Supreme Court New South Wales Medium Neutral Citation: Oyston v St Patrick's College [2011] NSWSC 269 Hearing dates: 16 June 2010, 17 June 2010, 18 June 2010, 19 June 2010, 20 June 2010, 13 December 2010, 14 December 2010, 15 December 2010, 16 December 2010, 17 December 2010 Decision date: 13 April 2011 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Verdict for the plaintiff. 2. The parties are to bring in short minutes reflecting the conclusions and findings I have come to. Catchwords: TORT - NEGLIGENCE - personal injury - psychiatric/psychological harm - plaintiff bullied and harassed by other pupils at high school - complaints of bullying to school authorities by plaintiff, plaintiff's mother and other school students - observations made by school staff of bullying - symptoms of anxiety and depressed mood engaging in self harm, collapses and seizures - nature and content of duty of care owed - whether duty of care was breached - school aware of bullying - school's bullying policies and practices - inadequate implementation of bullying policies established - question of whether plaintiff suffered illness - psychiatric injury established - causation - reasonable foreseeability of damage - supervision - damages - relevance of plaintiff's vulnerability to psychiatric injury and experiences at home - contributory negligence DAMAGES - measure of damages in action for tort - personal injuries - loss of earnings and earning capacity non-economic loss - past economic loss - future economic loss - domestic assistance - treatment - superannuation Legislation Cited: Civil Liability Act 2002 Limitation Act 1969 Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 Amoud v Al Batat [2009] NSWCA 333 Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 Cox v State of New South Wales [2007] NSWSC 471; (2007) 71 NSWLR 225 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Penrith City Council v Parks [2004] NSWCA 201 Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31; (2005) 221 CLR 161 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 State of New South Wales v Burton [2006] NSWCA 12 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Woolworths Limited v Strong [2010] NSWCA 282 Category: Principal judgment Parties: Plaintiff - Jazmine Oyston Defendant - St Patrick's College Representation: Counsel: Plaintiff - Mr D Kennedy SC with Mr G Smith Defendant - Mr R Sheldon SC with Mr N Chen Solicitors: Plaintiff - Lough Wells Duncan Defendant - Makinson & d'Apice File Number(s): 2007/265225 Judgment TABLE OF CONTENTS Judgment 1 The issues 8 The nature and content of the duty owed to Ms Oyston 11 The College's policies 16 The Expert's views of the College's policies and the effectiveness of their implementation in practice 38 The College's policies and how they were implemented in practice failed to protect Ms Oyston from bullying 51 The College was aware that Ms Oyston was being bullied 62 Credit 62 Ms Oyston's account 78 Mr Oyston 110 Mrs Oyston 129 The counselling records 160 Mrs Ibbett 177 Mrs Carroll-Fajarda 237 Conclusion 249 The Medical evidence about Ms Oyston 258 Dr Phillips 266 Dr Apler 271 What the joint report and concurrent evidence showed 277 The nature and extent of the psychiatric injury Ms Oyston suffered 291 Ms Oyston's pre-existing condition and the contribution of other stressors to which she was subjected 295 Did the College breach its duty to Ms Oyston? 297 Foreseeability 306 Supervision 312 Causation 315 Contributory negligence 332 Damages 339 Non-Economic loss 340 Past Economic Loss 352 Future Economic Loss 361 Domestic assistance 373 Treatment 375 Superannuation 380 Orders 381 1By statement of claim filed in 2007 the plaintiff, Jazmine Oyston, brought a claim in negligence, alleging that she had been injured while enrolled as a pupil at St Patrick's College, Campbelltown ('the College'), as a result of being exposed to bullying and harassment by other pupils of the school between 2002 and 2005. The College defended the claim and also pursued a claim of contributory negligence. The claim is governed by the provisions of the Civil Liability Act 2002 . 2That the College owed Ms Oyston a duty of care was not in issue. There was no question that the College had foreseen that bullying could lead to a student being injured and that it took steps to prevent such harm from occurring, both through the policies which it had established and by their implementation in practice. The evidence showed that while Ms Oyston was a pupil at the College, amongst other things: * bullying was perceived to be a problem at the College, which required active steps to be taken; * The College recognised that bullying could be difficult to detect, but that it needed to be guarded against and if it occurred, addressed; * The College published policies directed at bullying and other inappropriate behaviour. Its policies were under ongoing review between 2002 and 2004, but were in some respects not in practical operation; * In 2004 the College engaged an expert to advise it and its staff on how to detect and deal with bullying; * In 2004 the College conducted a student survey in relation to their experiences at school of bullying, which showed that bullying was a problem for a significant number of students; * Year co-coordinators had particular responsibility to deal with bullying, in conjunction with other members of the College's executive team; * The College was aware, particularly in 2004, that Ms Oyston was complaining of problems in her personal life, as well as in relation to ongoing bullying at school from complaints made by Ms Oyston and her mother, from observations made by staff, from information provided by other students as well as information obtained from external sources; * Practical steps were taken to deal with bullying identified from time to time, including on some occasions in relation to Ms Oyston; * The College referred Ms Oyston to counselling in 2002 and 2004 and she self referred in 2005; * The College was aware that Ms Oyston engaged in self harm in 2004. The College ensured that Ms Oyston received medical attention, by having her taken from the school by ambulance, when she appeared to be suffering from seizures which caused her to collapse at school; and * The College was aware that Ms Oyston's medical problems were being investigated; that she was admitted to hospital on a number of occasions for treatment and later, for various testing; and that she was treated for anxiety and depressed mood. 3Ms Oyston was withdrawn from the College in February 2005, her parents taking the view that her increasing problems stemmed from her experiences at the College. In the following April, her father took steps to bring this claim. 4Expert evidence was called about the way in which the College dealt with bullying. There were divided opinions about the effectiveness of the College's policies and practices, especially those taken in relation to Ms Oyston. 5The medical experts were divided over the question of whether Ms Oyston suffered a psychological illness and whether, if she did, it was an injury caused by the bullying she claims to have been subjected to at the College. 6Ms Oyston's case was that the College's policies and practices in relation to bullying, as implemented in her case, failed to protect her from a recognised and foreseeable risk of harm when she was subjected to relentless bullying while a student at the College between 2002 and 2005. 7The College's case was that Ms Oyston was not the subject of such bullying, or if she was, the circumstances were not such as to allow it to be aware of the bulling to which Ms Oyston was being subjected by other students. At the least, there was contributory negligence on Ms Oyston's part. THE ISSUES 8At the hearing the parties identified the issues in contest. For Ms Oyston they were identified as: " LIABILITY 1. The adequacy of the defendant's anti-bullying policy prior to June 2004 to the extent that it existed. 2. Whether the defendant's anti-bullying policy was effectively utilised in relation to the plaintiff's complaints of bullying and harassment. 3. Casual acts of negligence on the part of employees of the defendant. 4. The plaintiff relies on the grounds of negligence as particularised in the statement of claim. DAMAGES 1. The nature and extent of the plaintiff's injuries and disabilities. 2. The causal connection between the alleged bullying and harassment and the plaintiff's injuries and disabilities. 3. The plaintiff's capacity to work. 4. The plaintiff's need for domestic assistance. 5. The extent of any need for ongoing treatment. 6. The likely development of further problems causally related to the bullying at the school." 9For the College the issues were identified as: "1. The nature and content of any duty of care owed to the plaintiff, including a consideration of sections 5B and 5C and Part 3 of the Civil Liability Act 2002 . 2. Whether any duty of care owed was breached by the defendant, including a consideration of sections 5B and 5C of the Civil Liability Act 2002 ; and, if so, in what way or ways. 3. Whether any breach of duty so found relevantly caused the plaintiff's injuries, concluding a consideration of section 5D of the Civil Liability Act 2002 . 4. Whether the plaintiff was guilty of contributory negligence, and if so, in what respect(s). 5. The nature and extent of any injuries the plaintiff might suffer from, or have suffered from. 6. Whether the defendant is legally liable for some, all or no part of the plaintiff's injuries; and how such damages would be assessed in each circumstance. 7. The nature and extent of the plaintiff's pre existing psychological problems. 8. Whether the proceedings are barred - either in whole or part - by operation of s.18A and/or 50C of the Limitation Act 1969 . 9. The plaintiff's entitlement to, and assessment of, damages under Part 2 of the Civil Liability Act 2002 ." 10In final submissions it was confirmed that the Limitation Act defence was no longer pressed. THE NATURE AND CONTENT OF THE DUTY OWED TO MS OYSTON 11As 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 det ermining whether a reasonable person would have taken precautions against a risk of harm, the court is to consi der 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." 12Negligence has the meaning given by s 5 of the Civil Liability Act , namely 'failure to exercise reasonable care and skill ' . 13In 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." " 14Simpson 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. 15In 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. THE COLLEGE'S POLICIES 16The College's policies were the means by which the College met its duty of care in relation to student behaviour. It is convenient to deal with these policies, before turning to deal with the various evidence which the witnesses gave about what happened to Ms Oyston. 17The evidence demonstrated that it was well known that bullying could not only put a student at risk of physical injury, but also psychological injury. Understanding of such risks had grown over time, with the result that at the time that Ms Oyston attended the College, it had taken steps to improve its policies and practices, in order to better ensure that it was able to meet its duty of care to its students. 18The College published 'Student Conduct Policies & Procedures', as well as a 'Personal Protection & Respect Policy', in the diary which was given to each student each year and which they had to have with them daily. Both policies dealt with bullying. They were published in the diary in order to ensure that students were made aware of the College's encouragement of appropriate behaviour; its disapproval of misbehaviour and how it would be dealt with. The diary was used for a variety of purposes, including in connection with disciplinary matters. In 2003, 2004 and 2005 the 'Personal Protection & Respect Policy' was under review. As it was published in the diary each year it was labelled 'draft'. 19On the evidence of Mrs Ibbett a year co-ordinator and Mrs Carroll-Fajarda, then the College's Deputy Principal, what was published did not reflect the College's practices. Significant aspects of the published policies were not in practical operation at the College. 20It is convenient to refer to what the 2004 diary provided, by way of illustration. In the 'Student Conduct Policies & Procedures' section of the diary, students were advised that 'minor misdemeanours' would be immediately corrected by staff members. If the misbehaviour continued within the classroom the subject co-ordinator would be contacted, or if it continued outside the classroom, the year co-ordinator. A 'student intervention' slip would be completed and details entered into student records. The College maintained a file for each student for this purpose. Serious misconduct could result in afternoon detention; loss of early leave privileges for seniors; suspension; full day detention at school on pupil free days; exclusion from non-compulsory extra curricular activities; or expulsion. 21Students who accumulated three detentions within a semester faced suspensions, after consultation with the subject or year co-ordinator and involvement of a member of the School Executive (which included the Principal and Deputies). Suspensions were also noted on student files. Expulsion was the responsibility of the Principal. 22Unacceptable behaviour was identified. It included rudeness to staff and students; public misbehaviour; bullying; intimidation/violence; and all forms of harassment/being disruptive in class. It is unnecessary to refer to the other types of behaviour identified. 23The diary specified particular procedures for inappropriate behaviour: "Rudeness to Staff/Student Disobedience: Both offences will be immediately corrected and noted on a Student Intervention Slip. Serious cases or continued rudeness or disobedience will result in an afternoon detention. ... Public Misbehaviour: This affects every member of our school community and will not be tolerated. It includes unruly behaviour, swearing, rudeness, dangerous behaviour on public transport and any other such actions that bring the College's name into disrepute. Students who publicly misbehave face possible suspension and/or review of enrolment. Prefects are appointed by the College to assist students when in public. They have the authority to confiscate Student I.D. Passes from any student found misbehaving. Failure to comply with reasonable requests from Transport Prefects will result in afternoon detention. ... 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 as 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. ... Disruptive Behaviour in Class - Lateness - Not Completing Homework OR Not Bringing Appropriate Equipment to Lessons : The teacher concerned will deal with these subject-based misdemeanours immediately as they are detrimental to both the group and individual. If the problem is a recurring one it will be referred, via a Student Intervention Slip, to the appropriate Subject Co-ordinator who will take further action, which may result in detention or suspension." 24The 'Personal Protection & Respect Policy' dealt particularly with bullying. It provided: "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 or bullying and harassment. Students, parents and teachers can report bullying. Usually, the most appropriate member of staff to deal with incidents of bullying had harassment is the relevant Year Co-ordinator." 25While the policies envisaged that a student might be referred to counselling in the event of bullying, it did not envisage that a counsellor would investigate such misbehaviour. That was a matter for the year co-ordinator. Nor was it the counsellor's role to punish a bully. 26Mrs Ibbett was the year co-ordinator for Ms Oyston's cohort in each year that she attended the College, apart from a period of long service leave in 2004. She was repeatedly cross-examined on the basis that her identification of particular misbehaviour, put to her as constituting bullying, as 'inappropriate behaviour', was inaccurate and had resulted in bullying directed at Ms Oyston not being addressed by the College. Mrs Ibbett's approach reflected an understanding that the College's policies dealt with both bullying and misbehaviour which did not amount to bullying. On her understanding, for misbehaviour to amount to bullying, there had to be a course of conduct, rather than just a single incident. On her approach in practice, until Mrs Ibbett had established that there had been ongoing inappropriate behaviour, she dealt with a student's misbehaviour as inappropriate behaviour, which might also warrant punishment under the policy, but not on the basis that it was bullying. 27While the 'Personal Protection & Respect Policy' did not reflect that understanding explicitly in its terms, that it was one operating within the College must be accepted. The policies certainly contemplated that a single incident which was not seen as involving bullying, nevertheless could involve misbehaviour which was so serious that it warranted punishment in accordance with the 'Student Conduct Policies & Procedures'. 28Despite what the policies provided, the evidence reveals that in Ms Oyston's case, in 2004, a difficulty emerged at the College in dealing with ongoing or repeated misbehaviour, whether or not it amounted to bullying. This was at a time when there was clearly ongoing concern at the College about persistent misbehaviour amongst students which did amount to bullying; the operation of the School's policies; and the need to take further steps to ensure that students were not bullied. 29The College's policies envisaged that teachers and co-ordinators would have considerable discretion as to how they would deal with inappropriate behaviour. It could result in simply a discussion with a student, a warning, a phone call to a parent, or a more serious step such as a detention or suspension. Staff, including co-ordinators such as Mrs Ibbett, exercised their discretion in dealing with misbehaviour, depending on the circumstances which arose to be dealt with. They had to exercise judgment to ensure that they identified any course of conduct which might amount to bullying. What appears to have happened in relation to Ms Oyston, is that such judgment and discretions were exercised to the point where an effective bullying policy was not in practical operation. 30In May 2004, the evidence shows unarguably that Ms Oyston was not only being bullied and complaining about the bullying, but that she herself also engaged in inappropriate behaviour when she started a rumour about a student who she complained was amongst those bullying her. This led to retaliation and resulted in her engaging in a serious act of self harm at school, which she sought to raise with Mrs Ibbett, but to which the counsellor attended. Ms Oyston's own misbehaviour, as well as that of the other students involved, was dealt with by way of detention. The parents were all notified. 31Ms Oyston's parents reacted quite differently to these events. Her father wrote to the College advising that he believed that the punishment Ms Oyston had received was not severe enough, but he left the matter in the College's hands. On her evidence, Mrs Oyston did not read the College's letter, did not approve of the behaviour and was aware of her husband's letter, but regarded Ms Oyston's behaviour as involving an act of revenge for the bullying which she was herself being subjected to. This view was not communicated to the College. 32In this year, Mrs Ibbett was dealing with a number of students who were engaging in misbehaviour. Some were engaging in inappropriate behaviour to the point where they were clearly involved in bullying others. In June 2004, Mrs Ibbett wrote a letter to year 9 students about bullying which the home room teachers read out in their classes. Still, the misbehaviour did not cease. This brought particular students to Mrs Ibbett's attention, including those who Ms Oyston complains in these proceedings were bullying her relentlessly. So far as Ms Oyston was concerned, I am satisfied that the steps which were taken were neither consistent with the College's policies nor adequate to ensure that she was protected from this ongoing misbehaviour. 33It is unquestionably difficult for a school to determine whether misbehaviour of the kind about which Ms Oyston here complains, such as jostling and elbowing in a corridor is being engaged in between friends in fun, or done in order to intimidate or humiliate someone; or when calling someone a 'slut' or 'bitch', language nowadays used in popular songs and video clips, is being used acceptably between friends, or when such language is being used to vilify and humiliate someone. When dealing with potential bullying, context is unquestionably often everything, as was Mrs Ibbett's evidence. A school must judge such matters within the context of what is known about the students involved. 34Furthermore, as well as meeting their legal duty of care to their students, schools must educate and support their students during their adolescence, a difficult time in the lives of many people. At the College, at the time that Ms Oyston was a student, the evidence suggests that there was an overemphasis on supporting certain students, while they continued to engage in misbehaviour, in order to help them to overcome that conduct. The policy at one point emphasised ensuring that the bullies were not themselves bullied. Unquestionably, the College faced a difficult task. Nevertheless, I am satisfied that it did not achieve the right balance, so far as Ms Oyston was concerned. The emphasis placed on caring for and supporting those who engaged in misbehaviour, came at the cost of not ensuring that Ms Oyston, the victim of that behaviour, was not injured as the result of being bullied. 35Records of staff meetings record ongoing discussions amongst co-ordinators and other teachers about concerns over continuing bullying, including in Ms Oyston's year. In 2004, the College took expert advice on its approach to what it perceived to be a bullying problem at the school in 2004 from Mr Roberto Parada, who addressed staff. It also conducted a survey of students that year. The results became available in 2005. 36While the College was active in its attempts to deal with what was recognised as a bullying problem amongst the school cohort, including in Ms Oyston's year, its response proved to be ad hoc, rather than systematic. Its record keeping was haphazard. Instead of the types of records which the policies envisaged would be maintained, the College's witnesses described 'a paper trail' intended to be maintained by documents placed on a student's file. Ms Oyston's file was not in evidence, although documents kept in that and other files were. From this material it became apparent that no clear record was maintained as to the course followed when complaints were received; what conclusions were drawn from any investigation conducted; and importantly, what was done by way of response, if bullying or other inappropriate behaviour towards the student was uncovered. 37In Ms Oyston's case, the record, such as it was, showed that the types of responses which the College's policies envisaged would be implemented if complaints were received about bullying, did not result. The Expert's views of the College's policies and the effectiveness of their implementation in practice 38Expert evidence was called from Dr Keith Tronc and Mr Peter McNair, as well as from Dr Ken Rigby, about the College's policies and practices and their effectiveness in Ms Oyston's case. There was a joint report produced and they gave concurrent evidence. 39It was common ground that the College's anti-bullying program from February 2002 to February 2005 'was an acceptable written set of policies and programs', but Dr Tronc and Mr McNair were disagreed as to the effectiveness of the programs as implemented. Dr Tronc was of the view that the College's policies were inadequately actualized and implemented and while impressive looking, they failed to protect Ms Oyston. The survey of the College's students in 2004 in his view confirmed that the policies also failed other students. Mr McNair disagreed. He took the view that the policies were used effectively in relation to Ms Oyston, when appropriate. 40The results of a student survey conducted in 2004 were also very differently perceived. Dr Tronc was of the view that they revealed a 'massive' bullying problem at the College. Mr McNair was of the view that the survey showed that the College's anti-bullying processes were effective. Mr Rigby and Mr McNair were of the view that the results did not show that the position at the College was worse than that at other schools, particularly those where a similar survey developed by Dr Rigby, had been undertaken. It is unnecessary to resolve this conflict. The evidence showed that even if the situation was not worse than at other schools, a significant number of students perceived bullying to be a problem. Ms Oyston was clearly one of those. 41Dr Tronc and Mr McNair agreed that the matters about which Ms Oyston complained, came under the College's anti bullying program. Dr Tronc was of the view that there was inadequate response, even though there was obvious vulnerability shown early by Ms Oyston and that counselling did not resolve her problems. Her complaints were not taken seriously or acted on until November 2004. Mr McNair's view was that there were significant and immediate steps taken after Ms Oyston's self harm in May 2004, including communication with her parents and re-educating her school cohort about the nature of bullying and harassment and reinforcing procedures as to its unacceptability. 42Dr Tronc and Mr McNair agreed that if any complaints about bullying arose: "I. The complaint should have been investigated; II. If shown to be true then any or all of the following actions may have followed: a) Conflict resolution procedures such as restorative conferences or peer mediation arranged; b) Counselling for the Plaintiff and for the perpetrators by the relevant pastoral care personnel (for example Year coordinators); c) Arrangement of suitable peer support for the Plaintiff; d) Parental notification to carers of all parties; e) Counselling sessions by trained counsellors, remembering that participation in counselling is voluntary; f) If appropriate, punishment sanction should have been imposed, such as the detention system and restorative questionnaires evidently in use. This could have included short suspension, but only in the case of repeated harassment of the Plaintiff and only as a last resort; g) Follow-up monitoring of both the Plaintiff and alleged perpetrators; III. Appropriate records should have been maintained in the student files of all students concerned. IV. Consideration should have been given to cohort or school assemblies to address personal relationships." 43In their concurrent evidence, given after they had access to exhibits and transcript of evidence received at the hearing, it was revealed that the experts' differences had resolved but little. 44They were asked to comment on certain events which had occurred in 2004, including: complaints made by Mrs Oyston in February; an incident of self harm in May; and a memo sent by Mrs Ibbett to Ms Oyston's teachers in November. Dr Tronc was of the view that the above steps which he and Mr McNair had agreed on, ought then to have been taken. Mr McNair took the view that the year co-ordinator, Mrs Ibbett, needed to be free to vary the applicable procedures and that 'bullying the bully' had to be guarded against by the College. A zero tolerance approach to bullying was counterproductive. In his view, aspects of the College's published polices were also ineffective, for example maintaining a bullying register. This just created a useless bureaucracy and could result in the maintenance of inaccurate information, which leads to injustice. Good practice was to deal with incidents as they occurred, in order to solve problems. There were also problems with peer mediation, which was also contemplated by the College's policies. 