Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Oyston v St Patrick's College [2013] NSWCA 135
• Hearing dates: 11, 12, 13 March 2013
• Decision date: 27 May 2013
• Before: Macfarlan JA at [1]; Barrett JA at [2]; Tobias AJA at [3]

Decision

Direct that the appeal be referred to the Registrar for the purpose of fixing a date for hearing of the outstanding issues of causation, damages and costs.

[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 - personal injury - psychiatric/psychological harm - appellant bullied and harassed by other pupils at high school - whether cross-appellant aware that cross-respondent was being bullied - whether inadequate implementation of bullying policies - whether primary judge erred in finding that cross-appellant breached duty of care towards cross-respondent
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471; Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31; (2005) 221 CLR 161
• Category: Principal judgment
• Parties: Jazmine Oyston (Appellant/Cross-Respondent); St Patrick's College (Respondent/Cross-Appellant)
• Representation: Counsel: H Marshall SC and G J 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): CA 2012/16667

Decision under appeal

• Citation: [2011] NSWSC 269
• Date of Decision: 2011-04-13 00:00:00
• Before: Schmidt J
• File Number(s): SC 2007/265225

Judgment

1 MACFARLAN JA: I agree with Tobias AJA.

2 BARRETT JA: I agree with Tobias AJA.

3 TOBIAS AJA: The appellant, Jazmine Oyston, was a student at St Patrick's College, Campbelltown ("the College") from 2002 to February 2005. In 2007, she brought a claim in negligence alleging that she had suffered psychological harm as a result of bullying by other students at the College.

4 On 13 April 2011, the primary judge, Schmidt J, gave judgment for the appellant. On 17 October 2011, her Honour made orders awarding damages in the sum of $116,296.60, plus interest. In these proceedings, the appellant appeals against that award. The College cross-appeals on liability. The appeal was set down for a two-day hearing which was wholly taken up with argument on the issue of breach of duty. Accordingly, the Court determined, and the parties agreed, that that issue be determined before the other issues including that of causation. Thus, on 13 March 2013 the appeal and cross-appeal in so far as they related to the primary judge's findings on causation, damages and costs, were adjourned to a date to be fixed.

5 As the nature and content of the duty owed to the appellant was not in issue at trial or on the appeal, an appropriate starting point is to record the primary judge's exposition of that duty. It is contained in paragraphs [11]-[15] of her Honour's reasons and, for convenience, I set it out in full.

[11] 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 determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider 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."

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

[13] 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.""

[14] 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.

[15] 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."

6 Thus, at first instance, it was not in issue that the College owed the appellant a duty of care, or that the risk of harm resulting from bullying was of such significance that it required the College to take active steps to protect its students therefrom. Of course, the duty did not require the College to ensure that its students were protected from bullying but only to take reasonable steps to that end. At first instance, issue was joined over the adequacy of the College's policies in relation to bullying and, in particular, the effectiveness of their implementation. Furthermore, the College contested whether the appellant suffered a psychological illness and, if she did, whether it resulted from the bullying which she claimed to have experienced at the College. The College also argued that the appellant was guilty of contributory negligence. The primary judge found that she was not and there is no challenge to that finding.

The appellant's case

7 In the Court below, the appellant argued that the College's breaches of its duty of care included failure to devise, implement and maintain an adequate anti-bullying program; failure to act upon the appellant's complaints of bullying; and failure adequately to investigate and prevent the bullying of which the appellant complained, by supervising, disciplining and counselling the perpetrators. To appreciate those contentions, it is necessary to set out in some detail the evidence upon which the appellant relied to support them.

The alleged "culture of bullying"

8 The appellant submitted that bullying was a serious issue at the College from as early as 2003. She relied upon three tranches of evidence to support that contention: the minutes of Year Coordinators' meetings held during 2004; the results of a bullying survey carried out in 2004; and memos produced by Mrs Ibbett, the Year Coordinator for the appellant's cohort in each year that she attended the College, relating to bullying, which are discussed below in the context of particular bullying incidents involving the appellant.

9 The appellant contended that all of the minutes of the Year Coordinators' meetings which were produced identified bullying as an ongoing issue for Years 7, 8 and 9. Significantly, the minutes of the meeting of 18 August 2003 recorded that bullying seemed to be a serious issue in Years 7, 8 and 9. (The appellant at that time was in Year 8.) Furthermore, "while positive steps [had] been taken to reduce the incidence of bullying and build resilience ... these [had not] gone far enough." In particular, the minutes recorded that it was important to "work toward building a culture where bullying is not accepted as something to be put up with" and that the College's "Policy [might] not be targeting unacceptable behaviours early enough".

10 In cross-examination, Mrs Ibbett did not agree that the tenor of this discussion was that there was a "serious problem" with bullying, but rather characterised bullying as a "serious issue" which the College was "continuing to work on ... to improve and to address". I pause to note that the distinction she sought to draw is not self-evident. Not surprisingly, the primary judge (at [194]) rejected Mrs Ibbett's evidence as inconsistent with the records of the Year Coordinators' meetings, finding that bullying was a problem in Year 9 and one which was affecting the appellant to Mrs Ibbett's knowledge.

11 Bullying was stated by Mrs Carroll-Fajarda, the Deputy Principal at the relevant time, to have been on the agenda of the meeting of 9 February 2004, although it did not appear in the minutes of that meeting. Likewise, Mrs Carroll-Fajarda stated, and Mrs Ibbett's diary appeared to confirm, that bullying was on the agenda of the meeting of 22 March 2004. The minutes of the meeting of 17 May 2004 recorded that bullying was recurring in Year 9 and probably across the College. They stated: "we need a united front and some strong words spoken - maybe at next assembly? Suggestion that John [John Green, the then Principal] address this issue on the 11th of June at assembly".

12 In cross-examination, Mrs Ibbett stated that this passage would have recorded her flagging of the fact that she was dealing with some situations in Year 9, in order to inform the other Year Coordinators of what was happening in that year group. However, she stated that she did not recall using the word "bullying".

13 In August 2003, Mrs Carroll-Fajarda attended a bullying workshop presented by a Mr Parada. On 29 June 2004, Mr Parada conducted a seminar on bullying at the College. Mrs Ibbett made notes on that seminar. However, she denied that if she had had the information presented in the seminar earlier, she would have been better placed to control and prevent bullying. Rather, she stated that the seminar affirmed what the College was doing and gave it other things to consider. On the other hand, Mrs Carroll-Fajarda acknowledged that if the seminar had taken place earlier, it may have improved the manner in which the College handled the issue of bullying.

14 The minutes of the meeting of 30 June 2004 recorded that "inappropriate behaviour and rudeness are not acceptable" and "things are getting out of hand in this area". Furthermore, it was noted that "bullying also needs a paper trail". Mrs Ibbett was cross-examined in relation to the latter statement, but denied that at that time the reference to a paper trail was to what was referred to in the College's anti-bullying policies as a Bullying Register or that the matter was being discussed because no paper trail was being kept. The minutes of the meeting of 18 October 2004 recorded that detentions and detention pro formas were discussed; however, it is not evident that the issue of bullying was raised directly.

15 A bullying survey of the students was conducted in 2004. Its results indicated that approximately half of the students who responded had been bullied by another student during 2004. Approximately 15 per cent of students reported being bullied once or twice a month or more frequently. 2.1 per cent of students stated that they were bullied every day. 2.4 per cent of students reported that, while at the College, they had been bullied over a period of several years. 7.4 per cent of students considered it to be false that "this school is a safe place for students who find it hard to defend themselves from bullying".

16 The College submitted that the bullying survey was said by Dr Rigby, an expert called by the College and the person who designed the survey upon which the bullying survey was modelled, to show that bullying at the College was no worse than average. That was certainly the tenor of Dr Rigby's evidence, which suggested that on some measures, bullying at the College was below the national average. The College also submitted (and it was not contested) that the survey was not published until 2005, as appeared from the footnote to that document, "Prepared by K Maxwell 2005". It was therefore not suggested that the results should have been available to the College authorities at an earlier point of time.

17 Nevertheless, it was clear that the College considered bullying to be of sufficient concern to justify the development of a policy as to suitable responses. The College's policies in relation to bullying were set out in two documents published in the College diary which was distributed to students each year and entitled "Student Conduct - Policies & Procedures" and "Personal Protection & Respect Policy". In each of the relevant years, those policies were labelled "draft".

18 The policies identified what constituted unacceptable behaviour and specified the disciplinary procedures which misbehaviour would attract. Sanctions ranged from afternoon detention to possible expulsion in the event of repeated serious misconduct. It is appropriate to set out in full the relevant parts upon which reliance was placed by the appellant:

STUDENT CONDUCT - POLICIES & PROCEDURES

PARTICULAR PROCEDURES - FOR INAPPROPRIATE BEHAVIOUR

...

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 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.

...

PERSONAL PROTECTION & RESPECT POLICY

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 of bullying and harassment. Students, parents and teachers can report bullying.

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

PROCEDURE

First Incident

Mediation to be conducted by the Year Co-ordinator. Mediation should involve both parties and work towards a resolution. Counsellor intervention may be appropriate at this stage. Consequences that may be appropriate at this stage include Wednesday Detention, cleaning graffiti, repair or pay for damage to property.

Second Incident

A behavioural contract will be developed for the bully. Counsellor intervention for the bully is mandatory at this stage. Consequences that are appropriate at this stage include Wednesday Detention, cleaning graffiti, repair or pay for damage to property and suspension. There may be other suitable consequences for bullying.

Third Incident

If further incidences of bullying and harassment take place an interview with the student, parents, Deputy Principal and/or Principal and Year Co-ordinator will be conducted. The consequence for continued bullying and harassment will be at the discretion of the Deputy Principal and/or Principal.

All Incidents

The staff member dealing with the incident immediately interviews each person involved, including any witnesses, to complete an incident report form. It is important that students are alone when completing the form. An incident report form contains the following information

The names of those involved in the incident

The names of any witnesses

The date, time and place of the incident

Details of the events which took place

Details of the consequences of the incident

The staff member should complete a report on the incident as soon as possible outlining all details and any further action taken. A copy of incident reports will be placed on the file of students involved. The incident will be recorded in the Bullying Register.

The Year Co-ordinator should contact the parents of students involved in a bullying incident. The victim, the bully and other groups in the school community might need further support. Follow-up should ensure that adequate support is available to students and parents.

