HIGH COURT PROVIDES CLARITY FOR VICTIMS OF INSTITUTIONAL ABUSE: “THE RELEVANT APPROACH”

A difficult issue which confronts many victims of childhood abuse is identifying the correct respondent against whom they can pursue a claim and whether that respondent has assets to meet a judgment.

For this reason, one of the first steps we take on behalf of clients is to investigate whether the perpetrator of the abuse was employed by, or associated with, an institution which may have been directly or vicariously liable for the perpetrator’s conduct.

The imposition of liability on a party, who has seemingly done nothing wrong, for the acts of a person committing an intentional criminal assault does, however, raise difficult questions of law.

The issue was squarely considered by the High Court of Australia in 2003 in New South Wales v Lepore[1], an appeal involving three cases:

1. New South Wales v Lepore[2]; and
2. a joint judgment from the Queensland Court of Appeal – Rich v State of Queensland and Samin v State of Queensland.[3]

In short, Lepore dealt with claims in which it was alleged that school teachers had sexually assaulted students at their schools.

Although there was a 6:1 majority in respect to the final orders, there was no clear majority as to whether the States, as the entities responsible for the schools, were vicariously liable for the intentional criminal conduct of the teachers.

At one end of the spectrum was the then Chief Justice Gleeson who stated that:

…it may be that…the school context provides a mere opportunity for the commission of an assault. However, where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment…[4]

At the other end of the spectrum was Justice Callinan who said:

negligent, even grossly negligent conduct is one thing, intentional criminal conduct is, and always has been altogether another. In my opinion, deliberate criminal misconduct lies outside, and indeed usually will lie far outside the scope or course of an employed teacher's duty.[5]

Given the lack of clarity from the High Court, the issue of the vicarious liability in institutional abuse claims has, for years, been a vexed issue for solicitors providing advice to potential claimants.

One academic went so far as to say, “the High Court has once again failed to clarify the law to the point where solicitors can safely advise their clients”.[6] 

Since the decision in Lepore, the issue of vicarious liability has come back before the courts in three notable cases.

The first was Withyman v State of New South Wales & Anor[7], in which a female teacher at a special care school was found to have had sexual relations with a male student.  

The New South Wales Court of Appeal held that, notwithstanding the particular vulnerability of the student, the State was not vicariously liable for the teacher’s conduct.  President Allsop held:

…the enterprise of teaching and guiding the young, even using gentle and forgiving familiarity does not create a new ambit of risk of sexual activity. Sexual activity is as divorced and far from the gentle caring teacher’s role as it is from the stern, detached disciplinarian’s…[8]

In contrast to Withyman, the Supreme Court of Victoria held, in Erlich v Leifer & Anor[9], that the Adass Israel School Incorporated was vicariously liable for the sexual abuse perpetrated by its school principal on a student.

Although acknowledging the uncertainty following the Lepore judgment and the reasoning in Withyman, Justice Rush applied the tests espoused in Lepore by Gleeson CJ, Gaudron and Kirby JJ.  Notably, his Honour stated:

The relationship of Leifer, as headmistress of the School, with the plaintiff is to be distinguished from the circumstances in Withyman… In this case, the nature of Leifer’s power and control in the School was based on her position as Head of Jewish Studies (the instruction of which justified the very existence of the girls’ campus), the students were vulnerable and Leifer was able to conduct herself with unrestrained power and control within the School.[10]

Most recently, the issue of vicarious liability in a school pupil abuse context again came before the Supreme Court of South Australia, and then on appeal to the Full Court of the Supreme Court of South Australia, in ADC v Prince Alfred College Inc[11].

The plaintiff / appellant boarded at Prince Alfred College in the 1960s, during which time he alleged he was sexually abused by the boarding house master, Bain.

At first instance, Justice Vanstone dismissed the claim as she considered the plaintiff did not satisfy the requirements of the South Australian legislation to extend the limitation period.  Even if he had, her Honour did not consider the College to be in breach of its non-delegable duty of care or vicariously liable for the boarding master’s criminal conduct.

As a preliminary issue, the Full Court held that an extension of the limitation period was warranted.  Consistent with the reasoning of Justice Rush in the Erlich decision, it also held the College was vicariously liable for the acts of the boarding master.

