Pursuing legal action against bullies

Bullying remains a pervasive issue in Australian schools, affecting the mental, emotional, and physical well-being of countless students. While many schools have anti-bullying policies, these measures are not always enough, prompting families to seek legal recourse in some cases. This article explores the legal and government stance on pursuing action against school bullying and highlights key cases that have shaped this landscape.

In Australia, while there is no specific federal legislation addressing school bullying, certain behaviours associated with bullying may be unlawful under existing laws. For instance, actions that constitute harassment, stalking, or defamation can be prosecuted under criminal or civil statutes, while bullying based on attributes such as age, sex, race, disability, or religion may breach anti-discrimination laws.

Regardless, schools have a legal obligation to address bullying behaviour. Several cases have served as examples and have largely shaped the policy and response in schools today.

Landmark Bullying Cases

One of the first major cases in Australia was in 2011 regarding a student called Jazmine who attended a NSW high school where she endured constant physical and emotional harassment. The school was aware of the issue, and Jazmine’s parents made repeated calls on the school to act, but the school did not intervene or do anything to prevent the bullying.

The New South Wales District Court found the school negligent in its duty of care and ruled that the school’s inaction caused Jazmine’s psychological harm. She was awarded compensation, setting a precedent for schools being held liable for failing to protect students from bullying.

The significance of this case was the fact that simply having an anti-bullying policy in place is not adequate, but schools also have to ensure the policies are actively implemented and followed.

Another case around the same was regarding a student called David who had suffered extensive physical and emotional abuse at his NSW high school in the 1980s and 1990s. He developed psychiatric illnesses later in life, including anxiety and depression which he claimed was a long-term effect of the bullying.

Again, the Court found the school liable, awarding David a substantial settlement, saying that because the school was negligent in its duty of care, the long-term consequences of the bullying had caused David’s lasting psychological harm.

A third milestone case was in 2016, against a primary school in NSW and a student called Ben. Despite repeated incidents where Ben’s physical and visible injuries were apparent to staff, the school was dismissive. The case became known as the ‘bullying builds character’ case.

The court ruled in Ben’s favour, awarding him compensation for the suffering caused by the school’s inaction and finding that the school’s negligence directly contributed to the harm he was suffering.

Evolution of Legal Standards

The legal standards for proving harm and negligence in Australia have evolved significantly over time, particularly in the context of schools and bullying cases.

For example, historically, duty of care was focused on physical harm and limited to events occurring on school grounds and within school hours. Today, there is a more holistic understanding, with duty of care extended to preventing psychological and physical harm. With the rise of cyberbullying, schools are now required to provide safety online as well as on school grounds. Similarly, the definition of harm has broadened from physical injuries such as black eyes and bruises to psychological injuries including anxiety, post-traumatic stress disorder and depression.

Another development is moving from proving an individual teacher or staff member at fault to holding the entire system accountable. Schools are now expected to take proactive measures to prevent bullying, rather than just reacting after it occurs. Additionally, schools are considered liable if they fail to act after becoming aware of the bullying.

Considering the options

The Australian government and various organisations first recommend addressing bullying through established school policies and support systems. Resources such as the national “Bullying. No Way!” initiative provide guidance for students, parents, and educators on handling bullying situations.

Taking practical steps is important if your child is experiencing bullying at school. Document the bullying by keeping a written (and photographic) record of incidents, any evidence of harm and a clear record of any communication with the school.

Parents considering legal action due to their child being bullied at school should be aware that legal proceedings can be complex, requiring substantial evidence that the school breached its duty of care and that this breach directly resulted in harm to the child. Legal action is typically considered a last resort, with the cases above – and examples of other cases from other states – taking many years in the court system before being finalised.