The Year Co-ordinator will assess each case of bullying individually. It may be necessary to vary the procedures outlined above to reflect the differing nature of incidents reported.

19 At first instance, expert evidence was adduced in relation to the manner in which the College dealt with bullying. Dr Keith Tronc, Mr Peter McNair, and Dr Ken Rigby produced a joint report and gave concurrent evidence. It was common ground that the College's policies constituted an acceptable anti-bullying program. Dr Tronc and Mr McNair were also agreed as to the course of action that ought to have been taken in response to any complaints about bullying. However, the experts disagreed as to the effectiveness in the appellant's case of the implementation of those written policies.

20 One aspect of the College's policy which was not implemented was the establishment of a "Bullying Register". The appellant claimed that the College should have kept such a Register throughout the period 2002-2005, which it failed to do. Mrs Ibbett accepted that no Bullying Register was ever kept. The College submitted that records were nevertheless kept. The expert witnesses disagreed as to the usefulness of a Bullying Register. In my view the failure to implement a Bullying Register does not of itself bear on the issue of breach of duty.

The appellant's complaints and the College's response thereto

21 Perusal of her Honour's reasons reveals that for the purpose of determining the issue of breach of duty, she concentrated on events in 2004 (when the appellant was in Year 9) and early 2005. It is fair to say that, notwithstanding complaints of bullying allegedly made by the appellant in 2002 and the latter part of 2003, her Honour did not find any breach of duty by the College in those years. Furthermore, there was no Notice of Contention filed by the appellant asserting that her Honour ought to have found breach of duty in 2002 or 2003. However, there is some benefit in referring to the appellant's evidence of events in 2002 and 2003 as being relevant to her credit.

22 The appellant gave evidence that she began to be bullied in the latter half of 2002 by girls in the "popular group". The bullying took the form of giggling and sniggering directed at the appellant, name-calling, nudging and jostling. This alleged bullying and harassment took place before the commencement of classes, during recess and lunch times, and after school when the appellant was waiting for the bus or to be picked up, and occurred on average every second day during Year 7. The appellant stated that she was also subjected to name-calling, sniggering and giggling during classes (particularly Religion class, but also in Commerce, History, Geography, Science and English) whenever she stood to read something, answer questions from the teacher or provide some other input in class.

23 The appellant stated that other girls in her group were also subjected to bullying by the "popular" girls, although to a much lesser extent. In her written statement tendered in evidence, she identified the "main offenders" as LM, JL, AM, LC and JP. However, in cross-examination, she acknowledged that JP did not attend the College until the appellant was in Year 8, and thus could not have been part of the "popular group" in Year 7. Nevertheless, as will appear, the two main perpetrators in 2004 were alleged to be JP and LM.

24 The appellant claimed also to have been subjected to bullying in relation to her dress on mufti days, on the school swimming carnival day, and on the school athletics carnival day. She claimed that, as a result, she did not attend mufti days, swimming carnivals or athletics carnivals thereafter. However, in cross-examination, the appellant conceded that there was no athletics carnival or mufti day at the College during the period of her enrolment that she failed to attend.

25 The appellant believed that she first complained about the bullying to her English teacher, Ms Mills, either in Year 7 or in Year 8. Ms Mills sat one of the "popular girls" away from the appellant and suggested that she speak to Mrs Ibbett. However, in cross-examination, the appellant could not recall having told Mrs Ibbett at any stage during 2002 that she was being bullied.

The first referral to counselling

26 On 6 August 2002, Mrs Ibbett referred the appellant to a counsellor due to a potential eating disorder. Ms Mills had spoken to Mrs Ibbett regarding the appellant's having lost a lot of weight over a period of six weeks. Ms Mills had also heard students say that the appellant was not eating. The appellant had spoken to another teacher, Ms Cornett, about body image, and believed that she had an eating disorder. Six counselling sessions ensued.

27 In cross-examination, the appellant acknowledged that she did not tell the counsellor about bullying in those sessions as, so she stated, she did not want anybody to worry about it, and did not want to tell everybody that she was being bullied. In any event, she perceived that Ms Cheung, the counsellor, was not able in her counselling role to address the problem. In fact, the counsellor's notes recorded that the appellant reported that "socially everything [was] normal". The appellant essentially agreed with that proposition in cross-examination.

28 The concerns which the appellant raised with Ms Cheung related to grief due to a death in her family; loneliness at home; body image; and harassment by her next-door neighbour, who was "tr[ying] to be [her] boyfriend". On 21 August 2002 she stated that she was "really, really happy" and "more confident". She repeated that she was happy on 5 November 2002, and stated that she did not feel that she needed counselling. In cross-examination, the appellant acknowledged that on 5 November 2002, she rated her happiness as "ten out of ten". On 27 November 2002, the counselling file was closed, the appellant stating that she was fine and no longer needed counselling.

29 The appellant claimed that Mrs Ibbett had conceded in her evidence that the appellant's eating disorder might have been associated with bullying. Mrs Ibbett did accept that the cause of eating problems could possibly be bullying. However, she also stated that bullying was "but one" of the potential causes, others being sexual abuse and "a whole range of things". She denied that it was her role to carry out an investigation into whether the eating disorder could be related to bullying, stating that her role was limited to speaking to the student whose well-being had been raised with her by another teacher and referring the student to counselling, if necessary. Given the qualified nature of Mrs Ibbett's statement, and the fact that the appellant made no reference to bullying at this time, the significance of the alleged concession is doubtful.

30 The appellant gave evidence that at the end of 2002, she complained to Mrs Ibbett that LM was picking on her. However, she stated that she did not fill in an incident report, and nothing was done in response to her complaint. That statement contradicted the appellant's earlier oral evidence that she did not recall having told anyone, including Mrs Ibbett and Mrs Carroll-Fajarda, about being bullied in 2002. When cross-examined about that inconsistency, the appellant stated that she had "had a sleep and remembered it", and that it had "taken [her] many years to get it out of [her] head". There were no records of that complaint, and Mrs Ibbett did not recall it.

The events of 2003

31 The appellant claimed that from 2003, she was subjected to name-calling on a daily basis, as well as physical bullying which included being pushed in the corridor three or four times per week and, on one occasion, being struck on the head by a plastic coke bottle. The verbal bullying was not confined to the schoolyard, but also took place on the school bus and, on occasion, in public places, such as Macarthur Square, a shopping centre. The main perpetrators of this ongoing bullying were the same as those referred to at [23] above, although a number of other students were involved from time to time.

32 In her written statement tendered in evidence, the appellant claimed to have reported this behaviour to Mrs Ibbett, who asked her to write down what happened and referred her to the College counsellor, but took no further action. The appellant would attend upon the counsellor (Ms Cheung) quite regularly during parts of 2003, but according to the appellant, she was not much help, merely suggesting that she focus on something she liked and that she ignore the girls of whose behaviour she was complaining. The appellant felt discouraged from reporting matters to Mrs Ibbett from then on. However, she stated that she also reported the bullying to Mrs Carroll-Fajarda and to three other teachers, Ms Mills, Mr Ashcroft and Ms Barr.

33 The appellant stated that on one occasion in mid-2003 she was mocked while reading out loud in a Commerce class taken by Mr Clark. Mr Clark responded by sending one of the girls out of the class. The appellant was not bullied in Mr Clark's class thereafter.

34 The appellant gave oral evidence that towards the end of 2003, she informed Mrs Carroll-Fajarda that she being bullied, and was told to see Ms Barr, who referred her to Mrs Ibbett. She stated that she filled out an incident report and subsequently reported bullying once or twice a fortnight. However, in cross-examination she stated that the conversation with Ms Barr took place in 2004 (when she was in Year 9). She also conceded that she did not have an actual recollection of speaking to Mrs Ibbett on that occasion. I interpolate that it was not put to Mrs Carroll-Fajarda either in examination-in-chief or in cross-examination that any such conversation took place in 2003. Indeed, it was not suggested to Mrs Carroll-Fajarda that she was aware that the appellant was being bullied at any time prior to 6 February 2004.

35 The appellant claimed that she did not have meetings with Mrs Ibbett because she was always required to complete an incident report. She stated that she prepared incident reports on two or three occasions in Year 8, and on many occasions in Year 9. There were no records of these reports except in Year 9, and Mrs Ibbett did not recall any in 2002 or 2003.

36 The appellant also stated she did not report quite a deal of the bullying as it became apparent to her that any such reports were not assisting her. During Year 8 she became sad, anxious, depressed and confused, and felt that she was in a helpless position. She suffered from mood swings, would snap without any real provocation, and became fearful of being in the dark. The appellant spoke with her parents about her problems during Year 8, and believed that her mother approached the College.

37 The appellant's mother gave evidence that she complained to the College about bullying of the appellant on two occasions in 2003. On the first occasion, towards the end of 2003, she spoke to Mrs Ibbett and asked her to address the situation. On the second occasion, she spoke to Mrs Ibbett and the Principal, Mr Green, informed them of the bullying, and told them that she was dissatisfied with the College's response. Mr Green invited two other students in, who confirmed that the bullying was taking place, and then stated that he would try to arrange for the appellant to have a "buddy" in each of her classes. Her Honour did not make any finding in regard to this evidence. There was no documentary evidence to indicate that Mrs Oyston spoke to the College about the bullying of her daughter until the meeting with Mr Green on 6 February 2004. Mr Green was not called by the College to give evidence.

The note allegedly expressing suicidal ideation

38 The first documented event claimed to have been associated with bullying was an instance of alleged suicidal ideation. Having been placed on detention for writing an inappropriate note, the appellant filled out a "behaviour pro forma" on 24 September 2003. In response to section 6 ("What had happened because of your actions?") the appellant stated "I want to kill myself because no one will forgive me". In response to section 10 ("List some steps you can take to help fix the situation") the appellant listed (among other things) "Kill myself".

39 The appellant contended that this note expressed suicidal ideation, and that a reasonable response would have consisted of calling the appellant's parents, an investigation, and referral of the appellant to counselling. It was the appellant's claim that the College made no response, despite there being a risk of psychological injury to the appellant.

