Australia: The High Court clarifies the law regarding employers' vicarious liability for an employee's wrongful acts

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 Court1 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 victim2.

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 employment4. 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 act5.

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 victim6. 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 employment7?

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 critical9.

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.

Footnotes

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]

Amanda Ryding Laura Reisz
Education Law
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Laura Reisz
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions