A, DC v Prince Alfred College Inc
[2015] SASCFC 161
•10 November 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
A, DC v PRINCE ALFRED COLLEGE INC
[2015] SASCFC 161
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
10 November 2015
EDUCATION - SCHOOLS - NEGLIGENCE OF SCHOOL AUTHORITIES OR TEACHERS - GOVERNMENTS, THEIR INSTRUMENTALITIES OR OTHER RESPONSIBLE AUTHORITIES
EMPLOYMENT LAW - RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PARTIES - LIABILITIES OF EMPLOYER - FOR CRIMES, OFFENCES AND ILLEGAL ACTS OF EMPLOYEE
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER - GENERALLY
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - PRINCIPLES UPON WHICH DISCRETION EXERCISED
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - SCHOOLS
Appeal against a dismissal of a claim for damages for personal injury. The appellant was enrolled as a boarder in the boarding house of the respondent school in 1962, when aged 12 years. The appellant was sexually assaulted on at least 20 occasions over eight months in 1962 by a boarding house master, Bain, who was later convicted for indecent assault in relation to his abuse of the appellant and other former boarders.
Prior to being employed by the respondent, Bain had been convicted for gross indecency and he was suspected to have engaged in indecent behaviour towards students at another school that had employed him. The appellant contended that the respondent was negligent in failing to make proper and adequate enquiries about Bain’s suitability before employing him as a teacher or appointing him to a position in the boarding house. There was little evidence as to what, if any, enquiries about Bain’s suitability were undertaken by the respondent prior to employing him as a teacher or appointing him to a position in the boarding house, or what could have been discovered had proper enquiries been undertaken.
Bain lived in the boarding house and the evidence established that he was the only housemaster regularly “rostered” to supervise the junior boarders during their bedtime routine, which included nightly showers. He told serial stories to the juniors in their dormitory after “lights out”, and did so while sitting on the appellant’s bed. It was in this context that Bain began to sexually abuse the appellant. Bain groomed the appellant, which allowed for sexual abuse to occur in Bain’s private room.
The evidence of a former headmaster of the respondent established that the school ran on a system of trust, that there was an affinity between boarders and their housemasters and that there were commonly longer-term relationships between housemasters and parents. There was no evidence of direct supervision by the respondent of Bain when he was carrying out his duties.
Upon learning of the abuse, the respondent dismissed Bain. An assembly was held at which the boarders were informed of Bain’s dismissal and instructed not to discuss the matter. Counselling by the chaplain and matron was offered to boys who required it. The respondent apparently did not at that time report the matter to police or preserve relevant records. The appellant tried to repress the abuse in accordance with the respondent’s instruction. The abuse inflicted on the appellant by Bain caused the appellant to develop a post-traumatic stress disorder, which in turn resulted in alcoholism, a breakdown in family and professional relationships, an inability to work and self-harming. Symptoms of a post-traumatic stress disorder were apparent from at least the early 1980s. The initial prognosis for the appellant was positive; he was expected to recover. In the 1990s, in that context, the appellant received financial assistance from the respondent and reached a settlement with Bain. The respondent did not at that time undertake an investigation of what took place in the 1960s or preserve relevant records. A significant body of evidence has been lost since that time. In 2007, the appellant received medical advice that he would likely never recover from his post-traumatic stress disorder.
In 2008, the appellant commenced proceedings against the respondent. In 2015, the trial Judge found the respondent was neither vicariously liable for Bain’s abuse of the appellant, nor directly negligent, and, in any event, her Honour would have declined to extend the time for the appellant to bring proceedings.
Whether the respondent was negligent toward the appellant by failing to make proper and adequate enquiries about Bain’s suitability before employing him as a teacher or appointing him as a boarding house master. Whether the respondent was negligent toward the appellant by failing to properly supervise Bain. Whether the respondent was negligent toward the appellant by failing to provide adequate assistance to or support for the appellant following Bain’s abuse. Whether the respondent is vicariously liable for Bain’s conduct. Whether the time for the appellant to bring proceedings should be extended.
Held per the Court (allowing the appeal):
1. The respondent is vicariously liable for damage suffered by the appellant as a consequence of Bain’s sexual abuse.
2. The time for the appellant to bring proceedings should be extended.
3. Matter remitted for an assessment of damages.
Vicarious liability
Per Kourakis CJ:
4. Bain’s employment duties as a housemaster included responsibility for the residential care of the boarders, allowing discretion as to the best way to settle the boarders at night. The sexual touching which occurred whilst Bain sat on the appellant’s bed took place in the ostensible discharge of his responsibility for the care of the boarders at night. There was a close connection between Bain’s employment duties and the offending that occurred on the appellant’s bed.
Per Gray J:
5. Bain’s role included supervising and settling the boys at night, providing him with constant access and the opportunity to groom and molest them. The respondent put Bain in a position of authority, trust and intimacy in relation to young boys. The abuse occurred when he was on duty and at times when he was interacting with the boys ostensibly in the course of performing a pastoral care or supervisory function. He was not the subject of appropriate supervision by the school, and the school created and enhanced the risk that Bain could abuse boarders.