40 The College denied that the appellant's responses expressed suicidal ideation; rather, it submitted, they constituted "adolescent hyperbole when faced with guilt about writing an inappropriate note rather than a reaction to bullying behaviour". Moreover, the College contended that the appellant's parents were informed, having signed the detention slip which accompanied the behaviour pro forma. This latter argument appeared to be misconceived, as the behaviour pro forma did not accompany the detention slip. However, in the absence of a Notice of Contention, as referred to at [21] above, this incident could only be relevant in providing context to those which occurred in 2004.

The events of 2004

41 The appellant claimed that 2004, during which she attended Year 9 at the College, was the year in which she experienced the most severe bullying. In her written statement tendered in evidence, she recorded that she became depressed during this year and felt that life was no longer worth living. Early in the year, she became suicidal and began intermittently to cut her wrists with a razor blade. She became petrified of going to sleep at night, believing that someone would attack her while she slept. She began to experience episodes when her body became weak, would at times shake uncontrollably for minutes at a time, and lost weight. She had a lot of time off school and would also leave school early.

In 2004, the appellant also experienced a number of panic attacks, the connection of which with bullying was contested. The documentary evidence indicated that several episodes occurred prior to the commencement of the school year. The first of these was on 3 January 2004, when the appellant attended the emergency department of Mount Druitt Hospital, her presenting problem being "hyperventilating". A number of tests were taken, and heat exhaustion was diagnosed. The Medical Registrar noted that she suspected an element of attention-seeking in the appellant's presentation as discussed with her mother.

The panic attack of 5 February 2004

42 On 5 February 2004, the appellant attended Campbelltown Hospital, having become unwell and distressed while at the College playing netball, and having suffered what was described as a "seizure". The hospital clinical notes recorded that the appellant was post-ictal following the event, that she had a history of anxiety/panic attacks, and that it was difficult to obtain an account of the event from her. The appellant reported several other incidents, including one whilst she was on holiday, and another whilst she was undertaking work experience. The College submitted that there was not the slightest suggestion that any of these prior events were precipitated by bullying, despite their conformity with the same type of symptomatology.

43 Dr Spencer, the Consultant to whom the appellant was referred on 5 February, noted that the appellant's current stressors were that her brother disrupted family harmony, that she sat on her own at school, and that she was worried about "school/teasing". Dr Spencer sent a letter to the College, stating that "Jazmine is a mildly anxious girl and would be more prone to become panicky if her stress levels are increased". She observed that the appellant identified her main current stressor as being that she was sitting on her own in classes "and that she wished she 'had a friend in class'", having become isolated following recent changes in class constitution. Importantly, she did not make any reference in the letter to the appellant's being teased.

44 On 6 February 2004, a meeting with Mrs Oyston was held at the College, which was the subject of a file note written by the then Principal, Mr Green. The note recorded that "Jazmine apparently had an anxiety attack at school due to the following reasons (allegedly)": "new classes in 2003 - no familiar friends - feelings of isolation", "a certain student ([JP]) apparently said rude words at sport which were unsettling and could have affected Jazmine (this needs further investigation)". Mr Green also noted that the appellant's mother claimed that JP's words were the major cause of her anxiety, but "Jazmine said that it was isolation that caused the anxiety attack". He set out under the heading "Actions":

- Jazmine to continue treatment outside college (Brown St. Area Health Service)

- Jazmine to see school counsellor - (Kristen) - referred 9/2/04

- Jazmine to change classes that have familiar students in them (ACTION: Judith Holt)

45 The appellant correctly claimed that the College admitted in its Defence that Mrs Ibbett attended the meeting of 6 February 2004, although her diary entry of that date made no reference to it. However, the College appeared to resile from as much of paragraph 6(a) of its Defence as went to Mrs Ibbett's attendance, stating in subsequent submissions that Mrs Ibbett denied attendance and Mrs Oyston could not recall who was there. Mrs Carroll-Fajarda was adamant that Mrs Ibbett was not present at the meeting.

46 In cross-examination, Mrs Ibbett denied that she was present at the meeting, but conceded that if she had been and the issue of the appellant's being bullied had been raised, that would have required investigation. Little turns on Mrs Ibbett's presence given that, in any event, Mrs Carroll-Fajarda recalled requesting Mrs Ibbett to investigate the matter of the rude words allegedly spoken by JP. Mrs Ibbett's response appears to be her memo to teachers dated 12 February 2004 where she stated the following:

Jazmine has returned to school and seems to be well. During the next little while could you please keep an eye on her and let me know if you notice any unusual behaviour or interactions with others in the classroom that seem out of character.

Please do not make a big issue of this or make Jazmine aware. If you have any concerns then please let me know.

Thank you,

Louise

47 In cross-examination, Mrs Carroll-Fajarda conceded that if JP had in fact been using rude words to the appellant, that would be capable of being bullying. She agreed that on the face of the matter, Mrs Oyston was complaining about a bullying incident involving JP, and that the appellant was sent to counselling because it had been claimed that she had suffered a panic attack that had been triggered by bullying.

48 Mrs Carroll-Fajarda also acknowledged that pursuant to the College's policy, the incident required investigation and, if bullying was found to have occurred, mediation and potentially counsellor intervention. The following exchange took place:

Q. If the complaint was ignored and not investigated, there would be a failure on the part of the school to carry out their obligation?

A. I don't believe it was ignored, though.

Q. If that be the case that it was not investigated, that would mean the school had not carried out the obligation that it had laid down under its own policy?

A. If that were the case.

However, Mrs Carroll-Fajarda acknowledged that she did not receive a report from Mrs Ibbett on the matter, although there was discussion of it in the weeks which followed. Her recollection was that "what had been established was that the two students didn't like each other, but not necessarily that there was any specific incident that could be responded to".

49 The appellant argued that a reasonable response to each complaint of bullying by JP, as required by the College's policy, would have comprised investigation of the incident; interviewing JP; completing an incident report; recording the incident in the Bullying Register; completing a student intervention slip; mediation; counselling of JP; afternoon detention of JP; the Year Coordinator's notifying parents of students involved; and counselling of the appellant. In relation to the alleged rude words, only the last-mentioned action was carried out. The relevant risk of harm, the appellant submitted, consisted of ongoing bullying behaviour if the matter went unaddressed, setting an example to other students, and consequent psychological injury to her.

50 The College contended that Mrs Ibbett's memo of 12 February was to be understood as a low key and entirely appropriate "investigation" directed to ascertaining what was truly occurring within the class. In any event, the College submitted, rude words, unless uttered on a sustained basis against the appellant, would not ordinarily constitute bullying. However, it was clear that the note of 12 February was the extent of any "investigation" carried out by Mrs Ibbett. In my view, the note was not an appropriate response to a specific allegation of bullying of the appellant by JP which Mr Green required to be investigated and which Mrs Carroll-Fajarda referred to Mrs Ibbett for that purpose.

51 At [166], her Honour made the following finding in relation to this incident:

The clear upshot of the evidence was that Mrs Carroll-Fajarda who was present at the meeting, at least, formed the view of what was known to the College on 6 February 2004 that there had been bullying involved in the complaints made by Ms Oyston and her mother. That was the basis of her referral of Ms Oyston to the counsellor. That was consistent with advice of feelings of isolation and ill treatment by an identified student, which was thought to require further investigation. On the evidence I am quite unable to accept the submission that the College could not have construed the report that the Principal was given on 6 February as involving bullying.

In light of the evidence referred to above, that finding was in my view justified.

The counselling records

52 The counselling records commenced on 9 February 2004. On that date, the counsellor, Ms Cheung, recorded that she had received a verbal referral of the appellant for counselling from Mrs Carroll-Fajarda. She noted that the latter reported that the appellant had seen a psychiatrist at the hospital, and that the psychiatrist's report stated that the appellant had suffered an anxiety attack which was induced by bullying. This was wrong, as Dr Spencer's report did not so state. Further, Mrs Carroll-Fajarda was not asked whether the counsellor had correctly recorded her understanding of Dr Spencer's letter.

53 On the same day, Ms Cheung telephoned Mrs Oyston to inform her that the case had been referred to her. Mrs Oyston told Ms Cheung that the hospital had assessed that the appellant had "anxiety, triggered by friendship issues". With Mrs Oyston's permission, Ms Cheung then contacted Dr Spencer, who informed her that the appellant had been referred to Macarthur Mental Health Service for anxiety treatment. Ms Cheung also made contact with the Principal, Mr Green, who told her that the appellant's classes were being changed so that she had friends in them.

54 As is detailed below, Ms Cheung informed the Principal, Year Coordinator and Deputy Principal of the progress of the counselling. She discussed the case with the appellant's paediatrician, Dr Freelander, referred the case to Macarthur Mental Health Service and inquired as to the outcome of that referral. Over the period until 23 June 2004, when the case was closed, Ms Cheung also discussed the case with Mrs Oyston on several occasions and emphasised the importance of the referral to Macarthur Mental Health Service, the appointment with which the appellant did not attend. She notified the Department of Community Services (DOCS) of two self-harm incidents. The adequacy of the counselling support provided by Ms Cheung was not in question.

55 However, the appellant contended that the referral to Ms Cheung should have been provided to Mrs Ibbett, who ought to have investigated the allegation of anxiety attacks triggered by bullying. The College responded that, as noted above at [53], Mrs Carroll-Fajarda had apparently misinterpreted Dr Spencer's letter: it said nothing about bullying. Nevertheless, it may be inferred, and the College accepted, that Mrs Carroll-Fajarda's account to Ms Cheung was informed by the meeting which was held with Mrs Oyston on 6 February, in which the issue of bullying by JP was raised in connection with the anxiety attack. The College submitted that the referral was indicative of Mrs Carroll-Fajarda's having taken a "cautious approach" to the possibility that bullying had played a part in inducing the panic attack.

56 On 17 February 2004, the appellant attended the emergency department at Campbelltown Hospital. The clinical notes recorded that she had presented there the previous week with similar symptoms. She had been sleeping in class and had not woken when the bell rang. The College called for an ambulance. The ambulance officer said that she was feigning unconsciousness on arrival, that she was hyperventilating, and that her arms were twitching. She was taken home by her mother.

57 On 18 February 2004, Ms Cheung noted that the appellant reported that she had no current issues or problems, that all her classes were good, that she had no stressors and no worries, and that nothing was causing her any anxiety. In the same note it was recorded that the appellant had a "'panic attack' at school yesterday", for which she could not identify any trigger. In cross-examination, the appellant stated that this was because at the time, she would not have known that bullying was the cause of the attack. However, she acknowledged that this counselling session was a perfect opportunity for her to tell Ms Cheung that she was being bullied if that was the case.