45Dr Tronc explained what he understood by 'zero tolerance', namely that the administrative team would not turn a blind eye to bullying. If peer mediation did not work, then a school would have to fall back on sanctions. Mr McNair agreed with such an approach, but was of the view that sanctions which were mandatory, did not work. What worked was thoughtful counselling, constructive culture and thoughtful intervention, which had to be explored before punishment was imposed as a last resort. Mr McNair was doubtful that counselling of a perpetrator, if forced, would be effective. Dr Tronc was of the view that schools had to have counselling, as well as effective discipline. What was done in a particular case was a matter of balance. 46Dr Tronc believed that it was important for early steps to be taken to deal with bullying, to control it and stop it spreading. In his view, the longer bullying was uncontrolled, the more likely harm would result. In his experience, bullies tended to test waters, to see if there would be retaliation. They looked to the reactions of authorities, onlooker apathy and crony support. Investigation and even punishment reduced risk of harm to victims. Mr McNair was of the view that in Ms Oyston's case, steps were taken, and that the harm suffered was not as the result of those steps, or lack of them. 47Whilst Dr Tronc and Mr McNair agreed that the survey data showed a bullying problem existed at the College, they disagreed as to its magnitude. Mr McNair said that what it revealed as to group bullying would have been of concern, but the result also showed that the global bullying index was less than that for similar sex single schools. Dr Rigby agreed that the results, while sad, showed that the College was not in an exceptional position. The survey was a diagnostic tool which showed that the College was doing a little better than average, or at least not worse; the comparisons being made between surveys not being perfect. That the 2004 survey revisited one undertaken in 1998 at the College was to its credit. Practically all schools now have anti-bullying policies, however, it was a matter of controversy as to whether there had been any improvement in bullying at schools as a result. 48Dr Tronc remained of the view that the implementation of the College's policies in Ms Oyston's case was spotty and inconsistent. Mr McNair said that covert retaliation and social aggression depended on student or parent reporting, because it was largely unseen. The critical point in his view was that the behaviours of which complaint was made in these proceedings, was not known to the School. 49Mr McNair was also firmly of the view that the best way of dealing with incidents of bullying was to strengthen the victim 'by allowing the victim to find ways to understand and deal with behaviours'. Immediate compulsory counselling of perpetrators could lead to resentment against the victim. If counselling was resisted by a perpetrator, the better way forward was to talk to the whole group, in order to bring peer pressure on the perpetrator. While as a last resort punishment would be imposed, in this case that situation was never reached. 50Dr Tronc disagreed. On his approach there had been a failure to act sufficiently on Ms Oyston's reports. While this was not a situation involving violence, there had been repetition of bullying, which ought to have been dealt with in accordance with the policy. He agreed, however, that there had to be room for discretionary decisions in these types of serious situations. Dr Tronc remained of the view that there had been inadequate investigations in relation to the information which the College had. Mr McNair was of they view that they were adequate. The College's policies and how they were implemented in practice failed to protect Ms Oyston from bullying 51In my assessment of the evidence, the College's response to the bullying problem which existed at the school by way of its implementation of its policies was inadequate, so far as Ms Oyston was concerned. 52Despite all of the work undertaken to develop policies and to train staff and students in what type of behaviour amounted to bullying and how to detect it and to deal with it, when confronted with persistent inappropriate behaviour and bullying, the College's response was ineffective to ensure that it met its duty of care to Ms Oyston, even though it was apparent that real harm was resulting for her. The College certainly did not respond to what came to its notice as to what Ms Oyston was being subjected, in the way in which Mr McNair and Dr Tronc agreed it should have responded. 53The evidence given by the College's witnesses put beyond question that while the paper system which the College had under ongoing constant review between 2002 and 2004, may have been effective if implemented, it was in reality, not in practical operation. The College failed to respond adequately, or in some instances at all, to complaints of bullying relating to Ms Oyston which came to its attention from various sources. It failed to adequately document such complaints and its responses, as its systems envisaged; to act on them as Dr Tronc and Mr McNair agreed ought to have been its response when a complaint about bullying was received; or to adequately follow up or monitor Ms Oyston, to ensure that she was not being subjected to further bullying. 54Such monitoring was particularly important at a single sex school like the College, given the subtle types of bullying behaviour which girls were known to engage in; behaviour of the type about which Ms Oyston complained. There was evidence of both active, direct bullying coming to the College's attention, as well as indirect bullying behaviour which left Ms Oyston isolated. The College had been advised about both types of bullying by Dr Parada. It was also recognised that victims were sometimes driven to retaliate. 55In February 2004, Mrs Oyston raised a concern about bullying with the Principal. When in May 2004 Ms Oyston herself came to attention for inappropriate behaviour, no consideration was given to the possibility that she was involved in such retaliation, even though her actions were directed at one girl, JP whom Mrs Oyston had complained about in February 2004, along with another student, LM, who was already known to have engaged in inappropriate behaviour towards other students. 56Later that year, a group of students, including Ms Oyston, complained that they were the targets of ongoing inappropriate conduct by other students outside their friendship group, including JP and LM. Ms Oyston herself made even further complaints. Clearly the College had to act to ensure that either the behaviour ceased, or was in fact not occurring as reported. If it was occurring, then College's policies designed to bring the misconduct to an end and prevent it from recurring, had to be acted upon. 57Dr Tronc's view that a failure to act in accordance with policies such as those which the College published to its students, is likely to encourage such behaviour, must be accepted. It certainly cannot ensure that the school meets its duty of care to the victim. Counselling a victim to withstand the bullying, as Mr McNair suggested in his evidence was a way in which to deal with bullying, without also acting to ensure that the bullying ceases, will put a school at obvious risk of failing in its duty of care to the victim. 58Insisting that bullying cease, and taking steps which ensures that happens, if the conduct does not cease voluntarily, cannot, in my view be viewed as wrongly 'bullying the bully', but rather as exercising an undoubted right to insist that conduct which school bullying policies provide students are not to engage in, must cease. If such a requirement is flouted by students, schools must take steps designed to ensure that the bullying ceases. Mere counselling of a victim dealing with the consequences of ongoing bullying, will not be sufficient for a school to meet its duty of care. 59Discretion, a very necessary part of any teacher's role, cannot operate to the point where misbehaviour, including bullying, is dealt with inconsistently, or worse, arbitrarily or not at all. 60I accept the force of the submission that the difference in approach which the College adopted to its 'Uniform Policy', reveals how it failed in relation to its other behaviour policies. The 'Uniform Policy' was also published in the College's student diary. It dealt with a range of matters, including some which went to safety - the requirement that long hair be tied up, for example. Infractions of this policy led to a warning, a note being sent to the parents for repeated infractions and then a detention. This was a policy both clear and enforced at the College, including in relation to Ms Oyston, on the documents in evidence. What the various policies were dealing with was quite different, of course. Nevertheless, they each had important aims, the conduct policies being directed to misbehaviour which could result in a student's physical or psychological injury. The 'Uniform Policy' to other matters, some of which were also directed to ensuring safety. The College's failure to enforce its conduct policies in a similar way to its enforcement of its 'Uniform Policy', underlined its failure in the duty which it owed Ms Oyston. 61The evidence shows that the result of the College's inadequate implementation of its own policies was that significant adverse consequences began flowing in 2004 for Ms Oyston. THE COLLEGE WAS AWARE THAT MS OYSTON WAS BEING BULLIED Credit 62There were many conflicts and contradictions in the evidence, which require close consideration, in determining what in fact happened to Ms Oyston, while a student at the College. It was argued for the College that in this case much would depend on an assessment of the credit and reliability of Ms Oyston, she being, it was argued, an unreliable witness. The credibility of other witnesses, including those called in the College's case, was also challenged, particularly that of Mrs Ibbett. It is convenient to deal with those matters, at this point. 63So far as Ms Oyston is concerned, the question of credit has to be approached by giving due consideration to the fact that at the time of the events in question, she was an adolescent, unquestionably suffering serious difficulties in her personal and school life. At the time of giving her evidence she was aged some 20 years. There is no question that she was subjected to significant stressors over a number of years whilst attending the College, which impacted on her mental state. That this may have also impacted her memory of particular events, appears possible. 64Ms Oyston's memory of certain events was certainly not particularly good. In cross-examination she explained that before the hearing she had been shown documents produced by the College and that until she saw them, she had no memory of certain matters with which they dealt. Aspects of Ms Oyston's evidence was seemingly irreconcilable. As the College submitted, it appeared that at times her evidence in cross-examination was evasive and deliberately so, especially when contemporaneous records showed that evidence which she had given in chief could not be accurate. Her account of the times at which various events occurred was shown not to have been entirely reliable. She gave contradictory evidence in part. 65What must also be considered, however, was that even though the College clearly failed to adequately implement the record keeping aspects of its bullying policy, documents which were maintained by the College and counsellors corroborated significant aspects of Ms Oyston's account of her experiences. Also to be considered was that evidence given by witnesses called in the College's case, especially concessions made in cross-examination, albeit reluctantly, also corroborated aspects of Ms Oyston's account. 66What also required careful consideration was that on the one hand, Ms Oyston's evidence was that the bullying to which she was subjected over the years was relentless, to the point where it came to occur almost every day, with the result that she repeatedly complained to various members of staff, without receiving effective assistance. There was certainly documentary evidence of ongoing complaints, particularly in 2004, but not of such relentless bullying. In cross-examination, however, Ms Oyston also said that she did not like to complain about the bullying she was enduring and the effect it was having upon her and that she was even bullied in relation to receiving counselling and seeing Mrs Ibbett. That evidence also accorded with aspects of the counselling records, although they were criticised as not being very illuminating, given the brevity of the account recorded of what Ms Oyston revealed to the counsellor. 67In her case Ms Oyston called evidence from her parents. She called no evidence from friends who attended the College with her and who might have corroborated her account of how she was bullied by other students. Nor did she call evidence from any of her teachers, from counsellors who she saw, from doctors who treated her at the time, or even the psychologist who treated her in 2005, after she left the College. Nevertheless, certain contemporaneous documents confirm that other students, teachers, counsellors and doctors all observed or were informed about Ms Oyston being bullied at school. 68For its part, the College did not call evidence from its then Principal, Mr Green, teachers other than Mrs Ibbett and Mrs Carroll-Fajarda, or of any of the counsellors who dealt extensively with Ms Oyston and her mother. They were all obvious witnesses who could have shed light on what had occurred. 69Having considered all of the material which was in evidence, I have come to the view that Ms Oyston was not deliberately exaggerating what had occurred to her, or that she set out to give false evidence. I have rather concluded that what occurred to her has in her mind assumed a very significant role in causing the problems which she suffered while at the College, perhaps more significant than a proper reflection of other contributing factors might warrant. Given that these factors appear to have stemmed from her difficult home circumstances, the shift is perhaps an understandable one, for a troubled adolescent mind to have made. 70Ms Oyston was removed from the College in early 2005 when aged 15 years, at a time when she was unquestionably unwell. Beforehand she had repeatedly received counselling whilst at the College; she had engaged in a number of episodes of threatened and actual self harm; she had repeatedly collapsed and was taken from school by ambulance; she had been admitted to hospital; and she had received various testing and treatments. When Ms Oyston was finally removed from the College by her parents, they had came to the view that the College had not acted effectively to deal with ongoing bullying to which Ms Oyston had been subjected. 71On any view these are not common experiences for adolescent school students. Having in mind the evidence to which I will turn as to Ms Oyston's experiences at the College, as well as the evidence of the medical treatment which Ms Oyston received and the view of the experts as to her condition at particular times, I am well satisfied that the view that Ms Oyston should be approached as an unreliable witness of little credit, is not open. 72Mr Oyston and Mrs Oyston's credit was also challenged. It was Mr Oyston who took steps to obtain legal advice, soon after Ms Oyston was withdrawn from the College in 2005. Mr Oyston first made a statement, shortly before the hearing in 2010. His evidence was also given orally at the hearing. It emerged that before giving this evidence, he had read hospital records and a chronology of events which Ms Oyston's solicitor had prepared for the trial. 73Mrs Oyston had also been provided with those documents and had shown them to her husband, but she denied herself having read them. She said that she had only flipped through them. The evidence did not disclose that Mrs Oyston had ever made any written statement. Her evidence in cross-examination revealed that she had an extraordinarily poor memory of the detail of events which one might expect a mother closely involved in the serious problems Ms Oyston was dealing with, to remember. 74Mr and Mrs Oyston's evidence corroborated that given by Ms Oyston, in part. Their evidence also in part contradicted that given by Ms Oyston, especially as to the extent of the bullying which was directed to Ms Oyston prior to 2004 and in relation to difficulties in her home life. The accounts given Mr and Mrs Oyston, were however, also partially corroborated by documents maintained at the College and by evidence given by witnesses called in the College's case, especially in relation to the events of 2004 and 2005. 75The evidence given by the witnesses called by the College, Mrs Ibbett and Mrs Carroll-Fajarda, especially that given in chief, contradicted the accounts given by Ms Oyston and Mr and Mrs Oyston, particularly in relation to complaints which Ms Oyston and Mrs Oyston claimed they had made about Ms Oyston being the victim of bullying at school. In cross-examination there were, however, significant concessions made which impacted on this picture. That was particularly so in Mrs Ibbett's case. Her evidence in chief was that she had never received any complaints about bullying in relation to Ms Oyston. Her evidence in cross-examination was to completely contrary effect, particularly when the distinction which she sought to draw between bullying and other impropriate behaviour is born in mind. That Ms Oyston and her mother were not drawing such distinctions when they raised complaints, is clear. 76The evidence given in cross-examination, especially that given in relation to contemporaneous documents which revealed complaints about bullying and an inadequate response by the College, corroborated significant aspects of Mrs Oyston's evidence. 77Having this in mind, together with the evidence as to Mrs Oyston's own condition in the aftermath of an accident in which she was involved in 2001, I am not of the view that Mrs Oyston gave false evidence. I accept that she gave her evidence truthfully, in so far as she could remember what had occurred. I had no reason to doubt Mr Oyston's evidence, otherwise than in relation to the evidence given about his son. That was inconsistent with the evidence which Ms Oyston and Mrs Oyston gave. Ms Oyston's account 78Ms Oyston attended the College from 2002, during years 7, 8 and 9. Her parents withdrew her in March 2005, when she was in year 10. She then went to another school where she repeated year 10. 79In her initial statement it was Ms Oyston's evidence that while a student at the College she was bullied by certain girls whom she identified as being in the 'popular group' in her form, commencing in term 3 2002, when she was in year 7. They were looking at her, making comments amongst themselves and giggling or sniggering. When they walked past they would call her 'bitch' or 'slut' and giggle amongst themselves. Occasionally they gave her a nudge with their elbows, when walking past. There was such talk and jostling before school started, at recess and lunchtimes and while Ms Oyston was waiting for the bus after school, or for her mother to pick her up. 80In class there was also name calling, giggling and sniggering, mostly during religion class, particularly whenever she stood up to read something. This also occurred in commerce, history, geography, science and English classes. Such bullying occurred on average every second day. 81Ms Oyston had come to the College from a primary school with two of her friends. She had not experienced problems like this at primary school. She could recall nothing which had prompted this treatment in year 7. Others whom she identified in her group of friends were subjected to similar treatment, although to a lesser extent. 82Ms Oyston identified who the girls in this 'popular group' were in year 7. On the evidence the identification of this group of girls in the year as the 'popular group' came from Ms Oyston. Over time, members of the group appear to have altered, including when one of her former friends joined that group. There was no evidence that anyone else so identified the group to whom Ms Oyston referred. When later cross-examined, Mrs Ibbett, the year co-ordinator for each year that Ms Oyston was at the College, did not agree with that description, at least in relation to one of the girls later identified by Ms Oyston to have been a member of this group. 83Ms Oyston also gave evidence that in 2002 she was mocked at the swimming carnival for not wearing a bikini, with the result that she never attended another such carnival. At the athletics carnival she was mocked for wearing house colours, with the result that she never attended another athletics carnival. She was also picked on during mufti day, either in year 7 or 9, where one of the girls said 'Oh dear my mother has that skirt. Look what she's got on'. She did not attend later school mufti days. 84In her statement, Ms Oyston said that she first complained about this bullying in either year 7 or year 8, to her English teacher Ms Mills. There was only one of the popular girls in this class and Ms Mills would sit her away from that girl. Ms Mills suggested that she speak to the year co-ordinator. 85In her statement Ms Oyston said that the bullying, both verbal and physical, intensified in 2003 when she was in year 8. The name calling by the popular group was worse during term 1. She was called 'slut', 'bitch', 'dog', 'pimple face' and 'drama queen' and was being elbowed, pushed and jostled. This occurred every day. On average about 3 or 4 times a week she was pushed while lining up for class, while walking to class and while walking downstairs. The members of this group would loudly scream out her name, while running past. She was also harassed in public places such as a shopping centre, Macarthur Square. In August 2003, she was hit by a plastic coke bottle in the playground. She was sent by a teacher to sick bay and ice was put on her head. 86Again, Ms Oyston identified the students involved. One of them had initially been in her group of friends, but left, Ms Oyston later said, because she was sick of being picked on and then joined in the bullying herself. 87In her statement, Ms Oyston said that she reported the bullying to Mrs Ibbett, who asked her to write down what had happened, but took no action. She did refer her to the school counsellor, who she saw regularly in parts of the year, but was not much help. The counsellor told her to focus on something that she liked and to ignore the other girls. She also reported the bullying to the Deputy Principal Mrs Caroll-Fajarda, to Ms Mills and other teachers, Mr Ashcroft and Ms Barr. Another teacher, Mr Clark was able to control his class better than other teachers and did not allow the bullying to go on in his class. She did not report a deal of other bullying, because reporting it did not help her. 88It should be observed at this point that the records in evidence do not accord with this account. Given the evidence which shows that the College polices which required various record keeping were not in practical operation, that Ms Oyston's account was inaccurate, is not necessarily the case. 89Ms Oyston could not account for this treatment, which she found very upsetting and eventually led her to become ill. In 2003, she said that she became sad, anxious, depressed and confused. She felt helpless and suffered from very bad mood swings, snapping without provocation. She became angry with people around her. She also became fearful of the dark and began having nightmares. Her parents' evidence corroborated her account. 90Ms Oyston told her parents about her problems and believed that her mother approached the College in 2003. 91In 2004, the verbal and physical abuse continued. This was the worst year. Ms Oyston said her academic performance dropped. In February 2004, she became more anxious about what was happening and began suffering panic attacks. Her parents took her to McArthur Health Service for treatment for panic attacks and anxiety. She wrote a report about one incident in the toilets, where she was grabbed and pushed against a wall. There is a record of such an account, given to Mrs Carroll-Fajarda. 92Ms Oyston said she was afraid of being assaulted and in early 2004 became suicidal. She was admitted to Campbelltown Hospital experiencing a panic attack on 5 February and was discharged on 6 February. She was taken to the emergency department again on 17 February and was later admitted for neurological examination and investigation. She also underwent testing at Westmead Hospital. 93On a number of later occasions girls would make remarks to her about needing an ambulance. In May 2004, Ms Oyston said that she was accused of spreading a rumour about one of the popular girls. She was confronted by that girl and another in the corridor and told to watch her back. They would not let her pass and when they went to class, asked the teacher about the consequences of spreading rumours, without telling him what had occurred. There was a class discussion about rumours, which made her uncomfortable. She was told 'it must be nice to have the whole class hate you'. 94Ms Oyston became depressed and felt that life was not worth living. She had a lot of time off and left school early. She had to sleep with a night light, petrified of being attacked while she slept and did not want to get up in the morning. She lost her appetite and weight and would shake uncontrollably for minutes. 95In February 2005, Ms Oyston was withdrawn from the College after a meeting with Mr Green, Mrs Caroll-Fajarda and her parents. She had been pretending to be sick and had made excuses not to go to school. 96In March 2005, she was depressed, harming herself and threatening to hang herself. She commenced being treated by Mr Benad, a psychologist ,and saw him regularly until June 2007. In April 2005, she took an overdose and was admitted to Campbelltown Hospital. She was having panic attacks and seizures and hearing voices telling her to harm herself. 97Ms Oyston was enrolled at another school in April 2005, which she left in 2007, without completing year 11. She did not experience bullying there and had a good circle of friends and did reasonably well. In October 2005 she was again admitted to Campbelltown Hospital suffering from seizures, but gradually her condition improved, with ongoing treatment. 98She took up a TAFE course in tourism in July 2007, which she did not complete, worked part-time and has pursued other studies, but not yet completed any. She has engaged in various employment since then . 99In August 2009 when she swore her affidavit she remained afraid of the dark; had ongoing nightmares about people trying to hurt her; was sensitive to criticism, which made it difficult to remain in a job, as she took the slightest comment about her capacity to work very personally; was nervous in crowds; uncomfortable in shopping centres if alone; was vigilant to dangerous situations; had a habit of biting her lip; and suffered mood swings. 