Learning From The Past: The Duty Of Care Of Educational Institutions

A former teacher at Maroubra Bay High School who was found to have committed sexual abuse against four male students in the 1970s could not be held financially liable for the abuse after the Court found she could not be expected to have known her conduct would cause harm to the students.

The State's cross-claim seeking to prove that the teacher should also be held liable as a tortfeasor (which would have entitled the State to seek a financial contribution from her towards the settlement amount it paid the four men) consequently failed.

In issue

• Whether a former teacher could be held financially liable for abuse of students in circumstances where the Court held she could not be expected to have known her conduct would cause harm to the students.
• Whether the teacher should be held liable as a tortfeasor.

The background

The case concerned allegations of historical sexual abuse by a teacher at Maroubra Bay High School in 1978 and 1979, against four male students aged between 13 and 15 at the time (referred to as IZG2, AXJ2, KWM2, and BJS2, or 'the plaintiffs').

The plaintiffs alleged that complaints were made about the teacher's conduct to the school principal, Mr Addinall (now deceased), by the plaintiffs and another teacher at the time, KGM2, but no action was taken.

The plaintiffs originally sued the State of New South Wales for negligence and vicarious liability, alleging that the State failed to prevent the abuse despite complaints made to the school principal. The plaintiffs settled their claims against the State following an admission of liability in 2024, with damages awarded as follows: IZG2 ($975,000), AXJ2 ($675,000), KWM2 ($485,000), and BJS2 ($400,000).

This case concerned the State's amended statements of cross-claim seeking contribution from the teacher under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), on the basis she was a tortfeasor liable in respect of the same damage.

The decision at trial

The Court accepted that the abuse alleged by the plaintiffs had occurred. The evidence of the plaintiffs was deemed credible, and corroboration was provided by independent witnesses, including teacher KGM2. The Court rejected the teacher's arguments that the allegations were fabricated or motivated by financial gain.

The Court held that the State was negligent in failing to act on complaints made by the plaintiffs and KGM2. The State breached its duty of care by failing to investigate the complaints and dismiss the teacher, which would have prevented further abuse.

The teacher submitted that it was incumbent upon the State to lead evidence to prove that sexual activity between a female teacher and male student at the relevant time carried a foreseeable risk of harm to the mental health of that student. The Court did not accept that argument and rather held that the school ought to have known the plaintiffs were likely incapable of dealing with the emotional consequences of the sexual interest and sexual activity perpetrated by the teacher, due to their age and immaturity at that time. In addition, the school should be treated as a body with corporate wisdom and experience of an educational institution that ought to have known how the plaintiffs might have been expected to psychologically respond to such sexual activity with a teacher.

Further, it was determined that the State's negligence was a necessary condition of the harm suffered by the plaintiffs. The Court reasoned that with the exception of AXJ2, each of the plaintiffs had commenced sexual relations with the teacher before the incident observed by KGM2 and the dismissal of the teacher following KGM2's reporting to Mr Addinall would have prevented a significant amount of further abuse in the case of all 3 plaintiffs and all of the abuse in the case of AXJ2.

The teacher's liability

While the Court held that the teacher's actions were a necessary condition of the harm suffered by the plaintiffs, it found that the teacher was not negligent under s 5B of the Civil Liability Act 2002 (NSW), as it was not established on the evidence that she ought to have known of the risk of harm to the plaintiffs in 1978 or 1979. The Court observed that there was no evidence adduced that supported the proposition that the teacher, as part of her experience as a teacher or ordinary member of society in the 1970s would have been aware of the effects of sexual conduct between adults and minors.

The Court considered the circumstances at the time and the societal enlightenment and heightened awareness that was generated following the Royal Commission regarding the consequences of sexual abuse of children following the presentation of its final report on 15 December 2017.

The Court also found that the teacher's conduct constituted serious and wilful misconduct, excluding her from protection under s 3 of the Employees Liability Act 1991 (NSW).

Apportionment

As part of obiter comments in the decision, the Court considered what the apportionment between the teacher and the State would have been if both had been held liable. In determining apportionment, the Court considered the degree of departure by the teacher and the State from the duties each owed to the plaintiffs.

Liability was apportioned at 65% to the State and 35% to the teacher due to the States 'higher institutional responsibility for the protection of students which included overseeing [the teacher's] activities'. The principal's anterior failure to act on complaints from the plaintiffs and teacher KGM2 demonstrated a serious failure of proper procedure and good governance.

Settlements

The Court found that the settlements with KWM2 and BJS2 were reasonable, as they aligned with legal advice received by the State. However, the settlements with IZG2 and AXJ2 were deemed excessive, exceeding the recommended amounts by $255,000 and $340,000, respectively.

Conclusion

The Court considered that the State could only be considered a tort-feasor liable under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) if the relevant teacher was found liable to the plaintiffs for the same damage caused by the State.

The Court ultimately found that the teacher was not required to contribute to the damages paid by the State to the plaintiffs because she was not liable to the plaintiffs for the same damage tortiously caused to the plaintiffs by the State under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The Court dismissed the State's crossclaims against the teacher, ordering the State to pay her costs.

Implications for you

This judgment underscores the heightened duty of care owed by schools to their students, including the obligation to investigate and act on allegations of abuse. Further, educational institutions should be aware that the Court's view is that in these circumstances, they are on notice of the risk of harm as a result of sexual abuse and have a duty to take precautions against it.

In addition, the timing of the alleged sexual abuse is important in considering whether the risks of sexual abuse to children were readily known and available at that time. This is particularly relevant in circumstances where such a large proportion of these claims are 'historical'.

Lastly, the decision clarifies the application of section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), particularly regarding the definition of a 'tort-feasor liable' and the requirements for establishing liability in contribution claims.

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.