Parents refusing to pay outstanding school fees because their child was bullied is becoming a common theme.  Although the "bullying" defence failed in a recent case in Western Australia, the Court sounded a warning for schools. 

Background

The School claimed $42,489.49 in outstanding fees owed by the parents of two students. 

The students both attended the School but were withdrawn once the bullying against one of them, RG, was disclosed to them.  It was alleged that RG was subject to bullying over a 3 year period and that the School had failed to take any steps to prevent it from happening, or from reducing the risk. 

The alleged bullying included ridiculing and name calling of RG by other students in front of School staff while at school and on school outings and camps.  It was alleged that the staff took no action and failed to intervene. 

Both parents had signed the School's application for admission thereby contracting with the School for the education of their children.  They alleged that the education they were entitled to expect encompassed the following which was included in the School's education mission statement:

  • teaching student a holistic approach to learning which would make them well rounded persons
  • teaching students the skills of reading and writing
  • teaching students the skills of interacting socially with their peers and to have mutual respect for one's peers
  • teaching students to excel in the spiritual and intellectual capabilities
  • teaching students a strong Christian belief including attitudes or responsibility, tolerance and care of others. 

Alleged breach of contract

The parents argued that the School breached implied fundamental conditions of their contract with the School. 

They alleged that the School failed to provide the agreed education by failing to appropriately supervise students, to have appropriate bullying prevention policies in order to prevent and/or reduce the risk of bulling, to act promptly on all allegations of bullying and that it failed to provide a safe environment for students.  They also claimed that by failing to properly supervise RG and to act on the bullying, the School had fundamentally breached its contract with them because RG had not been educated to the level of RG's peers. 

The parents alleged that there was a complete failure of consideration in relation to the contract to educate RG and claimed a refund for most of the fees paid in respect of RG over a 3 year period, amounting to over $62,000 (including levies). 

Court decision

In this case the parents were seeking to set aside a default judgment that had been entered against them when they failed to appear.  To enable their claims to proceed, they were required to demonstrate to the Court that their defence and counterclaims were reasonably arguable. 

The Court was prepared to accept for the purposes of this case that it was reasonably arguable that the contract contained implied terms, such as an implied term to provide an education free of bullying.  However, it did not accept that such a term would be a fundamental term of the contract.  The Court stated:

A fundamental term is a contractual term so important that, if not complied with, the performance becomes something totally different from that which the contract contemplated…

In the present case the 'very root' of the contract is to provide education to [RG].  It cannot be successfully argued that the provision of education without bullying is an essential or a fundamental term of the contract because it is not disputed that RG received an education from 2008 until 2011.

The Court noted that although it could be argued that the impact of the bullying may have outweighed the benefit of the education in the Romeos' assessment, the College still provided RG with a form of education.  Therefore, there was not a total failure of consideration. 

Door ajar!

The parents relied on alleged fundamental terms of their contract with the College.  While they failed on this basis, the Court noted that it might be open to the parents to commence proceedings alleging breach of contract and claim the loss they have suffered - the cost of securing medical assistance and counselling support for RG.  In any such proceedings, RG would have to give evidence about the bullying and the trauma he suffered. 

It seems that parents will not be able to claim fundamental breach because schools provide the education they are contracted to provide.  The parents will be obliged to pay for that service.  However, in extreme cases the possibility might still exist for parents to allege that no education was provided at all, or the benefits were illusory, because of the severity and impact of the bullying. 

Matters to note

Apart from the duty of care issues in ensuring that all students are able to enjoy their schooling experience without bullying, allegations of bullying also have the potential to complicate a school's ability to recover unpaid fees under its contract with the parents.  Schools do not guarantee that bullying will not happen; however, they should respond promptly when bullying claims are raised. 

Schools should also be cautious about the statements they make in their promotional literature as it may be alleged to comprise an implied term in their contract with the parents.