Remedies for bullying

by Simon Mitchell – 2003

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Once bullying has occurred, the primary issues for victims and schools alike are accountability and prevention.

Accountability deals with the failure of the school to meet its baseline legal and ethical obligations. The remedial accountability options for victims are outlined under "Legal accountability" below.

Unfortunately, legal accountability amounts to an 'ambulance at the bottom of the cliff' approach. It doesn't prevent the harm recurring. Practical preventative strategies that minimise repetition of bullying and maximise risk management for schools would enhance their meeting of legal and ethical obligations to students and employees alike.

The most effective ways of changing the culture of cruelty that bullying represents are the practical preventative measures outlined below.

Legal accountability

a) Breach of statutory duties under health and safety legislation

Prior to the HSEA being amended in 2002, the financial consequences for employers found in breach of their duties to employees were not significant. The average fine under the Act was $6196.

Penalties against employers were increased to a maximum fine of $500 000 and/or 2 years' imprisonment where an employer has acted or fail to act knowing that this was likely to cause serious harm to any person.

Employers could be fined up to $250 000 and/or imprisoned for 3 months where a failure to comply with the HSEA caused a person serious harm. Schools cannot insure or be indemnified against fines incurred under this statute. Boards are now responsible for paying fines from their own funds.

As yet, there have been no cases of prosecutions for non-compliance by schools in relation to the harmful effects of student or teacher bullying. Academic commentators suggest this might change, given the bundle of 2002 amendments. Bodies other than Occupational Health and Safety can initiate prosecutions now. It is possible that in the case of the education sector, a likely body could be the Ministry of Education. It might be more prepared to prosecute hazard and harm experienced by students and teachers as a result of bullying. It is suggested that:

... in the future, schools are more likely to find themselves held accountable under the HSEA than in the past, in relation to student safety … for failing to take all practicable steps to protect students from bullying.

This remains to be seen. It should also be noted that prosecution does not bar schools from being liable for exemplary damages.

b) Breach of duty of care

1. Compensatory damages

Breach of duty of care and mental injury

Bullied students and teachers who suffer personal injury can achieve compensation for the physical injury under Accident Compensation Legislation. They are barred from suing for compensation in the courts.

Where a mental injury (not arising from physical injury) is caused by bullying, then compensatory damages can be sought for breach of a duty of care. So far, there have been no student or teacher-based bullying cases.

In other contexts, there have been compensatory damages awarded. The leading New Zealand case is L v Robinson. Here, a sexual relationship developed between a psychiatrist and a patient, and she suffered psychological and emotional trauma − a recognisable psychiatric injury as a result of the psychiatrist's breach of duty of care. An award of $50 000 compensatory damages was made.

Compensatory damages for mental injury resulting from bullying have been pursued in the English courts. A number of cases have shown how difficult it is to succeed legally, and how, at times, victory is pyrrhic. Examples of compensatory damages awards are £1500 for failure to protect a student from 18 months of verbal abuse, and £6000 for a year of bullying. The costs of litigation alone must have made these awards largely symbolic.

Breach of statutory duty

Compensatory damages have also been awarded for breach of the HSEA statutory duty to provide a safe work environment. In Attorney General v Gilbert, the employee was awarded $293 951.01 compensation for loss of future earnings and $4035.35 for costs of psychiatric treatment.

However, this award was reduced by 35% because the employee:

did not advise the employer that the work was causing stress
undertook more exposure to stress than was necessary
did not try to change his workload
did not communicate effectively with his supervisor.

Employees will find that a failure to 'help themselves' will impact financially on any awards made.

2. Exemplary damages

In New Zealand, ACC does not stop the courts awarding exemplary damages in personal injury cases. This is because these damages are punitive, and aimed at punishing the conduct of the offender. They are not intended to compensate for the injury. Awards are reserved for 'truly outrageous conduct', which cannot be adequately punished in any other way. By definition, these are rare cases.

It is arguable that a victim of extreme bullying resulting in physical and/or psychological injury could sue for these damages if an outrageous breach of a duty of care was proven.

The leading case of exemplary damages is Bottrill v A. It deals with the health harm consequences of a Gisborne pathologist's misreading a large number of slides of cervical smears over many years. Here, the Privy Council stated that if there is a negligent breach of duty of care and the civil wrong is outrageous, then the courts have the discretion to award damages to punish the outrageous conduct.

The Privy Counsel established that the outrageous conduct did not need to be intentional or consciously reckless. Judges have often used these words to describe the type of behaviour that merits exemplary damages: "malicious, vindictive, high-handed, wanton, wilful, arrogant, cynical, oppressive, and contumelious disregard of the plaintiff's rights".

In terms of school bullying, if a court finds a civil wrong (breach of duty of care) occurred and the bully behaved outrageously towards the victim, exemplary damages awards could be made against a school.

Alternatively, the threat of litigation − especially where a civil jury trial is appropriate - could result in a settlement for the victim without the stress of litigating the matter. In a recent paper on exemplary damages presented by Ailsa Duffy QC, this senior litigator stated the importance of civil jury trials in exemplary damages claims, because jury trials can put defendants under pressure to settle. "In circumstances where a jury is being asked to assess exemplary damages, practitioners are nervous about how a jury will react."

Courts are extremely reluctant to make exemplary damages awards and, if made, the small awards can make it difficult to justify the financial and emotional expense of litigation. A recent example was $10 000, with $15 000 and $35 000 awarded in the past.

Litigation costs and the uncertainty of outcome are real accountability issues for employers/schools and students/employees alike.

3, Personal grievance − teachers

Financial accountability for school boards of trustees or boards of governors will result if the Employment Authority finds that there has been a personal grievance.

In the context of stress-related claims for bullying, school employers may be liable for damages available for:

loss of career earnings
lost remuneration
damages for stress, humiliation, and distress resulting from the employer's breach of employment agreement
special damages to cover medical and other expenses
exemplary damages (see above).

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