100In cross-examination a somewhat different picture began to emerge. That picture showed that Ms Oyston certainly had a troubled adolescence. She developed body image issues while still at primary school. In year 7 she stopped eating and lost weight. A PE teacher at the College became concerned about her and referred her to a counsellor, Ms Cheung. Ms Oyston then saw Ms Cheung and received counselling about her issues with eating during 2002. 101There was much which Ms Oyston said that she could not recall when giving her evidence, but she was adamant that she had made many reports to Mrs Ibbett about the ongoing bullying and that nothing had been done to help her. 102Ms Oyston initially explained that at first, she thought what was happening to her with bullying in year 7 was normal and would settle down the next year. She did not then speak to Mrs Ibbett. When the hearing continued the following day, Ms Oyston changed her evidence. Having thought overnight, she said that she could remember speaking to Mrs Ibbett in 2002 about bullying. 103She also insisted that she had completed written incident reports which Mrs Ibbett required of her in 2003, which she had been shown by her solicitors after the production of documents by the College. Those documents were called for, but were not produced. 104Ms Oyston said at one point that in 2003, she had not approached the counsellor Ms Cheung about the bullying, because she was a counsellor who could do nothing. Later she said that she had seen Ms Cheung about the bullying, because Mrs Ibbett was doing nothing. 105Contrary to her earlier evidence, it emerged that Ms Oyston had attended the swimming carnivals in years 7 and 8 and had missed the carnival in year 9, because she was then in hospital. She had attended the athletics carnival each year. 106Ms Oyston was closely cross examined as to her relationships with various students; what had occurred in various classes; and the reports which she claimed to have made to Mrs Ibbett at various times; what she told the counsellor about bullying, including in relation to triggers which might have caused her collapses and occasions when she spoke to Mrs Arena and other teachers. She had limited recollection of the details of what she said on particular occasions, but did not agree that Mrs Ibbett was very approachable. She recalled repeatedly speaking to Mrs Ibbett and that nothing was done. She was also cross examined about her own behaviour towards JP. In 2004 she recollected being moody about her brother's behaviour and everybody else's. She also recollected ranting and raving at home after a bad day. 107Ms Oyston denied having started the rumour for which she was punished in May 2004, claming that she had told two friends something which she had made up about LM, which she didn't intend them to spread. She agreed that she had then wanted to make herself sound better and LM bad and that she had wanted herself to be a part of the popular group. She said that she was 14 years old, being downgraded every day and wanted to make herself appear better. Her friends had broken her confidence, with the result that she was confronted by LM and JP. LM said that she should watch her back and in class raised with the teacher the consequences of spreading a rumour. She was upset, and fearing that LM would laugh at her, left the class and injured herself in the toilets, knowing that what she did would not cause her lasting harm. She could not recall what she then told the counsellor, or the punishment which LM and JP received. 108Ms Oyston was also cross examined about occasions when she cut herself and denied that it was in order to gain attention from her mother. She said that she cut herself at times in places which couldn't be seen and knew that the cuts she made on her wrists, were unlikely to cause her great harm. She was also cross examined as to her state in 2005 and what she then told the counsellor. She could not remember discussing problems in her home life as then being her major problem, although problems existed at home which worried her and she felt alone in class. By then she was not getting on with anybody. She could remember her mother collecting her and taking her to hospital and that she was concerned that she would be placed in a mental institution. She agreed that by August 2006 her symptoms had significantly receded after medication and treatment by Mr Benad. She joined a surf club and pursued bronze medallion training, became involved in a swimming club and dancing. 109Ms Oyston was also taken to discrepancies between things which she had told Mr Benad about her experiences and what she had later told others. She had not revealed to Mr Benad that there had ever been any physical violence directed towards her, for example. She explained that in 2005, she had not wanted to believe what had happened to her. She did not like telling strangers about her experiences, even though he was trying to help her. By the time she saw Dr Phillips she had learned to deal with it, by then she had seen Mr Benad 32 times and had been hospitalised, Mr Oyston 110Mr Oyston's evidence was that in year 7 he picked Ms Oyston up from school most days. She was very happy in the early part of the year, but as time went by began complaining that girls were picking on her, complaints which he dismissed. They ate their evening meal together at home as a family and he never observed any problems with her eating habits that year. By the end of the year she did not seem as happy as she had been and he impressed on her that the College was a good school and that she should make a fresh start the next year. 111In 2003, going to school became an issue. His wife usually took Ms Oyston to school and she began contacting him, saying that Ms Oyston did not want to go to school; complaining about bullying. He told Ms Oyston to get up and go. When he collected her from school in the afternoons she was complaining about being sick, and tired of being picked on. She said that she hated the girls and hated the school. He told her she had to continue, but she seemed to him a completely different, unhappy child. 112Ms Oyston complained that she wasn't up to date fashion wise and after a swimming carnival said that she had been mocked and ridiculed by the 'so called popular girls' for wearing a one piece, as had been required. She was a very sociable girl in primary school, but that reduced significantly to the point that she wouldn't attend parties she was invited to. She only felt safe at home. She developed a habit of biting her lips. 113Mr Oyston explained that it had been his decision to send Ms Oyston to the College, as he was anxious for her to have a good education. However, 2003 developed into a pretty stressful year. Getting Ms Oyston to do her homework was getting harder and harder. There was conflict at home and she was argumentative with her parents. 114In 2004, Ms Oyston did not want to go to school any more. Her parents tried to reassure her, but learned when she was admitted to hospital in February that she had suffered an episode of collapsing or panic attack at school. The cause of her problems was investigated. Mr Oyston had no idea what was going on, but learned from the counsellor Ms Oyston was referred to, that she was cutting her wrist, which she was concealing with a band. 115Ms Oyston's reluctance to go to school continued and his wife dealt with the situation with the College, because he was going to work. Ms Oyston was referred to a paediatrician, Dr Freelander and was referred for testing by a neurologist at Westmead Hospital, in an attempt to establish a cause of her ongoing collapses and whether they were the result of epileptic fits. That was excluded. It came to be believed that Ms Oyston was suffering stress reactions. 116In 2005, Mr Oyston went to see the Principal of the College with his wife and Ms Oyston. Mrs Carroll-Fajarda was also present. He was angry and complained that the College had a duty of care towards Ms Oyston and pointing at Ms Oyston, said 'look what you've done you've nearly killed her'. There was no response and no discussion of bullying. Ms Oyston was then withdrawn from the College 117They then enrolled her in another school and as time went by her problems eased, although she still had problems even then sleeping at night and not dealing very well with criticism. At first she was basically flat, she did rise, but then she'd go back to the bottom of the hill again. Even minor comments about her dress or shoes would make her crumble and go off into her own little world. To his observation Ms Oyston had a fairly normal relationship with her brother. He or his son would accompany her to shopping centres, when she did not feel comfortable going alone. 118In cross-examination, Mr Oyston denied that his son had slept outside the house in a tent for a period, as a consequence of his behaviour inside the house, or that he had punched a hole in the wall. 119His evidence was interrupted by evidence called from Ms Oyston's solicitor. Mr Oyston had given evidence that he had recently read a statement that he had made some time earlier. Mr Well's evidence was that he had only recently taken a statement from Mr Oyston and had not yet provided it to him. He had earlier made notes of meetings with Mr Oyston. He could not recall giving that material to Mr Oyston, but that could have occurred. There was another solicitor who had day to day conduct of the matter, but it was he who had taken his statement and he did not believe that it had been provided to him. It was then clarified with Mr Oyston that he had not read a statement, but other documents, which he was shown. He agreed that he had used those documents to refresh his memory and that he had earlier forgotten some of what he had read there. 120He, nevertheless, denied that he had forgotten that his son had punched a hole in the wall, claiming that he would have had to fix the hole. He was confident about the matters he was giving evidence about. 121In cross-examination, Mr Oyston said that he began to see a change in Ms Oyston at the end of 2002. She was different in 2003, flat and not enjoying life. He first heard Ms Oyston describe certain girls as the popular girls in 2003. She became fearful of encountering them outside of school and at a shopping centre. He agreed that she had been able to participate in a group of six or seven hundred dancers at a football game, but to his observation, since 2005 she avoided crowds, other than when in company with him, for instance at a football game. 122Mr Oyston also agreed that when Ms Oyston complained about wearing 'daggy clothes', he believed that she was hinting for him to buy her new clothes. He could remember discussing a letter from the College with Ms Oyston, who said 'that the other girls were allowed to wear a two piece why can't I' and that his response was well, because the letter stated that 'you had to wear a one piece'. He drew the conclusion that she had been embarrassed as the result of having been mocked and ridiculed. 123Mr Oyston explained that he began receiving phone calls from his wife about Ms Oyston's reluctance to go to school some time at the start of first term. The substance of his discussion with his wife was that 'it looks like it's beginning again, what happened last year is starting all over again'. His response was 'get her up and get her going'. He thought that was the best remedy and told Ms Oyston 'put up with it, go and see someone at school and see if they can sort this out'. She told him she was being picked on, pushed, stared at, name calling all types of stuff. 124Mr Oyston agreed that he did not himself go to the school to deal with what she was telling him. Initially, he denied that he was aware that his wife had not gone to the school in 2003, she told him that she had, but then accepted that this had not occurred until 2004. 125Mr Oyston could not recall writing to the school in 2003 about an inappropriate note sent by Ms Oyston in class. He could not remember what provoked his reply, but agreed that he was angry at the time. The letter concerned a note written by Ms Oyston during German, which was behaviour which he did not expect of her. He regarded it to be a serious matter. 126He was not aware of Ms Oyston having made a claim at school that she was pregnant and that she was taken from Australia's Wonderland to Mt Druitt Hospital because of hyperventilation. He was aware that she collapsed at school on a number of occasions in February 2004. It was his wife who then attended a meeting at the school. 127He explained that he had first seen Ms Oyston have a seizure at Campbelltown Hospital in 2004 and had later seen them more than once. Before February 2005, he had not discussed with her what might have been causing them. He was aware that in the latter part of 2004 his wife was going to talk to the school. His wife told him she had gone half a dozen times, but did not tell him who she then spoke to. 128Mr Oyston explained that he referred to the College's duty of care to his daughter at the meeting in February 2005 because he had come to the conclusion that they hadn't taken care of her and that he believed that it was under a legal obligation to do so, just as he was for the guys who worked for him. That was a part of the College motto and he believed that they had not done all they could to take care of his daughter. At the time he did not appreciate that there might be a legal remedy, if the College had failed in that duty, but that was what he learned in April, when he went to see a solicitor, while Ms Oyston was resident at Gna Ka Lun, an Adolescent Mental Health Inpatient Unit, at Campbelltown Hospital. Mrs Oyston 129Mrs Oyston was the final witness called in the plaintiff's case. Her evidence was that Ms Oyston was a happy, bubbly child at primary school, who applied herself, had a circle of friends, enjoyed and was active in dance. Her son was a challenging, active child involved in sport. She was not then in employment. Her children generally got on. 130Ms Oyston was keen on going to an all girls high school and Mr Oyston was keen for her to attend the College. In early 2002, Ms Oyston was eager to go to school and do her homework. She generally took the bus and on occasions, Mrs Oyston drove her. 131This picture changed. Ms Oyston wasn't as keen to go to school, complaining that she was being picked on. She advised her to brush the girls off and concentrate on what she was there for. In August, Mrs Oyston was contacted by the school counsellor about a concern in relation to Ms Oyston's eating habits. She thereafter kept an eye on her and a record of what she was eating. She was not overweight and did not seem to be losing weight and to her there appeared to be no real problem. She also reassured Ms Oyston about her appearance, but Ms Oyston seemed less happy to go to school, flat and with her attention to homework, not as keen. 132The following year Ms Oyston began to make excuses for not going to school; she just didn't want to be there. She complained about being picked on. During the year Mrs Oyston spoke to the counsellor at the school. Towards the end of 2003, Mrs Oyston spoke to Mrs Ibbett and told her about Ms Oyston being annoyed and bullied by other girls and asked her to do something, because she was there for an education and her being unhappy was not getting her school work done. Mrs Oyston said that she could not understand what was going on and Mrs Ibbett said they would investigate. 133Ms Oyston had got to the stage where she did not want to go to school at all. She would burst into tears, refuse to get out of the car, claiming to be unwell and making excuses. Mrs Oyston was working and would insist that she go to school. She rang her husband who also said that Ms Oyston had to go to school. Mrs Oyston claimed that she also went to the College in 2003 and spoke to Mrs Ibbett and the Principal. She told the Principal that she was unhappy with what was going on, that Ms Oyston was being picked on and that nobody was doing anything about it. He invited two other students in, who confirmed that Ms Oyston was being singled out and picked on. He said that he would try and arrange for her to have a buddy in each of her classes. 134In February 2004, Mrs Oyston was called by the College and informed that Ms Oyston had been taken to hospital. She was admitted. The hospital provided her with a note to give to the College. Mrs Oyston went to see Mrs Ibbett. She was angry and told her that Ms Oyston was not in a great state and that all she knew was that it was girls picking on her, bullying her and annoying her. She was told they would try and address the girls to sort something out. 135Mrs Oyston later spoke to the counsellor about self harm issues. The counsellor made an appointment for Ms Oyston to go to Mental Health, which Ms Oyston attended. Still her attitude to going to school worsened. She complained about being picked on, being bullied and shoved around. She had had enough and became tearful in the car and refused to get out. Her father spoke to her on the phone and insisted that she go, so she went. 136Ms Oyston repeatedly had fits at school of which Mrs Oyston was notified when she was being taken to hospital by ambulance. She did not collapse at home. She observed her at the hospital convulsing and spent time at the hospital sleeping there, while Ms Oyston was admitted. Dr Freelander came to see her there and the causes of her episodes were investigated. It finally proved not to be epilepsy, but stress related. 137The counsellor later in 2004 drew to her attention that Ms Oyston had been cutting herself, which she had covered up by wearing band like bracelets. Ms Oyston told her of the names of girls involved. 138By 2005, Ms Oyston was worse. Mrs Oyston said 'You couldn't look at her. You couldn't approach her. She was very moody'. She would break down and cry. Run to her room, shut the door. She didn't know where she wanted to be. Mrs Oyston was angry and didn't want Ms Oyston to go through this anymore. She told the counsellor someone had to deal with what was being done to her and why she was being picked on. The counsellor said that it would be looked into. That was what was always said. 139Mrs Oyston and her husband went to the College. Her husband did most of the talking. The meeting was a blur, but she knew a decision had been made to get Ms Oyston out of there. They took Ms Oyston to a psychologist, Mr Benad, to whom they had been referred for help. She saw him regularly until 2007. He said that she was stressed, depressed and bullied at school. In April 2005, Ms Oyston collapsed again and was taken by ambulance to hospital. She had taken an overdose. On another occasion Mrs Oyston was called to the new school and was able to calm Ms Oyston down and take her home. 140Ms Oyston had been having nightmares and they continued after she went to the new school. She kept a night light on. She was reluctant to leave the house, but that improved over time. Her mood swings settled, as did a habit she had developed of biting her lip. At present, she was much more comfortable and was smiling again. 141Mrs Oyston had herself suffered panic attacks some 13 or 14 years previously, when her mother had nearly died. 142In cross-examination, Mrs Oyston agreed that she had looked at certain Centacare records and a chronology before giving her evidence, but said that she had not really read them, she did not read much. 143She agreed that Ms Oyston had participated with her dance group in a performance of 600-700 people at a football field and that she no longer saw Mr Benad. 144Mrs Oyston fixed the time at which she noticed a change in Ms Oyston as several months before Christmas in 2002. She couldn't remember the detail of what Ms Oyston then complained of, just that she was being picked on. She was also aware of the concern which arose at that time at school about her body image perception. The counsellor was worried about an eating disorder developing. Mrs Oyston described her routine for observing and recording what Ms Oyston ate and that she became aware that she was trying to lose weight. She told the counsellor eventually that she was not concerned and thought it was just attention seeking behaviour, which teenage girls go through. 145Mrs Oyston agreed that the counsellor advised her to spend special time with Ms Oyston, which she claimed she already did. They had a long discussion, which included a boy who was annoying Ms Oyston, she realised who this was. Mrs Oyston agreed that she did not then raise with the counsellor the possibility that Ms Oyston was being bullied at school, even though she accepted that it had occurred to her that it was possible that Ms Oyston having problems with body image might be because people were being nasty to her at school. She also agreed that it would have been a natural thing for her to raise it at the time and that she would have been keen to stop any bullying. 146Mrs Oyston also agreed that her son had an attention deficit disorder which resulted in him receiving a lot of attention. She denied ever having discussed her own panic attacks with Ms Oyston, or telling her that they were stress related. She explained that she had pursued a claim for personal injury after she suffered in a car accident, whiplash and psychological injury. She explained that she was stressed in October 2004 and might then herself have suffered panic attacks. 147Mrs Oyston agreed that she had received notices from the College in 2003 about uniform infringements. 148While Mrs Oyston could not initially remember this occasion, she agreed that in the holidays in July 2003, Ms Oyston was taken to hospital after falling down a rocky gorge. She agreed that her memory was not particularly good. She explained that she tried to remember the good things. She did remember when shown the College's letter, that Ms Oyston receiving a detention for a note which she wrote in class in September 2003, about which she was not very impressed. Her recollection was that she had not seen the actual letter or the response which her husband wrote, but they had discussed it and she and her husband had reprimanded Ms Oyston for her behaviour. 149Mrs Oyston said that it did occur to her at the time that there was a possibility that the bullying that Ms Oyston was complaining about might have explained Ms Oyston's behaviour. She disagreed that Ms Oyston might have misbehaved in order to get popular. She suggested that she might have written the note in revenge, as her way of trying to deal with what was happening to her. She could not remember ringing the College about this. They left Ms Oyston's punishment in the College's hands. Mrs Oyston also remembered Mrs Ibbett raising with her a claim that Ms Oyston had made at school that she was pregnant. She agreed that she thought this was attention seeking behaviour. 150She also remembered Ms Oyston being taken to Mt Druitt Hospital hyperventilating on a really hot day when they told her she had sun-stroke. She was at home and went to the hospital, but was not present when Ms Oyston was examined. 151Mrs Oyston explained that she never read the note which the hospital gave her in 2004 for the College. It was in a sealed envelope. She later became aware of its contents and agreed that it did not mention bullying. She, nevertheless, attributed all of Ms Oyston's problems at that time to bullying at school. She understood that the College had a legal obligation to deal with the problem and stop the bullying and insisted that when she met with the Principal in 2004, she told him about the bullying. She had mentioned one of the girls, at least, by name and told him that it had gone on long enough and had to stop. 152In March 2004, the counsellor reported self harm to Mrs Oyston. Mrs Oyston could not then remember having told the counsellor that things were good with her. She agreed that it was possible that an argument between her children had led Ms Oyston to self harming. She agreed that her son was sometimes aggressive towards her, but could not put dates on those occasions. In March, Ms Oyston was up and down like a yo yo. At that time she was not of the view that all of Ms Oyston's problems were anxiety related, she thought they related to what was happening to her at school. 153Mrs Oyston claimed that she had various conversations with Mrs Ibbett in 2004, when she called to tell her Ms Oyston was being taken to hospital. When told of Dr Freelander's advice that she should just be calmed down and not sent off by ambulance, Mrs Ibbett told her that the College could not follow such an approach. She denied saying 'just calm her down and chuck her back into class'. 154Mrs Oyston also explained that an appointment might have been missed with Mental Health when Ms Oyston was in hospital and that instead of flowing up Mental Health referrals which the counsellor set up, she was taken to Mr Benad. 155Mrs Oyston also explained that 'hell hit the fan' for her at this time. She had been earlier injured in a car accident; she was still going to work; and she was dealing with Ms Oyston's ongoing problems and hospital admissions. She insisted that when she spoke to Mrs Ibbett, she repeatedly spoke to her about ongoing bullying. They were then having a lot of phone calls, at a bad time for Mrs Oyston. She denied that she was making up her evidence and while she could not recall details of their conversations, she insisted that she did speak to Mrs Ibbett about bulling. 156Mrs Oyston could not remember the details of the occasion when Ms Oyston received a detention in May 2004 for starting a rumour. She did not recollect then contacting Mrs Ibbett, or the other students involved also receiving detentions, but agreed that Ms Oyston's mood went downhill afterwards. She did not remember being advised by the counsellor in June that Ms Oyston's counselling was to cease. Nor did she remember Mrs Ibbett contacting her in October about Ms Oyston's eating habits. 157Mrs Oyston had no recollection of further contact from Mrs Ibbett, or the counsellor in 2005, or then sending the College an EEG. She remembered her daughter phoning her when she had left the College one morning in 2005. She remembered that there had been an issue at home that day. She could not remember going to the College that day, or being told that Ms Oyston wanted to kill herself. She accepted that she might have said that killing herself was 'just a silly thought' and asking 'why are you having a hissy fit'. She accepted that the counsellor was extremely concerned. She remembered throwing coffee over her son that morning. She could not recall him punching a hole in the wall or telling the counsellor that. She accepted that Ms Oyston might have gone to hospital. 158Mrs Oyston could remember another call from the counsellor later when Ms Oyston again went to see her. She agreed that she could not understand what was going on, Ms Oyston had had a great weekend. She could not remember mentioning bullying, or going to the College for a joint counselling session. She could not remember what she was then told. 159In re-examination, Mrs Oyston said she had been injured in a car accident in 2001. In 2005, Ms Oyston was her major concern, she was in and out of hospital, with her general state of health very flat. She believed that her hissy fits were the result of being unwell. The counselling records 160There was a school counsellor and Ms Oyston was also referred to Centacare counsellors. Counselling records were in evidence. It was the College's case that they were the nub of the evidentiary material, providing a useful contemporaneous reference point to assess the parties' differing contentions. It was submitted that just about every episode of distress that Ms Oyston experienced had come back to a consultation with someone from Centacare. 