Per Peek J:
6. Bain had at least ostensible authority to supervise and discipline the junior boarders, which included supervising showering and bedtime preparations and telling stories. Whether, and to what degree, the master-boarder relationship is “intimate” will be a further cumulative factor to be considered, but not a condition precedent to vicarious liability. Bain was able to develop a close and familiar relationship with the appellant under the cloak or guise of the ordinary legitimate relationships the boarding house positively fostered. The respondent’s enterprise model of trust rather than supervision materially increased the risk of sexual assault that eventuated. The very powerful combination of intimacy, power and subservience rendered the appellant particularly vulnerable to sexual exploitation. Bain’s grooming of the appellant, under cover of his at least ostensible authority, took place within, and was made possible by, a disciplinary power structure that was an inseparable part of the functioning of the business of running the boarding house.
Negligence
Per Kourakis CJ (Peek J agreeing):
7. The causes of action alleging that the respondent was negligent in employing Bain, in failing to adequately supervise the boarding house and its housemasters, and in its inadequate response to the abuse, are not established.
Per Gray J:
8. It was open to the trial Judge to find that evidence was insufficient to find that the respondent breached its duty to take care of the appellant by failing to make proper and adequate enquiries prior to hiring Bain as a teacher.
9. The respondent breached its duty to take care of the appellant by failing to undertake proper and adequate enquiries before appointing Bain to the position of boarding house master.
10. The respondent breached its duty to take care of the appellant by failing to properly supervise Bain while he was on duty in the boarding house.
11. The respondent breached its duty to take care of the appellant by failing to provide adequate assistance to and support for him immediately following Bain’s abuse.
Non-delegable duty
Per Kourakis CJ and Peek J:
12. Liability for intentional criminal wrongdoing of an employee is appropriately dealt with through vicarious liability, not non-delegable duty.
Per Gray J:
13. The question of the respondent’s liability for Bain's intentional criminal wrongdoing is better dealt with on the basis of vicarious liability, rather than non-delegable duty.
Limitation of Actions Act 1936 (SA) s 45 and s 48, referred to.
A, DC v Prince Alfred College Incorporated [2015] SASC 12; Fox v Percy (2003) 214 CLR 118; New South Wales v Lepore (2003) 212 CLR 511; Bazley v Curry [1999] 2 SCR 534; Ffrench v Sestili (2007) 98 SASR 28; Finlay v Silcon Industrial Pty Ltd (2003) 229 LSJS 14; Erlich v Leifer & Anor [2015] VSC 499; Morris v C W Martin & Sons Ltd [1966] 1 QB 716; Maga v Archbishop of Birmingham [2010] 1 WLR 1441; Jacobi v Griffiths [1999] 2 SCR 570; Lister v Hesley Hall Ltd [2002] 1 AC 215; Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; South Australia v Lampard-Trevorrow (2010) 106 SASR 331; Deatons Pty Ltd v Flew (1949) 79 CLR 370, considered.
A, DC v PRINCE ALFRED COLLEGE INC
[2015] SASCFC 161Full Court: Kourakis CJ, Gray and Peek JJ
KOURAKIS CJ. I gratefully adopt the summary of the evidence in the reasons of Gray and Peek JJ. I agree with the statements of principle on the question of vicarious liability found in the reasons of Peek J. I also agree generally with his Honour’s application of those principles to this case. Even though I take a slightly more limited view of the extent of the vicarious liability of the defendant (PAC) than Peek J does, that difference does not affect the ultimate result in this case.
I would allow the appeal on the ground that the Judge erred in finding that the defendant (PAC) was not vicariously liable for the offences committed against the appellant (A) by Bain, when sitting on A’s bed as he settled the boarders down for the night. It is only for those particular acts that I would hold PAC vicariously liable. In summary, I so find because the evidence showed that Bain’s duties as a housemaster included responsibility for the residential care of the boarders. That responsibility necessarily allowed Bain a discretion as to the best way to settle the boarders at night. The bedtime routine he adopted fell within the scope of that discretion. The sexual touching of A whilst Bain sat on his bed took place in the ostensible discharge of his responsibility for the care of the boarders at night. There was therefore a close connection between that part of Bain’s duties and the offending I have identified in that Bain abused the intimate proximity to A afforded by that bedtime routine to commit the offences.
Even though my holding of liability is limited to those particular acts, the sexual abuse of A on those occasions materially contributed to the development of A’s post-traumatic stress disorder. It was also part of the grooming of A which allowed Bain to lure A to his room and other places where he sexually abused A. The particular offending for which PAC was vicariously liable was therefore a material cause of A’s post-traumatic stress disorder.
In my respectful view, the Judge reached the contrary conclusion because her Honour erroneously limited the enquiry to whether Bain had specifically been directed to settle the boarders after lights out. The legally relevant question was a wider one. It was whether settling the boarders down for the night was within the scope of Bain’s employment duties and whether Bain sexually abused A in the ostensible performance of those duties.
It is not only that work which an employee is specifically or expressly directed to perform which falls within the scope of his or her employment duties. Conduct is within the scope of an employee’s duty if it falls within a range of alternative forms of performance allowed an employee in his or her discretion. It was necessarily implicit in Bain’s responsibility as a housemaster that he was authorised to enter and remain in the dormitory after lights out for the purpose of settling the boarders as he saw fit. Plainly that authorisation did not include sexually abusing the children but in the absence of an express direction to the contrary Bain’s employment as housemaster allowed him a discretion to engage in a bedtime routine of the kind described in the evidence.
I would dismiss those grounds of appeal which challenge the Judge’s findings that PAC did not breach the duty it owed A to take reasonable care of him as one of its boarders. The High Court held in New South Wales v Lepore[1] that the non-delegable duty of schools did not extend to the intentional criminal wrongdoing of its teachers. There is no reason to distinguish in this respect between the duties owed by a school to day students and the duties owed by a residential school to its boarders. The evidence did not establish any breach of the duty owed by PAC, nor did it show that any of the alleged breaches on which A relied had caused A’s post-traumatic stress disorder.
[1] (2003) 212 CLR 511.
I would allow the appeal against the Judge’s exercise of discretion to refuse an extension of time within which to bring the proceedings. The Judge’s erroneously narrow circumscription of the scope of Bain’s duties affected the weight to be given to the prejudice suffered by PAC and therefore vitiated the exercise of the Judge’s discretion.
I elaborate on my reasons below.
Vicarious liability
The Judge’s factual findings on the care and supervision of boarders were:
·The boarding house was overseen by the headmaster, Mr Dunning, and the boarding house senior master, Mr Prest.
·Mr Prest and Bain had quarters in close proximity to each other located on the first floor of the boarding house. Another housemaster, Mr Connell, had an attic room on the floor above.
·The prefects had general responsibility for the supervision of the Year 8 boarders. They ensured that the boarders attended for breakfast in the dining room as scheduled. They supervised homework sessions after school. They supervised the boys’ showering and the preparations for bed and “lights out”.
·None of the former boarders suggested that any housemaster, apart from Bain, would be present in the dormitories after lights out.
·The primary supervision of the Year 8 boarders was performed by the boarding house prefects.
·No finding could be made that Mr Bain’s particular practice of telling stories to the boys in their dormitories after lights out was either in accordance with the practices of other boarding housemasters, or sanctioned by Mr Prest.
The evidence also showed that:
·Bain was rostered for dormitory supervision 2-3 times a week.
·No other housemaster supervised the bedtime routine for the Year 8 students.
·Dr Webber, who later became a headmaster of PAC, read stories to the preparatory school students in the dormitories at nights when he was a housemaster in the boarding house.
Mr Bean, who in 1970 succeeded Mr Dunning as headmaster, testified that the parents of boarders “entrusted their children to [PAC’s] care”. Mr Dunning’s testimony that the boarders were, as a matter of fact, entrusted to PAC mirrored the duty imposed on PAC as a matter of law by reason of the residential care it provided.
The Judge gave the following reasons for dismissing that facet of A’s claim which was founded on vicarious liability:
However, the plaintiff’s arguments about Bain’s role and the scope of what was expected from him by the school in carrying out his duties as housemaster, proceed on the basis of an assumption that the things Bain did were the things that he was required to do. That assumption seems to me to be fallacious. As has already been outlined, the evidence from the three boarders including the plaintiff about the routines in the boarding house made it clear that the primary responsibility for supervising the younger boarders lay with the prefects. It was their responsibility to ensure that the younger boarders attended breakfast in a timely manner, completed their homework and were in bed ready for “lights out” at the appointed time. There was no mention of the other housemasters either supervising the boys’ showering activities or attending in the dormitories after “lights out”. Indeed, the plaintiff said that it was only Bain who came into the dormitories after “lights out” and only Bain who told the boys stories at that time. The only mention of Mr Prest being in the boys’ dormitories at all was before “lights out” and then, only rarely.
The fact that the abuse happened, not only in the boarding house, but also off campus and including during an exeat weekend when Bain took the plaintiff to a house at Beaumont (after a weekend spent at the plaintiff’s home), would not have inclined me against a finding of vicarious liability. However, I consider that there is simply insufficient evidence of a reliable nature about Bain’s designated role – as opposed to assumed role – upon which to base a conclusion that what he did was done in the course of employment.
In any event, although it may be accepted that when rostered on duty overnight Bain had a role which involved responsibility for and overall supervision of the boarding house, that is very far from amounting to a duty to engage in intimate physical behaviour with a student.[2]
[2] A, DC v Prince Alfred College Inc [2015] SASC 12 (4 February 2015) [173]-[175] (emphasis added).
In my view, the Judge’s finding that Bain’s role involved responsibility for, and overall supervision of, the boarding house is plainly correct and indeed incontrovertible. PAC placed itself in loco parentis for its boarders and did so for reward. It was PAC’s duty in law to provide its boarders with care, guidance and comfort which was age appropriate. PAC discharged that duty through the employment of its housemasters. The standard of care required of a boarding school for 12 year old children, even in 1962, included having an adult supervisor available to ensure that the children went to bed at a reasonable time, and to provide them with comfort and reassurance as required. Having regard to PAC’s legal duty and the practical realities of caring for children it is most unlikely that PAC expressly prohibited its housemasters from relating bedtime stories or adopting a similar bedtime routine. There is no evidence that PAC excluded its housemasters from the dormitories at night and left the responsibility for settling the children in its charge exclusively to the prefects. It is inherently improbable that it did so. It would be inconsistent with the de facto and legal entrustment to it of the care of the boarders.