58 A further episode occurred on 19 February 2004, in relation to which the appellant identified no trigger. Her mother was contacted and she returned to class, insisting that she was fine. The College submitted that Ms Cornett, the teacher who spoke to the appellant on this occasion, went out of her way to contact the appellant's mother, and that this was inconsistent with any suggestion that the College was indifferent to her welfare.

59 On 5 March 2004, Mrs Ibbett rang Mrs Oyston in relation to a vomiting episode that the appellant had suffered. Mrs Oyston stated that the appellant's problems were caused by anxiety, and that Dr Freelander did not want the College to call for an ambulance, but rather to calm the appellant down and send her back to class. Mrs Ibbett informed her that calling for an ambulance constituted part of the College's duty of care, and encouraged her to pursue the referral to Macarthur Mental Health Service. She did not record any mention of bullying being made by Mrs Oyston. On 8 March 2004, Mrs Ibbett informed Ms Cheung of this conversation.

60 On 10 March 2004, Ms Cheung contacted Dr Freelander, the appellant's paediatrician, who informed her that all of the appellant's tests were "completely normal", and confirmed his diagnosis of anxiety. On the same day, a fourth counselling session was held, in which the appellant reported that she had self-harmed on the previous day due to an argument with her brother. In response, Ms Cheung contacted Mrs Oyston and Mrs Carroll-Fajarda, and faxed a report to DOCS. She referred the appellant to Macarthur Mental Health Service for a mental health assessment in relation to her anxiety.

61 On 16 March 2004, Ms Cheung was informed by Macarthur Mental Health Service that the appellant had been referred to the Service recently, but did not attend the scheduled appointment. On 19 March Ms Cheung raised that matter with Mrs Carroll-Fajarda, who was to contact Mrs Oyston and strongly recommend that the referral be pursued. On 26 March the appellant failed to attend her counselling appointment. On 31 March Ms Cheung met with Anne Healey, another counsellor, who informed her that she had held a crisis session with the appellant the previous day regarding self-harm and other issues.

62 The purpose of referring to the events set out at [53] to [62] above is merely to indicate that notwithstanding that the events in question were not the subject of any complaint by the appellant with respect to bullying, nevertheless the College was alive to the appellant's fragile mental state and responded to it in the manner indicated.

The bullying incident of April 2004

63 In her written statement tendered in evidence, the appellant recorded that in mid-2004, an incident occurred in which AR hit her on the arm and another girl, EP, rubbed her body against her leg. Subsequently AR and another girl, JA, confronted the appellant in the bathroom, JA grabbing her by the arm while AR pushed her up against the toilet wall. AR said to the appellant "Let's finish this, you stupid cow". The appellant stated that she was fearful of being physically assaulted at the time, and was still afraid of AR. However, in cross-examination, she admitted that she had not told Mrs Ibbett or the counsellor that she feared that she would be subjected to physical violence.

64 The appellant claimed that she reported this incident and wrote a statement of what had occurred. The documentary material established that on 1 April 2004, Mrs Ibbett did obtain a statement from the appellant regarding these events, as well as oral clarification of that statement, on which Mrs Ibbett made notes. An entry was made in Mrs Ibbett's diary recording that JN and the appellant were "teased by Yr 8's - [JA], [AR]" and the action taken: "contacted mum and dad".

65 In cross-examination, Mrs Ibbett clarified that it was the Oystons who were contacted. Notes in Mrs Ibbett's diary, as clarified by her evidence in cross-examination, also indicated that she contacted the Year Coordinator responsible for JA and AR and Mrs Carroll-Fajarda. It appeared that the appellant may have discussed this incident with Anne Healey, the College counsellor, on 31 March 2004. However, the counsellor's report did not appear to be amongst the documentary evidence tendered at trial. At [207] of her reasons, her Honour observed that no document recording that any investigation occurred was in evidence. She found the fact that no records were apparently maintained on the appellant's file indicated that no investigation into her complaint was conducted.

66 The appellant argued that a reasonable response to this incident, as per the College's published bullying policy, would have involved (among other things) investigating the incident; suspending AR; placing the other offenders on afternoon detention; conducting a mediation of all involved; counselling AR and the other offenders; and the Year Coordinator's notifying the parents of all students involved. It was not in dispute that the College did not take any of these steps.

67 In my opinion, there was no evidence that the Year Coordinator to whom the matter had been referred by Mrs Ibbett investigated the matter, let alone reported back to Mrs Ibbett on what, if anything, she had found or done. Nor was there any evidence that Mrs Ibbett followed the matter up. As far as the evidence goes, there was no investigation of the incident for the purpose of determining whether the appellant's complaint was substantiated. If it was, then this being a physical attack, the College's policy mandated suspension. In the foregoing circumstances there was a breach by the College of its duty of care to the appellant arising out of the April 2004 incident.

Ms Barr's letter

68 On 11 May 2004, Ms Barr, a teacher, sent a letter to Mrs Ibbett, in which she expressed concerns regarding the appellant's missing a great deal of class time due to "either feeling ill or 'emotional' problems or absence". Ms Barr noted that "yesterday she was very pale and had to leave suddenly to vomit. Her results are poor and I don't think she is performing her best". She stated that she was referring the matter to Mrs Ibbett "in case [she] had seen a pattern of behaviour", and requested that she "let [her] know where to go from here".

69 In cross-examination, Mrs Ibbett stated that she was aware that the appellant was working with a counsellor, but did not know whether she passed on the information contained in Ms Barr's letter to the counsellor. The appellant contended that she should have done so, and that she should also have investigated the matter. It was submitted that Ms Barr had acted in accordance with Mrs Ibbett's request of 12 February to keep an eye on the appellant, but Mrs Ibbett failed to make any response. At [208], her Honour found that there was no evidence of any response. That finding was, in my view, correct.

The "rumour incident"

70 On 14 May 2004, the appellant was involved in what was referred to in the evidence as the "rumour incident". The details were recorded in a file note by Mrs Ibbett. The appellant admitted to having made false statements about LM, although in cross-examination she denied having intended that the rumour would be spread. She claimed to have told her friends the story in order to elevate herself in their opinion and undermine JP, in retaliation for bullying. She was confronted by LM and JP, who blocked her path and told her "We'll discuss this later". In class, LM and JP questioned the teacher, Mr Ashcroft, about rumours, reactions and discipline, admittedly for the purpose of intimidating the appellant.

71 Mrs Ibbett noted that the appellant felt anxious and intimidated in response to this incident. During Mr Ashcroft's class she asked to leave the room, taking her diary and compass with her. She saw Mrs Ibbett, who asked her to wait at the Student Office, as she was speaking with another student. When Mrs Ibbett arrived, Ms Cheung was present, and it emerged that whilst in the toilets, the appellant had deliberately cut herself with her compass. The appellant was given first aid, and Ms Cheung spoke with her while Mrs Ibbett investigated the situation. The appellant stated that she had cut her wrist because she was "scared she'd be bashed up" and wanted to prevent herself from crying in front of LM. Ms Cheung rang Mrs Oyston, informing her of the incident and reinforcing the importance of the referral to Macarthur Mental Health Service.

72 In consequence of this incident, the appellant was given an afternoon detention for initiating the rumour, and was required to fill out a behaviour pro forma. In that document, the appellant made no reference to her false statement having been made in retaliation for bullying. Mrs Ibbett also called the parents of JP and LM; both JP and LM were required to fill out behaviour pro formas and were warned about bullying and intimidation; and both were given an afternoon detention. DOCS was informed of the appellant's self-harm, and Ms Cheung discussed the alleged bullying incident with Mrs Ibbett, who said that she was addressing it.

73 However, the appellant submitted that an appropriate response, in accordance with the College's policy, would also have entailed, among other things, mediation; counselling LM; putting in place a behaviour contract for JP, as this was a second incident; and mandatory counselling of JP. The College did not accept that JP and LM's behaviour constituted bullying, as it was provoked.

74 In cross-examination, Mrs Carroll-Fajarda acknowledged that self-harm is one of the indicia of bullying and that, as a matter of logic, there must have been a connection between the appellant's self-harm and the intimidation. She accepted that a very thorough investigation on the part of the College was required in order to get to the bottom of what had really brought about the self-harm. However, she did not accept that a proper inquiry had not been conducted, or that, if it had been, it would have established that the appellant had been the subject of bullying since 2002. Nevertheless, she did accept that an inquiry could have established that fact.

75 In relation to the disciplinary steps taken, Mrs Carroll-Fajarda accepted that LM was a particularly troublesome girl, having been in some strife; that JP was a problem in May 2004 in so far as she was intimidating the appellant; that this was the third instance known to the College of JP bullying the appellant; and that that would have warranted the procedures set out at the second or third stage of the bullying policy. She acknowledged that JP was not required to enter into a behaviour contract in May 2004 and that there was no counsellor intervention for the bullying, which was mandatory under the College's own policy.

76 The primary judge found (at [211]) that whilst at this time the appellant was receiving counselling, there was no evidence that Mrs Ibbett kept her under ongoing review, even though it was by this time apparent, even to Mrs Ibbett, that she was the target of bullying. There was no challenge to that finding.

77 On 21 May 2005, the appellant attended a fifth counselling session, in which the incident of 14 May was discussed. The appellant stated that there had been minor verbal hassles, but that she was not "fearful or affected". Ms Cheung encouraged the appellant to speak to Mrs Ibbett about the continued bullying. However, the appellant reported no further self-harm ideation or behaviour, and stated that she did not feel as though she needed counselling. During the next counselling session on 2 June 2004, the appellant reported her happiness as ten out of ten ("excellent, happy") on a "happiness scale". She also stated that the bullying issue had been resolved. In counselling sessions on 11 June and 23 June, the appellant confirmed that she was very happy and had no self-harm ideation. In cross-examination, she explained these statements by reference to her mood swings at the time.

78 On 15 June 2004, Mrs Ibbett requested the roll call teachers to read out to the Year 9 students a statement in relation to bullying which, relevantly, was in the following terms:

[I]n the last couple of weeks I have become very concerned about the increasing number of students that are upset. The source of the upset usually relates back to gossip or rumours about them or hurtful comments that have been made. In some instances students have felt very comfortable (sic) or been left isolated not knowing where they belong.