161That submission is not open, given that between June 2004 and when Ms Oyston self referred in February 2005, there was no counselling. The records in evidence were brief, but they did shed certain light on Ms Oyston's state at particular times, as well as information conveyed by the College to the counsellor and information which it received from the counsellor. 162There was a 2002 referral to Centacare in relation to body image issues dealt with in six counselling sessions which concluded in November. Bullying was not noted as an issue. Home and grief issues, as well as harassment by a boy at a train station were dealt with. Contact with Mrs Oyston was sought and there was contact with various staff members, including the school based counsellor and Deputy Principal. Mrs Oyston advised that she did not believe there was a problem and that Ms Oyston was eating well. The sessions finished when Ms Oyston advised that she felt well and didn't need counselling, but mentioned her concern about her mother's health. The teacher Ms Mills had a different view, but the case was closed when Ms Oyston insisted she was well and had no counselling needs. Mrs Carroll-Fajarda was advised and it was suggested that the school counsellor should monitor her situation. There was no evidence of such monitoring, 163Centacare counselling records in February 2004 began with a verbal referral from Mrs Carroll-Fajarda on 9 February, after a meeting between Mrs Oyston and the Principal on 6 February. The record refers to Ms Oyston suffering fits at school and a hospital admission; that Mrs Carroll-Fajarda advised the counsellor that there was a psychiatrist's report received by the College stating this was 'bullying induced'; and that Mrs Oyston had met with the Principal and requested counselling. There was a family history of anxiety and panic attacks noted and that Ms Oyston was being treated by a paediatrician, Dr Freelander. Hospital records were to be obtained and social workers were to be contacted. 164This report must be considered with a handwritten note in evidence, of the meeting of 6 February with Mrs Oyston, which noted that the panic attack had '(allegedly)' resulted from Ms Oyston feeling isolated in class in 2003 and rude words which were insulting, said by an identified student, JP, which it was noted required investigation. It was also noted that Ms Oyston said isolation was her biggest problem and Mrs Oyston, that it was the identified student's conduct. None of the actions identified to be taken involved any investigation being conducted into JP's conduct. Certainly none was undertaken by Mrs Ibbett. The proposed actions all concerned Ms Oyston - changing classes, receiving counselling and pursuing treatment. 165The advice received by the College from Dr Spencer of Macarthur Health Service referred to recent panic attacks, with Ms Oyston identifying her stressors as sitting on her own in class, wishing that she had a friend in class and that recent changes in class constitution had isolated her. Dr Spencer noted that Ms Oyston's susceptibility to panic attacks might be genetic; that Mrs Oyston had advised that she was not coping with Ms Oyston; and that Ms Oyston had been referred for anxiety treatment. 166The 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. 167When the counsellor spoke to Mrs Oyston, she referred to friendship issues lying at the heart of Ms Oyston's problems and informed her of her own problems with panic attacks. 168Consistent with her evidence that she did not like to complain and was being mocked for what was happening to her, the records show that when the counsellor met Ms Oyston on 11 February, she resisted counselling. The counsellor also met with Mrs Ibbet, who sent a note to teachers asking them to report any unusual behaviour on Ms Oyston's part, or interaction with others. Some of her classes were changed. That appears to have been the entire extent of the investigation conducted by the College, into the matters raised in the meeting with the Principal. 169The subsequent counselling records refer to the neurological investigations being undertaken. A further attack at school was noted, but Ms Oyston later reported to the counsellor that nothing at school was causing her any anxiety. There was a family referral to Mental Health. It was noted that Dr Freelander, Ms Oyston's paediatrician, had advised that anxiety had been diagnosed. There were further panic attacks at school noted, as well as further ambulance and hospital treatment resulting. 170Ms Oyston reported no triggers to the counsellor and in early March 2004, it was noted that Mrs Oyston had requested that in the event of further attacks, medical treatment not be sought by the College, there being no medical basis identified for Ms Oyston's attacks. The College refused that request, in light of its view as to its duty of care to Ms Oyston. Dr Freelander advised that test results were all normal and a referral for mental health assessment and treatment had been made for Ms Oyston. There was then a self harm incident with a reported trigger of an argument with Ms Oyston's brother, which led to a DOCS referral. Ongoing problems and delays with the family's pursuit of the mental health referral and a failure to keep appointments, were noted by the counsellor. There was a further self harm incident and then a series of failures to attend counselling sessions. 171The counselling records also refer to ongoing involvement with Mrs Ibbett and other staff members. In May 2004, there was further self harm noted after the rumour incident in class and Ms Oyston being threatened with a bashing before a Commerce class. It was at this time that Ms Oyston was herself disciplined in relation to inappropriate behaviour for beginning the rumour. 172There was a further DOCS referral made and contact with Mrs Ibbett, who was to follow up with school discipline. This was described in the counselling records as an 'alleged bullying incident', although the advice given by the College to the other two students clearly identified that Ms Oyston had been bullied. Despite further contact with the family, Ms Oyston's mental health appointment was not kept. There was no evidence of any further steps taken by Mrs Ibbett to monitor whether Ms Oyston was being bullied. 173Later in May 2004, there was reference to further bullying, which Ms Oyston claimed she was not fearful of. In June, she claimed the bullying had been resolved; and later, that she was in control and had no thoughts of self harm. The case was then closed by the counsellor in June, the closure note recording that: "Jazmine expressed no further need for counselling. Parents will continue to purse(sic) Mental Health Referral." 174On 16 February 2005, there was a self referral by Ms Oyston to the counsellor requiring urgent attention, when suicidal ideation arose. Ms Oyston then reported that her home life was the major issue and that Mental Health appointments had never been kept. After the counselling session, Ms Oyston left the College grounds. She was found and returned to the counsellor. Mrs Oyston was contacted and confirmed that there had been an issue at home. The record notes that she claimed that Ms Oyston's problem was that she had no friend in every class and that she felt lonely, but that Ms Oyston's account was that a fight with her brother had been the trigger. There was a further DOCS and Mental Health referral. 175On 21 February 2005, there was a more positive report made by Ms Oyston to the counsellor about her home situation, but she had ongoing suicidal ideation. Her mother attended and suggested that there was a problem at school, which Ms Oyston denied to the counsellor. Her mother took her away for admission to hospital. 176On 24 February, Mrs Oyston advised the counsellor that the situation was the College's fault. On 9 March when contacted again, Mrs Oyston advised that Ms Oyston had further appointments with Mental Health and the hospital. It was noted that on 16 March, Mr and Mrs Oyston went to the College and she was withdrawn, the view taken that the College was responsible for her problems and had not responded to her needs. There was bullying involved. Mrs Ibbett 177Mrs Ibbett's evidence in chief showed that between 2002 and 2005 ongoing attention was being paid by the College to its bullying policies and practices. There was evidence of in class and other activities directed to ensuring that students had a thorough understanding of what comprised bullying and that it was regarded as inappropriate behaviour, which the College would deal with and if persisted in, could finally lead to expulsion. The College conducted in-service days for staff on bullying, engaged an external consultant Dr Parada in 2003, who assisted in the further development of its bullying policy, and the student survey on bullying was conducted in 2004. 178Ms Oyston's evidence corroborated Mrs Ibbett's evidence in this respect. She had an understanding of what the College had sought to impart to its students about bullying. She claims to have reported bullying when the victim, herself, and to have been ashamed and concerned when she engaged in behaviour towards other students, which was inappropriate and might be regarded as bullying. 179Mrs Ibbett explained that as year co-coordinator, if she received a complaint of bullying from a student or parent, she would be involved in the investigation that would follow. In chief, she gave no account of ever having undertaken such an investigation in relation to Ms Oyston, other than in May 2004. 180Rather, by reference to various documents from Ms Oyston's school file and entries which she had made in her diary, Mrs Ibbett gave an account of her interaction with Ms Oyston, which suggested that they had had but relatively little cause for contact. Ms Oyston first came to her attention in year 7 for infraction of the uniform policy and inappropriate behaviour with a teacher, about which a letter was sent home. Later concerns arose about her health and she was referred to the counsellor. 181In May 2004, Ms Oyston came to see her and she was referred to the counsellor. Mrs Ibbett investigated what had occurred in class and imposed a detention on the two other students involved, warning them about bullying and intimidation. The matter was also followed up with their parents. 182There were a range of incidents reported to her in 2004, where Ms Oyston was suffering from seizures at school, but she did not witness any herself. Ambulances were called. On one occasion Mrs Ibbett spoke to Mrs Oyston about unusual behaviour on Ms Oyston's part, when she clamed to be pregnant. On another occasion there was a concern that there was an eating disorder raised by a teacher, which she raised with Ms Oyston's parents. 183That year Ms Oyston refused to attend the school camp, despite Mrs Ibbett's urging. Later Ms Oyston and two other students saw her about their concerns about what was happening to them in class. This caused her to write a note to class room teachers. Mrs Ibbett also on occasions asked Ms Oyston to write her a note of what she was concerned about. That was a practice which she adopted with all of her students. 184In 2005, Mrs Ibbett had limited contact with Ms Oyston, but was called to the counsellor's office when Ms Oyston left the College and her mother was called. She communicated her vulnerable situation to her teachers. 185Mrs Ibbett claimed that she had never received any reports from Mrs Oyston that Ms Oyston was unhappy, or being bullied by other girls and that her assistance was never sought to deal with such problems. She also denied ever being asked by Ms Oyston to help her with bullying, other than at the end of 2004, when she came to see her in the company of two other students. 186In cross-examination, quite a different picture emerged, one which provided significant corroboration of aspects of Ms Oyston's evidence, as well as that of Mrs Oyston. 187Mrs Ibbett was cross-examined at length about her understanding of the policies published in the College diaries and whether particular ongoing behaviour about which Ms Oyston complained, such as being called a slut, a dog, a whore and a drama queen, could be categorised as bullying. Mrs Ibbett insisted that this would be inappropriate conduct, rather than bullying. She explained that there was a distinction drawn by the College between sustained, targeted, ongoing behaviour amounting to bullying, as opposed to one off inappropriate behaviour. 188Mrs Ibbett had significant reservations about accepting the proposition that if Ms Oyston had been the subject of such ongoing behaviour, that it could have made her anxious. By reference to material presented to staff at the College, including her, in 2004 by Dr Parada, eventually Mrs Ibbett accepted that according to his advice, if such behaviour had continued unaddressed, it was possible for anxiety on Ms Oyston's part, or even depression, to have resulted. 189Mrs Ibbett explained that Dr Parada had begun his advice to staff with a definition of bullying, which included individual and group bullying, which could be direct or indirect, or subtle (such as exclusion and isolation), physical or verbal. Dr Parada's advice was that in order to stop bullying, you needed to identify what was actually taking place. Girls tended to form friendship groups, which could be very small, or range up to groups of 30. Groups had their own identity and form of functioning. Behaviour could move from a spectrum which commenced with teasing and ended with bullying, depending on intent and the level of impact of the behaviour. Bullying tended to peak in years 8 and 9. In Mrs Ibbett's view, Dr Parada's advice affirmed what the College was doing and gave it other things to consider. It also resulted in the conduct of the student survey. 190As to pushing and shoving, Mrs Ibbett explained that whether this was bullying would also depend on whether the behaviour was one off, or repeated and would depend on context, there being contact all the time between students. Whether such behaviour would adversely affect a student's self confidence or embarrass her, would also depend on the individual. 191Mrs Ibbett explained that the College's policies in 2002 to 2005 remained as drafts, because they were under ongoing review as to whether they were meeting the College's needs. She explained that there were gender differences in bullying, which the policies were attempting to pick up. Year co-ordinators like her had a role in the ongoing development of the policies, which envisaged a three step procedure, at the end of which expulsion could be considered by the Principal. 192It is apparent from Mrs Ibbett's further evidence, that such a three step procedure was not, however, in practical operation at the College. 193Mrs Ibbett disagreed that it was thought at the time that there was a serious problem at the school with bullying. Rather, she explained, consistently with what was happening in broader trends of education at the time, bullying was recognised as a serious issue which was not treated lightly. The College took the view that there was more to be done in relation to educating students and staff about bullying. This was a matter of good practice, rather than reflecting a recognition that bullying at the school required a response. 194That evidence was inconsistent with records of discussions at staff and co-ordinator meetings, which recorded that it was thought in 2004 that the College's policy might not be targeting unacceptable behaviour and that there was inconsistency in implementation of the policy. Those records suggest that bullying was then more of a concern to year co-ordinators in years 7 to 9, than years 10 to 12. The topic came under discussion at a number of meetings, including in May 2004 when it was noted that the problem was recurring in year 9. Mrs Ibbett could not recall herself saying this at the meeting and denied that the procedures then in place were inadequate to bring the problem into line, or to prevent bullying occurring. That it was a problem in year 9 and one which was affecting Ms Oyston, to Mrs Ibbett's knowledge, was revealed by other documents. 195There was also a discussion at the meeting of the need to ensure that bullying was documented, so that there was 'a paper trail'. Mrs Ibbett agreed that good practice included documenting the outcome of any investigation or mediation between students; any punishment imposed; information provided to parents; and the details of any meetings conducted. The evidence as to the paper trial maintained in relation to Ms Oyston established that in practice there was a failure to maintain such a paper trail, which reflected a failure to take the steps which the good practice Mrs Ibbett described, required be taken. 196Mrs Ibbett explained that it was a part of her role to investigate reports of bullying which came to her. She explained her practice in relation to such complaints, which involved questioning the students as to their experiences and speaking to other students identified in the complaint. She would make a note in her diary and the details of any investigation would be maintained on the student's file. The policy referred to incident reports being created, as well as a bullying register being kept, but the latter was not maintained. Nor, I observe, at least in Ms Oyston's case, were incident reports routinely created, or kept on her file, or diary notes made. Parents were to be notified of bullying incidents. This also did not occur in Ms Oyston's case. The process also at one stage envisaged mediation between the students, in which the year co-ordinator would be involved and a counsellor could become involved, in order to provide support, but not to be involved in discipline. In Ms Oyston's case, I again observe, it appears that there were no such mediations. Mrs Ibbett also explained that the policy did not envisage counselling for the bully, although in Ms Oyston's case, when she was involved in an incident in May 2004 in which she had behaved inappropriately and was herself found to have been bullied, she was still being counselled. 197Mrs Ibbett agreed that the policy envisaged that a second incident of bullying would result in a behaviour contract being developed for the bully by the year co-coordinator, so that the bully could understand why they were choosing to behave in that way. At this stage members of the Executive would also be involved and a range of consequences, including suspension, might be considered. Parents would also be involved. 198A third incident would involve an interview with the student, parents, the year co-ordinator and a member of the Executive. Punishment would be for the executive to determine and could include expulsion. Again, in 2004 these aspects of the policy were not implemented, so far as Ms Oyston was concerned. 199Mrs Ibbett explained how the policy altered over time, but confirmed that paperwork in relation to bullying was to be kept on the student's file. The policy also required ongoing review of the target of the bullying, with support to be provided, either by the year co-ordinator or a counsellor. The College itself employed a counsellor in 2003 to 2005. Again, it must be observed that in the latter part of 2004 particularly, these aspects of the policy were not adhered to in Ms Oyston's case. 200Mrs Ibbett confirmed that bullying could come to attention by teacher observation in the classroom, or when on supervisor duties elsewhere, or as the result of reports received from students or parents. At one point Mrs Ibbett agreed that teachers had an obligation to deal with bullying which they observed and to report it to the year co-ordinator or the Deputy Principal. Later she could not agree that when undertaking supervision duties, teachers had to look out for bullying, insisting that what they had to look out for was inappropriate student behaviour, explaining that they could not tell whether what they saw was a one off incident, or part of a bigger picture. 201Mrs Ibbett also disagreed that certain minutes in evidence noted the existence of a problem at the College that students were left unsupervised in the playground. She explained that the problem was staff coming late to undertake their duties when other staff needed to be relieved. 202Mrs Ibbett was extensively cross-examined about entries in her diaries, about her dealings with various students, including Ms Oyston. In many cases she could not identify whether matters which she had recorded involved bullying, or one off incidents. She explained that the answer was to be found in individual student files, but neither Ms Oyston's file, nor those of the students who she complained had been bullying her, were put in evidence. That would have been an obvious way to demonstrate the existence of the paper trail about which Mrs Ibbett gave evidence. Rather, various documents extracted from various files were tendered, which shed limited light on what steps were taken in relation to Ms Oyston during 2004, but sufficient to establish that good practice was not being observed in her case. 203Ms Oyston came to Mrs Ibbett's attention in 2002 when a teacher, Ms Mills, had mentioned her concern about Ms Oyston's eating patterns. Mrs Ibbett asked her to put it in writing. She was aware that eating problems could be a sign of bullying, or of other problems such as sexual abuse. Ms Oyston was then referred to the counsellor for that issue and again in 2003, for other reasons. Mrs Ibbett denied, however, that it was her role to investigate whether this could be related to bullying. She perceived her role to be to take in information which she was given, in this case by a teacher, to raise it with the student and to refer her to counselling, if she was interested in participating. She explained that she then deferred to the counsellor, who was more expert than she was. 204Mrs Ibbett said that in 2003 a situation began to develop, which continued in 2004, where Ms Oyston she was collapsing at school, which was causing staff concern and necessitating ambulances to be called. She received ongoing staff reports and was then in conversation with Mrs Oyston about a range of issues, but claimed that she had only met her in person once, at the end of 2004. 205Mrs Ibbett agreed that between February and June 2004 while Ms Oyston was being counselled, she kept no diary or other record of her discussions with the counsellor, which she admitted could have been deficient, but claimed there were things kept in Ms Oyston's student file. No records of any such discussions were tendered. Mrs Ibbett was aware that during this time, Ms Oyston was having episodes at school, for which ambulances were repeatedly being called, so that she could have medical support to determine what her needs were and what the best way to proceed was. 206Even so, Mrs Ibbett could not recall ever being aware that an anxiety attack had been triggered by bullying, even though that was the basis of Mrs Oyston's discussion with the Principal in February 2004; a meeting which the evidence suggested that Mrs Ibbett had attended, although she herself had no recollection of such a meeting. Mrs Ibbett did send a memo to classroom teachers on 12 February, advising of Ms Oyston's return to school and wanting to be kept informed of 'any unusual behaviour or interactions with others in the classroom that seem out of character'. Teachers were warned not to make an issue of this, but to raise concerns with Mrs Ibbett. Other than this note, Mrs Ibbett conducted no investigation into the concerns which either Ms Oyston or Mrs Oyston had raised with the Principal. 207In April 2004, there was an incident about which Ms Oyston was asked to hand write an account. It refers to her being whacked on the arm and humped on the leg. Mrs Ibbett also made a note which records that Ms Oyston said that she was followed into the toilets, grabbed and threatened. Mrs Ibbett explained that this could have been either inappropriate behaviour, or bullying and that she referred the matter to the year 8 co-ordinator to deal with. What became of the matter could only be gleaned by examining those student's files. It appears that no records were maintained on Ms Oyston's file, reflecting that no investigation into this complaint was conducted. No document recording that any investigation occurred, was in evidence. 208On 11 May, a teacher, Ms Barr, sent a note to Mrs Ibbett, raising with her a concern about Ms Oyston missing class time, when feeling ill or having emotional problems, which was affecting her performance. She said that she raised this with Mrs Ibbett, in case she could see a pattern. There was no evidence of any response. 209On 14 May, Mrs Ibbett made a note recording that during Mr Ashcroft's class, Ms Oyston was asked to leave and came to see her. She was then speaking to another student and she asked Ms Oyston to wait for her at the sick bay. She later found Ms Oyston being attended to there by the counsellor, who had discovered that Ms Oyston had deliberately cut herself, after a confrontation with two other students, JP and LM. 210Mrs Ibbett spoke to the three girls involved. JP was the girl Mrs Oyston had complained of to the Principal in February. The three girls each prepared handwritten notes as to what had occurred. Ms Oyston had initiated an inappropriate rumour about LM, which had resulted LM and JP raising with the teacher what disciplinary action would result for students who started rumours, which had led to a class discussion. It was admitted by the these two girls that the discussion was initiated in order to intimidate Ms Oyston. The action taken was that Ms Oyston was given an afternoon detention and the other two girls were also given a detention, after being warned about bullying and intimidation. 211At this time, Ms Oyston was receiving counselling, but there was no evidence that Mrs Ibbett kept her under ongoing review, even though it was by now apparent, even to Mrs Ibbett, that she was the target of bullying. 212In June 2004, Mrs Ibbett did write an open letter to all year 9 students which was read to them in class. It said: "They say that Year 9 is one of the most challenging and difficult of years for students and for teachers. As we approach the half point of year 9 I would like to congratulate you on the way the majority of you are working at the moment. We see many of you wearing your uniforms well, working hard in class and participating in a wide variety of activities on offer here at school. - keep it up !! However in 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 behaviour 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 behaviour 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 school 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. Included in the definition of bullying and harassment is the misuse of mobile phones and computers to send inappropriate messages. Such messages are breaking a Federal law. If you receive such a message then please save it in your phone and show it to your parents, teachers or the police. Everyone needs to know that this type of behaviour will not be tolerated. Parents will be informed and action taken. Everyone needs to be responsible for their own behaviour. You need to be also trying to assist your friends to do the right thing. It is one thing to say we are a caring Christian community but we must also live it in what we say and do. If you are concerned about what is happening to you or a friend then let someone know before it gets out of hand. This is not dobbing or showing weakness it is actually the reverse. It is showing inner strength and determination both of which will defeat the bully. Gets some adult advice on how to deal with a situation so that you can maintain control. If you are aware that a friend is unhappy, stressed or at risk of any sort of harm then you have a duty to that friend to tell someone or encourage them to tell someone who is in a position to help or who can access the appropriate resources to help. As a Year group you have great potential. In the next three years you will be leading the school in so many ways. As a Year group we need to earn the respect of each other and the school community by looking after each other and behaving in ways that encourage not harm. I hope that you all have a really great safe break and come back ready for an equally successful semester two. Thank you, Mrs Ibbett" 213The evidence shows that it was not only Ms Oyston who was complaining about bullying in year 9. Throughout the year Mrs Ibbett had to deal with complaints from and about a number of other students. It is unnecessary to deal with those complaints in any detail. 