Nor was there any evidence that PAC expressly prohibited its housemasters from talking to the children whilst sitting on their beds. Indeed the evidence of Dr Webber’s practice shows that housemasters were not generally prohibited from doing so. There is no factually critical distinction between school students of preparatory school age and 12 year olds.
There was no evidence that PAC had any reason to restrict Bain in particular from being in the dormitory. Indeed, his frequent presence there is strong evidence that PAC had not directed him to remain away from the dormitory at night.
The natural and probable inference arising from the entrustment of the care of boarders to PAC, and PAC’s employment of housemasters, is that the housemasters were given ultimate responsibility for the care of the boarders at night even though they made use of prefects to reduce their workload. To my mind the extensive use of the prefects does not detract from, or limit, the responsibility with which PAC charged its housemasters. The natural and strongly probable inference is that housemasters remained ultimately responsible for the care of the boarders at night. Very obviously if a fight broke out between the junior boarders and the prefects, or if there was an incident beyond the prefects’ capacity to manage, it would be the duty of the housemaster to enter the dormitory and take charge. It is very likely then that it was also within the scope of a housemaster’s duty to forestall any such situation by directly and personally attending to the bedtime routine of the boarders.
Indeed in modern times, and I think even in 1962, a housemaster who left the supervision of the bedtime routine exclusively to the prefects could properly be said to have neglected his duty. I observe here that the evidence that no housemaster other than Bain was present in the dormitory at night does not show that his presence was an unauthorised “frolic”. The more probable and strong inference is that he was the housemaster who had been charged with supervision of the junior dormitory.
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.
The extension of time
I would dismiss the appellant’s appeal against the finding of fact that his cause of action arose in 1962. It is plain on A’s own evidence that he suffered psychological injury as early as 1962. I also dismiss the appellant’s complaint that the Judge wrongly found he was not under a legal disability. Again, on A’s own evidence he was capable of acting rationally, even though his decisions were not the best ones he could have made if he wished to maximise his monetary compensation.
However the Judge found that the receipt of Dr Kelly’s report and the opinion it contained about A’s bleak prognosis was a material fact ascertained by A in the 12 months before bringing his claim. That finding enlivened a discretion to extend the time in which to bring the action pursuant to s 48 of the Limitation of Actions Act 1936 (SA).
I accept as sound the description of the general prejudice suffered by PAC given in paragraph [223] of the Judge’s reasons. However, the Judge’s consideration of the question of prejudice in the particular context of the vicarious liability claim found in paragraph [228] of her Honour’s reasons proceeds on the basis that vicarious liability could only be made out if Bain was expressly contracted, or directed, to perform the particular duties of settling the boarders after lights out. Having found that the Judge erred in so proceeding, it is necessary to reconsider the evidence of the discretion.
On the more general question of whether performance of his duties as a housemaster extended to going into the dormitory and settling the students as he did, there could be no real dispute. There was no material possibility that the passage of time had denied PAC an opportunity to show that such discretion as Bain had in discharging his responsibility for the care of the boarders did not extend to telling them bedtime stories. Nor was there any real dispute that Bain had abused A in the course of ostensibly settling the students to sleep after lights out.
Insofar as the lapse of time made it more difficult to assess the extent and depth of A’s post-traumatic stress disorder, that difficulty could sufficiently be addressed by taking a conservative approach to the assessment of damages rather than by denying A any redress at all.
I would not give much weight to A’s acceptance of compensation, and associated failure to bring proceedings, in 1997. A reluctance to bring proceedings is symptomatic of the very injury caused by the wrong alleged against PAC. Professional advice does not immunise victims of sexual abuse against the stress of making a claim. Moreover, PAC was in a position at the time to protect itself from A changing his mind, and from future litigation, by taking proper steps to investigate the claim and retain such material as it could, in admissible form, should proceedings later be brought. Furthermore, PAC might have, but did not, insist on a discharge in return for the payment it made.
The motivating circumstance that A ultimately decided to bring his action in 2008 because he had run out of money and options for improving his financial position does not weigh heavily against exercising the discretion in his favour. A’s poor financial position was, in itself, at least in part, a product of the illness caused by the alleged wrongdoing.
Breach of duty by PAC – Negligence – Non-delegable duty
Having found that PAC is vicariously liable for the conduct of Bain it is of course not strictly necessary to consider A’s complaints against the Judge’s conclusion that PAC was not directly liable for the harm caused by Bain. However, it is generally appropriate to determine all of the major issues brought before an intermediate appeal court and there is no particular reason not to do so in this case.
A’s first complaint is that PAC was negligent in employing Bain when he:
·had a conviction for gross indecency in 1954; and
·was suspected by senior masters of the Cummins Area School to have engaged in indecent behaviour with students in 1960.
The Judge found that a teacher at Cummins Area School, Mr T, suspected some improper conduct by Bain, and that the headmaster was concerned about Bain’s activities. Nonetheless, the Judge was not satisfied that those concerns ever solidified into information which the headmaster would have imparted even if asked by a person with an interest in knowing of Bain’s work.