This type of behavior is very disappointing. Everyone needs to be very clear that rumours, gossip or making another person feel less about themselves is a form of BULLYING and in some cases INTIMIDATION. Do not try and convince me that behavior like this was only a joke or not that big a deal. If you participate in this then know that it is wrong/unacceptable, it will be identified as bullying/intimidation and we will deal with it as per the College policy.

The school policy on bullying and intimidation is:

• Verbal bullying, intimidation or harassment will result in an afternoon detention for the first instance. Intentional physical violence of any kind will result in suspension.
• ...
• Everyone needs to know that this type of behaviour will not be tolerated. Parents will be informed and action taken. (Emphasis in original.)

79 It can be inferred from the concern expressed by Mrs Ibbett that, at least in part, she had in mind, as prompting the dissemination of the above statement, the rumour incident. Such an inference would support the primary judge's finding (at [211]), referred to at [77] above, that Mrs Ibbett was aware that the appellant was the target of bullying.

80 On 23 June 2004, Ms Cheung completed a file closure summary in relation to the appellant's counselling. That document recorded that the reason for referral was "anxiety attacks triggered by bullying". Achievements in counselling comprised: "referral to Mental Heath - anxiety, self-harm; alternatives to self harm; monitor mood; College-based issue". The reason given for the file closure was that "Jazmine expressed no further need for counselling. Parents will continue to pursue Mental Health referral." Upon being informed of the file closure, Mrs Oyston confirmed that the appellant had been "really happy of late", and that she would attend an appointment with Macarthur Mental Health Service on 12 August 2004.

81 The appellant contended that this document ought to have been provided to Mrs Ibbett, who should have investigated the allegation of anxiety attacks triggered by bullying. In fact, Mrs Ibbett gave evidence that she could not recall whether she had seen the file closure summary summary, but stated that if she had, she would not have needed to make an inquiry about bullying given that the document was a file closure from the school counsellor, although that was "a choice [she] could have made". In any event, as the College submitted, the statement that the appellant's anxiety attacks were triggered by bullying appeared to reflect the original, erroneous interpretation of Dr Spencer's letter of 5 February 2004 by Mrs Carroll-Fajarda (see [53] above).

Further events involving the alleged perpetrators of bullying

82 Two events concerning the alleged perpetrators of bullying of the appellant occurred in August 2004. First, LM entered into a behaviour contract on 23 August 2004, one of the terms of which was that she would "treat other students with respect and avoid bullying or contributing to bullying behaviours". Secondly, on 24 August 2004, a file note by Mrs Ibbett recorded that she had spoken to AM and to other students from her friendship group regarding a "bullying situation" (which she denied) within that group. Mrs Ibbett made a note to inform Mrs Carroll-Fajarda of the situation. She also noted, "decide which students require detentions for their involvement in the bullying"; however, it is unclear whether the decision was to be made by Mrs Ibbett or Mrs Carroll-Fajarda.

83 The appellant submitted that a reasonable response to the alleged "bullying situation" involving AM would have entailed, among other things, mediation; counselling of the victim; completing a behaviour contract for AM, as this was a second incident; mandatory counselling of AM; detention/suspension of AM; and notification of the parents of all students involved by the Year Coordinator. In contrast, the College's actual response comprised an investigation; interviewing AM and other students in her friendship group; and referring the matter to Mrs Carroll-Fajarda. There was no evidence that any further action was taken by Mrs Ibbett or the Deputy Principal.

84 On the other hand, no questions were directed to Mrs Carroll-Fajarda to ascertain what, if any, action she took in response to Mrs Ibbett's reference of the matter to her. In these circumstances, it is difficult to draw any adverse inference against the College. The College maintained that the matter was dealt with appropriately. It did not relate to bullying of the appellant. Furthermore, as would be expected, AM denied any wrongdoing, although some support for the claim that bullying had occurred was to be found in the versions elicited by Mrs Ibbett from others in the group.

85 On 9 September 2004, LM breached her behaviour contract and was advised by the Principal that one more breach of any kind would result in expulsion. On 14 September 2004, a file note by an unidentified teacher recorded that JC and JP alleged that JA, LM and SF had intentionally run into JP outside the Student Office. LM was warned to stay away from JA and SF when they were interacting with JP, and was again advised that any breach of her behavior contract would result in expulsion. The author of the file note informed Mrs Carroll-Fajarda and Mr Green of the incident.

86 Although this incident did not involve the appellant, she nevertheless submitted that a reasonable response, as required by the College's bullying policy, would have entailed the expulsion of LM as per the Principal's threat of 9 September 2004, as well as all of the actions appropriate to the previous incidents, as described above. The College submitted that such a drastic response would have represented an over-reaction, given that the breach of 14 September was very arguably trivial and unintentional. The point of the appellant's submission, as I understand it, was that the College was not prepared to follow through on its own policies and, relevantly, to carry out the threat of expulsion that the Principal had made. In other words, the failure to expel LM at that time was indicative of the general attitude of the College to the implementation of its own bullying policies. In my view there is some justification for this assertion.

The report of the appellant's eating disorder in October 2004

87 On 18 October 2004, Mrs Ibbett made a note in her diary: "Mr Oyston re Jazmine and eating disorders". This was apparently in response to a note from a teacher, Mr Ashcroft, regarding the appellant's talking to him about "a friend" not eating. It emerged as a consequence of some probing by Mr Ashcroft that the person in question was the appellant herself. Mr Ashcroft noted that he advised the appellant of the dangers of anorexia, attempted to contact her parents, and was writing the note so that the matter could be followed up.

88 The appellant contended that a reasonable response to this event would have entailed interviewing the appellant; referring her to counselling; and investigating any allegation of bullying that she made. The College responded that the appellant's eating disorders originated in 2001 when she was 11 years old, and that this was not a bullying complaint. Moreover, it was submitted, Mrs Ibbett spoke to the appellant's father, who said that he would speak to her about the matter.

89 In cross-examination, it was put to Mrs Ibbett that this incident demonstrated that the appellant was amenable to being open if she was sufficiently prompted or probed as she was by Mr Ashcroft. The thrust of the cross-examination was that, notwithstanding that the appellant had maintained to her counsellor in June 2004 that the bullying issue had been resolved, nevertheless if she had been probed further about the matter she most likely would have confirmed that she was still being bullied.

90 Mrs Ibbett's responses to the cross-examination were unsatisfactory but, in my view, the questioning was predicated upon a theory that it was not unreasonable for Mrs Ibbett to reject. In cross-examination, the appellant agreed that Mrs Ibbett was approachable, but suggested that she found it difficult to tell her that she was being bullied. Furthermore, the appellant's history of communication with Mrs Ibbett included a discussion regarding a breast lump on 12 November 2003, which was undoubtedly a relatively personal matter. In the appellant's numerous consultations with Ms Cheung, personal matters were also discussed in some detail. These matters tend to confirm that the appellant was unwilling to discuss bullying with Mrs Ibbett, and that there is no basis to extrapolate from her statements to Mr Ashcroft the conclusion that Mrs Ibbett would have elicited further information from her had she sought to probe her.

The events of November 2004

91 In November 2004, Mrs Ibbett wrote a memo regarding an interaction which Ms Mills had observed between the appellant and another student, SB, in her English class. Ms Mills was concerned that SB appeared to be ordering the appellant around and that the appellant was responding, even though the demands were unreasonable. At times Ms Mills had stepped in. Mrs Ibbett noted her concern that SB had developed connections with some Year 10 students who were known for bullying and intimidating others, and that this was an example of a threat, or that the appellant could be "behaving in a servant type role in order to seek assistance from these reputed 'bullies' ... with difficulties she was having in Year 9".

92 The appellant submitted that the College did not respond to this incident, although a reasonable response would have entailed an investigation by the Year Coordinator. However, as the College submitted, the evidence indicated that Mrs Ibbett's Assistant Coordinator, Mrs Arena, spoke to the appellant, who said there was nothing to worry about. It was put to Mrs Ibbett that she could not give much credence to that statement, a proposition with which she disagreed. She stated that given the appellant's assurances provided through Mrs Arena, she did not take any steps in response to this incident.

93 Mrs Ibbett also gave evidence that she did not believe that Ms Mills was raising a "serious" concern. Rather, she stated that she viewed the report as a case of a teacher managing her classroom, and did not consider it an appropriate matter to raise with the appellant's parents, as it involved conjecture and unsubstantiated allegations. Her Honour found Mrs Ibbett's evidence in relation to this incident difficult to credit (at [222]).

94 In my view, the incident referred to at [92] above was indeed serious and involved a form of bullying and intimidation which required a proactive response by Mrs Ibbett in accordance with the College's policies. It was inadequate for Mrs Ibbett to leave the matter to her assistant coordinator in circumstances where there was no evidence as to what action Mrs Arena took and where, if any action was taken, it should have been reported back to Mrs Ibbett. In my opinion, this was a further failure on the part of Mrs Ibbett to respond to a situation which was obviously demeaning to the appellant.

95 On 17 November 2004, a note was made on LM's file that she had been involved in spreading a rumour about the mother and ex-boyfriend of another student, PR. Mrs Ibbett spoke to LM, but apparently took no further action. The appellant argued that this was a further incident which required the expulsion of LM. The College responded that this incident occurred three weeks before the end of the school year, and that LM was then known to be leaving the College in any event.

96 This fact may have justified a decision by the Principal not to expel LM in circumstances where she intended to move school. On the other hand, the carrying out by the Principal of his threat of expulsion would have sent a clear message to other perpetrators of bullying that moving schools would not be a substitute for the taking of appropriate action. The difficulty, however, is that Mr Green, the Principal, was not called by the College to give evidence, so that one does not know his motive for declining to carry out his threat of expulsion.

97 The issue whether to expel or not so close to the end of the school year may have been finely balanced, but LM's history of bullying, given the necessity to adhere to the College's policy with respect to so much repeat behaviour, required, in my view, a pro-active response to send the message that continued bullying would not be tolerated. It follows that the failure of Mr Green to carry out his threat to expel LM constituted an inadequate response to a continuing risk of harm to students such as the appellant posed by LM's repeated conduct and thus a breach of the College's duty of care.

