Case Update: AYW v AYX [2015] SGHC 312 – tort of negligence, school prevent bullying

Significance: High Court held on the facts of the case that a school had no duty of care to prevent its student from being bullied by way of ostracisation and name-calling.

It is well–established that to prove liability in the tort of negligence, a plaintiff must show that the defendant owed it a duty to exercise reasonable care in the specific factual situation alleged. That is to say there has “to be recognition by the law that the careless infliction of the kind of damage in question on the class of persons to whom the plaintiff belongs by the class of persons to which the defendant belongs is actionable”. Once a duty is established on the facts, it is necessary to show that the defendant breached the duty of care by failing to meet the standards of care expected by the law, that the breach caused loss to the plaintiff, and that the loss is not too remote to be recoverable: [43].

To say that a defendant owes a plaintiff a duty of care in a particular factual situation, the circumstances must be such that the defendant owes the plaintiff a duty to exercise reasonable care to avoid carelessly inflicting particular type(s) of damage on the plaintiff. By contrast, if a duty of care does not exist, a party can do as he pleases and will not attract legal liability even if he carelessly inflicts loss on another: [45].

It bears emphasis that the duty of care in negligence is always framed generally as a duty to take reasonable care. What amounts to taking reasonable care depends on the facts and circumstances of the case. The particulars of the alleged failure to take reasonable care can vary from case to case. In short, it would usually be misconceived to speak of duties to act in particular ways in framing the duty of care owed: [46].

Rejecting Thio Shen Yi SC’s attempt at rationalising the issue of duty of care through Immanuel Kant’s universalizability test, the court stated that the duty question is concerned with the general nature of the relationship between the parties, and asks whether a duty to take reasonable care exists in that type of relationship; or put another way, whether the nature or kind of relationship requires that care be taken. Relationship is used here in a broad sense. It does not mean that a duty of care only arises where there is some pre-existing specific relationship between the parties. It goes without saying that once the existence of a duty is found to exist in law, the scope of the duty will depend on the particular circumstances of the relationship: [47].

This does not mean that there can be no particularity when framing the duty of care owed. While it is contrary to the structure and spirit of the tort of negligence to set out the specific conduct required by a defendant in the formulation of the duty of care, the law does on occasion limit the scope of the duty of care with reference to, inter alia, the class of plaintiffs, the class of defendants, and the type(s) of injury to avoid. Much depends on the specific factual situation the parties find themselves in: [49].

Thus, while it is wrong to frame the duty of care owed as a duty to act in a specific way, it is often also inappropriate to frame the duty of care in excessively broad terms. How is the scope of the duty of care owed in a particular situation defined? As noted in the Court of Appeal’s leading decision Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”) at [30], “legal control mechanisms” such as reasonable foreseeability, proximity and public policy define the scope of the duty of care owed, and serve the purpose of limiting liability. Spandeck established that the general approach to determining if a duty of care is owed in any given situation is to consider whether the threshold requirement of factual foreseeability of harm is satisfied (at [75]–[76]), and if it is, whether there is sufficient legal proximity between the claimant and defendant (at [77]) and whether there are public policy considerations which negate the imposition of a duty of care (at [83]–[85]): [50].

While factual foreseeability has been variously described as a “threshold requirement” or a requirement that is pitched at “a low threshold” (Gary Chan at para 03.046), it is not to be treated as a mere formality. Even though it may be thought that at the threshold stage, the enquiry should simply be whether the damage to the relevant class of persons resulting from a defendant’s act or omission is factually foreseeable, later cases support the view that even at this step, it may be appropriate to delve into the specific facts of the case: [51].

Only if a duty of care is established on the facts, does the question of a breach of the duty and the failure to exercise reasonable care arise. At this stage of the analysis, the court may then consider whether the defendant’s failure to act in a particular manner amounts to a breach of the duty of care. If no duty of care is owed on the facts, the defendant simply cannot be held liable in negligence, no matter how careless he was: [52].