The Judge found that there was no police investigation of the suspected behaviour at Cummins Area School and observed that there was no evidence of any process by which members of the public with a legitimate interest in the criminal record of a person could apply to the police force for that information. Nor was there evidence of a practice amongst private schools to seek criminal record checks. A former police officer, KT, gave evidence that he would occasionally provide hints to employers such as banks about the honesty of prospective employees but that the practice did not extend to schools or sexual offending. KT testified that records of criminal convictions were kept in a card system and could only be accessed by a laborious manual search.
The Judge was not able to make a finding as to whether the Cummins Area School provided Bain with a reference, or whether Bain had informed PAC of his employment there or had relied on referees from that school.
The Judge also found no evidence that, had PAC made enquiries either of staff at the Cummins Area School, or with the police force, that PAC would have been given information which indicated anything untoward about Bain.
A has not identified any evidence which contradicts the Judge’s findings. A’s appeal on these grounds must be dismissed.
On the issue of PAC’s primary liability in negligence, A also contends that PAC inadequately supervised the boarding house and its housemasters. The Judge found that there was insufficient information to make any finding at all about the level of Mr Prest’s supervision either of his subordinate housemasters or of the boarders. The Judge was not prepared to infer, from the mere fact that the abuse of several boys took place, that the supervision was inadequate. That finding can hardly be contested. On all of the evidence, including A’s testimony, housemasters would always have had an opportunity to abuse boarders unless they were always accompanied by another person. That level of supervision is plainly impractical even on today’s standards. There was no evidence to suggest that it was a common practice or reasonably practicable to do so in 1962. Indeed, Mr Bain testified that it was not and his evidence was not contradicted. The Judge concluded:[3]
I am unable to find on the evidence before me that the systems in place in the boarding house or the level of supervision of the behaviour of masters and of Bain in particular was so deficient as to amount to a breach of duty by the defendant. I find, in accordance with Mr Bean’s evidence, that it would have been wholly impractical to insist that a boarder should never be alone with a master.
The Judge’s conclusion is plainly right.
[3] A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [151].
Finally, A contended that PAC’s response to the abuse he suffered was inadequate. PAC dismissed Bain within days of A informing Reverend Waters of the abuse. Almost immediately PAC called a special assembly in the boarding house which all of the boarders attended.
A could only recall the Reverend Waters addressing the assembly. The witnesses JC and RE who were also boarders testified about the proceeding at the assembly. The Judge summarised their evidence as follows:[4]
Returning to the topic of the assembly, JC and RE also recalled that particular assembly when they were advised of Bain’s departure. JC said that the headmaster, Mr Prest, the Reverend Waters and the matron were present. The headmaster spoke first, saying that Bain had been dismissed for interfering with boys. He said the matter needed to be kept within the boarding house. He said that the matter should not be discussed either among the boarders or in the wider school. He said the tone was serious. He mentioned the need for the school’s reputation to be upheld. The Reverend Waters also spoke. He said things along the same lines, but added that if any boy felt upset about the matter then either he or the matron was available to talk it over.
RE recalled both the headmaster and the chaplain being at the special assembly. Both spoke to the assembled boys. RE recalled the chaplain wearing his academic gown, which he only did on reasonably formal occasions. He said that the message left with the boys was that Bain’s tenure at the school was discontinued and that they were not to speak about the matter. Beyond that he could not recall. One or other of the two men spoke about protecting the image and the name of the school. In cross-examination he agreed that it was implicit in the message that the boys were to “move on” and “look forward”. He accepted that it was likely that the Reverend Waters told the boys to speak to him if they were having problems.
[4] A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [158]-[159].
The Judge’s findings on the adequacy of PAC’s response were:[5]
I can make no finding about what information was given to the plaintiff’s parents or what, if any, views they expressed about any assistance for the plaintiff. I can make no finding about any discussions within the school, or with the plaintiff’s parents regarding whether any report should be made to the police. I can make no finding about any particular steps which Mr Prest or any of the other housemasters took to make themselves aware of the plaintiff’s reaction to the event, or as to any extra attention given him. Indeed, I can make no finding as to whether the school was apprised of the fact that other students, apart from the plaintiff, had been abused. Knowing next to nothing of the school’s reaction to the situation I cannot find that there was a want of care for the plaintiff’s plight.
I accept that the standards to be applied to this issue are those which prevailed in 1962 and not the standards which prevail 52 years later. While by contemporary standards it appears that more could have been done for the plaintiff, that perhaps counselling should have been insisted upon, and that the police should have been advised (if that is what the plaintiff’s parents wished) I cannot find that the school’s response to the situation was in breach of its duty of care in terms of the standards then prevailing.
I find that the plaintiff has failed to prove that the school was in breach of its duty to the plaintiff in its response to learning of the abuse.
[5] A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [164]-[166].
A challenges those findings on the basis of the evidence of Professor MacFarlane. Professor MacFarlane’s evidence dealt with the importance of an immediate, supportive and therapeutic response to sexual abuse. However, his evidence reflected contemporary knowledge and understanding of the nature and consequences of sexual abuse. There was no evidence that the importance of early interventions of that kind were understood by child psychiatrists or counsellors in the 1960s. There was no evidence that education authorities and schools had any such understanding in the 1960s. There was no evidence of any practice to provide therapeutic support of the kind described by Professor MacFarlane. A’s challenge to the Judge’s findings on this basis for liability must also be dismissed.