Although each member of the Full Court gave separate reasons, the following statement from Chief Justice Kourakis summarises the Court’s attitude to the issue of vicarious liability:

The passages I have underlined in the Judge’s reasons limit the enquiry to what Bain was “required to do” and to his “designated role”. The first question was that identified in the last paragraph of the cited passages: did Bain have overall responsibility for supervising the boarders. As the Judge correctly observed, he did. The next question was whether that responsibility included the intimate physical contact in which Bain engaged. Plainly the answer to that question in this case was no: his conduct was criminal. That negative answer does not, however, complete the enquiry. Finally it is necessary to ask whether the offending was engaged in during the ostensible performance of that responsibility. This question must be answered in the affirmative. Sitting on A’s bed to relate bedtime stories was in performance of Bain’s employment responsibility and it was that conduct which cloaked his offending.[12] (emphasis added)

So, since Lepore, there have been three notable judgments, one of which failed on the issue of vicarious liability because there was nothing more than a teacher / student relationship in place and two in which vicarious liability was found because there was something more at issue than a mere teacher / student relationship.

Although it could be said there was a state of uncertainty following the Lepore decision, at least it was clear that, to have any hope of succeeding in a vicarious liability argument in an institutional abuse claim, there must be more to the relationship than a mere teacher / pupil relationship. 

As many anticipated, the Prince Alfred College applied to the High Court for special leave to appeal the decision of the South Australian Full Court.  Special leave was granted and, on 21 July 2016, the High Court of Australia heard the appeal.

On 5 October 2016, the High Court handed down its decision[13] in which it unanimously allowed the appeal as it did not consider there was any basis for the Full Court to grant the plaintiff an extension of the statutory limitation period.

Due to the claimant’s failure on the limitation issue, and insufficiencies in the evidence, no member of the Court addressed whether the Prince Alfred College would otherwise have been vicariously liable for the boarding master’s conduct. 

Nonetheless, it is fair to say that all seven Justices acknowledged the uncertainty created by Lepore and, in two separate reasons for decision, provided some guiding principles.

To commence with, the majority (in a joint judgment from French CJ, Kiefel, Bell, Keane, and Nettle JJ) made a clear statement that:

the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability”[14];

and that:

the fact that the employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. . . [but] the role given to the 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”.[15]

The majority then outlined what it termed as “the relevant approach” for helping to determine whether vicarious liability should be found in institutional sexual abuse claims.  The “relevant approach” being

. . . to consider any special role that the employer assigned 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 give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.[16] (emphasis added)

Although not deciding the issue, in respect to the facts of the Prince Alfred College case, the majority stated:

The appropriate enquiry is whether Bain’s role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain’s apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that [the College] actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and other children.[17] (emphasis added)

In separate reasons, Gageler and Gordon JJ stated that they “accept that the approach described…as the “relevant approach” will now be applied in Australia”.[18]

In citing an English decision of Various Claimants v Catholic Child Welfare Society[19], and understandably, Gageler and Gordon JJ stated that the “Court cannot and does not mark out exact boundaries of any principles of vicarious liability”[20] because “sexual abuse of children may be facilitated in a number of different circumstances”.[21]

Conclusion

The development of “the relevant approach” by the High Court has removed much of the uncertainty that followed Lepore.  Although each case will, and must continue to, turn on its own facts, it is now clear that:

1. the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability”[22];
    
2. however, the mere opportunity that arises from a perpetrator’s proximity to children, such as a classroom teacher, will be insufficient to establish vicarious liability; and
    
3. as in Erlich, there must be more to the relationship and the particular facts of each case must be closely examined to determine if the perpetrator has taken advantage of features of their particular role and which provides the occasion for the abuse.

Steve Herd – Partner, MurphySchmidt Solicitors

Brendan Ezzy – Solicitor, MurphySchmidt Solicitors

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[1] [2003] HCA 4

[2] [2001] NSWCA 112

[3] [2001] QCA 295

[4] At para [74]

[5] At para [342]

[6] Vines, Prue – “NSW v Lepore; Samin v Queensland; Rich v Queensland – Schools’ Responsibility for Teachers’ Sexual Assault: Non-Delegable Duty and Vicarious Liability” [2003] 27(2) Melbourne University Law Review 612

[7] [2013] NSWCA 10

[8] At para [143]

[9] [2015] VSC 499

[10] At para [135]

[11] [2015] SASCFC 161

[12] At para [18]

[13] Prince Alfred College Incorporated v ADC [2016] HCA 37

[14] At para [80]

[15] At para [80]

[16] At para [81]

[17] At para [84]

[18] At para [130]

[19] [2013] 2 AC 1 at 26

[20] At para [131]

[21] At para [128]

[22] At para [80]