Bullying and assault

Schools have a legal obligation to address bullying behaviour of pupils and importantly, to provide support for both the victim and the perpetrator. Bullying may or may not be physical. Physical bullying may amount to assault or battery which are both civil wrongs as well as crimes in Australia.

Bullying is described in the literature as a “repeated attack, physical, psychological, social or verbal in nature, by those in a position of power … with the intention of causing distress for their own gain or gratification”. Bullying may involve direct physical or verbal abuse or indirect acts that are designed to harm the person’s social reputation and/or cause humiliation and distress. It can be carried out with the aid of technologies such as the internet (i.e. via Facebook) and mobile phones. This form of bullying is known as “cyber-bullying”.

Acts of bullying can involve:

intentional injury or physical assault such as kicking, hitting, pushing, punching or damaging property;

psychological assault such as teasing, name-calling, taunting, rumour spreading or ostracism;

continued harassment of a student by other students through email, text messages or chat rooms with a aim of insulting and ridiculing others; or

direct or indirect harassment such as sexual abuse, or vilification, for example on the basis of race, ethnicity, ability, gender or sexual identity.

Unlawful discrimination may also amount to bullying (see Discrimination and human rights).

Schools and teachers have a legal responsibility to deal with bullying behaviour of pupils and to provide support both for the victim and the perpetrator. If they know or ought to know that a particular pupil is being bullied and fail to take reasonable steps to stop bullying behaviour, they may be liable in negligence. A pupil who suffers physical injuries due to the bullying of others may bring an action against the school or relevant education authority for compensation for his/her injuries. Christopher Tsakalos’ case in New South Wales in April 1997 indicates that homophobic bullying in school may render the relevant education authority liable in negligence and/or for unlawful discrimination.

In Gregory v New South Wales [2009] NSWSC 559, the New South Wales Supreme Court awarded almost $470,000 in damages to a victim of bullying. The victim was regularly called “sterile”, “faggot”, “paedophile” and “Nazi” by his peers, who also banned him from entering the Year 12 common room or sitting on the Year 12 lawn. The court accepted that the teachers did nothing to deal with the victim’s complaints and had not intervened to protect him from being socially ostracised.

In Warren v Haines (1987) Aust Torts Reports 80–115, where a known bully picked up a 15-year-old girl and dropped her on her tail bone during recess in an unsupervised area in the school, the plaintiff succeeded in her action against her school in the lower court. However, on appeal, the decision was overturned. While the court accepted that the school had a duty to adequately supervise its students, there was sufficient evidence to prove that the student was injured within a very short span of time where there was no opportunity for the teacher to intervene.

There is no legislation at either state or Commonwealth level that specifically prohibits bullying behaviour. However, the Equal Opportunity Act 2010 (Vic), Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Australian Human Rights Commission Act 1986 (Cth), Disability Discrimination Act 1992 (Cth) and Occupational Health and Safety Act 2004 (Vic) may each impose legal obligations on schools and teachers to deal with the problem of bullying.

From 2006, all Victorian Government schools had anti-bullying guidelines which provided clear advice on strategies to prevent and respond to bullying. In August 2010, Victorian state schools developed new and reformed policies to deal with various forms of bullying in schools and to build respectful relationships within schools and in the community. Building Respectful and Safe Schools: A Resource for School Communities, updated and replaced the 2006 framework.

Since January 2000, the Victorian Government has urged all schools to develop programs to prevent school bullying. The school’s Code of Conduct must include anti-harassment and anti-bullying strategies, and incidents of bullying must be responded to promptly. The Framework for Student Support Services in Victorian Government Schools suggests that all schools should develop and implement programs that focus on preventative and early intervention strategies to combat bullying and harassment.

The Victorian Registration and Qualifications Authority (VRQA) requires Victorian schools to have policies which provide students with a safe learning environment where the risk of harm is minimised and they feel physically and emotionally secure. All schools are required to develop a Bullying Prevention Policy. For government schools, their Bullying Prevention Policy can form part of the Student Engagement Policy.

The National Safe Schools Framework sets out ways to deal with bullying, harassment and violent behaviour in schools. The framework is a collaborative effort by Commonwealth, state and territory government and non-government school authorities in consultation with other key stakeholders in the safety and wellbeing of children in Australian schools. The resource manual is available to download from www.education.gov.au.

All Victorian Government schools have also adopted new strategies to prevent and address cyber-bullying. Information about cyber-bullying and help for young people is available from the Cybersmart Online Helpline service (see also the Student Engagement Policy Guidelines webpage at www.education.vic.gov.au).

Since schools owe a direct (non-delegable) legal duty under the principles of negligence to protect the wellbeing of pupils in their care, school authorities may be liable to pay damages to pupils if they suffer injury through an act of bullying. Recent court decisions indicate that a victim of bullying who suffers emotional or psychological injury or long-term effects is able to recover damages from the relevant school authority (see Gregory v New South Wales [2009] NSWSC 559).

Some out of court settlements and unreported cases (see Sharp v London Borough of Richmond-upon-Thames (unreported, 1997)) also indicate that victims of considerably harsh bullying may be able to recover damages for the physical, psychological and enduring effects of bullying.

Victims of bullying may also bring an action against the perpetrator for battery and assault.

Assault consists in intentionally creating in another person an apprehension of immediate harmful or offensive contact. If the threat is carried out, the whole incident is … described as an “assault and battery” (Flemings, JG 1998, The Law of Torts, 9th edn, LBC Information Services, Sydney, p. 31).

Offensive and insulting behaviour – such as spitting in another person’s face, pulling someone’s hair, planting a kiss on someone without that person’s consent, seizing something from another person’s hand, pouring water on someone, or pulling a chair from under a person so that they fall on the ground – may amount to bullying as well as battery. In Eskinazi v Victoria (unreported, VCC, 20 June 2003), the Victorian County Court awarded $76,000 to a victim of bullying who was frequently called names (such as “hooker”, “whore” or “fat pig”) and beaten up by her fellow students at the school.

Assault and battery are civil wrongs as well as crimes under Australian law. Pupils above the age of 10 may face criminal proceedings in the Magistrates’ Court for assault. Upon conviction, the magistrate may direct that the perpetrator pay compensation to the victim or person aggrieved for injury or loss.

Kids Help Line in Australia provides telephone counselling for the victims of bullying and is available 24 hours a day, seven days a week (tel: 1800 551 800).

More information on bullying programs in schools and can be found by searching for “Bullying policy” and “Bullystoppers” at www.education.vic.gov.au.