Conclusion
I would allow the appeal. I would enter judgment for the appellant. I would remit the matter for an assessment of damages.
GRAY J.
This is an appeal from a decision of a Judge of this Court dismissing a claim for damages for personal injury.
The plaintiff and appellant, DCA, was born on 18 July 1949. He was enrolled in 1962 as a boarder at Prince Alfred College, the defendant and respondent. Dean Rollo Bain was first employed by Prince Alfred College as a teacher in 1961. In 1962, he was appointed to the position of boarding house master. At trial, it was not disputed that Bain sexually abused the plaintiff over a period of about eight months during 1962. Bain was dismissed in October 1962, shortly after the school became aware of the abuse.
On 4 December 2008, the plaintiff commenced proceedings against Prince Alfred College in this Court. The plaintiff claimed that the school was liable for the loss and damage sustained by him as a consequence of his abuse at the hands of Bain. The school denied that it was either negligent or vicariously liable for Bain’s conduct and said that, in any event, the plaintiff’s condition was not caused by Bain’s abuse. The school further argued that all causes of action arose in 1962 and that the plaintiff’s claims were statute barred.
On 16 October 2014, the trial Judge ordered that the issues of extension of time and liability be separated from the quantification of damages and tried first. On 4 February 2015, the Judge found that the plaintiff had failed to establish liability on the part of Prince Alfred College and refused to exercise her discretion to extend the time to bring proceedings under the Limitation of Actions Act 1936 (SA).[6]
[6] A, DC v Prince Alfred CollegeIncorporated [2015] SASC 12.
The Approach of an Appeal Court
It is convenient to set out the approach to be taken by an appellate court on an appeal from a judgment of a trial judge. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ observed:[7]
[7] Fox v Percy (2003) 214 CLR 118, [22]-[25].
The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in . . . operation”.
[Footnotes omitted.]
McHugh J conducted an extensive review of the authorities and observed:[8]
[8] Fox v Percy (2003) 214 CLR 118, [87]-[88].
There is nothing in Warren v Coombes that is inconsistent with Abalos or Devries. Warren decided only that “whether the facts found do or do not give rise to the inference that a party was negligent” is not a matter that “should be treated as peculiarly within the province of the trial judge”. In earlier cases, Barwick CJ and Windeyer J had suggested that the findings of trial judges were entitled to special deference, even when the findings were based on inferences drawn from facts found or admitted. Warren denied that proposition. In a joint judgment, Gibbs A-CJ, Jacobs and Murphy JJ said:
“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.” (Emphasis added.)
Thus, Warren was concerned with the approach of an appellate court in drawing inferences from facts admitted or found by the trial judge. Abalos and Devries were concerned with the approach of an appellate court where the trial judge had made a finding as the result of accepting the oral evidence of a witness that other evidence contradicted. The distinction between the two classes of case is fundamental and almost always decisive. It was recognised by this Court in Brunskill where the Court said:
“The authorities have made clear the distinction which exists between an appeal on a question of fact which depends upon a view taken of conflicting testimony, and an appeal which depends on inferences from uncontroverted facts.”
...
[Footnotes omitted.]
These observations have guided my consideration of this appeal.
The Evidence in the Trial
The trial Judge accepted the plaintiff as an honest and usually reliable witness. The plaintiff gave evidence of the abuse inflicted by Bain. He also gave evidence of the way in which the boarding house was managed and, in particular, the way in which Bain performed his duties as a boarding house master. This latter evidence was supported by two former students who had been members of the boarding house at the same time as the plaintiff. The Judge accepted their evidence.
Oral and documentary evidence was led from medical practitioners, including psychiatrists David Kelly, Nicholas Ford and Alexander McFarlane, as well as a psychologist, Ian Coates. Documentary evidence was tendered from Trevor Maxwell, the plaintiff’s general practitioner. The evidence concerning the plaintiff’s medical history and illnesses was well documented and was generally accepted by the trial Judge. However, the Judge did not accept Professor McFarlane’s opinion concerning the time of the onset of the post-traumatic stress disorder, preferring in that respect the medical evidence, in particular of Dr Ford, that the disorder had been present for many years but was not diagnosed until 1996.
A number of other witnesses were called to give evidence as part of the plaintiff’s case, including: the plaintiff’s former wife; the plaintiff’s partner; the plaintiff’s former business associates and employees; two victims of Bain’s abuse at Cummins Area School; the son of the then headmaster of Cummins Area School, who was also a student at the school at the time Bain taught there; a teacher employed by Prince Alfred College in about 1961; and a police officer who was involved in undertaking background checks in about 1961. Little of this evidence was disputed.
Prince Alfred College called evidence from: an officer of the Independent Schools Association, Roger Anderson; and Geoffrey Bean, the headmaster of Prince Alfred College from 1970 to 1987.
