has difficulty in dealing with criticism. She was working as a personal assistant, without seeming difficulty, when she gave her evidence, albeit Dr Phillips was of the view that such work could present her with certain challenges. Dr Apler, who had seen her more recently, did not share that view.

I am satisfied that it was not established that Ms Oyston's pre-injury earning capacity would have been at a highly skilled level, such as would have resulted from completion of studies which would have permitted her to practice law. I am, however, satisfied that her capacity would have permitted her to achieve average weekly earnings.

As to assumptions in relation to Ms Oyston's future earnings, account must be taken of the evidence as to her current position and earnings; her intention to complete her studies, which will enable her to pursue other work; that with increased age and experience at work, her earnings will increase; and the real possibility that she will achieve promotion, given her character and the resilience which she has shown in the past. In my assessment the evidence supports the view that there is a real prospect that Ms Oyston will in future achieve average weekly earnings. That there is an increased vulnerability to further injury in the future, which will have a negative impact on her earnings, also has to be taken into account.

I accept that it must follow that a modest buffer of the kind discussed in Penrith City Council v Parks must be awarded. Assessments such as these are always difficult, particularly in the case of a person injured before they have embarked on working life. Account must also be taken of vicissitudes. Doing the best I can, I have assessed that buffer at $50,000.

That figure takes into account the following considerations in relation to her future earning capacity: that given Ms Oyston's age, that it will take some years before she achieves average earnings; that her wages are likely to increase to that level at some point; that she is likely to have time out of the workforce, as the result of further injury to which she has been rendered more susceptible by the College's negligence; that this will have a negative impact on her ongoing earnings and earning capacity; that some account must also be taken of the likelihood that she may also take time out of the workforce, even on a part time basis, while she completes her studies or has children; and that otherwise, she is likely to work to age 65.

Domestic assistance

Section 15(2) and (3) of the Civil Liability Act provides:

"(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a) there is (or was) a reasonable need for the services to be provided, and

(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c) the services would not be (or would not have been) provided to the claimant but for the injury.

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months."

No need for past or future domestic assistance, let alone at a level sufficient to meet the statutory threshold, was established on the evidence. There can be no award of damages on this basis.

Treatment

There was no issue in relation to the past treatment claim.

As to future treatment, any award must reflect Ms Oyston's reasonable future needs (see for example Barwick CJ's discussion in Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 661). The experts were divided in their views as to this. Given the nature of the injury suffered and what was revealed in the expert's concurrent evidence, it is clear that there can be no certainty as to Ms Oyston's future needs, nevertheless an assessment of what her future reasonable needs may be, must be made.

When they gave their concurrent evidence, Dr Apler was left with uncertainty as to Ms Oyston's psychological response to future events, but did not consider that she had present treatment needs, given what he observed in 2009. Dr Phillips believed that she remained vulnerable; it was moderately likely that she will suffer a relapse, particularly if faced with substantive future stressors; but that it was virtually impossible to provide a firm answer as to future treatment needs. That would depend on the extent of any psychological disturbance and the diagnosis then made.

For Ms Oyston it was finally submitted that an allowance should be made on the basis of the costs identified in Dr Phillips' reports. In August 2008, he recommended 10-15 sessions of cognitive behavioural therapy and then monthly follow up for a year and then second monthly follow ups until she was symptom free. In December 2008, he said that treatment would help her to deal with any further episodes of a depressive disorder, in which event she would require treatment for a subsequent, rather than first illness, when weekly consultations of 20-25 sessions, with monthly follow ups for a year would be required, perhaps together with medication. That Dr Apler, found her to be symptom free in 2009, must also be considered.

Again, doing the best I can, I have concluded that having in mind Ms Oyston's evidence as to her situation when she gave her evidence at the hearing; the evidence as to the treatment which Ms Oyston received from Mr Benad; what occurred in April 2007 and the treatment then received; and what Dr Phillips and Dr Adler respectively observed when they saw her, that an award on the basis that Ms Oyston has a present need for further treatment was not established. I am also satisfied, however, that there is a real possibility that a need for further treatment may arise again in future, which must be reflected in an award, albeit of a relatively modest kind. Accordingly I have concluded that Ms Oyston must be awarded a sum which reflects 20-25 sessions of psychotherapy, with monthly follow ups for a further year and second monthly follow ups for a further year. The cost of this psychotherapy is to be at the rate identified in Dr Phillips' December 2008 report, as being charged by psychiatrists.

Superannuation

Superannuation on the amounts awarded for past and future economic loss must also be calculated.

ORDERS

The usual order as to costs would be that they follow the event. In the event that the parties wish to be heard on costs, they should approach.

For the reasons given, the orders I make at present are:

(1) Verdict for the plaintiff.

(2) The parties are to bring in short minutes reflecting the conclusions and findings I have come to.

**********

Decision last updated: 15 April 2011

Medium Neutral Citation:	Oyston v St Patrick's College [2011] NSWSC 269
Hearing dates:	16 June 2010, 17 June 2010, 18 June 2010, 19 June 2010, 20 June 2010, 13 December 2010, 14 December 2010, 15 December 2010, 16 December 2010, 17 December 2010
Decision date:	13 April 2011
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	1. Verdict for the plaintiff. 2. The parties are to bring in short minutes reflecting the conclusions and findings I have come to.
Catchwords:	TORT - NEGLIGENCE - personal injury - psychiatric/psychological harm - plaintiff bullied and harassed by other pupils at high school - complaints of bullying to school authorities by plaintiff, plaintiff's mother and other school students - observations made by school staff of bullying - symptoms of anxiety and depressed mood engaging in self harm, collapses and seizures - nature and content of duty of care owed - whether duty of care was breached - school aware of bullying - school's bullying policies and practices - inadequate implementation of bullying policies established - question of whether plaintiff suffered illness - psychiatric injury established - causation - reasonable foreseeability of damage - supervision - damages - relevance of plaintiff's vulnerability to psychiatric injury and experiences at home - contributory negligence DAMAGES - measure of damages in action for tort - personal injuries - loss of earnings and earning capacity non-economic loss - past economic loss - future economic loss - domestic assistance - treatment - superannuation
Legislation Cited:	Civil Liability Act 2002 Limitation Act 1969
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 Amoud v Al Batat [2009] NSWCA 333 Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 Cox v State of New South Wales [2007] NSWSC 471; (2007) 71 NSWLR 225 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Penrith City Council v Parks [2004] NSWCA 201 Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31; (2005) 221 CLR 161 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 State of New South Wales v Burton [2006] NSWCA 12 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Woolworths Limited v Strong [2010] NSWCA 282
Category:	Principal judgment
Parties:	Plaintiff - Jazmine Oyston Defendant - St Patrick's College
Representation:	Counsel: Plaintiff - Mr D Kennedy SC with Mr G Smith Defendant - Mr R Sheldon SC with Mr N Chen Solicitors: Plaintiff - Lough Wells Duncan Defendant - Makinson & d'Apice
File Number(s):	2007/265225

"1. GENERAL DAMAGES	$200,500.00
2. EARNING CAPACITY
2.1 PAST	$39,000.00
2.2 PAST SUPERANNUATION	$4,290.00
2.3 FUTURE	$201,960.00
2.4 FUTURE SUPERANNUATION	$22,215.60
3. DOMESTIC ASSISTANCE
Claim is made by way of general allowance	$30,000.00
5. TREATMENT
5.1 PAST	$3,876.30
5.2 FUTURE	$37,942.60
TOTAL	$539,784.50"