Oyston v St Patrick's College (No 2) - [2013] NSWCA 310

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Oyston v St Patrick's College (No 2) [2013] NSWCA 310
Hearing dates: 29, 30 July 2013
Decision date: 23 September 2013
Before: Macfarlan JA at [1];
Barrett JA at [2];
Tobias AJA at [3].
Decision:
1. Appeal allowed in part.
2. Cross-appeal dismissed.
3. Set aside the judgment in favour of the appellant in the sum of $124,938.48 given and entered on 17 October 2011 and in lieu thereof enter judgment for the appellant in the amount to be determined by the parties in accordance with these reasons and conveyed to the Court within 7 days of the date of these orders.
4. The respondent to pay the appellant's costs of the trial before Schmidt J and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - appellant bullied and harassed by other pupils at high school -whether psychological harm caused by school's failure adequately to address bullying behaviour - whether primary judge's award of damages adequate
Legislation Cited: Civil Liability Act 2002, ss 5D, 5E, 15, 16
Cases Cited: Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400
Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 296 ALR 3; 87 ALJR 505
Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239
Kuhl v Zurich Financial Services Ltd [2011] HCA 11; 243 CLR 361
Marsland v Andjelic (1993) 31 NSWLR 162
Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182
Woolworths Limited v Strong [2010] NSWCA 282
Category: Principal judgment
Parties: Jazmine Oyston (Appellant/Cross-Respondent)
St Patrick's College (Respondent/Cross-Appellant)
Representation: Counsel:
H Marshall SC and G Smith (Appellant/Cross-Respondent)
R Sheldon SC and S Glascott (Respondent/Cross-Appellant)
Solicitors:
Lough & Wells Lawyers (Appellant/Cross-Respondent)
Makinson & d'Apice (Respondent/Cross-Appellant)

File Number(s): 2012/16667
Decision under appeal

Citation:

Oyston v St Patrick's College [2011] NSWSC 269
Oyston v St Patrick's College [2011] NSWSC 826 (costs)

Before:

Schmidt J

File Number(s):

2007/265225

Judgment

MACFARLAN JA: I agree with Tobias AJA.

BARRETT JA: I agree with Tobias AJA.

TOBIAS AJA: On 27 May 2013 the Court delivered judgment in this matter on the issue of the College's breach of duty of care to the appellant: Oyston v St Patrick's College [2013] NSWCA 135 (the May judgment or MJ). The breach of duty found by the Court was the College's failure, particularly during 2004 when the appellant was in Year 9, to take reasonable steps to bring the bullying of the appellant by other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCA 310
Decision Date: 23 September 2013

CaseChat Overview and Summary

The appeal in *Oyston v St Patrick's College (No 2)* concerned a claim by the appellant, a former student, against the respondent school for psychological harm allegedly suffered as a result of the school's failure to adequately address bullying behaviour by other pupils. The case was heard in the Court of Appeal of New South Wales by Macfarlan and Barrett JJA and Tobias AJA.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding the school negligent in its handling of the bullying, and whether the damages awarded to the appellant were adequate.

The Court of Appeal allowed the appeal in part. It found that while the school had a duty of care to the appellant, the primary judge's assessment of damages was inadequate. The court set aside the original judgment and ordered that a new judgment be entered for the appellant in an amount to be determined by the parties. The respondent was ordered to pay the appellant's costs of the trial and the appeal, with a certificate under the Suitors' Fund Act 1951 to be provided for the appeal costs if the appellant qualified. The cross-appeal by the respondent was dismissed.

Orders

Orders of the court

1. Appeal allowed in part.

2. Cross-appeal dismissed.

3. Set aside the judgment in favour of the appellant in the sum of $124,938.48 given and entered on 17 October 2011 and in lieu thereof enter judgment for the appellant in the amount to be determined by the parties in accordance with these reasons and conveyed to the Court within 7 days of the date of these orders.

4. The respondent to pay the appellant's costs of the trial before Schmidt J and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Oyston v St Patrick's College (No 2) [2013] NSWCA 310
Hearing dates:	29, 30 July 2013
Decision date:	23 September 2013
Before:	Macfarlan JA at [1]; Barrett JA at [2]; Tobias AJA at [3].
Decision:	1. Appeal allowed in part. 2. Cross-appeal dismissed. 3. Set aside the judgment in favour of the appellant in the sum of $124,938.48 given and entered on 17 October 2011 and in lieu thereof enter judgment for the appellant in the amount to be determined by the parties in accordance with these reasons and conveyed to the Court within 7 days of the date of these orders. 4. The respondent to pay the appellant's costs of the trial before Schmidt J and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - appellant bullied and harassed by other pupils at high school -whether psychological harm caused by school's failure adequately to address bullying behaviour - whether primary judge's award of damages adequate
Legislation Cited:	Civil Liability Act 2002, ss 5D, 5E, 15, 16
Cases Cited:	Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400 Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 296 ALR 3; 87 ALJR 505 Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 Kuhl v Zurich Financial Services Ltd [2011] HCA 11; 243 CLR 361 Marsland v Andjelic (1993) 31 NSWLR 162 Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 Woolworths Limited v Strong [2010] NSWCA 282
Category:	Principal judgment
Parties:	Jazmine Oyston (Appellant/Cross-Respondent) St Patrick's College (Respondent/Cross-Appellant)
Representation:	Counsel: H Marshall SC and G Smith (Appellant/Cross-Respondent) R Sheldon SC and S Glascott (Respondent/Cross-Appellant) Solicitors: Lough & Wells Lawyers (Appellant/Cross-Respondent) Makinson & d'Apice (Respondent/Cross-Appellant)
File Number(s):	2012/16667
Decision under appeal	Citation: Oyston v St Patrick's College [2011] NSWSC 269 Oyston v St Patrick's College [2011] NSWSC 826 (costs) Before: Schmidt J File Number(s): 2007/265225