214The counsellor's file closure summary in June 2004 indicated that the reason for Ms Oyston's referral by Mrs Ibbett and Mrs Carroll-Fajarda for counselling had been 'anxiety attacks triggered by bullying'. Mrs Ibbett could not remember whether she had read this document at the time, although she said it was a part of the 'paper trail' maintained on Ms Oyston's file. She agreed that if she had read it, she would have been aware that the original referral had been for anxiety attacks triggered by bullying. Mrs Ibbett had difficulty in agreeing, however, that had it come to her attention, it would have required her investigation, given what she was then aware of. She insisted that she was being frank when she said 'That could have been a choice I could have made'. 215Despite having sent this open letter to all year 9 students and being made aware that Ms Oyston had been bullied, there is no evidence that Mrs Ibbett maintained any oversight on whether Ms Oyston remained a target for bullying. She had no record in her diary of ever having initiated any discussion with Ms Oyston, or her parents, about any concerns that she might have had that Ms Oyston was being bullied. 216In 2004, Mrs Ibbett took long service leave from late August, returning in October, at the beginning of term 4. Beforehand, preparations were underway for the year 9 camp. Ms Oyston was one of only a few students who were reluctant to attend. They had been encouraged to go, by adoption of various strategies, such as allowing them to have input into the cabin they would sleep in and who they would share with. Ms Oyston did not attend. Mrs Ibbett's kept a note which said of Ms Oyston: ' 'talk about self fulfilling prophecy'!!! What do we do?? see MJ before we respond. MJ HAPPY FOR HER NOT TO ATTEND' 217Mrs Ibbett accepted that this was not the best choice of words to have used, but no doubt was reflective of her attitude to Ms Oyston and her problems. There was no evidence that Mrs Ibbett investigated the reason for Ms Oyston's reluctance to attend the camp, with either her or her parents. 218In September 2004, LM, who was then the subject of a behaviour contract, which the evidence suggested was for reasons unconnected with Ms Oyston, was told by the Principal that 'one more breach of any kind would result in expulsion'. This student was involved in further incidents, including with Ms Oyston, but no such action appears to have resulted, even when in a student intervention sheet on 22 November 2004, Mrs Ibbett was advised by a teacher that she was involved with an identified group of students in 'a little bullying' of Ms Oyston over a computer. That advice seems to have generated no response at all from Mrs Ibbett. 219Earlier in October another teacher wrote to Mrs Ibbett about an approach from Ms Oyston about another student having eating problems. Ms Oyston eventually revealed that it was she who was having those problems and that she was 'hearing good and bad voices'. Mrs Ibbett contacted her parents and spoke to her father, who said that he would speak to her. Mrs Ibbett did not herself pursue the matter with Ms Oyston, even though she agreed that she was then aware that a girl exhibiting problems with eating, could be suffering from bullying. Nor did Mrs Ibbett refer Ms Oyston to the counsellor for help. 220Mrs Ibbett received another approach from Ms Mills in November 2004, raising a concern with her about Ms Oyston. Mrs Ibbett's note recorded that Ms Mills was concerned about behaviours she had observed between Ms Oyston and another student in her English class, who appeared to be ordering Ms Oyston around and that she was responding, even though the demands were unreasonable. At times Ms Mills had stepped in. Mrs Arena, Mrs Ibbett's assistant, had spoken to Ms Oyston, but she had said that that there was nothing to worry about and that every thing was fine. 221Mrs Ibbett noted that she had a concern that the student Ms Mills had identified had developed connections with some year 10's who were known for bullying and intimidating others and that this was an example of a threat, or that Ms Oyston could be behaving in 'a servant type role' in order to seek assistance from these reputed 'bullies', to assist with difficulties she was having in year 9. Mrs Ibbett noted: "The last two points are pure conjecture and unsubstantiated but given the nature of the concerns raised by Shirley and the past issues these students have been involved in all possibilities needed to be considered." 222Despite keeping this note, Mrs Ibbett denied that a 'serious' concern was then being raised with her by Ms Mills, or that what she had raised involved bullying, or that she was being asked to act. She explained that she viewed this just as an example of a classroom teacher managing her classroom, not an incident of bullying, even though the student identified was one whom she was monitoring at the time, for a number of issues. Mrs Ibbett also denied that the response a troubled adolescent such as Ms Oyston had given to Mrs Arena, should not have been given much credence by the College, in the circumstances. Rather, she insisted that all she could do was to respond to the information provided to her. She also claimed that it was not an appropriate matter for her to raise with Ms Oyston's parents, involving as it did conjecture and unsubstantiated concerns. In her view, she used common sense to look at information provided to her by two members of staff, who were managing the situation. This evidence was difficult to credit. 223On 23 November Ms Oyston and a number of other students approached Mrs Ibbett complaining about bullying and intimidation taking the form of 'commenting, sniping, drawing attention to the victim, asking questions of teachers that appear innocent but are targeting these students'. She sent a memo to classroom teachers alerting them to the approach about these 'subtle and quite obvious forms of bullying' and asked them to allow the targeted students to sit together and identified those claimed to be the perpetrators. They included JP and LM. Mrs Ibbett requested that notes be made if such behaviour was identified. Teachers were, however, given the choice of dealing with the matter themselves, or raising it with her. 224Mrs Ibbett explained that this was the first time that she was made aware of such bullying, although the girls reporting told her that it had been going on for some time and so she had asked staff to be vigilant. Again, she could not recall raising this approach with Mr and Mrs Oyston. Mrs Ibbett acknowledged that LM, who Ms Oyston identified in these proceedings as a long term bully, had become known to her in 2004 as a bully. She was involved that year in a number of incidents with Ms Oyston and other students and had been threatened with expulsion. Mrs Ibbett also explained that at this point, Ms Oyston indicated that 'the behaviour had been something that had happened a couple of times'. 225Mrs Ibbett investigated. On 24 November she received long handwritten notes explaining their behaviour from the two girls said to be targeting Ms Oyston, LM and JP. They each claimed to be retaliating for things done to them by Ms Oyston and her friends and claimed that they were bullying each other and were all to blame. Mrs Ibbett and Mrs Carroll-Fajarda signed letters advising their parents that they had been involved in another conflict 'which had the hallmarks of teasing and bullying'. The threatened expulsion did not eventuate for LM, nor was any other step taken to protect Ms Oyston from what must, at this point have been clear even to Mrs Ibbett, namely that Ms Oyston was being targeted by ongoing misbehaviour by others who she and other students had identified. 226On 6 December Mrs Ibbett received another approach from Ms Oyston; asking her again to put her complaint in writing. Mrs Ibbett also kept a note of Ms Oyston's oral account of the behaviour to which she was being subjected. Ms Oyston handwrote her explanation of how she was being treated. It again involved two of those referred to in the November complaint, JP and LM. 227Ms Oyston explained that she had been outside a classroom dealing with a bottle which had leaked into her bag and the student identified had highlighted her absence saying 'you are always late' when she came in, as well as embarrassing her and saying 'it must be nice to have the whole class hate you'. Mrs Ibbett agreed that this was disappointing and not an appropriate thing to say, as was 'Jazmine needs an ambulance'. Ms Oyston complained that her friends were also targeted and that the real target of the behaviour was her. She also complained that as she left class to go to the bathroom, she was asked loud enough for the whole class to hear, 'How was Mrs Ibbett?' Mrs Ibbett agreed that such behaviour could have made Ms Oyston feel isolated and embarrassed. 228Ms Oyston admitted in the note she provided that she had herself said nasty things in response to things said and done to her. Mrs Ibbett agreed that this note included a statement suggesting suicidal ideation. Mrs Ibbett could not, however, agree that Ms Oyston was then complaining to her about ongoing bullying and harassment. She said: "Q. And you have no doubt in your mind that this information being supplied to you by Jazmine Oyston was indicating to you that bullying and harassment was still going on with these two girls, isn't that correct? A. She is indicating that there is still a situation for her. Q. Of bullying and harassment? A. Of behaviour that she is not happy with and given it is now another time that she has come to alert me to it, it is now leading us towards, closer to our definition of bullying and harassment. Q. To your definition, not the school's definition, Mrs Ibbett, isn't that correct? A. The definition that I have been sharing as in not isolated, but, more ongoing, so I now have a window in that given that she has shared this with me." 229On Mrs Ibbett's approach, this was the second example of such inappropriate behaviour towards Ms Oyston. This showed her that it was more targeted and frequent and thus 'turning into a bullying incident', which resulted in action being taken, because she had something more concrete to deal with, to support Ms Oyston. She could not, however, recall asking Ms Oyston what she meant when she wrote that 'To solve this problem was to go away and that problem is me". Nor is there any evidence that Mrs Ibbett raised this serious matter with Ms Oyston's parents, or referred her again to the counsellor. She was not then receiving counselling. 230Mrs Ibbett did speak to the parents of one of the other students involved, as well as to that student, JP, who assured her that she was keeping away from Ms Oyston. JP acknowledged that they did not like one another, but said that she felt that it was Ms Oyston who 'was provoking the situation and the rest of the class'. 231Mrs Ibbett's lack of any further action suggests that this was an explanation which she accepted, even though she took the view that this was a second offence for two students, who had been involved in this type of behaviour before. She could not remember what had resulted, other than warnings to those students as to what behaviour was not appropriate and what could result if it was not addressed. There is certainly no evidence that Ms Oyston or her parents were told that the College had taken any steps at all in relation to her ongoing complaints. 232This final complaint arose right at the end of the 2004 school year. There is no evidence that any other steps were taken by Mrs Ibbett or anyone else at the College, to ensure that Ms Oyston had no ongoing problems when school resumed. While Mrs Ibbett agreed that if inappropriate behaviour was not addressed, then it won't stop and can lead to further incidents, which would then lead down a bullying path, but still nothing was done. Ms Oyston's parents had not been informed of her further complaints at the end of 2004; and there was no referral of Ms Oyston to the counsellor, to help her deal with the behaviour of which she had complained she remained the target at the end of 2004. 233Ms Oyston's evidence was that the bullying continued in 2005, but she made no further complaints, she despaired of getting any help. She was also then clearly dealing with serious problems at home. 234In February 2005, Mrs Ibbett was contacted when Sister Julie found Ms Oyston wandering down the street, after she had seen the counsellor and been identified as being suicidal. Ms Oyston had self referred herself to the counsellor, she insisted she was concerned about her problems at home. Her mother also raised with the counsellor ongoing problems at school. This was not investigated. 235On 8 February, Mrs Ibbett sent a note to classroom teachers advising that Ms Oyston was 'fragile' and if there were any concerns, a change in her demeanour noticed, or if she was absent, she or others identified should be contacted. Mrs Ibbett took no steps to investigate whether Ms Oyston was still having difficulties with ongoing bullying at school. Despite Mrs Oyston's advice about problems at school, the College made no connection between Ms Oyston's state and her complaints about ongoing bullying at the end of 2004. 236On 2 March, Mrs Ibbett contacted Mrs Oyston, who told her that Ms Oyston's problem was that no one listens at the school. No consideration of any ongoing bullying of Ms Oyston persisting resulted. Soon afterwards Ms Oyston was withdrawn from the College. Mrs Carroll-Fajarda 237Mrs Carroll-Fajarda first met Mrs Oyston in February 2004 when she met with the Principal to discuss Ms Oyston's problems. Afterwards, Ms Oyston came to her attention through regular meetings which she had with the counsellor, to whom she referred Ms Oyston on 9 February in relation to bullying. 238On 18 February a teacher, Ms Cornett, provided a student intervention sheet, advising of Ms Oyston's episode the previous day, when she had had an anxiety attack. There was a further sheet provided by Ms Cornett on 19 February, when Ms Oyston had another attack from which she seemed to recover more quickly. 239Mrs Carroll-Fajarda later learned of the counsellor's frustration that Ms Oyston's referrals to Campbelltown Mental Health Clinic for further assessment had not been followed up by her family. She also learned of Ms Oyston's self harm in May 2004, in the events which concerned the rumour that she had started about another student, which had resulted in Mrs Ibbett's investigation, which had led to all involved receiving consequences for their behaviour. 240Ms Oyston later came to her office complaining that a year 8 student had confronted her in the playground. She had her write an account of what had occurred and that incident was followed up by Mrs Ibbett, who contacted her mother. Mrs Carroll-Fajarda later received a copy of the counsellor's file closure summary in June. 241Ms Oyston next came to her attention in 2005, when she was found down the street after having threatened to kill herself. Mrs Oyston then faxed a copy of an EEG to Mrs Ibbett, which was referred to her. She was also present at the meeting with Mr and Mrs Oyston and the Principal when Ms Oyston was removed from the College. Mrs Carroll-Fajarda then asked Ms Oyston who had been bullying her, because she understood the issue which had occurred the previous year had been resolved. She was surprised by one of the students Ms Oyston then identified, who she had understood to have been a friend. 242In cross-examination, Mrs Carroll-Fajarda agreed that when she met Mrs Oyston at the meeting with the Principal in February 2004, she was complaining about Ms Oyston being bullied and that this required the College's investigation. She also agreed that while this resulted in plenty of discussion, Mrs Oyston was never advised as to the outcome of any investigation which was conducted by the College. 243Mrs Carroll-Fajarda agreed that in 2004, Ms Oyston was referred to the counsellor for assistance in relation to the claimed bullying, but explained that it was hard to pin down precisely what was happening. While it was then clear that the girls did not like each other, that there had been any specific incident which could be responded to, in her view was not established. She met regularly with Mrs Ibbett, with whom she had many conversations about Ms Oyston. When it was later established that there had been misbehaviour, in May, detention followed for all three involved. 244Mrs Carroll-Fajarda was aware that this incident had led Ms Oyston to engage in self harm. It did not then enter her mind, however, that Ms Oyston had been the subject of bullying over a longer period and that the rumour she had started was retaliation, a situation Mr Parada had advised about, the preceding year. She took the view that Ms Oyston's conduct had occurred because she was herself in strife for spreading a rumour. This had led to a further referral to the counsellor, which resulted in a file closure in June, when Ms Oyston stated that the issue was resolved. Mrs Carroll-Fajarda took the view that the counselling would have gotten to the bottom of what was going on, even though that was not the counsellor's function, it was the responsibility of the year co-ordinator. 245Mrs Carroll-Fajarda agreed that given that this was the second occasion that one of the girls involved, JP, had seemingly been involved in bullying Ms Oyston, that an investigation was then warranted. She denied that had one been undertaken, it would have revealed that there had been bullying ongoing since 2002. In her view there had been a proper investigation at the time by Mrs Ibbett and that was not what had been revealed. Mrs Carroll-Fajarda agreed that the other girl involved in this incident LM, had been in other strife at school. Mrs Carroll-Fajarda explained that the note sent home to the three sets of parents was kept deliberately vague. It was not to her view established that the self harm had resulted from bullying. 246Mrs Carroll-Fajarda first saw Mrs Ibbett's November 2004 memo to teachers about these girls, amongst a larger group claimed to have been bullying Ms Oyston and her friends, when documents were subpoenaed for these proceedings. She agreed that this was the third time that JP had been claimed to have been involved in bullying Ms Oyston. She agreed that this warranted action under the bullying policy, taking the view that the memo was a part of Mrs Ibbett's investigation. She hoped that this would have also involved Mrs Ibbett speaking to the girls identified, but was not aware of whether that had occurred, but if it had, said that there should have been a note kept on their files. 247Mrs Carroll-Fajarda explained that the bullying register was never implemented at the College and that instead, a merit/demerit process was operated. A paper trail was maintained on student files, which included a record of detentions and notes that were taken and memos sent. She agreed that implementation of the College's polices was important, but that the student LM, threatened with expulsion for bullying, was never expelled. She also agreed that this could be perceived by other students as a powerful message that bullying was not being taken seriously by the College. 248It was apparent from Mrs Carroll-Fajarda's evidence that Mrs Ibbett did not involve her in the further information and complaints which came to her attention in the last term of 2004, that Ms Oyston was being subjected to further bullying. Her evidence also confirmed that the College policy, which envisaged involvement of the Executive and Ms Oyston's parents at this stage, was simply not implemented. Conclusion 249I am well satisfied that Ms Oyston's evidence that she was the subject of ongoing bullying must be accepted. This came to the College's attention from various sources in 2004. Mrs Ibbett's evidence, when considered in the light of the contemporaneous documents to which I have referred and the evidence given by Mrs Carroll-Fajarda, put beyond argument that the College was well aware that Ms Oyston was the victim of ongoing bullying that year. Even so, the College failed to take steps necessary to bring that bullying to an end, despite it being apparent from credible information that it received over the course of that year, that Ms Oyston was not only at risk of harm, she was suffering from an injury. 250The College referred Ms Oyston for counselling in relation to bullying in February 2004. The Principal then took the view that Mrs Oyston's concerns required its investigation. So did Ms Oyston's complaints about isolation. While it may be accepted that it was then difficult to confirm that the behaviour about which complaint had been made had occurred, that difficulty was resolved when other information, as well as further complaints emerged from Ms Oyston during the year, which ought to have been investigated. Mrs Ibbett's investigations in May in fact established that there had been bullying, for which punishment was imposed. 251Of itself, that ought to have shed light on the nature of the earlier interactions between the students involved. Thereafter, further information about ongoing bullying clearly emerged from teachers and other students, as well as from Ms Oyston, which required that there be firm intervention by the College, in order to ensure that either bullying or inappropriate behaviour directed towards Ms Oyston ceased. The College's response was inadequate. If the College had not failed to take adequate measures beforehand, it certainly failed at this point. Steps which a reasonable person would then have taken, were not pursued. 252Mrs Ibbett's explanation was that it was not until late November 2004, that she herself was able to identify that a bullying pattern was emerging. I have great difficulty in accepting that evidence, given all that had been drawn to her attention to that time. Even if it could be accepted, her response amply revealed the College's failure to adequately deal with the situation then revealed, at a time when it was quite evident that harm was resulting for Ms Oyston. 253The College had been warned of Ms Oyston's vulnerability in February when she first collapsed at school. There were ongoing problems of that kind. The counsellor had taken the view that she required medical assessment as to her condition and was frustrated by what she perceived to be her family's lack of response. It was known to the College by investigations conducted that it was not a medical condition underlying her problems, but stress and anxiety. There were ongoing discussions between the counsellor, Mrs Ibbett, Mrs Carroll-Fajarda and Ms Oyston. The counselling file had been closed in June after Ms Oyston had assured the counsellor that she was not being further troubled by bullying, but that this situation had altered, was later made known to the College by teachers, other students and Ms Oyston herself. That she was still being seriously affected was unquestionably then known to the College. That her reactions might have taken a turn for the worse, was suggested by her handwritten note in November, where suicidal ideation first appears to have arisen, as Mrs Ibbett acknowledged. 254Given what was then revealed about the seriousness of the harm being inflicted, that there was then neither an adequate response to ensure that the bullying ceased, or even that Ms Oyston was referred for further counselling, or medical treatment, or her parents informed, cannot be questioned. The burden of taking steps which the College's policy and good practice required, by comparison to the harm to which Ms Oyston was exposed, clearly required that active steps be taken to prevent the harm from materialising, or being exacerbated. 255Ms Oyston's symptoms worsened in 2005 at a time when she was clearly also affected by problems at home. I also accept Ms Oyston's evidence that the bullying continued in 2005, but that she didn't make further complaints to Mrs Ibbett, because she then despaired of being given effective help with her problems at school. Her evidence that to that point no effective steps had been taken by the College to deal with the ongoing bullying which had been repeatedly drawn to Mrs Ibbett's attention to the end of 2004, must be also accepted. There can be no question on the evidence that she was then seriously ill and that Mrs Oyston then advised that it was not only problems at home which was contributing to Ms Oyston's situation, but also ongoing problems at school. There was no response by the College. 256I am satisfied that the College failed to implement its paper bullying policy, or to take other adequate steps to bring the ongoing bullying directed at Ms Oyston under control. It was her removal from the College by her parents which appears to have achieved what the College did not. 257Although her symptoms took time and treatment before they abated, there is no suggestion that Ms Oyston was either the subject of bullying, or herself a bully, at the new school in which she was enrolled in April 2005. She recovered her health while at that school. THE MEDICAL EVIDENCE ABOUT MS OYSTON 258In March 2005, Dr Freelander, Ms Oyston's treating paediatrician, wrote to her new school advising: "TO WHOM IT MAY CONCERN Jazmine is a delightful young lady who is the youngest of two children, she has an older brother who has significant problems secondary to his intellectual handicap. Jazmine has been at St. Patrick's High School and has been subject to some bullying. She has had quite extreme anxiety resulting in her hospitalisation. She has settled down a lot and she is(sic) bright girl with many talents and will do well in a supportive environment. I would be most grateful for any supports you could provide for her. I suspect that Jazmine will not need a lot of extra support at school other than stability of her schooling. I would be most grateful if you could accept her into her school, she would be an asset to the school." 259It is not necessary to refer to all of the records in evidence. It is pertinent to refer to a record which shows that in January 2004, Ms Oyston had been taken to the emergency department of Mt Druitt Hospital, suffering from heat exhaustion. She was dehydrated and blood tests were undertaken. The Registrar of the emergency department had noted certain unremarkable test results and noted 'I suspect that there was an element of attention seeking in her presentation as discussed with her mother'. 260This was a view which Mrs Oyston certainly shared. It was one which she communicated to the counsellor from time to time, in 2004 and 2005. In May 2004, however, the College was advised by Dr Freelander that extensive investigation of possible seizures had resulted in the conclusion that Ms Oyston was suffering from 'pseudo seizures, which are non-neurological', usually the result of a 'stress reaction'. Dr Freelander also advised that they probably related to stresses both at home and school. 