Bullying: Liability of schools

A SHOCKING statistic was rolled out by the deputy education minister last week: 3,448 bullying cases in schools in 2016. A staggering leap from the previous year. The Education Ministry seems to have known of these for a while; it disclosed the tally from 2013. Identified too were more than 400 schools with such serious disciplinary problems.

That bullying has, and can, lead to disastrous consequences shouts out to us from the daily news. At the lowest level, psychologists speak of the terrible trauma young children go through – which can scar them for life. Unless arrested, some educationists say, the 3 Rs will come to represent "rogues, ruffians and rascals" – instead of the reading, writing and arithmetic expected as a school's output.

Even worse, is the situation where students board. Punishment meted out to residents has resulted in injuries so severe as to cause an amputation of a student's legs. The recent tragic deaths of eight orang asli children escaping the wrath of a potentially severe punishment is still fresh in our minds.

Alarming? Perhaps. But surely this calls for urgent remedial action. And hold accountable those in authority who turn a blind eye; or are ill-equipped to staunch the problem.

Who then can be held liable?

Let me tell you of a true related story – the case of seven borstal boys in England who were working on an island. They were under the control and supervision of three officers. One night the boys left the island. They damaged rather badly an expensive yacht moored nearby.

The yacht owner brought an action against the ministry in charge. There was not much point suing the boys – they were penniless.

The ministry's lawyer argued as follows: that the ministry owed no duty to the boys and their action. Its duty was no more than to rehabilitate young delinquent children. In particular, a person was under no duty to control another so as to prevent that person from doing damage to a third party. Also, public policy militated against imposing any duty on the authorities. There was no justification for imposing on the authorities of the institution a responsibility for controlling the actions of the boys.

The House of Lords held the ministry liable on the grounds that:
The damage arose from the carelessness of the officers in following their instructions to keep the boys in their custody and control; and
The escape by the boys and their taking and damaging the yacht ought to have been seen as likely to happen.

In another case a school authority was held liable because the teacher supervising a young child had to attend to some matters; she was not wrong to do so. A child went out of a gate that was not locked, and onto a road where an oncoming motorist was killed when he swerved to avoid the child. The school was held liable.

All this on the basis that the damage was reasonably foreseen. And, the duty of care is owed to anyone who suffers damage as a result.

So how would this apply to the bullying case? The disclosure by the authorities shows that they know that bullying is prevalent. No doubt the school teachers and authorities are there to teach. But they also have the super-added duty to ensure the safety of the child while at school. This would include not only physical but mental harm as well. For so long as the bully is within the confines of the school and, notionally, under the control of the school authority – teachers and the school management and ultimately the ministry must provide against this happening.

Their obligation would extend to monitoring, tracking and reporting instances of bullying. And putting in place adequate measures to check specific instances as well as prevent their occurrence. If they fail and the child suffers physical and provable mental harm, they would clearly be liable.

The situation is exacerbated where a complaint is lodged of the bullying by a parent and the school does nothing. Or gets a staff, untrained in dealing with such matters, to deal with the problem. That is, its measures are wholly inadequate.

Liability would also extend to bullying by teachers – for inflicting physical or mental harm to the child. In all these cases, the school authority – from the teacher involved, the school management and ultimately even the ministry – could be liable for failing to measure up to their duty of care.

Incidentally, the bullying phenomenon is not confined to public schools. It is just as prevalent in private "not-for-profit" as well as "international" schools.

Finally, the ministry should institute long term measures to deal with this serious social problem, alongside a study of the causes of bullying. In this context, the proposals by the former vice-chancellor of Universiti Sains Malaysia are instructive (see "Keeping our teenagers safe" – My View, June 21).

These include: investing adequately in implementing security and safety measures; providing relevant training and awareness to teachers and other staff; and imparting sufficient knowledge for teaching the art of "living together" – in particular an ability to cope with any untoward aggression as part of living skills.

Schools too have a significant role to play – especially "private international" ones. With the huge fees they charge, surely, they could garner sufficient financial resources to implement these measures. After all, it will be to their advantage to get rid of bullying in their schools resulting in not only a higher intake because parents are attracted to a "safe" school, but also avoidance of any future liability.

Gurdial, former law professor, is now a consultant. Comments: letters@thesundaily.com