Background
In 1962, the plaintiff entered Prince Alfred College as a year 8 student aged 12 years. The plaintiff’s home was in rural South Australia and, until 1962, he had lived at home with his parents. The plaintiff described having been raised on a farming property near Pinnaroo in a happy, loving and caring family, and well protected by his parents. He attended Pinnaroo Area School from 1955 to 1961. The plaintiff’s two brothers had been boarders at Prince Alfred College and his sister a boarder at Methodist Ladies College. When the plaintiff entered the boarding house, his parents remained in Adelaide for about six weeks. Following their return to Pinnaroo, the plaintiff described himself as being particularly homesick.
The plaintiff met Bain shortly after moving into the boarding house. The plaintiff was aware that Bain was a teacher at the school and a boarding house master. Bain was not one of the plaintiff’s teachers. The plaintiff described Bain as always being friendly and observed that he spent a lot of time with the junior boarders, that is, up to year 8, “when we were showering and so on”. The plaintiff was aware of David Prest being the housemaster in charge of the boarding house, but the plaintiff had no memory of Mr Prest ever coming into the dormitories or speaking to him.
In 1962, John Dunning was the headmaster of Prince Alfred College and Kyle Waters was the school chaplain. Bain was one of three boarding house masters. Bain was rostered on duty at the boarding house two to three times each week. On those occasions, he was the only master on duty throughout the night. Accommodation for Mr Prest, Bain and the other boarding house master, Gordon Connell, was provided within the boarding house. The rooms of Mr Prest and Bain were on the same level and in close proximity. University students also helped out in the boarding house and had accommodation in the attic.
There was no direct evidence as to Bain’s terms and conditions of employment. There was no evidence of any job specification or list of duties. Ultimate responsibility for the school and its boarders rested with the headmaster.
Evidence from the plaintiff and the two other boarders established that Bain would supervise the evening and bedtime routines of the year 8 boarders. This included supervising the boys showering. The plaintiff gave evidence that the junior boarders saw quite a bit of Bain at shower time. Bain, at bedtime, supervised the settling of the junior boarders. Bain would come into the dormitories after lights out and talk to the boys while sitting on their beds. He would tell the boys stories on these occasions. Bain socialised with the boarders, including in his room. The plaintiff gave evidence that Bain would be present on occasions when he was not on duty.
The boarding house masters were assisted by the boarding house prefects, who were in year 12. The prefects helped organise and supervise the students in their daily routines, for example the making of beds and getting ready for breakfast. The prefects acted as “disciplinarians” and had the authority to administer corporal punishment for indiscretions, which they appear to have done with minimal or no oversight from the boarding house masters. The boarders’ evidence established that the prefects would often administer corporal punishment after lights out. Punishment would include administering up to six belts with a leather slipper off a three-pace run-up to blindfolded students.
It is clear that, during the plaintiff’s early months as a boarder, he was a young, vulnerable child who was settling into a new environment and was homesick. Bain’s role as a boarding house master called for a degree of intimate contact with this young child.
Bain molested the plaintiff on more than 20 occasions from about April 1962. At the time when the abuse commenced, the plaintiff had been a boarder for several months. As noted above, he was a young, vulnerable child, homesick and trusting of Bain as a boarding house master. The abuse consisted of touching of the genitals, oral sex and kissing. On one occasion, Bain instigated sexual activity with the plaintiff and another boy at the same time. On most occasions, the abuse took place in the rooms of the plaintiff and Bain in the boarding house, though on occasion it took place away from the school premises.
Prince Alfred College became aware of Bain’s conduct in October 1962. The plaintiff had disclosed the abuse to a fellow boarder, who advised the chaplain. The chaplain then discussed the matter with the plaintiff. The plaintiff gave evidence that he “was too frightened to go to the chaplain, just too terrified to tell the chaplain what [he] had been doing with Mr Bain because [he] thought it was [his] fault”. The discussion consisted of the chaplain asking leading questions and obtaining assent from the plaintiff. It appears that the plaintiff proffered little or no detail of what had occurred. Bain was dismissed within two days.
An assembly for the secondary school boarders, about 150 boys in total, was held at about that time. The boys were informed that Bain had been dismissed for misconduct or inappropriate conduct, or words to that effect. The boys were instructed that Bain’s dismissal and misconduct should not be discussed, either among themselves or within the wider school community. The headmaster, in particular, spoke of the need to uphold the school’s reputation. The plaintiff understood the headmaster’s instruction to be that the entire topic of Bain’s conduct and dismissal was to be kept strictly confidential. The chaplain advised the boys that he, and possibly the matron as well, were available to speak to any boy who needed help. The plaintiff gave evidence that, when listening to the headmaster, he “felt it was all about [him] and [he] was humiliated, ashamed and guilty”. The headmaster explained that the topic was not to be discussed, which made the plaintiff feel even worse. The plaintiff felt traumatised and thought he was “conspicuous” and “damaged goods”. When he left the assembly, he was frightened. He described himself as feeling shamed by the authorities at the assembly. In answer to the Judge’s question “in what way”, he answered:
That I'd created or been part of this strange behaviour, or more than strange. I'd been involved with some sort of sexual behaviour that I didn't understand and no-one told it wasn't my fault. No-one said it wasn't my fault, so I live with that guilt, and it was such a public humiliation, 150 kids all knew what I'd been doing.
