Parents refuse to pay private schools fees due to bullying

What happened?

Mr. and Mrs. Romeo’s son attended Wesley College in Western Australia between 2008 to 2011. It was alleged that during this time, their son was bullied by his peers, including ridiculing and name-calling in front of College staff, who took no action to intervene. It was also claimed their son was bullied and ridiculed on school outings and at school camps when teachers or representatives of the College were present. Once the bullying eventually became known to the parents, the Romeos withdrew their son from the College but refused to pay outstanding school fees. The College brought bankruptcy proceedings against the family, seeking the amount of the unpaid school fees.

The Romeos defended the bankruptcy proceedings in several different jurisdictions, arguing that by failing to properly supervise their son, failing to act on the complaints of bullying, failing to provide a safe environment, and failing to educate their son in accordance with the school’s mission statement, the College had fundamentally breached its contract with the Romeos. The parents alleged that as a result of the substantial bullying suffered by their son, he was not educated to the level of his peers, and this had the effect of limiting his career prospects.

The particulars of the parent’s case were:

• The College had failed to appropriately supervise students at the school premises and on school outings;
• The College had failed to have appropriate bullying prevention policies to prevent and/or reduce the risk of bullying, to act promptly on all allegations of bullying, to take active steps to substantially reduce the risk of bullying;
• The College had to provide a safe environment for students in receipt of education;
• Several complaints were made about the continuous acts of bullying, and the College failed to take the appropriate steps to prevent or reduce the risk of such bullying repeatedly occurring to the detriment of their son;
• There was a complete failure of consideration in relation to the contract to educate the child.

What was the outcome?

Earlier proceedings in the District Court of Western Australia held that the arguments advanced by the Romeos could not succeed, primarily because:

• The bullying did not breach a fundamental term of the contract between the College and the Romeos’ son. The main purpose of the contract was to provide education to the child. An education free of bullying was not an essential or a fundamental term of that contract.
• There had not been a total failure of consideration on the College’s part to provide an education because the Romeos’ son did receive a form of education from 2008-2011, despite the bullying.

The Romeos’ appeal to the Federal Court of Australia was dismissed in March 2016. In the case Romeo v Wesley College (No 2) [2014] WADC 152], the court reaffirmed its stance, ruling that while the school may have had shortcomings in handling bullying, it did not constitute a fundamental breach of contract or a complete failure to provide educational services.

What can schools learn from this case?

Sadly, bullying amongst students in schools is not uncommon. The issue is exacerbated for parents given the high costs of private school fees. The Romeo decision demonstrates that, at least for now, parents cannot refuse to pay school fees simply because their child is a victim of schoolyard bullying because, in most cases, the child will have received some form of education despite the bullying.

However, it is highly unlikely that the bullying defense used by the Romeos will end with this case. Schools should be alert to the possibility that in extreme cases of bullying, a child may be so severely treated as to effectively receive no appropriate form of education at all. In such circumstances, it is arguable that parents may be able to claim that by not preventing bullying, the school completely failed to provide the educational services it promised to provide. If established in a future case, this may be a basis to avoid payment of school fees or seek a full refund of fees.

Compliance checklist

While schools cannot guarantee that bullying of students will never occur, bullying may complicate fee recovery and may give rise to a negligence claim for breach of a school’s duty of care. To guard against the risks, and to ensure children are protected from bullying, schools should ensure at least the following:

• If a school becomes aware that a student is being bullied, as a result of a complaint or by direct observation, the school is required to intervene in order to meet its duty of care. Schools should ensure regular training is provided to staff on the school’s duty of care to protect students from bullying by peers;
• Bullying prevention policies should be developed collaboratively with staff, students, parents, and the wider school community, all of whom should receive information and, where applicable, training in relation to the content of the policy;
• Review application for admission forms to ensure they protect schools against legal risks relating to fee recovery and bullying conduct;
• Review representations made in publications, enrolment, and admission documents and/or on school websites to ensure promissory statements are not made about the school environment that in reality cannot be guaranteed, such as “a bullying free environment”.

Romeo v Wesley College [2016] FCA 240