261In February 2005, Dr Freelander noted that there had been an investigation conducted of Ms Oyston a year earlier, and that tests had proved normal. Dr Freelander then described her as a healthy, alert girl. She was asked to keep diaries of further seizures, but no further treatment was recommended. Still she experienced serious problems which resulted in her admission to hospital. A discharge summary from Campbelltown Hospital of 9 March 2005 noted long term problems with an abusive older brother and significant bullying at school for almost one year. She was then physically healthy, but displayed depressed mood and suicidal ideation. She settled promptly on admission. 262Mr Benad provided a report in June 2008 as to his treatment. It commenced in March 2005, when Ms Oyston reported longstanding bullying at school, from mid-way through year 7. He described pseudo seizures as a physical manifestation of emotional disturbance. Their presentation was quite rare. Ms Oyston had described self harm and her desire for further self harm. She was then adamant that she would not return to the College. She attended 32 treatment sessions over a period when her psychological function waxed and waned and she experienced a number of further seizures and was admitted and treated with antidepressant medications. 263Ms Oyston's 2005 transition to her new school was described to have been without incident. Various symptoms dissipated, but self harm episodes continued. There were no reported problems at school or socially after July 2006 and frequency of contact with Mr Benad diminished, when she denied clinically significant symptoms of disturbance. When she left school in 2007 she denied ongoing symptomology associated with harassment at school. 264Mr Benad's opinion was that Ms Oyston had suffered reactive psychological difficulties associated with alleged bullying, which negatively impacted on her self esteem and resulted in a depressive illness, which he considered had been in complete remission for 6-9 months. She had likely suffered from an adjustment disorder with mixed anxiety and depressed mood as the result of bullying. Mr Benad had not determined whether Ms Oyston had an underlying vulnerability personalty, which could influence her response to life's stressors. 265Evidence was called concurrently from Dr Phillips and Dr Apler. Their reports were in evidence. Dr Phillips saw Ms Oyston on one occasion in 2008. Dr Apler saw her in 2009. They were disagreed as to Ms Oyston's condition while at the College and whether she had ever suffered any psychological illness, her state on their examination and her prognosis. Dr Phillips 266It is pertinent to note that Dr Phillips was instructed that Ms Oyston had been 'the victim of extreme bullying' whilst a student at the College and that proceedings had been brought for breach of duty of care, resulting in identified injuries and disabilities: "Injuries (a) Depression. (b) Anxiety. (c) Adjustment disorder. (d) Seizures. (e) Conversion disorder. (f) Shock and sequelae. Disabilities (a) Multiple seizures. (b) Depressed mood. (c) Severe anxiety. (d) Suicidal ideation and tendencies. (e) Self harming behaviour. (f) Need for hospitalisation. (g) Need for medication to control seizures and depression. (h) Lack of motivation. (i) Lack of self esteem. (j) Fatigue (k) Need for psychological counselling. (l) Poor anger control. (m) Difficulty managing stress." 267Dr Phillips' August 2008 report was based on an account which Ms Oyston gave him, which was largely consistent with her evidence in these proceedings. On mental state examination, Dr Phillips found that Ms Oyston was not overtly depressed, anxious or irritable; she had no disorder of rate or form of thought process; she was not paranoid in attitude, nor suffering hallucinations, delusions or symptoms suggestive of a psychotic disorder; and her cognition was adequate for interview. Testing suggested minimal depression, a low range for anxiety and moderate for fears of the worst happening. 268Dr Phillips reviewed medical records and reports provided, as well as counselling records. His opinion was that Ms Oyston's psychological/behavioural problems in greater part were triggered by bullying at the College, known to staff, but not brought under control. He had no doubt that she was deeply offended and psychologically traumatised by name calling and bullying, which distressed her and rendered her anxious. As she perceived these matters, they were made worse when they occurred in front of teachers, who failed to protect her. 269He noted repeated attempts by Ms Oyston and her parents to have notice taken of her plight, but that no proper system of protection was put in place. The school counsellor alerted staff, but nothing useful happened. In his view it was not surprising that she developed psychological symptoms in year 8. In year 9, as the mistreatment continued unabated and even increased, she became increasingly depressed and nihilistic in her thinking. Self laceration commenced and she became suicidal and began having quasi neurological turns. Pseudo seizures were described as a marker of adolescent despair, an attention seeking device and a way of avoiding feared situations. She came close to developing an eating disorder and in Dr Phillips view, did develop a major depressive disorder adolescent type in years 8 and 9. Progress commenced to be made after she left the College, although she did not become symptom free. She still suffered an adjustment disorder with mixed anxiety and depressed mood, even if she rated her symptoms at a low level. She remained at risk for development of psychiatric disorder, at times of future stress. She would benefit from further treatment. 270Further reports were later provided, answering various questions. It is not necessary to refer to them in detail. Dr Apler 271Dr Apler was similarly instructed as to Ms Oyston's claims and received a similar report from her. His October 2009 report noted an eating disorder in 2002, which her mother advised the counsellor was 'attention seeking ' behaviour and Ms Oyston advising that there were no problems at home or school at the end of the year. In 2003 her own behaviour was viewed to have contributed to her ostracism by peers and that in September, when was reporting thoughts of wanting to kill herself. In 2004 she was noted as developing panic and anxiety symptoms in the context of feeling alone at school, isolation was identified as her major stressor. He noted that Mrs Oyston blamed bullying as the cause of Ms Oyston's emotional problems or dismissed them as 'attention seeming behaviour'. She was predisposed to the development of anxiety and panic attacks by a strong family history on her mother's side. He referred to a hospital admission in February 2004 where there was thought by an ambulance officer to have been feigning unconsciousness. She was taken home by her mother before assessment. There was investigation of epileptic activity and an episode of self harm after an argument with her brother in March 2004. She was missing classes at school feeling ill and having emotional problems and conflict with her peers, which culminated in the rumour she instigated in May 2004 and an episode of self harm in the toilets. There were further problems, but she reported to the counsellor in June 2004 that the bullying had been resolved. 272Dr Apler noted that school staff were careful to ensure that Ms Oyston was not bullied at school, noting Mrs Ibbett's communication to staff in November. Her escalating problems in February 2005 were recounted, when she had difficulties at home which led her to feeling suicidal. Her mother described her as having a 'hissy fit, blaming problems at school' while Ms Oyston blamed problems at home. When admitted in the adolescent mental health unit she spoke both about abuse at home and bullying at school but was observed to be happy and talkative. An adjustment disorder was diagnosed. There were further admissions and she was certified as mentally ill under the Mental Health Act. In April she took an overdose and there was further self harm. Her mother thought she was harming herself for attention. She had another seizure at her new school in May and there was further admission. Dr Apler observed that Mr Benad did not appear to be aware of her difficult home circumstances, despite his ongoing treatment. There was another admission in November and she was placed on anti-epileptic medication for two years. 273Dr Apler also noted an account from Ms Oyston as to her experiences at the College, similar to her evidence, but denied the misbehaviour in May 2004, when she started a rumour. She described her relationship with her mother at the time as rocky, because she did not want to get up and go to school and that her relationship with her brother was difficult. These relationships had improved. She described her problematic work history and her current symptoms and functioning. 274Dr Apler's opinion was that there was strong family history of panic and anxiety symptoms and that Ms Oyston began to manifest signs of emotional disturbance soon after commencing at the College, but he found no evidence that this related to conflict with peers. While she was quite upset in year 8 when she had thoughts of killing herself, there was no evidence of psychiatric disorder. School staff were appropriately concerned for her welfare and ensured that she received appropriate counselling. No definite diagnosis could be provided for her symptoms in year 9. There may have been pseudo seizures, but her response to Epilim suggested that she was affected by a genuine disorder. She was not diagnosed with psychosis, there was no consistent pattern to her symptoms and her mother considered her to be engaging in attention seeking behaviour. She was upset by conflicts at home and school, some of which she contributed to herself. 275In 2005, there were continuing symptoms at her new school where she reported no bullying. Those symptoms improved over time. Her emotional symptoms resolved after she left school. She now functioned normally and had no mental illness or psychiatric disorder. She had a good prognosis, and required no further treatment. She had no psychiatric disorder attributable to bullying at school. 276Dr Apler disagreed with Dr Phillip's conclusions that Ms Oyston had a major depressive disorder adolescent type in years 8 and 9 and that she was currently affected by an adjustment disorder. What the joint report and concurrent evidence showed 277Dr Apler and Dr Phillips met to discuss a number of questions posed to them by the parties. The minutes of their discussion noted that the presence of anxiety symptoms in the family history would have increased Ms Oyston's risk of developing such symptoms in her formative years. Dr Phillips had not obtained a history of family disturbance, but Dr Apler took the view that domestic disturbance would have made a significant contribution to Ms Oyston's psychopathology. They were agreed, however, that she was susceptible or predisposed to suffering from recognised psychiatric illness, or other psychological disturbance. An eating disorder pointed to underlying psychopathology and that family stressors may have added to, or perpetuated any existing psychopathology. They would have increased her psychological vulnerability. 278Dr Apler was of the view that a normal person would not usually develop a psychological injury from the events which Ms Oyston described at school. However, in the case of a person with her susceptibility or predisposition, they may contribute to the development of a psychiatric illness. Dr Phillips was of the view that recurrent bullying over time was likely to lead a person to develop a recognisable psychiatric injury. They agreed that such events could increase mental distress. 279Dr Apler was of the view that while she had earlier had psychiatric symptoms as an adolescent, at present Ms Oyston was not suffering from any psychiatric or psychological condition. Dr Phillips was of the view that on the balance of probabilities, she had an adjustment disorder chronic type, the long term outcome of an earlier more serious major depressive disorder suffered as an adolescent. The bullying which she suffered was a materially contributing factor to that disorder. 280Dr Apler believed that Ms Oyston had overcome her problems and had a good prognosis, but her psychological response to future events was uncertain. He thought her unlikely to have future treatment needs. Dr Phillips believed that she remained vulnerable and that it was moderately likely that she will suffer a relapse, particularly if faced with substantive future stressors. Dr Phillips thought it virtually impossible to provide a firm answer as to future treatment needs; that would depend on the extent of any psychological disturbance and the diagnosis. 281Dr Apler and Dr Phillips agreed that eating disorders and body image problems in adolescence were common and could indicate underlying emotional disturbance. The counselling records in 2002 did not refer to complaints by Ms Oyston about bullying. Dr Apler and Dr Phillips had differing impressions of the assistance which could be gained from the records. They agreed that there was good documentation of contact between the counsellor, teachers, parents and various outside services. That they shed good light on what was being discussed between Ms Oyston and the counsellor was debated. Dr Phillips referred to his experience that adolescents being bullied often experienced problems in drawing attention to bullying with those in authority, for fear of retaliation. Dr Apler noted the extensive relationship developed between Ms Oyston and school counsellors over her time at the College, with but little reports about bullying made, as opposed to reports of home conflicts. 282Dr Phillips had the view that as to the family issues, he had not seen much that was highly pathological, while Dr Apler had the view that they were paramount in Ms Oyston's case. There were ongoing issues at home reported to the counsellor and to hospital staff. Family therapy was recommended, but not followed up by the family. The significant disturbance in early 2005 was reported by Ms Oyston as relating to her family life, as her mother then acknowledged. Dr Phillips observed that an adolescent reacting to such disturbance with threats of killing herself was not uncommon. There was, however, a vulnerability flowing from what was happening at school. There were things going on in both arenas, which were having an impact. Dr Apler commented that Ms Oyston appeared to be left to deal with her problems at school on her own and that her mother had limited understanding or empathy for her emotional problems, with the result that there was no follow up, to ensure that she received the assistance she required. Dr Phillips agreed. 283Dr Phillips had no doubt that while at the College, Ms Oyston came to suffer a diagnosable psychiatric illness. Dr Apler disagreed, noting that such an illness had to be observable in some way and that the school counsellor's notes did not suggest that Ms Oyston was observed to be unwell. She was an anxious vulnerable girl and there was certainly evidence of stress, such as seizures and impulsive behaviour, but not disturbed mood. Moodiness and conflict were normal experiences in adolescence. 284Dr Phillips disagreed, referring to a wide range of reported symptoms developing, documented in various ways, which included sadness, anxiety, depression and confusion, bad mood swings, becoming fearful of the dark, nightmares, vigilance to noises and strange movements, substantial bursts of anxiety, despondence, suicidal thoughts and self harm developing, eroding self esteem, feeling weak and light headed, shaking and seizures, diagnosed pseudoepilepsy, hyperventilation and spasm in peripheral limbs. Self harm may or may not be indicative of mental illness, it could reflect anger, frustration and attention seeking behaviour. Dr Apler's view was that these were panic type symptoms related to her stress and anxiety. 285Dr Phillips explained that faking a symptom was behaviour which adolescents were prone to and that whether conscious or unconscious, reflected a disturbed emotional state. In his view, pseudo seizures were a marker for considerable psychopathology, irrespective of motivation. They were uncommon in adults. Dr Apler commented on records which suggested feigned symptoms at school and during a hospital admission, observed by a nurse. In his view this could reveal a manipulative element. An attention seeking element was a stress element, Ms Oyston having no other way of coping with her situation, but to ensure her removal from it. It was possible on her history that Ms Oyston, when faced with any difficulty at school, reacted by avoiding those situations. He saw such seizures as a symptom of stress, not a depressive disorder. 286The experts referred to an observation made of Ms Oyston by a child psychiatrist, Dr Cubis, who referred to escalating pseudo seizures, depression and suicidal thoughts in the context of conflict at school and home. He also noted that the family was powerless, indecisive about solutions and all stuck and hopeless. 287Both Dr Apler and Dr Phillips were of the view that there was no single cause of Ms Oyston's condition. Dr Phillips remained of the view that with her history of substantial psychiatric problems in adolescence, there were likely to be future episodic problems. She was likely to cope quite well, but to have been left vulnerable to further stressors, which would result in further periods of psychiatric disturbance. Dr Apler said that in view of her considerable ability to cope since leaving the College, when she had demonstrated considerable resilience, so that she could enjoy her life, he expected that Ms Oyston would continue to cope and do well. Dr Phillips was more cautious, observing that their differences were a matter of weight. Dr Apler noted no past history of sustained depressed mood, even during hospital admissions where symptoms often became more apparent. Dr Phillips observed that in adolescents there was never a person who was depressed 100% of the time. 288Dr Apler emphasised that in order for a diagnosis of disorder to be made, there had to an observable and excessive maladaptive reaction to stress. In 2009, he could see no disorder then. Dr Phillips adhered to the conclusion which he reached in his 2008 report, but there had to be allowance made for episodic movement in her mood and that her disorder could have diminished over time, but with the ongoing vulnerability to further reaction to future stressors, remaining. Both found Ms Oyston to have been a straightforward or reasonable historian. Both agreed that subsequent stressors which Ms Oyston had encountered had not resulted in psychiatric illness. They were disagreed as to whether thereby she had become more vulnerable to subsequent injury. 289Both Dr Apler and Dr Phillips agreed that on the account which Ms Oyston gave to Mr Benad in 2006, that she was not then suffering from symptoms which would satisfy the DSM-IV criteria for adjustment disorder, immediate depression and anxiety. On Dr Phillips' evidence, when he examined Ms Oyston in 2008, she had a considerable number of symptoms sufficient to warrant a diagnosis, and on Dr Apler's evidence when he examined her in 2008, she was not suffering from any psychiatric or psychological condition. 290When Dr Apler was asked whether it would be appropriate to defer to the diagnosis made by Mr Benad, who saw Ms Oyston between 2005 and 2007, he explained that he had formed his own views, having had the advantage of reviewing the documents which he had been provided. The nature and extent of the psychiatric injury Ms Oyston suffered 291I am satisfied that the evidence established that Ms Oyston suffered a psychiatric injury in 2004 and 2005 of the kind Mr Benad identified and for which she was successfully treated. She had recovered by 2007. Both Dr Apler and Dr Phillips were agreed that she was then not suffering from any ongoing illness. Ms Oyston's evidence and that of her parents, supports that view. Dr Apler's reservations as to whether Ms Oyston had suffered an injury while at the College rested on a view of Ms Oyston's experiences while at the College and their consequences, which has not been established on the evidence. 292Ms Oyston was genetically vulnerable to the injury which she sustained. Her condition in 2004 and 2005 was the result of being subjected to a combination of stressors at home and at school. Contrary to the view which Dr Apler reached, the bullying which continued unaddressed at the College, was a very significant contributor to that outcome. His understanding that the College responded adequately to what came to its attention in relation to bullying, was not established to have a foundation. 293Ms Oyston was suffering from further symptoms in 2008 when she was seen by Dr Phillips, but that was not the case when she was seen by Dr Apler in 2009. I am not satisfied that her state in 2008 when Dr Phillips saw her, was the result of the ongoing effects of her experiences at the College in 2004 and 2005. After her recovery in 2007, there had been another serious stressor to which she was subjected, which explains the symptoms which Dr Phillips observed when he saw her in 2008. Her further recovery explains Dr Apler's observations of Ms Oyston in 2009. On her own account, this was an injury from which Ms Oyston recovered with treatment. That had occurred by the time that Dr Apler saw her the following year. 294The evidence showed that Ms Oyston has a resilience which helped her recover from her earlier injury by 2007 and assisted her later recovery from further injury by 2009. Nevertheless, that she now has an increased vulnerability to such further injury, as the result of the injury to which she succumbed in 2004 and 2005, as was Dr Phillips opinion, must be accepted. The evidence of Ms Oyston's history after she left the College and her evidence as to her ongoing problems at the time that she gave her evidence, all support that conclusion. Ms Oyston's pre-existing condition and the contribution of other stressors to which she was subjected 295Ms Oyston had an underlying vulnerability to the injury which she suffered in 2004 and 2005. There was no evidence that she had succumbed to such a condition before that time, or that the injury which she sustained, was caused solely by the stresses in her home life. Those stressors, as well as the bullying to which she was subjected at school, resulted in her injury. 296Her recovery followed her removal from the College and the treatment which she received from Mr Benad. There was no evidence that it resulted from her other problems being addressed. Of themselves they do not appear to have been sufficient to cause her injury. Did the College breach its duty to Ms Oyston? 297As the College submitted, any consideration of breach of its duty must be approached prospectively, not with the benefit of hindsight, as discussed in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [128]. In this case establishing what had occurred while Ms Oyston was a student at the College was made more difficult by the nature of the records maintained by the College and by the reliability of evidence given by witnesses, including those called in the College's case. 298Despite the difficulties and contradictions in the evidence, which I have explained, I have come to the view that Ms Oyston was subjected to ongoing bullying while attending the College; that she and her mother did raise her ongoing problems with various members of staff, especially throughout 2004; that there were varying responses, but that they finally proved inadequate to protect her from harm. 299On the evidence I am satisfied that the College's case that while it accepted that its duty of care towards a student did not depend on it having received a complaint about bullying, so far as Ms Oyston was concerned the circumstances were such that it was not on notice that she was being bullied, or bullied by any identified students, may not be accepted. Nor can I accept the submission that the evidence did not establish that the type of bullying to which she claimed she had been subjected, had resulted from a breach of its duty of care. 300Those conclusions were unavoidable, given the documents in evidence which record histories which Ms Oyston gave at various relevant times to various adults, of being bullied at school. They amply reveal the College's knowledge of the bullying about which complaint had been made and record the way in which the College dealt with some episodes of such bullying. Given the College's inadequate record keeping, that not all complaints of bullying which came to its attention may have been documented, seems possible. Consistently with Ms Oyston's case, those documents which do exist, confirm the inadequate response which was pursued, but even so, establish that when investigated, bullying was found to have occurred. 301Crucially, the counselling records established that in early 2004, Ms Oyston was referred to counselling by Mrs Ibbett and Mrs Caroll-Fajarda, to deal with bullying. That referral followed a meeting which Mrs Oyston had with the Principal where she raised her concerns, identifying a particular student. While information could come to the College from a counsellor, counselling was not a part of the College's investigation process into allegations of bullying, or a part of the system by which bullying was to be dealt with, so that it could be brought to an end. That was the responsibility of year co-ordinators and the Executive team. The evidence showed that there was no adequate investigation by the College during 2004 of the information which repeatedly came to its attention from various sources about bullying directed to Ms Oyston. 302There was some criticism of the records maintained by counsellors as not revealing the detail of the problems which Ms Oyston discussed with them. The counsellors who could have shed obvious light on the matters which were discussed and what they reported to Mrs Caroll-Fajarda and Mrs Ibbett in respect of those matters, at their regular meetings, were not called. 303Nevertheless, what is in evidence well established that in 2004 some of those about whom Ms Oyston was repeatedly complaining, were known to the College to have been involved in bullying other students in year 9, including Ms Oyston. One of those students was threatened with expulsion. Despite this, further complaints of bullying emerged from Ms Oyston and other students in the latter half of 2004, but were not responded to as the College's policies or good practice required. I accept Ms Oyston's evidence that the bullying she complains of in 2004 was occurring. 304I am well satisfied that at that point, given what was then known by the College as to Ms Oyston's mental and physical state, to treat the conduct complained about as 'alleged inappropriate behaviour', which merely required ongoing investigation, resulted in Ms Oyston's injury. The College's failure to deal with known bullies whose conduct needed to be brought to a halt, resulted in the College's failure in its duty of care to Ms Oyston. Injury resulted. 