The appellant's complaint of 22 November 2004

98 On 22 November 2004, the appellant and two other students, MB and NS, had a meeting with Mrs Ibbett regarding their being bullied by AM, JP, LM, SD and LC. Mrs Ibbett made notes of the meeting, in which she recorded teasing directed at the appellant as follows: "[JP] - you [the appellant] are always late", "you need an ambulance", "Jaz went to toilet Friday - [JP] (to Jazmine) 'how was Mrs Ibbett?' [AM] also asked. Loud enough for whole class to hear", "[SD] mimics [JP] to be involved - encourages comments". At the bottom of the page, she noted: "2nd off [LM]? + [JP]; 1st - [SD], [AM]".

99 In cross-examination, Mrs Ibbett acknowledged that she characterised the behaviour that had been reported to her as bullying and intimidation in a subsequent note to teachers (see [102] below) and that the girls indicated to her that the bullying had been going on for some time, although this was the first time she became aware of that fact. I interpolate that the primary judge did not accept that this was so: see her Honour's finding at [211], referred to at [77] above, that Mrs Ibbett was aware that the appellant was the target of bullying by May 2004. Mrs Ibbett accepted that it was inappropriate for JP to draw attention to the appellant's lateness, and that if the whole class took part in criticising the appellant, that could make her feel isolated. She acknowledged that the person really being bullied was the appellant. She also agreed that at this point the situation was "turning into a bullying incident".

100 Also on 22 November 2004, an unnamed teacher sent to Mrs Ibbett a Student Intervention Sheet regarding LM. LM and JP had sought to blame the appellant for not turning off her computer, although the computer in question was not hers. The teacher noted that he or she "sense[d] a little bullying occurring between [JP] and [LM] and [the appellant, NS and MB]".

101 On 23 November 2004, Mrs Ibbett circulated a memo to various teachers advising them to be alert to "bullying and intimidation" involving the appellant, NS and MB. She noted that the bullying might take "subtle and quite obvious forms" and had apparently been going on for some time. In particular, the bullying took the form of "commenting, sniping, drawing attention to the victim, asking questions of the teacher that appear innocent but are targeting these students etc.". She requested the teachers to make a note of any such activity and to let her know, stating "please don't be afraid to publicly name the behaviour as bullying". She noted that the students to watch out for were JP, LM, SD and AM, who appeared to be targeting the appellant, NS and MB. In cross-examination, Mrs Ibbett stated that this note was written partly so that teachers would allow the girls who were being bullied to sit together. However, the appellant submitted that this was the eighth incident for LM and the third incident for JP and AM. Accordingly, a reasonable response would have consisted of, among other things, expelling LM, JP and AM.

102 On 24 November 2004, the College sent letters to JP and LM's parents advising of their suspension due to truancy. Both letters also noted that Mrs Ibbett had taken the opportunity to discuss with the girls "the ongoing situation of [their] being involved in a conflict with another student which has the hallmarks of teasing and bullying". The letter to JP's parents stated that as a result of that discussion, a mediation session would be established to work on resolving the conflict, and that JP had assured Mrs Ibbett of her full participation. The appellant claimed that a reasonable response to this incident would have been the expulsion of LM for further breach of her behaviour contract rather than her suspension. In my view there is substance in this submission.

103 Apparently in response to the appellant's complaint of 22 November 2004, Mrs Ibbett asked the appellant, JP, and LM each to provide a version of events concerning the origins and causes of the friction between them. In accounts dated 24 November 2004, JP and LM claimed that the appellant was an instigator of bullying. The appellant's version of events was dated 6 December 2004. She stated that she was not sure what she had done to turn JP and AM against her, but that it seemed that the whole class was as well; that JP "treat[ed her] like shit and act[ed] as if [she was] not there and it really upset her that she [could] turn a whole class against [her]"; and that an incident had occurred when the appellant's drink bottle leaked through her bag and JP read out to the teacher from her diary that she was "jigging".

104 She stated, "[AM] always has something nasty to say to me. With her around, I can't have my say or she'll judge me if I do," also quoting AM as having said, "it must be nice to have a whole class to hate you" and "Oh Jazmine needs an ambulance". The appellant admitted that she had retaliated, but compared the bullying to "a knife being stabbed into your back for no reason". She concluded, "to solve this problem is if the problem was to go away and that problem is me".

105 Mrs Ibbett was cross-examined about this last statement by the appellant. She could not recall whether she had asked the appellant whether she was having any suicidal thoughts, although "it would [have] be[en] a good question to ask". She agreed that it is important, when suicidal ideation is suggested, that it be brought to the attention of the parents, but conceded that her diary did not indicate that she had done so. She acknowledged that the statement "it must be nice to have a whole class to hate you" would be very hurtful, and that the situation, given that complaints had been made on more than one occasion, was coming closer to the definition of bullying and harassment.

106 The appellant submitted that a reasonable response to this incident would have included the referral of the appellant to counselling; an investigation of any allegations of bullying made by the appellant; the expulsion or suspension of JP; and the expulsion or suspension of AM. In contrast, the College's actual response was that on 8 December, Mrs Ibbett rang AM's mother to inform her that her daughter had been involved in a potential bullying incident, which would be her third. In my view that response was, in all the circumstances, inadequate and inconsistent with the College's anti-bullying policies.

107 The appellant's letter of 6 December 2004 was the last event in respect of which she submitted that the College had failed to take appropriate steps to protect her from harm. Accordingly, it is necessary to make only brief reference to subsequent events.

The events of 2005

108 On 9 December 2004, the school year ended. The following school year began on 28 January 2005. On 16 February 2005, the appellant was taken by a teacher to see the counsellor, Ms Jodie Rodgers, to whom she disclosed that she was feeling suicidal. She stated that she felt that her home life was the main issue, and that she was fearful of her brother, who was very 'angry' and 'aggressive'. An argument between the appellant's brother and her mother had occurred that morning, in which her mother had thrown a cup of coffee over her brother, and he had punched a hole in the wall.

109 Shortly after this meeting, a teacher, Sister Julie, found the appellant wandering down the street, and took her back to the counsellor's office. Ms Rodgers rang the appellant's mother, and a joint counselling session with the appellant and her mother took place that afternoon. Mrs Oyston stated that the appellant was feeling suicidal because she felt lonely in class, whilst Ms Rodgers informed her that the appellant had told her that she was unhappy due to problems at home. The appellant went home with her mother.

110 Mrs Ibbett noted that she, in consultation with Ms Rodgers, sent a memorandum to the appellant's class teachers to alert them to her fragile state and request that they advise Mrs Ibbett and Ms Rodgers of any concerns. This description reflected the content of a memorandum dated 8 February 2005 (presumably in error). In that memorandum, Mrs Ibbett advised the appellant's teachers that she was "very fragile at the moment" and that any changes in her demeanour should be reported to one of the counsellors or Mrs Ibbett as soon as possible. In cross-examination, Mrs Ibbett stated that her expression "very fragile" referred to more than the appellant's benign partial epilepsy, being also a reference to the fact that the appellant was "just obviously not travelling too well at the moment".

111 A further counselling session with the appellant was held on 21 February 2005. The appellant stated that she was still thinking about suicide, which she viewed as an escape from her family pressures and "school issues". Due to her threats of self-harm, a joint counselling session with the appellant and Mrs Oyston was held later that day. Mrs Oyston suggested that the College was the cause of the appellant's suicidal ideation, which the appellant denied. At Ms Rodgers' suggestion, the appellant was taken to the emergency department at Campbelltown Hospital. The hospital notes recorded that the appellant had a one-year history of bullying at school, including harassment and threats, and had also experienced physical and verbal abuse from her brother.

112 In telephone calls to Mrs Ibbett and Ms Rodgers on 23 February 2005, Mrs Oyston again expressed her view that the College was responsible for the appellant's psychological state, in the latter call expressing her intention to take the appellant out of the College.

113 On 2 March 2005, the appellant was again admitted to Campbelltown Hospital. Her discharge summary, dated 9 March, recorded that she stated that she had a long term problem with her brother, who had ADHD and was abusive towards her. However, she had also experienced significant bullying in school for almost one year, and had attended regular counselling without any improvement.

114 In a telephone conversation with Ms Rodgers on 9 March 2005, Mrs Oyston stated that the College had done the wrong thing by her daughter, and was to blame for half of the appellant's problems. On 16 March 2005, a meeting was held between Mrs Ibbett, Mrs Carroll-Fajarda, the appellant and her parents, in which the appellant's parents expressed the view that the College was responsible for the appellant's problems. It appeared that the College had no further contact with the appellant or her parents.

The issue of credit

115 At [66] of her reasons, her Honour found that based on the documentary evidence, there was evidence in 2004 of bullying, but not of such relentless bullying as the appellant asserted. Her Honour concluded (at [69]) that the appellant was not deliberately exaggerating what had occurred to her or giving false evidence. Nevertheless, there was some exaggeration, which was explained by the fact that what had occurred to her had in her mind assumed a very significant role as a cause of the problems she suffered while at the College. Her Honour also found that the appellant's memory of certain events was "certainly not particularly good"; that "aspects of [her] evidence [were] seemingly irreconcilable"; that her evidence in cross-examination was at times evasive and deliberately so; and that she gave contradictory evidence in part (at [64]).

116 Ultimately, her Honour rejected (at [71]) the College's submission that the appellant should be approached as an unreliable witness of little credit. Although, on the appeal, the College submitted that that finding was incorrect given her Honour's other criticisms of the appellant's evidence, in my view there is no inconsistency between her Honour's rejection of the College's submission that she was an unreliable witness of little credit and her acceptance of the appellant's evidence that particularly in 2004, she was in fact bullied (albeit not relentlessly) in the manner she alleged.

117 Given the many conflicts in the evidence, of which her Honour was very conscious (see at [62]), the "significant concessions" of the witnesses called by the College, Mrs Ibbett and Mrs Carroll-Fajarda (at [75]), and the corroboration provided by contemporaneous documents (at [76]) became of great significance. Her Honour found (at [186]) that whilst Mrs Ibbett denied being asked to address bullying of the appellant prior to November 2004, in cross-examination "quite a different picture emerged ... which provided significant corroboration of aspects of [the appellant's] evidence, as well as that of Mrs Oyston." Accordingly, she had "great difficulty" in accepting Mrs Ibbett's evidence that she herself was unable to identify a bullying pattern until November 2004 (at [252]). However, her Honour did not make a general adverse credit finding against Mrs Ibbett, which is somewhat difficult to explain after a careful reading of her evidence. Nevertheless, she rejected specific aspects of that evidence.

