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Summary

In Australia, the law regarding the extent to which employers are vicariously liable for wrongful acts by an employee has, until today, been unclear. 

In its judgment delivered this morning in Prince Alfred College Incorporated v ADC [2016] HCA 37, the majority of the High Court[1] considered the correct approach to be taken to the question of Prince Alfred College's (PAC) vicarious liability for the criminal acts of its employed housemaster, Bain.

The majority of the High Court held that an employer could be vicariously liable for criminal acts of its employee, and espoused what was referred to as the "relevant approach", which involves considering whether the employer has assigned to the employee any special role, and the position the employee is in as regards the victim. Factors that are relevant include, authority, power, trust, control, and (of particular importance) the ability to achieve intimacy with the victim[2]

The Court did not ultimately consider the question of PAC's liability in this case, as it unanimously found that the extension of time sought by ADC to bring the action could not be granted.

The decision is of particular relevance to cases of historical sexual abuse in educational institutions, but also has wider implications for employers' liability.

Background to the case

Vicarious liability in effect means that one person is held responsible for another's actions. An employer will generally be vicariously liable for torts committed by employees acting “in the course of employment”. In the schools context, it means that, if a teacher is liable, then the school will be liable.

However, there has been uncertainty regarding the extent to which a school may be vicariously liable for sexual assaults perpetrated by its teachers, a critical issue in the context of claims of historical sexual abuse and an issue considered by the Royal Commission into Institutional Responses to Child Sexual Abuse, in its Redress Report in September 2015.

The matter was previously considered by the High Court in 2003, in New South Wales v Lepore & Anor [3] (Lepore). In that case, six of the seven High Court judges concluded that vicarious liability might be established in circumstances where the assault is found to have been committed "in the course of employment". However, various formulations of that test were espoused, and, of the seven judges, three said sexual abuse did not fall within "conduct in the course of employment", one did not address the issue, two said there were circumstances in which it might, and one said it did. The position was left far from clear.

The facts

In 1962 the respondent, ADC, was sexually abused by his housemaster, Dean Bain. ADC was then 12-years-old and a boarder at PAC. Bain was employed by PAC as a housemaster.

In December 2008 ADC brought proceedings against PAC in the Supreme Court of South Australia.

The decisions below

At first instance in A, DC v Prince Alfred College Incorporated [2015] SASC 12, her Honour Justice Vanstone was unable to make findings of fact relevant to the question of vicarious liability because there was insufficient evidence of a reliable nature about Bain's designated role upon which to base a conclusion that what he did was done in the course of employment[4]. On the assumption that these activities were part of Bain's assigned role, her Honour concluded that the sexual abuse was "so far from being connected to Bain's proper role that it could neither be seen as being an unauthorised mode of performing an authorised act, nor in pursuit of the employer's business, nor in any sense within the course of Bain's employment".

The Full Court of the South Australian Supreme Court in A, DC v Prince Alfred College Inc [2015] SASCFC 161 held that PAC was vicariously liable for the assaults committed by Bain because of the “close connection” between the boarding master and the opportunity to abuse, given the relative power, intimacy and authority he had at the college. It was considered that "the principles to be applied are those espoused by Gleeson CJ in Lepore".

The decision of the High Court

A threshold issue was whether the case could be pursued notwithstanding the expiry of the limitation period, and this was one of the grounds on which special leave to appeal to the High Court was granted.

The High Court unanimously held that ADC's application for an extension of time to commence the proceeding should be rejected, and as a result a determination could not be made as to the PAC's liability in this case, because the length of the delay and consequent deficiencies in the evidence placed the PAC in such a position that it could not properly defend the claims brought against it. (We note here that, unlike Victoria, New South Wales and now Queensland, South Australia has not, as yet, enacted legislation removing the limitation period for claims of historical sexual abuse and, in any event, the case was commenced and heard prior to the Royal Commission and resultant changes to legislation).

Notwithstanding its conclusion that the claim was statute barred, the Court considered that it was important for the issue of vicarious liability to be addressed, noting the differing views expressed in the judgments in Lepore and the need for guidance to be provided to intermediate appellate courts.

The majority considered what it referred to as the "relevant approach", noting that the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. It is possible for the criminal offence to be an act for which the apparent performance of employment provides the occasion. However, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself sufficient.

As held by Gleeson CJ in Lepore at [67] and by Canadian authorities, the role given to an employee and the nature of the employee's responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act[5].

The relevant approach therefore requires consideration of any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to provide the "occasion" for the wrongful act, the particular features that may be taken into account include authority, power, trust, control and (of particular importance in a case such as the present) the ability to achieve intimacy with the victim[6]. That latter factor, if used by the employee to take advantage of their position with the respect to the victim, may of itself be sufficient.

The appropriate enquiry in this case was whether Bain's role as housemaster in a boarding house placed him in a position of power and intimacy vis-à-vis ADC. Did Bain's apparent performance of his role as housemaster provide the occasion for the wrongful acts, and was it because he misused or took advantage of his position, that the wrongful acts could be regarded as having been committed in the course or scope of his employment[7]?

However, the High Court did not deliver judgment on this issue. In addition to the limitation issue, the majority found that, because of the dearth of evidence available in the case (as a result of a number of factors, including the effluxion of time), no conclusion could be drawn about the role assigned by PAC to Bain, which was a matter critical to the question of vicarious liability. It could not be assumed that the position in which Bain was placed by his assigned role provided the "occasion" for the offending.

In a separate judgment, Gageler and Gordon JJ accepted the "relevant approach" propounded by the majority will now be applied in Australia, but cautioned that it is "necessarily general" and "cannot prescribe an absolute rule"[8]. The particular facts of each case will remain critical[9].

Finally, ADC had obtained special leave to appeal the issue of whether PAC's non-delegable duty of care extended to the criminal acts of its employees (a position that was rejected by the majority in Lepore). The majority found that the submissions of ADC did not address the matters required to invoke the authority of the High Court to reconsider a previous decision.

Conclusion

After thirteen years of uncertainty following Lepore, and notwithstanding the lack of application to the facts in question, there is now a test, the "relevant approach", to be applied to claims of vicarious liability for an employee's intentional wrongdoing. The decision is of most relevance to claims for child sexual abuse, but should provide guidance more generally. The case also provides useful direction on consideration of issues of prejudice in applications to extend the limitation period, which remains an issue in certain States and Territories. However, as their Honours Gageler and Gordon JJ cautioned, the "relevant approach" is not an absolutely rule and consideration of its application will need to be given on a case-by-case basis.


[1] French CJ, Kiefel, Bell, Keane and Nettle JJ
[2] At [80]
[3] (2003)  212 CLR 511
[4] A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [174]
[5] A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [175]
[6] At [80]
[7] At [81]
[8] At [84]
[8] At [130] - [131]
[10] At [129]

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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