305I am also satisfied that the evidence does not permit of the view that Ms Oyston was merely 'an anxious girl going through the experiences of adolescence, finding it difficult at times to cope, seeking help and receiving it', as was submitted for the College. What was said to be the decisive consideration, whether there had been a want of reasonable care for Ms Oyston's safety must, in my view, be answered adversely to the case advanced for the College. Foreseeability 306The College also argued that despite the evidence as to the steps it had taken to deal with bullying, including in relation to Ms Oyston, inadequate though they were, that foreseeability had not been established. Reliance was placed on Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377; (2007) 71 NSWLR 471. There it was observed: "21 Koehler affirms the line of High Court authority, including, Tame, Annetts and Gifford, which focuses attention on the purpose for which the inquiry as to foreseeability is undertaken, namely, to determine what reasonableness requires by way of response and, therefore, whether legal responsibility for the conduct should be attributed to the defendant for the injury to the plaintiff. 22 As Gleeson CJ said in Gifford supra at 276: "reasonable foreseeability involves more than mere predictability". In the same passage his Honour said "advances in medical knowledge have made us aware of the variety of circumstances in which emotional disturbance can trigger, or develop into, recognisable psychiatric injury" and concluded: "[A]dvances in the predictability of harm to others ... do not necessarily result in a co-extensive expansion of the legal obligations imposed on those whose conduct might be a cause of such harm. The limiting consideration is reasonableness, which requires that account be taken both of interests of plaintiffs and of burdens on defendants." 23 The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough. 24 It does appear that over recent decades the helping professions and the pharmaceutical industry have medicalised many of the normal stresses of every day life, including working life. The law has not expanded legal responsibility for conduct in the same way. Koehler makes it clear that the common law of Australia will not do so, failing to follow such developments in other common law jurisdictions. 25 An employer can be liable for negligence because of a failure to protect an employee against bullying and harassment. However, the existence of such conduct does not determine the issue of breach of duty. As Hayne J put it in Tame supra at [296]: "[A] plaintiff will not recover damages for an injury which psychiatric opinion recognises as a psychiatric injury by demonstrating only that such an injury was reasonably foreseeable and that the defendant's negligence was a cause of the injury which the plaintiff sustained." 26 One of the elements required to be assessed is the degree of probability that the risk of psychiatric injury may occur, even when the reasonable foreseeability test of a risk that is not far fetched and fanciful, has been satisfied. 27 As the actual employer, the duty owed by ISS to the respondent is that set out in the joint judgment of the High Court in Czartyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 389 at [12]: "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards 57 The evidence suggesting some form of mental disturbance is twofold. First, the frequency and intensity of crying by Mr Naidu. Secondly, the observations by co-workers of a significant change in Mr Naidu's personal behaviour over the years. The former is clearly linked to Mr Chaloner's conduct. The latter may be linked, albeit less clearly. However, it does not appear that Mr Blinkworth knew of either and Mr Paine may have known about crying on one occasion. 58 These signs are of a character which suggest an effect on Mr Naidu's mind of an adverse character. However, what is required is foreseeability of a recognised psychiatric illness. The signs suggestive of psychiatric illness, rather than psychological disturbance, satisfy the not far fetched and fanciful test of foreseeability. However, they do not, in my opinion, reach the level of possibility which would require the employer or surrogate employer to intervene." 307This was a case concerned with an employer's duty of care, rather than with the particular duty owed by a school to a student. Nevertheless, considerations of the kind dealt with by the High Court in Nationwide News Pty Ltd plainly here arise for consideration. 308On the evidence, as I have said, the risk of psychiatric injury resulting from bullying was foreseen and responded to in various ways by the College, both at a general level and in relation to Ms Oyston in particular, especially when concerns that she was being bullied were raised in early 2004. Further complaints and concerns about bullying continued to be received by the College. That the risk of psychiatric injury resulting from students at the College being bullied was not far fetched or fanciful, either in a general sense, or in Ms Oyston's case, must be accepted. 309Ms Oyston's disturbed mental state was under active investigation and treatment in 2004 and 2005, a matter well known to the College, given her repeated collapse at school and advice it received as to her condition and treatment, from the counsellor and those treating her. The College argued that counselling records established that Ms Oyston had failed to adequately reveal the ongoing bullying to which she was being subjected and that prior to June 2004 there was no evidence that a staff member acting reasonably, could have seen enough to think that Ms Oyston was at any risk from being bullied. I cannot accept these submissions, given the College's response to the complaints it received in February 2004 and the concerns which teachers raised directly with Mrs Ibbett before and after June 2004. The College also received other relevant information directly from Ms Oyston herself, from Mrs Oyston and also from other students. 310The submission that it was 'only at the very death that Mrs Oyston suggested it was the school's fault', may not be accepted, given that it was the concern which she raised with the Principal in her meeting in February 2004, which led to Ms Oyston's referral to the counsellor in relation to bullying. This was the year that Ms Oyston was repeatedly collapsing at school and being taken to hospital. She was admitted for investigation and treatment, as the College was made well aware. The signs suggestive of psychiatric illness in Ms Oyston's case clearly reached the level where it was necessary for the College to intervene, to ensure that any ongoing bullying to which she was being subjected was brought to an end. 311As to the question of the degree of probability that psychiatric injury might have resulted from any bullying to which Ms Oyston was exposed and whether the steps taken by the College were reasonable in the circumstances, as to either eliminate that risk, or to provide adequate safeguards, I am satisfied that it must be concluded that the evidence showed that the College had ample information in 2004 and 2005 about Ms Oyston's increasingly disturbed state. Ongoing bullying had been drawn to its attention. It was aware that such behaviour, if unaddressed, could give rise to psychological injury. It also knew that Ms Oyston was being seriously affected; that treatment for her mental state was thought to be necessary and was being pursued. It must be concluded that the information which the College had was of a kind which required it to intervene, to ensure that any bullying behaviour ceased, if its duty to Ms Oyston was to be met. The steps taken in the circumstances were not adequate either to eliminate the foreseeable risk of injury which had arisen, or to provide adequate safeguards in the circumstances which existed. Such safeguards required active investigation of the complaints made and monitoring whether any bullying had been brought to a halt. Supervision 312The College also relied on 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: "24 There is another difficulty in the case presented on behalf of the plaintiff. The school operated a system under which particular teachers had specific duties of supervision. But, understandably, teachers were expected to minimise dangers of kinds other than those to which their specific duties related - as Mrs McNamara did when she saw the children in the classroom units. The Court of Appeal required that there be a teacher whose sole duty was to watch the flying fox and adjacent equipment. Let it be assumed that that teacher notices a crisis developing nearby - at the bubblers or the toilets - which the teacher responsible for those areas was not available to deal with. The teacher supervising the flying fox and adjacent equipment either will not be prohibited from intervening or will be prohibited from intervening. If the teacher is not prohibited from intervening and does intervene, that teacher will be unable to continue the constant supervision of the flying fox and adjacent equipment. If, on the other hand, the teacher is prohibited from intervening, how is the risk of harm at the bubblers or the toilets to be dealt with? The teacher (or teachers) responsible for those areas cannot be everywhere at once - unless the duties in relation to those areas are, like those relating to the play equipment, also duties of constant supervision, and sufficient teachers are deployed to enable them to be carried out. The number of staff required, the financial and other costs of providing them and the narrowly specialised responsibility required of them are going well beyond the bounds of reasonableness. 25 Nor is it reasonable to have a system in which children are observed during particular activities for every single moment of time - it is damaging to teacher-pupil relationships by removing even the slightest element of trust; it is likely to retard the development of responsibility in children, and it is likely to call for a great increase in the number of supervising teachers and in the costs of providing them. 26 Thus there is force in Spender J's dissenting opinion that the majority decision ( Hadba v Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St Anthony's Primary School) [2003] ACTCA 25 at [59]): "is a requirement of unrealistic and impractical perfection. It is born of hindsight. It offends the standard of reasonableness. It amounts to the imposition of the responsibility of an insurer ... ." " 313In my view difficulties of the kind identified in Hadba were not established in this case. In 2004, the College was well aware that it had a problem with persistent bullying amongst its students, including in year 9. It developed, but did not adequately implement policies designed to deal with that problem. It was well aware that Ms Oyston was a particularly vulnerable student, confronting, as she was, problems at home. In 2004 it was also unquestionably aware that she was a victim of ongoing bullying at school, but did not take the steps necessary to bring that behaviour under control. This is 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, including Ms Oyston, against the risk of injury to which ongoing bullying exposed her, were not effectively implemented. 314The evidence as to what occurred in November 2004 and subsequently, when there can be no question at all that even Mrs Ibbett had reached the point of accepting that there had been repeated misbehaviour directed at Ms Oyston, which amounted to bullying, but which had not been brought to an end, puts that beyond question. What was required of the College was not a system of impractical perfection. Rather, what was required was the practical implementation of its own system, to bring ongoing bullying to an end and to monitor the victim to ensure such behaviour did not continue. That, it failed to do so. CAUSATION 315Sections 5D and 5E of the Civil Liability Act provide: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 316The College's case was that the onus falling on Ms Oyston to establish causation had not been met. That submission rested on the expert evidence, which I have already discussed. 317The test to be applied is discussed in Woolworths Limited v Strong [2010] NSWCA 282 by Hodgson JA : "The Present Tests for Causation in Negligence - Section 5D 44 At common law, a " but for " test had a role (though " subject to certain qualifications ") as a " negative criterion of causation " -- i.e., if one could not conclude (on the balance of probabilities) that the harm would not have happened but for the negligence, then (subject to those qualifications) one could not conclude that the harm was caused by the negligence: March v EMH Stramare Pty Ltd (1991) 171 CLR 506 at 515-516; CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [14]. 45 In New South Wales now, whether the tort of negligence has been made out must be decided in accordance with the Civil Liability Act 2002. Section 5D(1) says: "(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability )." 46 Before a court makes a finding "that negligence caused particular harm", section 5D(1)(a) Civil Liability Act identifies, as one of the two elements that must usually be proved, "that the negligence was a necessary condition of the occurrence of the harm." "Negligence" there has its defined meaning, arising from section 5 Civil Liability Act, of "failure to exercise reasonable care and skill". The statutory test for causation thus usually requires a decision about whether failure to exercise reasonable care and skill was a necessary condition of the occurrence of the harm. (I say "usually requires" because section 5D(2) recognises that there can be an "exceptional case" in which negligence that cannot be established as a necessary condition of the occurrence of the harm should nonetheless be accepted as establishing factual causation. However, it is not contended that the present is an "exceptional case" within the meaning of section 5D(2).) The test for causation under section 5D(1)(a) has some measure of continuity with the previous common law, because if A is a necessary condition for the occurrence of B, one can always say that B would not happen but for A. 47 When causation was decided according to the common law, it was held that a defendant having materially increased the risk of an injury of a particular type occurring is not the same as the defendant having materially contributed to (and thus, according to the common law, caused) a particular injury of that type that has occurred: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 316 per Mason P. 48 Now, apart from the "exceptional case" that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words "comprises the following elements" in the chapeau to section 5D(1). "Material contribution", and notions of increase in risk, have no role to play in section 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case. 49 It is only if the "necessary condition" test in section 5D(1)(a) is satisfied that there can be causation within the meaning of section 5D(1). That is because section 5D(1)(b) poses a further test (ie, that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused), that is to be applied even if the "necessary condition" test is satisfied. In other words, section 5D(1)(b) operates as a means by which causation might not be found, even if the "necessary condition" test of section 5D(1)(a) were to be satisfied. 50 The expression "the harm" in section 5D(1)(a) refers back to the phrase "particular harm" in the chapeau of section 5D(1). Application of the section requires the court to consider the particular harm that the plaintiff in the proceedings has suffered. Thus, if, for example, a case involves an allegation that the plaintiff has sustained a broken wrist through falling on a slippery substance in a shop, it is not to the point to realise that a person can just as effectively break their wrist in circumstances that involve negligence on the part of no one, such as in a skiing accident. As the skiing accident example shows, there is a legitimate sense in which one can say that a person can suffer the harm of breaking their wrist without failure to exercise reasonable care and skill on the part of anyone being a necessary condition of that unfortunate situation arising. However, because of the focus of section 5D on "particular harm", that sense, which is concerned with how broken wrists in general might come about, is not the sense that is relevant to section 5D(1). 51 These aspects of section 5D are illustrated by the way section 5D was applied in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [53]. French CJ, Gummow, Hayne, Heydon and Crennan JJ identified the reason why causation of damage was not established as being because "[i]t was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place". In that case, it was the absence of security personnel that was contended to be the specific breach of a duty of care that had occurred, and being shot was the particular harm that the plaintiffs had suffered. In the present case, the critical question for deciding whether section 5D(1)(a) is satisfied is whether it is established that the First Respondent would not have slipped if the Appellant had been exercising care to the minimum extent at which it would have been performing its duty to take reasonable care." 318The question to be answered in this case is thus whether it has been shown that it was more probable than not that Ms Oyston would not have suffered a psychological injury, if the College had been exercising care in relation to the risk of bullying to the minimum extent at which it would have been performing its duty to take reasonable care. In my view, that case was established. 319In Adeels Palace Pty Ltd it was observed: "57 It may be that s 5D(2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments. Whether or how s 5D(2) would be engaged in such a case need not be decided now. The present cases are very different. No analogy can be drawn with cases like Fairchild . Rather, it would be contrary to established principles to hold Adeels Palace responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence, or might have resulted in harm being suffered by someone other than, or in addition to, the plaintiffs. As in Modbury (2000) 205 CLR 254 at 292-293 [113], the event which caused the plaintiffs' injuries was deliberate criminal wrongdoing, and the wrongdoing occurred despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That being so, it should not be accepted that negligence which was not a necessary condition of the injury that resulted from a third person's criminal wrongdoing was a cause of that injury. Accordingly, the submission that the plaintiffs' injuries in these cases were caused by the failure of Adeels Palace to take steps that might have made their occurrence less likely, should be rejected." 320Here, too, Ms Oyston's injuries were the result of the deliberate acts of third persons, namely other students of the College. They, however, were subject to the College's direction and control and were persons in respect of whose behaviour the College owed Ms Oyston a duty of care. It was the College's negligence in not dealing with that ongoing misbehaviour when it came to its attention, as its own policies envisaged, which resulted in Ms Oyston suffering injuries. Those injuries were the direct result of the College's failure to take the very steps it had devised to prevent such injury being inflicted by one student upon another. 321The experts were of a common view as to Ms Oyston's vulnerability to psychological injury and that what she suffered was contributed to by her experiences at home and her parent's inability to effectively deal with the ongoing bullying to which she was subjected at school. The College's failure to bring the misbehaviour of other students to an end was the other major contributing factor, in my assessment of the evidence, the significant cause of that injury. 322Ms Oyston may not herself have been very articulate about her situation at times. She plainly had reservations about whom she complained to and became discouraged from making complaints, by the lack of effective response which she received when she did complain. That it was difficult behaviour to continue complaining about may be accepted, given that the bullying came to encompass even her collapses and removal from the school for treatment, her counselling and her seeing Mrs Ibbett. What she described as going on in a relentless way in 2004 and 2005 was not high level, violent bullying, but a type of bullying behaviour described by the experts as behaviour typical of adolescent girls. This was behaviour which the College recognised it had to look out for and deal with, but in Ms Oyston's case it failed to do so. 323That the result was a long-lasting series of stressors to which Ms Oyston succumbed was established. Her reaction in May 2004 was to retaliate. This was known to be a reaction to which some victims of bullying resort. Even when Ms Oyston resorted to self harm, the result was that she, as well as the bullies involved, were all treated in the same way, by imposition of a detention. The deputy principal regarded this as a response to having herself been caught in misbehaving and not as being connected to any bullying directed to her. Ms Oyston's subsequent complaints, as well as those of other students and teachers about ongoing bullying, resulted in no effective steps being taken to help her. The help she sought of her parents was equally ineffective. 324That those involved were the subject of other complaints about bullying, supported the conclusion that Ms Oyston was also a victim of such behaviour. Yet even when suicidal ideation emerged at the end of 2004, no concrete steps to bring the bullying to an end were taken, nor were any steps taken to help her. That this dissuaded Ms Oyston from seeking help in 2005, may be understood. 325The College was aware that Ms Oyston had a difficult home life. It was known to the College that her mother had been seriously injured in a car accident and Ms Oyston was concerned about her. Ms Oyston was the subject of physical abuse from her brother at times. Her mother and grandmother were known to have suffered from panic attacks. Both that and the bullying which she was complaining about at school provided possible explanations for an emerging eating disorder in 2004. 326The lack of response to Mrs Oyston's advice in February 2004 and 2005 about bullying at school, may be explained by evidence that a somewhat difficult relationship developed between the College and Mrs Oyston. She was clearly not very articulate or effective in raising her concerns about Ms Oyston. She also had a view at times that Ms Oyston was exaggerating, which she certainly communicated to the counsellor. Perhaps that had an impact on the College's response, but it did not provide a basis on which the College could fail to meet its duty of care to ms Oyston. That Mrs Oyston may have had a basis for the view which she expressed at times, must be accepted. Ms Oyston herself gave evidence that at times she had exaggerated some of her symptoms, in order to extract herself from situations at school that she could not deal with. 327Mrs Oyston's evidence in cross-examination also suggested that she did not always pay the kind of attention which one might have expected to Ms Oyston's ongoing and escalating problems, even when raised directly with her by Ms Oyston and the College. Perhaps Mrs Oyston's own medical condition had an impact on her approach. Whatever be the explanation, even in February 2005 she seems initially to have been somewhat dismissive of the seriousness of Ms Oyston's situation, which the counsellor was then seeking to raise with her in the light of concerns about problems at home which Ms Oyston had revealed, which may have been causing or contributing to her difficulties. That approach altered, as Ms Oyston's condition worsened. Mrs Oyston then insisted that Ms Oytson's problems were being contributed to by ongoing problems at school. That was not a view which the College accepted. 328Even taking all of these matters into account, that the College's failure to deal adequately with ongoing problems Ms Oyston was having at school which she, Mrs Oyston and others raised in 2004 and 2005, resulted in injury which that unaddressed behaviour caused, must be accepted. 329It was in early 2005 that Mr Oyston became involved, having observed first hand the seizures she was suffering. He eventually withdrew Ms Oyston from the College, after a heated confrontation with the Principal, having come to the view that it had not done enough to protect her from harm. This followed a series of encounters between the counsellor, Mrs Ibbett and Mrs Oyston, over Ms Oyston's then spiralling problems. Mrs Oyston insisted that there were problems at school, as well as at home, but that concern was not acted on by the College. Mrs Oyston finally told the counsellor that the College was responsible for half of Ms Oyston's problems, but for its part the College never seems to have come to an acceptance that there was any ongoing problem at school which it ought to have dealt with. That reflects, it seems, the failure in the latter half of 2004 to implement the College's policies in relation to the concerns about Ms Oyston being the victim of ongoing bullying, which repeatedly came to Mrs Ibbett's attention from various sources, but were not shared with the Executive. 330That Ms Oyston may have been particularly vulnerable to psychological injury from bullying at school may be accepted, but that is not a basis on which it may be concluded that causation has not been established. I am satisfied that the evidence did not show that the injury which she sustained, would have occurred in any event, had the bullying not occurred or had it been addressed. 331Even if the injury which she suffered was disproportionate to what might be expected to have result from the bullying to which she was subjected at school, I am satisfied on the evidence that is not a basis for concluding that the College was not responsible for the harm which resulted from the bullying to which she was then subjected. I am satisfied on the evidence that the necessary causation has been established. But for the bulling to which she was subjected at school, she would not have suffered the injury which she sustained. The scope of the College's liability extended to the harm which was caused. CONTRIBUTORY NEGLIGENCE 332Section 5R of the Civil Liability Act provides: " 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 333I am unable to conclude that Ms Oyston was contributorily negligent for the harm which she suffered, as the College argued, because she failed to complain about bullying at the relevant time. There was clear documentary evidence of such complaint. In any event, the College's attention was also drawn to ongoing bullying by others, information to which it also did not respond. 334The College's case in relation to contributory negligence has to be considered in the context of the duty the College owes its students. On the authorities, that is clearly a substantial one. The allegation of contributory negligence is advanced against an adolescent aged between 14 and 15 years, a girl succumbing to psychological injury as the result of ongoing stressors to which it was known she was being subjected at home and school. The standard of persistent complaint about bullying suggested by the College to be necessary, in order for an allegation of contributory negligence to be resisted by such a student, simply cannot be accepted. 