118 On the other hand, the primary judge largely accepted the evidence of Mrs Carroll-Fajarda, finding that it confirmed that the College policy was simply not implemented (at [248]). In light of the concessions made by Mrs Carroll-Fajarda, referred to at [48], [49], [75] and [76] above, that conclusion appears inevitable.

The primary judge's findings on breach of duty

119 The primary judge found (at [51]) that the College's responses to bullying of the appellant and the implementation of the College's own policies were inadequate. She also found (at [53]) that the College failed to respond adequately, or in some instances at all, to complaints of bullying relating to the appellant. Its short-comings comprised failure adequately to document complaints and the College's responses as its systems envisaged; failure to act on complaints as the expert witnesses agreed the College ought to have when a complaint was received; and failure adequately to follow up or monitor the appellant to ensure that she did not continue to be subjected to bullying.

120 Her Honour noted that the College's policies envisaged that teachers and Year Coordinators would exercise considerable discretion in responding to inappropriate behaviour. However, she concluded that in relation to the appellant's case, it appeared that judgment and discretion were exercised to the point where an effective bullying policy was not in practical operation (at [29]).

121 In reaching her conclusion, the primary judge took into account (at [34]) that schools are under an obligation not merely to meet their legal duty of care, but also to educate and support students during their adolescence. Whilst acknowledging the difficulty of the task which the College faced, her Honour took the view that it had failed to achieve the right balance. An overemphasis on supporting certain students who engaged in misbehaviour came at the cost of failing to ensure that the appellant, as the victim of that behaviour, was protected from harm caused by bullying. Furthermore, the primary judge took the view (at [58]) that mere counselling of a victim dealing with the consequences of bullying will not be sufficient for a school to meet its duty of care. Rather, where bullying does not cease upon a school's insisting that it do so, the school must take steps designed to ensure that it ceases.

122 Her Honour acknowledged (at [36]) that at a more general level, the College was active in attempting to deal with what was recognised as a bullying problem, but considered that its response proved to be ad hoc rather than systematic. No clear record was maintained of the course followed when complaints were received; of what conclusions were drawn from any investigation; or of what was done by way of response, if bullying or other inappropriate behaviour towards the student was uncovered. The three-stage procedure envisaged by the College's policies was not in practical operation (at [192]).

123 Her Honour stated (at [166]) that she was quite unable to accept the submission that the College could not have construed the report that the Principal, Mr Green, was given on 6 February 2004 as involving bullying. Further indications of bullying, which her Honour appeared to include among those to which the College failed adequately to respond, included the bullying incident of April 2004 in which the appellant was hit on the arm and threatened (at [207]); the concerns expressed by Ms Barr on 11 May 2004 regarding the appellant's absences (at [208]); the rumour incident and self-harm which occurred on 14 May 2004, following which the College failed to keep the appellant under ongoing review (at [211]); the report of the appellant's eating problems, following which Mrs Ibbett did not refer the appellant to counselling (at [219]); and Ms Mills' concerns regarding behaviours exhibited by the appellant in her English class, to which Mrs Ibbett did not respond (at [220]-[222]).

124 The primary judge was satisfied (at [249]) that the appellant had been the subject of ongoing bullying, and that bullying came to the College's attention in 2004. She took the view (at [250]) that, although it may have been difficult to confirm the fact that bullying was occurring, that difficulty was resolved when other information, as well as further complaints from the appellant, emerged. As referred to at [118] above, she rejected (at [252]) Mrs Ibbett's explanation that it was not until late November 2004 that she was able to identify that a bullying pattern was emerging.

125 Her Honour found (at [249]) that the College had failed to take steps necessary to bring that bullying to an end despite the fact that it was apparent that the appellant was not only at risk of harm but also was suffering from an injury. "Firm intervention" was required, but was not forthcoming (at [251]). The burden of taking the steps required by the College's policy and good practice, by comparison to the harm to which the appellant was exposed, clearly required that active steps be taken (at [254]). Her Honour did not specify the precise actions which should have been taken, but found (at [256]) that the College failed to implement its published bullying policy or to take other adequate steps to bring the ongoing bullying directed at the appellant under control.

126 Her Honour also found (at [304]) that in 2004, given the College's knowledge of the appellant's mental and physical state, its treatment of the conduct complained of as 'alleged inappropriate behaviour' and its failure to deal with known bullies constituted a breach of its duty of care to the appellant. Her Honour distinguished Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377; (2007) 71 NSWLR 471 at [21]-[27] and [57]-[58], finding (at [310]) that the signs suggestive of psychiatric illness in the appellant's case clearly reached the level where it was necessary for the College to intervene. Active investigation of the complaints made was required, as well as monitoring of whether any bullying had been brought to a halt (at [311]).

127 Her Honour also rejected (at [312]-[314]) the argument that the High Court's observations in Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31; (2005) 221 CLR 161 at [24]-[26] were applicable, namely, that it is not reasonable to require a school to provide supervision in all areas at all times, or to observe children during particular activities for every single moment of time ([312]-[314]).

128 Rather, her Honour found (at [313]) that in 2004, the College was well aware that there was a problem with persistent bullying amongst its students, including in Year 9, and that the appellant was a particularly vulnerable student who was a victim of ongoing bullying. It did not take the steps necessary to bring that bullying under control. Accordingly, this was "not a case where an unrealistic standard of impractical perfection was being demanded of the College, but rather one where practical operation of the policies it had designed to protect its students against the risk of injury to which ongoing bullying exposed [them]" was required.

The College's submissions on breach of duty

129 The College's case on the appeal was that the primary judge did not grapple with the "inherent contradiction" between the evidence of the appellant and her mother, on the one hand, and the contemporaneous records, and the counselling records in particular, on the other. Furthermore, it was submitted, where her Honour preferred the appellant's account, she failed to give reasons for doing so, and failed to address the contradictions in the appellant's case. The College therefore contended that her Honour's findings were glaringly improbable and contradicted by objective contemporaneous evidence.

130 The College further submitted that the contemporaneous records indicated that there was no basis for concluding that the appellant was being bullied on an "ongoing" basis or at all; that there was some evidence of specific, isolated episodes of dispute between students, which were dealt with by measured, specific, and documented responses; and that the responses alleviated the problem, at least in the medium term, the single recurrence being likewise dealt with in a measured, specific, and documented way.

131 In oral argument, the College submitted that the finding that the appellant was not bullied was open, but that it was not essential to its case. Indeed, the College accepted that it had not challenged the appellant directly to suggest that she had never been bullied. Rather, it was said that what was essential to the College's case was that the appellant was not a reliable witness. The College's position was that if and to the extent that the appellant was bullied at all, the bullying never came to its attention. Furthermore, not only did the appellant not complain of bullying, but on those occasions when the matter was raised, she denied it and cited other causes for her problems, which were predominantly familial. Nevertheless, as a subsidiary issue, the College maintained that there was a real question as to whether the appellant was bullied at all.

132 The College then submitted that there was no basis for concluding that it knew or ought to have known that the appellant was being bullied, as on numerous occasions she identified causes other than bullying for her problems. It was necessary for her Honour to explain how the College ought to have determined that the appellant's behaviour was attributable not to the causes to which she attributed it, but to bullying. Furthermore, it was submitted, her Honour erred in finding that the College was warned of the appellant's vulnerability in February 2004. In any event, the College investigated and supported the appellant during this period, and it had not been shown what it could have done.

133 The College further submitted that her Honour erred in finding that it breached its duty of care by failing to deal with known bullies. There were, it argued, no "known bullies", but merely isolated incidents for which the students involved were punished when the incidents came to the College's notice. The only relevant incidents which could have led to the categorisation of a student as a "known bully" were the alleged rude words spoken by JP in February 2004 and the rumour incident in May 2004. However, the former incident was insignificant, whilst the latter was investigated and students were punished for it in any event.

134 The College also submitted that her Honour erred in finding first, without sufficient reasons, that the steps taken to respond to complaints of bullying were inadequate and, secondly, that "good practice" required that other steps be taken without identifying what was "good practice". The finding which should have been made was that the College's policies conferred a discretion upon teaching staff as to how a complaint or bullying incident should be dealt with, and that in respect of each instance or complaint involving the appellant, the relevant teacher exercised the discretion properly, or at least, without negligence. The College contended that the primary judge equated the relevant standard of care with implementation of the College's policies, despite the fact that those policies envisaged a broad discretion as to how bullying would be dealt with.

135 Furthermore, the College submitted that the primary judge erred in finding (at [32]) that the steps taken were "neither consistent with the College's policies nor adequate to ensure that she was protected from ongoing misbehaviour". This statement, it was contended, indicated that her Honour misdirected herself as to the relevant measure for the discharge of the College's duty of care, which was not prevention of the offending behaviour. The school's duty, though non-delegable, was to take reasonable care, not to secure the appellant from harm.

136 The College next submitted that her Honour conflated the non-delegability of the duty with the content of the duty, such that a duty to ensure that reasonable care was taken became a duty to ensure that an outcome was procured. The College submitted that examples of this reasoning were to be found in paragraphs [232] and [251] of her Honour's judgment. Her Honour's finding of breach of the College's duty of care (at [298]) was said to be "a dangerously expressed conclusion" as it suggested that her Honour was criticising the College for taking steps which were adequate, but did not ensure that the appellant was protected from further harm.

137 Finally, it was submitted that there was ample evidence that the appellant's health was monitored, and that she was in fact "probed" in an effort to ascertain the truth of her insistence that she no longer needed counselling. In circumstances where the appellant had every opportunity to report any bullying to teachers, counsellors and hospital staff, there was no basis for inferring that the College would have discovered the "truth" that she was being bullied if it had further monitored her.

The appellant's submissions on breach of duty

138 The appellant submitted that it was never put to her that she was not bullied or that what she said had happened to her had never occurred. Furthermore, on the issue of the reliability of her evidence, the appellant submitted that the primary judge took the correct approach in the circumstances, acknowledging the difficulties of memory which beset her. The appellant accepted that those difficulties emphasised the importance of the documentary records, and that she was an unreliable witness when it came to detail. However, she maintained that she was not an unreliable witness when it came to the general assertion of bullying, and that it was in that sense that her Honour's statement at [71] that the appellant should not be approached as an unreliable witness was to be understood.