The Spandeck approach is to be taken in all cases, irrespective of the nature of the damage caused. Factual foreseeability is treated as a threshold requirement. Establishing factual foreseeability is the foundation stone for the next step (which is often described as the first stage) namely whether there is sufficient legal proximity between the parties. Factual foreseeability is not in itself sufficient. Factual foreseeability does not have normative force: Gary Chan at para 03.038. Determining whether there is legal proximity depends on a range of factors, including physical, circumstantial and causal proximity, as well as any voluntary assumption of authority and reliance. Once there is a finding of factual foreseeability and legal proximity, a prima facie duty of care arises. Policy considerations (if any) are then brought in at this stage to determine whether the prima facie duty should be negated: [54].

On the facts, certain sub-paragraphs in the plaintiff’s statement of claim was struck out by the court on the grounds that they are framed as a duty to act in particular ways: [57].

It is incontrovertible that a school does owe its students a duty of care in law. However, the exact contours of the duties owed by a school have not been precisely defined in Singapore. Important questions such as whether a school owes a duty to protect students outside school premises, outside school hours, or from acts by persons who are no longer students at the school arise. Moreover, given the prevalence of social networking websites and online platforms such as blogs, important questions as to the school’s duty to protect its students from harm that may be perpetuated via the internet arise as well. This is especially when the school may have little, if any, control over the activities on the internet, especially after school hours or of persons who do not belong to the school: [69].

What is clear, however, is that a school does not have a duty to take reasonable care to protect its students from all types of harm, no matter when, where and how the harm is caused. It cannot be assumed that whenever some form of harm or loss befalls its students, the school automatically owes that student a duty to exercise reasonable care in respect of that “harm”: [70], [76].

In the present case, the threshold question is whether it was foreseeable that the plaintiff would suffer any actionable damage as a result of the School’s alleged non-intervention in the conduct of her peers. Having considered the plaintiff’s pleaded case, even taking it at its highest, and assuming all the facts therein can be proven, the court did not think that it was foreseeable that any actionable damage would result from the various acts of “bullying” pleaded (whether individually or collectively). Foreseeable unhappiness and anguish is not enough. What is required is foreseeable harm that is recognised by the law (ie, personal injury, psychiatric injury, property damage, or economic loss): [81].

Even taking the conduct all together, it is not foreseeable that the plaintiff would suffer from any sort of physical or recognised psychiatric injury from the “ostracisation” and name calling she faced. It is entirely unforeseeable that any actionable damage would be caused by such ordinary, non-threatening student exchanges. As such, because it was unforeseeable that any actionable damage would be caused by the pleaded bullying, the court found that it is plain and obvious that the School did not owe the plaintiff a duty to intervene to protect her from what was going on, or to stop the students from criticising her in the manner pleaded. If the School decided to intervene proactively by counselling the students and calling meetings etc, that is a matter of school governance: [88], [89].

The court accepts that ostracisation and mocking and critical comments both online and offline of a sufficiently persistent and severe nature may on some facts justify school intervention not simply as a matter of school governance but as a matter of law (duty of care and tort). It is all a matter of degree. While this uncertainty would in most circumstances justify a trial to determine what exactly happened, this case is relatively “unique” in that the pleaded case, even taken at its highest, reveals nothing more than a few critical comments from a few unhappy peers, most of which was not even expressly said for the plaintiff to hear. The conduct as pleaded and claimed by the plaintiff was not of an intensity, gravity or persistence to disclose even a remote basis of an actionable tort such as to justify a full trial: [90].

Separately, the court noted that it has not been authoritatively decided whether a claim for aggravated damages is available in principle in respect of a negligence claim: [117]. It is not entirely impossible to have conduct that is both careless (negligent) and intentional (see Emblen v Myers (1860) 6 H & N 54). As noted by the learned authors of Charlesworth & Percy at para 1–26, negligence may arise even where the damage complained of has arisen from some wilful or intentional act. This may cast some doubt on whether there ought to be an absolute legal bar against awarding aggravated damages in a negligence claim: [119].

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