Your duty of care to bullying victims

A young middle-school pupil alleged that she had been constantly bullied at school, on the school bus, and on the estate where she lived, by the same group of bullies.

Her mother sued the school for negligence, alleging that it had breached its duty of care by failing to prevent the bullying, which had resulted in her daughter suffering post-traumatic stress disorder.

The High Court judge who heard the case defined bullying as "conduct which intentionally caused hurt, either physical or psychological, which was unprovoked and which persisted over time". He accepted that the alleged bullies were pupils at the same school, and lived on the same estate, as the plaintiff. However, he held that the episodes of bad behaviour in school did not form a "pattern of bullying", and that name-calling on the bus did not add up to "the targeted and persistent nature required to constitute bullying".

He also said the school did not owe a duty of care to the pupil for the out-of-school bullying , since it had little power to intervene. The mother appealed, and earlier this year the Court of Appeal agreed with the High Court that the prime responsibility for children outside school lay with parents.

However, their Lordships took a wider view of schools' disciplinary jurisdiction. There might be times when a school's failure to take action to protect pupils outside school could constitute a breach of the duty of care, though these would be rare.

It is clear that courts now expect schools to have robust anti-bullying policies and procedures. As in all issues of health-and-safety, managers must consider how best to minimise risks of bullying through supervision, protection and training. Schools are only likely to be liable if plaintiffs can identify a positive breach of this duty, which led directly to the injury suffered. Heads should review bullying policies and practices to ensure that all staff are clear about them.

The Department for Education and Skills has a helpful circular on challenging bullying. Refer to DFEE Non-Statutory Guidance 64200: Bullying - Don't Suffer in Silence - An Anti-Bullying Pack For Schools, and Bradford-Smart v West Sussex Council (2002).

Chris Lowe is honorary legal consultant to the Secondary Heads Association and editor of Croners' School Governors Manual

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