Bullying, School Liability and the Relationship with Student Wellbeing and Learning

Student-Wellbeing

Bullying is no longer confined to the schoolyard or school premises before the final bell of the day rings. Since the internet is everywhere, we have entered a new frontier where bullying has the potential to happen anywhere and at any time, especially in the form of cyberbullying. The Federal Government Report, “Student Wellbeing, Engagement and Learning across the Middle Years”, prepared by The Centre for Adolescent Health, Murdoch Children’s Research Institute (the Report) has also found that any form of bullying severely affects the learning of primary school students, leaving schools potentially with an ongoing duty of care despite the advent of the school holidays.

What is Bullying?

Bullying No Way states that the definition of bullying is an ongoing and deliberate misuse of power in relationships through repeated verbal, physical and/or social behaviour that intends to cause physical, social and/or psychological harm. It can involve an individual or a group misusing their power, or perceived power, over one or more persons who feel unable to stop it from happening. Bullying can happen in person or online, via various digital platforms and devices and it can be obvious (overt) or hidden (covert). Bullying behaviour is repeated, or has the potential to be repeated, over time (for example, through sharing of digital records). Bullying of any form or for any reason can have immediate, medium and long-term effects on those involved, including bystanders. Single incidents and conflict or fights between equals, whether in person or online, are not defined as bullying.

Cyberbullying, more specifically, is defined by the Office of the eSafety Commissioner as “the use of technology to bully a person or group with the intent to hurt them socially, psychologically or even physically.”

A School’s Duty of Care in relation to Bullying

Schools may be liable for the damage suffered by a student due to being bullied including by cyberbullying. The liability arises because schools and teachers owe a duty of care to all of their students. It is very clear that the requisite relationship exists, and the school has a duty of care for its students, while they are at school during usual school hours. However the duty does not necessarily cease on the ringing of the final bell of the day or stop at the school gate. The school’s duty of care may exist beyond the school premises and outside school hours. This was shown in the case of Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman where the student had left the school for the day and had walked 300 to 400 metres down the road to a bus stop outside another school where he intended to catch a bus. The student was injured when a student from the other school threw a stick and injured his eye.

The school’s duty of care also extends to bullying. This was also clearly shown in the case of Oyston v St Patrick’s College where the school was held liable to a former student for failing to implement its anti-bullying policy or to take steps to adequately deal with ongoing bullying behavior towards her by other students while she was enrolled at the school.

Where the duty of care becomes less clear for schools is when technology is involved in bullying. When students use school-hosted computers or websites, it could be argued that a duty of care still exists. But what if one student is using a school hosted computer and another their own mobile phone? What if the bullying occurs outside school hours and both students are using their own phones? As no case on cyberbullying liability has yet come before the court in Australia, it is instead prudent for schools to proactively manage bullying (including cyberbullying) as part of a school’s student welfare policies, in order to address the reasonably foreseeable risk of bullying prior to it occurring.

Student Wellbeing, Engagement and Learning across the Middle Years

The Federal Government released the Report in November 2018. The Report follows the experiences of 1200 students in the middle years of schooling (Years 3 to 7) in metropolitan Victoria.

The Report found that around half of students in Years 3 to 5 report some level of bullying and more than 20 per cent are being bullied across two or even three years, concluding that bullying in all forms was a “major barrier to effective learning” in Australia. This is due to the fact that students with persistent emotional or behaviour problems caused by bullying fall a year behind their peers in numeracy in the four years between Years 3 to 7 with similar, but smaller, trends in reading. This effect is comparable to the loss in learning observed for students from socially disadvantaged backgrounds.

In particular, the Report’s Professor George Patton said to SBS News that it is likely that every Year 3, 4 and 5 classroom in Australia has at least one child experiencing persistent bullying. The Report also drew a link between bullying and mental illness and depression, confirming the fact that bullying is now recognised as a risk factor for mental illness later in life.

What Schools Can Do Now

With bullying and cyberbullying now linked to ongoing learning and welfare difficulties for students, it becomes extremely important that bullying is not swept under the carpet in schools.

The Report emphasises the importance of promoting positive peer relationships and investing in the prevention of bullying from the earliest years of school including through the curriculum, policies, teacher training, and providing support for schools to implement whole-school health promotion programs with a focus on supporting peer relationships.

There are also a number of risk management strategies that a school can employ to ensure that the school can proactively prevent, and reactively respond to, bullying, including:

  • amending bullying policies to explicitly address cyberbullying
  • amending acceptable use of information communication technology policies to explicitly address new technology and the publishing of threatening or harassing comments
  • training staff to recognise bullying in all forms and understand its effect on students
  • reinforcing the school’s code of conduct in relation to all activities including online activities
  • educating and warning both parents and students about the effects of bullying
  • providing both parents and students with management techniques in relation to bullying
  • implementing bullying prevention activities particularly focused on cyberbullying
  • strengthening pastoral care programs to provide the individual attention needed by students experiencing bullying.

It is clear that a school’s general duty of care to its students extends beyond the school’s premises and outside school hours. And despite the lack of clear guidance on liability of schools for cyberbullying, the message for all schools with the advent of the school holidays nevertheless is that bullying (including cyberbullying) is a whole school issue which should involve students, parents, schools and the wider school community in proactive measures to address bullying behaviours before they become a liability issue.


About the Author

Lauren Osbich is a Legal Research Consultant and School Governance reporter. She can be contacted here.

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