Rhona Wands v Fife Council - 5 August 2009, Sheriff G A Way
(Kirkcaldy Sheriff Court)
This sheriff court action concerned the emotive subject of
bullying at school, increasingly a cause of litigation. The pursuer
sought damages for the injuries she sustained to her health, both
physically and psychologically, as a result of persistent bullying.
It had commenced in pre-school and continued through primary and
secondary school. She also maintained that the bullying lowered her
level of educational attainment.
She alleged that the defenders had breached their duty of care
towards her, and were vicariously liable for the failings of the
teachers in the course of their employment at the various
educational institutions she had attended. In consequence, she
alleged she had suffered a loss of employability. The question for
the court was, had the pursuer brought a relevant case?
The pursuer alleged she had been subjected to a systematic
course of persistent bullying, which was physical on occasion. It
commenced as early as pre-school. It had escalated in primary 4
(around age eight). At this stage, the pursuer's parents had raised
their concerns with the head teacher and there had been a number of
meetings with teaching staff but, the pursuer alleged, to no avail.
Instead, the defenders had concentrated upon encouraging the
pursuer to develop coping strategies and to avoid creating adverse
reactions in her fellow pupils. The pursuer alleged that neither
she nor her parents had been made aware of the school's
antibullying policy.
The pursuer started secondary school in 1999. Prior to
commencing secondary school, she and her parents met with teaching
staff and discussed the bullying problem. They even provided the
staff with a list of the children who were identified as the
perpetrators of the bullying. Nevertheless, the pursuer was placed
in a first year class with three of the alleged bullies. The
bullying consisted of taunting the pursuer's accent, mocking her
appearance and ultimately physical assault which included hitting,
pinching, elbowing and kicking. As the bullying increased, the
pursuer's parents escalated the complaints and began to write to
the Education Department directly about the problem. The violent
assaults continued. The pursuer became increasingly reluctant to
attend school and home tuition was required. By the time she
reached fifth year at secondary school, she felt unable to return
and left formal education entirely.
The council painted a very different picture as they alleged
that the pursuer was frequently disruptive and disobedient. She
often initiated conflict. Her attitude alienated others. Moreover,
her parents contributed to the problem. They constantly denied that
she was ever at fault. There were detailed pleadings about the
action which had been taken by the defenders to deal with the
bullying. At primary school, there was a positive behaviour policy.
There were class discussions. There was a yellow/red card system.
There were frequent meetings with both staff and parents. When she
started secondary school, it was alleged the pursuer was disruptive
and insolent to staff. Her parents failed to concede that her
behaviour contributed to the problems. While the defenders admitted
that there had been incidents involving bullying and even physical
assault, they said they had responded to these complaints in a
professional manner and, in particular, had taken the step of
excluding one of the bullies from school.
All in all, the defenders maintained they had done all they
could be expected to do and all that would have been expected of a
responsible educational authority in the circumstances.
Accordingly, they sought dismissal of the action on the basis that
the pursuer was not in a position to lead evidence to allege that
they were in breach of their duty. Reference was made to Hunter
v Hanley [1955] SC 200, which sets out the test for
professional negligence. The defenders contended that there had to
be manifest incompetence on the part of the education authority to
enable liability to be established: they must have acted as no
ordinarily competent authority would have acted, if exercising
reasonable care. The standard was a high one. A further criticism
on behalf of the defenders was that the pursuer did not define
bullying. Moreover, she referred to incidents which had taken place
outside school and, on the basis of an English authority,
Bradford Smart v West Sussex County Council, the defenders
could not be held responsible for any wrongdoing which took place
outside the school gates.
Finally, the pursuer also required to establish that the breach
had caused her loss. The defenders argued that she had no pleadings
to link her physical or psychiatric illness to the bullying and,
moreover, she did not allege that she had a diagnosed psychiatric
illness as a consequence of the bullying.
In reply, the pursuer submitted that the correct test of
liability to be applied was the well known tripartrite test
discussed in cases such as Caparo Industries plc v Dickman
[1990] 2 AC 605 and Gibson v Orr [1999] SC 420. The three
essential ingredients for a claim in negligence were foreseeability
of harm, proximity between the parties and that in all the
circumstances the imposition of liability would be fair, just and
reasonable. In the present case, the pupil/school relationship
satisfied the requirement of proximity and, she said, the other two
requirements were also amply met. In particular, the defenders not
only should have foreseen but actually did foresee the risk that if
the pursuer suffered serious trauma because of bullying, this might
trigger problems with her mental health and educational
development.
After considering the submissions, the sheriff permitted the
case to proceed to a hearing of evidence. Against the background of
such a sustained campaign of harassment, it was inappropriate to
look at each individual incident. Reference to standard policies
and strategies was not appropriate where to the knowledge of the
defenders, the pursuer had been placed under severe stress by a
number of bullying events. The defenders were aware of her
difficulties and were obviously failing to address them. The
sheriff compared the situation to a failure to deal with a dyslexic
pupil such that their special needs were appropriately addressed.
Failing to address bullying was no different. The question of
whether the school had properly implemented its elaborate policies
to deal with bullying was a question of fact which would require
evidence to be led.
The case is helpful in confirming that Caparo sets out the test
to be applied in such circumstances. Despite a number of
justifiable criticisms of the pursuer's pleadings, the sheriff was
obviously reluctant to dismiss the action and thought it essential
that evidence be led. The decision is a useful rehearsal of the
relevant case authorities and provides both solicitors and insurers
with helpful guidance as to how the courts perceive such claims and
what legal tests require to be met by a pursuer in her pleadings in
order to proceed to trial.
Contributed by Lynne Macfarlane