335That Ms Oyston was not always frank with the counsellor in 2004 as to bullying to which she was being subjected, was consistent with evidence that she wanted to cease counselling, which she found unhelpful in bringing bullying to an end. The counselling itself came to be a basis for bullying. Whatever may have been Ms Oyston's failure to have voiced issues which she was having 'in clear, unequivocal terms to enable the School to action them', at any particular time, any such failure has to be considered in light of the evidence that in 2004, when she unquestionably repeatedly raised her ongoing problems with Mrs Ibbett, still no active steps to bring the behaviour about which complaint was being made to an end, were taken. 336Ms Oyston's evidence that she finally desisted in making further complaint because she despaired of getting help, must be accepted. That was a view to which she came at a time when she was clearly succumbing to injury, as was apparent to the College. 337In Woolworths Limited v Strong, Hodgson JA observed: "36 The questions for a judge deciding whether a plaintiff has been guilty of contributory negligence arise as a matter of construction of the statute enabling apportionment of damages. Following the Law Reform (Miscellaneous Provisions) Amendment Act 2000, section 9 Law Reform (Miscellaneous Provisions) Act 1965 includes: "(1) If a person (the claimant ) suffers damage as the result partly of the claimant's failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person: (a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." 37 The first questions that emerge for a judge to decide are whether the claimant has failed to take reasonable care, and if so, whether that failure to take reasonable care caused the claimant to suffer damage that also is partly the result of the wrong of another person. The relevant type of "failure to take reasonable care" is still that described in Astley v Austrust Ltd (1999) 197 CLR 1 at [30], in explaining the pre-2000 version of the statute, namely: "failing to take reasonable care of his or her person or property." In the context of the present case, it is the First Respondent failing to take reasonable care for her own safety." 338On the evidence, I am satisfied that it has not been established that in 2004 and 2005 Ms Oyston failed to take reasonable care for her own safety. There was unquestionably repeated complaint made in 2004. While Ms Oyston herself made no further complaint in 2005, given the complaints she had made at the end of 2004 and the College's failure to act or monitor her, notwithstanding what its own policies and good practice required be done, that the harm Ms Oyston suffered in 2005 was the result of, or contributed to, by Ms Oyston's failure to make further complaint, may not be accepted. In 2005 the College failed to respond to the abundant information which it already had. It then also received further complaint from Mrs Oyston, to which it also did not respond. On the evidence Ms Oyston's capacity to make further effective complaint was questionable. Her worsening condition, of itself should have provided the College with ample notice of her ongoing problems, which remained unaddressed from 2004. DAMAGES 339The damages claimed were: "1. GENERAL DAMAGES $200,500.00 2. EARNING CAPACITY 2.1 PAST $39,000.00 2.2 PAST SUPERANNUATION $4,290.00 2.3 FUTURE $201,960.00 2.4 FUTURE SUPERANNUATION $22,215.60 3. DOMESTIC ASSISTANCE Claim is made by way of general allowance $30,000.00 5. TREATMENT 5.1 PAST $3,876.30 5.2 FUTURE $37,942.60 TOTAL $539,784.50" Non-Economic loss 340The award of damages for non-economic loss is governed by s 16 of the Civil Liability Act . 'Non-economic loss' is defined as: " non-economic loss means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement." 341No damages may be awarded under this head unless the severity of the non-economic loss is at least 15 % of the most extreme case. A table prescribes the amounts that may be awarded in respect of such loss, proportionate to the most extreme case. 342It was argued for the College that if its case that no award on this basis would be made was not accepted, that an award no greater than 20% of a most extreme case would be entertained. It was also submitted that there should be an apportionment of any damage, because it had been shown that some of the harm Ms Oyston suffered occurred when there was no negligence on its part; some of her symptoms related to familial issues; and some symptoms and vulnerability were the result of the distinct event described by Ms Oyston as having occurred in 2007, after she had left the College. It was accepted, however, that to the extent that it was concluded that Ms Oyston had a future vulnerability to psychiatric disorder because of the erosion of her psychological resilience, as the result of its negligence, that had to be taken into account in determining the award to be made. 343The defendant submitted that this was a case where the principles discussed by Basten JA in State of New South Wales v Burton [2006] NSWCA 12 had to be applied. There his Honour dealt with an argument that once it was established, as a matter of probability, that a failure to provide early psychological intervention materially contributed to a psychiatric condition, the respondent was entitled to recover damages for the full extent of that condition, unless the appellant was able to demonstrate, with a reasonable degree of precision, the extent to which his condition was the result of a pre-existing factor, for which the appellant was not responsible. The appellant's case was that the respondent had lost an opportunity which may have reduced the severity and duration of his condition, but there was no evidence that its failure to provide early psychological intervention had caused the condition or indeed necessarily contributed to it in any particular degree. 344Basten JA discussed the difficulty of reconciling the application of the principles stated in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at 160 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168 and those in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, as explained in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [101] - [112]. His Honour identified a number of basic principles, to be used to evaluate the parties' conflicting positions (at [71] - [75]): - 'First, although it is sufficient that tortious conduct of a defendant materially contributes to an injury suffered by the plaintiff, there may be other causes and, in assessing loss, there are circumstances where it is appropriate to visit on the defendant liability for a proportion only of the loss suffered.' - 'Secondly, contributing causes may occur in a sequence, or have a continuing concurrent operation at the time the injury is suffered. Where they operate sequentially, the defendant may be liable for the whole of the loss suffered'. - 'Thirdly, according to the 'egg-shell' skull principle, the defendant will take the victim as she or he is found, and will bear the full extent of the loss suffered, even if the injury is more severe than would have been the case with a person within the normal range of physical or mental attributes. On the other hand, it may be necessary to make allowance, in diminution of the defendant's liability, for harm which would at some stage have been likely to occur in any event, sometimes expressed as a variation of the egg-shell skull principle, namely the 'crumbling skull' principle. This was explained by Major J in the Canadian Supreme Court in Athey v Leonati [1996] 3 SCR 458 at [35]: "The so-called 'crumbling skull' rule simply recognises that the pre-existing condition was inherent in the plaintiff's 'original position'. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage ... ." This is, perhaps, merely a colourful way of expressing the principles established in Australia in Watts , Purkess and Malec .' - 'Fourthly, where it is appropriate to apportion loss, that can only be done if the injury is in some sense divisible.' - 'Fifthly, where a plaintiff proves that tortious conduct materially contributed to his or her injury, an evidentiary onus will lie on the defendant to establish that other causes, including both concurrent causes and pre-existing, but on-going, conditions, also materially contributed.' 345Basten JA concluded: "76 In Purkess v Crittenden at 168, the Court spoke of the burden on the defendant to disentangle the extraneous condition "with some reasonable measure of precision". In relation to psychiatric conditions, precision, in any scientific sense, tends to be an aspiration rather than a reality. In keeping with the principle stated in Watts and Purkess , the evidence relied on by the defendant must demonstrate a substantial likelihood, rather than a speculative chance. As Barwick CJ stated in Purkess : "That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence." 77 The real issues are when apportionment is deemed appropriate and how it is achieved. As noted by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.11] the relevant principle was concisely stated in Savini v Australian Terrazzo & Concrete Co Pty Ltd [1959] VR 811 (Full Court). At 821, Sholl J identified the relevant context as that where - "the loss is ultimately shown to be distributable between two actual causes - first, the defendant's tortious conduct, and, secondly, an act of God or other event for which the defendant is not responsible. Damage flowing from two sources has joined, so to speak, to form one stream, but if it is found still to be possible to measure the respective volumes of the components the law will take notice of the measurement and treat them as distinct. Otherwise, it will not; for it does not lie in the mouth of the defendant to say that, although he originated one stream of damage, its inseverable admixture with another means that none can be traced back to him." " 346The onus fell on the College to establish that Ms Oyston had a pre-existing condition or that it was an injury, which she would have suffered in any event. I am satisfied that this was not established on the evidence. 347Mr Benad's assessment in 2005 was that while at the College, Ms Oyston came to suffer from an adjustment disorder. He treated her, with the result that he came to the view that she had recovered by 2007; a view Dr Apler and Dr Phillips accepted, as I have explained. Dr Phillips regarded her symptoms to reveal a major depressive disorder. Those symptoms resolved, but Ms Oyston's account of her ongoing problems were being afraid of the dark; having ongoing nightmares about people trying to hurt her; being sensitive to criticism; being nervous in crowds; being uncomfortable in shopping centres and tending to avoid such places; being vigilant to dangerous situations, avoiding parties, nightclubs and drunken or violent people; a habit of biting her lip; and suffering from mood swings. 348That these were all the consequence of other stressors to which Ms Oyston was subjected, including that to which she was subjected in 2007, rather than the College's negligence, was not established. 349Her problems with bullying resolved when she left the College. There was no evidence that all of her other problems also resolved. Ms Oyston's condition improved over time, with treatment, to the point where she had recovered by 2007, when she left school. There was a further serious stressor to which she was later subjected, but another recovery. These are matters which must be taken into account, in assessing damage, but do not leave to the conclusion that the cause of the injury to which Ms Oyston succumbed while at the College, was not the result of its negligence. Nor can I see how the contributions to that injury can sensibly be untangled in this case. On the evidence I am satisfied that the onus which fell on the defendant in that respect was not met. 350What must thus be determined is whether the severity of Ms Oyston's non-economic loss is or is not at least 15 % of a most extreme case. I have no difficulty in finding that it is, albeit not significantly greater than the statutory minimum. Ms Oyston's adolescence was seriously affected during 2004 and 2005. She had to repeat year 9 at her new school. With treatment she improved to the point where there was no longer any need for ongoing treatment. I accept, however, that the evidence shows that while she recovered, she has a future vulnerability to psychiatric disorder, because of the erosion of her psychological resilience. 351Having considered all of the evidence I have concluded that there can be no apportionment as the College sought, but that its submission that non-economic loss of no greater than 20% of a most extreme case was established, must be accepted. Past Economic Loss 352Ms Oyston claimed an award for past economic loss on the basis of one year's total loss of earnings, resulting from the need to repeat year 9, together with approximately three years of casual and intermittent earnings, followed by another loss of 12 months employment, 353Ms Oyston's evidence was that she had originally intended to complete her HSC; to engage in tertiary studies and to become a lawyer. She left school in 2007 at the beginning of year 11. There was evidence that beforehand, Ms Oyston had received adverse notices for not completing assignments, but her evidence was that she did well there, had a good circle of friends and left to take up a TAFE course. Ms Oyston undertook part time work between November 2005 and March 2006. 354From early 2007 to July 2007 she worked four or five hour shifts over four days per week in a pharmacy; employment which she left because she did not like the working environment, which required her to deal with methadone users, and did not get on with her boss. It was in April 2007 that she was subjected to another serious stressor, unconnected with the College or that employment. She took up an 18 month TAFE course in tourism in July 2007, which she did not complete. In January and February 2008 she worked full-time as a shop assistant. 355From September 2008 to November 2009 she worked as a swimming instructor working 6.5 hours per week. From March 2010, she had employment full-time as a personal assistant. 356Ms Oyston's case was that this work pattern reflected ongoing problems flowing from the College's negligence, including her sensitivity to criticism. But for her injury, she would have been capable of earning the average weekly earnings for all females in New South Wales, currently $680 per week, by comparison to her current weekly earnings of $490; reflecting a difference of $190 per week. Past loss of earnings should thus be awarded at the sum of $250 per week, for the four years since she had left school, that being a higher sum than that earlier specified. 357The defendant's case was that Ms Oyston had not established that her earnings in the past were the result of any negligence on its part. Nor did the evidence establish a basis on which any past economic loss could be assessed. There was no evidence of academic performance which readily suggested capacity to undertake tertiary studies, notwithstanding a stated ambition to study law. The calculations based on average weekly earnings paid no regard to Ms Oyston's inexperience as a worker, let alone in the work she was undertaking as a personal assistant at the time that she gave her evidence. Given her age and inexperience, it would be expected that she would earn less than the average person. 358I accept that an award for past economic loss on the basis of one year's loss of earnings, has resulted from the need to repeat year 9 at her new school. That figure should be calculated at Ms Oyston's earnings of $490 per week in her full-time work as a personal assistant, rather than the higher rate of average weekly earnings for all females, given her age and inexperience. The evidence establishes her capacity for work of that kind. Otherwise, I am not satisfied that it was established that the loss claimed was the result of the negligence established. 359In March 2010, Ms Oyston took up employment as a personal assistant. There was no evidence from which it could be concluded that the rate which she was paid for that work, or the other work which she had previously undertaken, did not properly reflect her age and experience in such employment. There was no evidence from which it could be concluded that but for the injury which she suffered in 2004 and 2005, she would have been capable of earning income at the rate claimed, having in mind her age and experience at that point of her life. 360The evidence also did not establish that her leaving school, or her intermittent earnings afterwards until she took up her present full time employment, was the result of the College's negligence. To the contrary, the evidence suggested that by the time she left school she had recovered from her injury, albeit being left vulnerable to further injury. She took up employment which she continued until she commenced the TAFE course. This work ceased when she went to TAFE in July 2007. She seems to have worked full-time during the TAFE holidays. From September 2008 to November 2009, she worked only very short hours as a swimming instructor. She was then involved with caring for her brother's child. That her interrupted working life for that period prior to her full-time employment as a personal assistant was as the result of the College's negligence, as opposed to the result of the further stressor to which she was exposed in April 2007, or other factors, was not established. Her evidence was that this event affected her ability to work for some months. Future Economic Loss 361Section 13 of the Civil Liability Act provides: "13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 362Ms Oyston's case was that the evidence established that in future there was a real likelihood (assessed to be in the order of 60-75%) that she was likely to be incapacitated from time to time with moderate depression and anxiety, which would prevent her from working or cause the termination of her employment or resignation. She had difficulty dealing with criticism and might face further hospitalisation, which would have a snowballing effect, creating difficulty in her obtaining and retaining further employment, which would all result in substantial loss of earning capacity and pecuniary loss. This submission finds support in Dr Phillip's opinion that Ms Oyston's injury as an adolescent, a crucial time in her adolescent development, has left her in a position where she may in future succumb to further life stressors which she may encounter. There was tendency for such a disorder in women to worsen with each episode, which could become chronic and last for years. 363Ms Oyston has a working life of 44 years ahead of her and thus, it was submitted, the award on this head had to be substantial. The award should be based on average weekly earnings, but had to factor in that Ms Oyston may have been capable of earning a greater amount and may from time to time be deprived of the opportunity to work. It was argued that a substantial award was thus warranted by way of a buffer, in accordance with s 13 of the Civil Liability Act as discussed in Penrith City Council v Parks [2004] NSWCA 201 (at [5] and [58]). 364For the defendant it was submitted that the mere availability of a buffer, did not relieve the Court from undertaking the s 13 process. A figure of $200,000 could not be plucked from the air. Assumptions had to be identified, which represented Ms Oyston's most likely future circumstances. That identification had not been attempted for Ms Oyston. 365A figure of $200,000 reflected a weekly loss of $211, without making any allowance for vicissitudes. That allowance reflected a weekly figure of $250 with a 15% reduction, throughout the plaintiff's working life on the basis of a comparison between present earnings and the average of all earnings, without taking account of possibilities such as the statistical likelihood that Ms Oyston would have children and then be out of the workforce, or the likelihood that her earnings would increase with expertise. 366The approach urged also failed to pay attention to matters such as her academic record; Ms Oyston's youth and inexperience when she initially took up employment; paid no attention to her failure to pursue tertiary studies; or to the possibility that she might have periods of time outside the workforce, when having children. 367In Amoud v Al Batat [2009] NSWCA 333 Basten JA explained the process which the calculation of damages in accordance with s 13 requires as: "23 It is clear that the section is not a code, but assumes the continued operation of general law principles. Whether it merely encapsulates, rather than qualifying, the general law, and if the latter to what extent, is less clear. Subsection (1) is formulated as a prohibition on an award of damages for future economic loss, unless its terms are satisfied. The section imposes a burden of proof on the claimant to satisfy the court as to the matters identified in the provision. Those matters are twofold, namely: (a) the claimant's most likely future circumstances but for the injury, and (b) the assumptions about future earning capacity (and other events) which will form the basis of calculation." 368The evidence as to Ms Oyston's most likely future circumstances but for the injury includes material which shows that Ms Oyston never excelled at school, before or after 2004. An interest in pursing a legal career was referred to in her evidence, but a capacity to do so, was not established. She left school before she had completed her Higher School Certificate. She pursued, but did not complete her TAFE studies. She intends to complete her studies in future. She engaged in various part-time employment, which she did not find congenial. She has difficulty in dealing with criticism. She was working as a personal assistant, without seeming difficulty, when she gave her evidence, albeit Dr Phillips was of the view that such work could present her with certain challenges. Dr Apler, who had seen her more recently, did not share that view. 369I am satisfied that it was not established that Ms Oyston's pre-injury earning capacity would have been at a highly skilled level, such as would have resulted from completion of studies which would have permitted her to practice law. I am, however, satisfied that her capacity would have permitted her to achieve average weekly earnings. 370As to assumptions in relation to Ms Oyston's future earnings, account must be taken of the evidence as to her current position and earnings; her intention to complete her studies, which will enable her to pursue other work; that with increased age and experience at work, her earnings will increase; and the real possibility that she will achieve promotion, given her character and the resilience which she has shown in the past. In my assessment the evidence supports the view that there is a real prospect that Ms Oyston will in future achieve average weekly earnings. That there is an increased vulnerability to further injury in the future, which will have a negative impact on her earnings, also has to be taken into account. 371I accept that it must follow that a modest buffer of the kind discussed in Penrith City Council v Parks must be awarded. Assessments such as these are always difficult, particularly in the case of a person injured before they have embarked on working life. Account must also be taken of vicissitudes. Doing the best I can, I have assessed that buffer at $50,000. 372That figure takes into account the following considerations in relation to her future earning capacity: that given Ms Oyston's age, that it will take some years before she achieves average earnings; that her wages are likely to increase to that level at some point; that she is likely to have time out of the workforce, as the result of further injury to which she has been rendered more susceptible by the College's negligence; that this will have a negative impact on her ongoing earnings and earning capacity; that some account must also be taken of the likelihood that she may also take time out of the workforce, even on a part time basis, while she completes her studies or has children; and that otherwise, she is likely to work to age 65. Domestic assistance 373Section 15(2) and (3) of the Civil Liability Act provides: "(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months." 374No need for past or future domestic assistance, let alone at a level sufficient to meet the statutory threshold, was established on the evidence. There can be no award of damages on this basis. Treatment 375There was no issue in relation to the past treatment claim. 376As to future treatment, any award must reflect Ms Oyston's reasonable future needs (see for example Barwick CJ's discussion in Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 661). The experts were divided in their views as to this. Given the nature of the injury suffered and what was revealed in the expert's concurrent evidence, it is clear that there can be no certainty as to Ms Oyston's future needs, nevertheless an assessment of what her future reasonable needs may be, must be made. 377When they gave their concurrent evidence, Dr Apler was left with uncertainty as to Ms Oyston's psychological response to future events, but did not consider that she had present treatment needs, given what he observed in 2009. Dr Phillips believed that she remained vulnerable; it was moderately likely that she will suffer a relapse, particularly if faced with substantive future stressors; but that it was virtually impossible to provide a firm answer as to future treatment needs. That would depend on the extent of any psychological disturbance and the diagnosis then made. 378For Ms Oyston it was finally submitted that an allowance should be made on the basis of the costs identified in Dr Phillips' reports. In August 2008, he recommended 10-15 sessions of cognitive behavioural therapy and then monthly follow up for a year and then second monthly follow ups until she was symptom free. In December 2008, he said that treatment would help her to deal with any further episodes of a depressive disorder, in which event she would require treatment for a subsequent, rather than first illness, when weekly consultations of 20-25 sessions, with monthly follow ups for a year would be required, perhaps together with medication. That Dr Apler, found her to be symptom free in 2009, must also be considered. 379Again, doing the best I can, I have concluded that having in mind Ms Oyston's evidence as to her situation when she gave her evidence at the hearing; the evidence as to the treatment which Ms Oyston received from Mr Benad; what occurred in April 2007 and the treatment then received; and what Dr Phillips and Dr Adler respectively observed when they saw her, that an award on the basis that Ms Oyston has a present need for further treatment was not established. I am also satisfied, however, that there is a real possibility that a need for further treatment may arise again in future, which must be reflected in an award, albeit of a relatively modest kind. Accordingly I have concluded that Ms Oyston must be awarded a sum which reflects 20-25 sessions of psychotherapy, with monthly follow ups for a further year and second monthly follow ups for a further year. The cost of this psychotherapy is to be at the rate identified in Dr Phillips' December 2008 report, as being charged by psychiatrists. Superannuation 380Superannuation on the amounts awarded for past and future economic loss must also be calculated. ORDERS 381The usual order as to costs would be that they follow the event. In the event that the parties wish to be heard on costs, they should approach. 382For the reasons given, the orders I make at present are: (1) Verdict for the plaintiff. (2) The parties are to bring in short minutes reflecting the conclusions and findings I have come to. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2011