139 The appellant contended that the College made no submission to her Honour to the effect that the appellant's evidence ought not to be accepted unless it was independently corroborated. It was submitted that, in any event, it was incorrect to say that there was no corroboration of that evidence by the College's documents and witnesses. Concessions made in cross-examination by the College's witnesses were a powerful source of corroboration. The contemporaneous records also corroborated the appellant's case, and it was incorrect to submit that other contemporaneous evidence "powerfully refute[d]" the possibility that the appellant was bullied.

140 To the extent that documents were lacking, the appellant submitted that the shortcoming was that of the College, to which the important documents belonged. Moreover, there was no challenge in cross-examination to the substance of the appellant's case, and none of the girls involved were called to give evidence refuting her allegations of bullying. There was therefore no need for corroboration of the appellant's evidence.

141 Accordingly, the appellant submitted, her Honour was entitled to take the approach that she did in relation to the reliability of the appellant's evidence. In doing so, she had regard to all of the evidence, including the evidence of the witnesses and the documentary material, making findings of fact and of reliability as part of that process. There could thus be no basis for the submission that her Honour's findings were glaringly improbable or that they were contradicted by the objective contemporaneous evidence.

142 In response to the College's contention that her Honour erred in finding that the appellant was the subject of ongoing bullying in 2004, or at all, the appellant submitted that both experts called by the parties agreed that the matters about which she complained came under the College's anti-bullying program. Furthermore, she submitted that the documentary evidence of the College supported her case, as did the records of the adolescent health unit to which she was referred in February 2005. Accordingly, it was contended, her Honour had regard to the whole of the relevant compelling evidence before her and found that the appellant had been bullied as alleged in her witness statement.

143 The appellant then submitted that the College was aware that the appellant was vulnerable and that there was a relationship between that vulnerability and the bullying to which she was subjected. That awareness was derived from the College's knowledge of the appellant's panic attacks at school, her self-harm incidents, her note expressing suicidal ideation, and the expert advice which the College had received regarding the isolating effect of bullying. It was submitted that in light of the knowledge that the appellant had a "more vulnerable psyche than normal", the College ought to have investigated complaints which might not have required investigation had they been made by another student, such as the alleged rude words spoken by JP.

144 In the appellant's submission, despite this knowledge the College failed to investigate multiple complaints of bullying, including that of February 2004 regarding the alleged rude words; the incident of physical bullying of May 2004; and the complaint of bullying of November 2004 and alleged suicidal ideation expressed in the appellant's letter of the following month. Contrary to the College's submission, these incidents involved known bullies, including JP, LM, AM and AR, against whom the College failed to take adequate disciplinary action.

145 The appellant further submitted that the College failed to take steps which a reasonable school would have taken, as was demonstrated by the discrepancy between the College's actual response and the three-step process prescribed by the College's policy. Whilst she accepted that a departure from the College's published policy would not in itself warrant a finding of breach of duty, she submitted that the combination of the departures from the policy in this case amounted to condonation of a bullying culture.

146 In any event, the appellant submitted, there could be little room for the exercise of any discretion given that she was suffering injury. Furthermore, there was no evidence of any follow-up of the appellant by anyone at the College in relation to her complaints of bullying; no Bullying Register was ever kept; and the threatened expulsion of LM never eventuated, despite multiple breaches of her behaviour contract. The steps which should have been taken by the College included keeping appropriate records; investigating the appellant's complaints; and dealing with both the perpetrator and the victim.

Conclusion on breach of duty

147 In oral evidence, Mrs Ibbett agreed that as Year Coordinator, she was responsible for investigating any reports of bullying by asking questions of the students involved. However, she also repeatedly drew what appeared to be a spurious distinction between bullying and "inappropriate behaviour". Her approach in practice appeared to be that until she had established that "inappropriate behaviour" was ongoing, she dealt with it on the basis that it did not amount to bullying. This was despite the fact that she recognised that bullying could affect the well-being of a student, and indeed could occasion a depressive condition in a person already suffering from anxiety.

148 In my view, Mrs Ibbett's approach "in practice", or, as she described it, her interpretation of the College's policies, was properly rejected by the primary judge as clearly inconsistent with the clear words of those policies, and, in particular, the unambiguous definition therein of bullying and harassment. Furthermore, and notwithstanding that her Honour did not make any general adverse findings with respect to Mrs Ibbett's credit, a careful reading of the transcript of her evidence reveals a degree of obfuscation, evasiveness and non-responsiveness which must have influenced the findings the primary judge made as to Mrs Ibbett's knowledge of bullying in general and bullying of the appellant in particular.

149 Thus, on the evidence, in my view it was clearly open to the primary judge to find that the appellant was, particularly during 2004, regularly, if not relentlessly, bullied, in particular by JP and LM.

150 Furthermore, there can be little doubt that the College was aware that the appellant claimed that she was being bullied given the content of Mr Green's notes of the meeting of 6 February 2004 in respect of which Mrs Ibbett was tasked with investigating but clearly did not. There were other incidents during 2004, particularly in April, May, November and December, to which reference has already been made, which put the College on notice that bullying of the appellant was continuing. I would therefore reject, as did her Honour, the College's submission that to the extent to which the appellant was bullied, it only occurred on isolated occasions. It may not have been on a daily basis, but in my opinion the evidence established that it was on a fairly regular and continuing basis.

151 If there was one piece of evidence that in my opinion tells against the case that the College sought to make it is the following exchange with Mrs Carroll-Fajarda in the context of the appellant's attempting self-harm during the rumour incident:

Q. And, you see, wouldn't it have occurred to you, given your knowledge of the fact that girls who self-harm might be being bullied, wouldn't that have been a matter that you appreciated could have been a matter of significance?

A. Yes.

Q. And that that could well have been the case in this instance that the self-harm, in the context of what had occurred - that is, after she had been intimidated she went out into the toilet and started to self-harm - that that self-harm was related to the intimidation?

A. No.

Q. What, you want to completely disconnect that, do you?

A. No. In terms of the bigger picture, that is not the conclusion that I drew.

Q. In relation to that incident I'm talking about, that incident of self-harm coming within a short time after being intimidated by these two girls, surely a connection between the self-harm and the intimidation must follow, mustn't it, as a matter of logic?

A. Mm.

Q. Would you agree with that?

A. Yes.

Q. And that would require a very thorough investigation on the part of the school to get to the bottom of what had really brought about this; is that not correct?

A. Yes, that's correct.

Q. And I suggest to you that that proper inquiry did not take place? And if it had have taken place, it would have established that in fact this girl had been the subject of bullying from those two girls and others since the latter part of 2002; is that not correct?

A. Again, I would say no.

Q. It could well have, though, couldn't it?

A. It could have.

152 It is true, as the College submitted, that it was not required to ensure or guarantee that the appellant was not bullied. However, as her Honour recognised at [15] of her reasons, the College was obligated, in performing its duty of care towards the appellant, to take reasonable steps to ensure that the appellant was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct. That the College recognised that the scope of its duty of care so extended is to be found first, in its policies as set out at [18] above, and secondly, in Mrs Ibbett's statement to be read out by the roll-call teachers as recorded at [79] above. The latter, which occurred in June 2004, constituted plain evidence, coming shortly after the rumour incident, that Mrs Ibbett was well aware that bullying was a serious ongoing problem to eradicate which it was necessary to take active steps.

153 Furthermore, the College was aware from February 2004 that the appellant was vulnerable in that she suffered from anxiety and panic attacks. Whether or not those attacks were brought on in whole or in part by bullying, it should have been clear to the College that the appellant was likely to be susceptible to psychological harm caused by such conduct. Indeed, as referred to at [148] above, Mrs Ibbett acknowledged that bullying, if unaddressed, could occasion a depressive condition in some people suffering from anxiety. The risk of psychological harm to the appellant was both foreseeable and not insignificant within the meaning of s 5B of the Civil Liability Act. The College was clearly required to take such active steps as were reasonable in order to prevent that risk from eventuating. Those steps were recorded in its own policies.

154 In my view, the steps, such as they were, taken by Mrs Ibbett during 2004, did not provide a reasonable response to the not insignificant risk of harm to students such as the appellant if the bullying of them continued. In accordance with the College's own policies, it was insufficient merely to request teachers to keep an eye out for bullying; once a complaint of bullying was received, it required investigation and, if substantiated, action against the perpetrator. So far as the appellant was concerned, the evidence established that she was regularly bullied by JP and LM and to a lesser extent, AM. Reasonable steps should have been taken by Mrs Ibbett to carefully investigate the appellant's allegations and to act on them if she was satisfied that they were justified.

155 In August 2004, LM was required to enter into a behaviour contract and was threatened with expulsion by the Principal if she reoffended. She did, but nothing was done about it. There could be no doubt, and Mrs Ibbett and Mrs Carroll-Fajarda accepted, that the failure to take action in accordance with the College's policies against known perpetrators would send the wrong message to others who might be considering similar behaviour. Steps ought to have been taken which would have brought home to perpetrators such as LM the unacceptability of their conduct. If that required the threat of expulsion to be carried out, so be it. The message which expulsion would have conveyed to other actual or potential bullies was that bullying would not be tolerated in any form, and that is exactly what the College's policy clearly stated. Empty threats were of no use.

156 For the foregoing reasons, in my opinion, the primary judge was correct to find that the College was in breach of its duty of care to the appellant during 2004. Her conclusion at [249] of her reasons that the appellant was subject to ongoing bullying in 2004, that the College was aware that that was so, and that it failed to take reasonable steps to bring that conduct to an end, was amply justified by the evidence.

157 It would be inappropriate at this point to comment upon whether the steps which ought to have been taken (short of expulsion) would have brought the bullying of the appellant to an end and, if so, when. Expulsion would obviously have brought to an end bullying by the individual student who was expelled, but what effect it would have had on that student's friends is another matter.

Conclusion

158 In my view, the challenge by the College to the primary judge's finding of breach of duty fails. It therefore becomes necessary for the outstanding issues of causation, damages and costs to be the subject of further hearing. It would be inappropriate at this point, particularly given the issue of causation, to make any order for costs of the appeal to date, and I do not suggest otherwise.

159 The only appropriate order to make at this stage is to direct that the appeal be referred to the Registrar for the purpose of fixing a date for hearing of the outstanding issues to which I have referred. Consideration should be given, in the light of these reasons, to the parties scaling back their written submissions to what will be relevant on the adjourned hearing.

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Decision last updated: 27 May 2013