Following the immediate dismissal of Bain, it would appear that the school made no report of the abuse to police. The school did not take any proactive step to provide counselling to the plaintiff or any other boys who had been abused. The school left it to the plaintiff to initiate the seeking of help. A question to be later addressed is whether the school’s approach of leaving it entirely to abused boys to seek counselling was a materially inadequate response.
For the balance of his school years, the plaintiff followed the headmaster’s instruction of keeping Bain’s abusive conduct strictly confidential. The plaintiff experienced some physical bullying at school and was at times isolated from friends. However, the plaintiff on the whole enjoyed his last few years at school and received a prize for being the most respected member of the boarding house. He matriculated and obtained a scholarship to study for a Bachelor of Arts degree at Flinders University.
From 1967, after graduating from Prince Alfred College, the plaintiff was unsettled. He played football for the old scholars for three years. However, he felt uncomfortable because he thought his relationship with Bain was common knowledge. The plaintiff felt conspicuous and uncomfortable at university and eventually dropped out of his course of studies, an arts degree and an accounting qualification. He commenced work in a stationery business owned by his father at Glenelg.
The 1970s were a more stable decade for the plaintiff. He married in 1972. He and his wife built a house at West Beach. In 1973, the plaintiff and his father purchased a newsagency in Glenelg, which the plaintiff continued to manage after his father’s death in 1977. In 1978, the plaintiff sold the stationery business that had been owned by his father. He purchased a jewellery store and a block of units.
The 1980s saw the commencement of a deterioration in the plaintiff’s health. He suffered from anxiety and sought counselling to address this developing condition. He had started to develop a drinking habit and, through his counselling, sought to address this problem. He felt out of place, in particular when associating with friends from Prince Alfred College. His declining health was affecting his ability to cope with the running of his businesses and, in 1984, the plaintiff sold his newsagency business. He continued to deal with his commercial property interests. The plaintiff and his wife had a daughter in 1980 and a son in 1982. By 1987, the plaintiff’s health problems were such that he moved his family to a country town, where he hoped to address his drinking problem.
In the late 1980s and early 1990s, the plaintiff bought an office stationary business, a supermarket and a hardware store. He sought to address his ongoing drinking problem by joining Alcoholics Anonymous in Adelaide. He was successful for a time in ceasing his consumption of alcohol. His health improved. His anxiety symptoms lessened and, by the mid-1990s, he was able to manage his family and work commitments. He had, throughout the decades from 1962, continued to follow the instruction to keep Bain’s conduct confidential. He had, by the early 1990s, been able to put the abuse he suffered out of his mind.
In 1996, the plaintiff’s son enrolled at Prince Alfred College in accordance with the family tradition. Problems for the plaintiff soon developed. The plaintiff experienced difficulty interacting with other parents at the school and when attending functions. These activities would trigger flashbacks and memories about Bain and the bullying he received from fellow students. He had nightmares and became unable to cope at work.
By mid 1996, the plaintiff’s mental health had deteriorated markedly. On 21 August 1996, the plaintiff was referred by his general practitioner, Dr Maxwell, to Mr Coats, a psychologist. The plaintiff had not informed Dr Maxwell of the abuse he had suffered at the hands of Bain. In his referral letter, Dr Maxwell outlined the plaintiff’s condition as follows:
... he clearly is experiencing a period of destructive anxiety with feelings of being ‘Locked in’, ‘inadequacy’, fear of ‘losing his mind’, and inability to concentrate, make decisions and handle pressure plus the physical symptoms of tremor etc.
Mr Coats was the first person since the initial disclosure in 1962 to the chaplain to whom the plaintiff had disclosed the abuse inflicted upon him by Bain. Mr Coats formed the opinion that the plaintiff was suffering from a post-traumatic stress disorder. In his report of July 1997, Mr Coats recorded the symptoms that led to his conclusion that the plaintiff suffered from a post-traumatic stress disorder and his opinion that there was a clear link between this disorder and the abuse inflicted by Bain. At this time, Mr Coats considered there to be a good prognosis for the plaintiff achieving considerable relief from his symptoms, together with growth in his self-esteem and confidence during the next 12 months.
During 1997, the plaintiff attended meetings with Prince Alfred College. By this time, he had instructed lawyers to commence proceedings against Bain. The plaintiff sought and received an assurance from Prince Alfred College that students at the school would not be exposed to the kind of abuse suffered by him. It is to be recalled that the meetings with the school occurred at a time when the plaintiff believed that he had a good prognosis and prospects for recovery. The discussions with the school resulted in the plaintiff accepting an offer of financial assistance from the school and the school arranging a meeting between Bain and the plaintiff.
In October 1998, following ongoing consultations, Mr Coats prepared a further report in which he outlined his then opinion. He reported:
Based on therapeutic progress made over the past two years, I believe the prognosis is very good for [the plaintiff] being able to recover a robust sense of himself and his worth, as he gradually puts to rest the effects of the childhood sexual abuse and comes to terms with his attitude towards Mr Bain and Prince Alfred College. There is still considerable healing to be done, but the signs have so far been encouraging. [The plaintiff] has agonised for some time over the benefit or otherwise of meeting with Mr Bain, but has gradually become clear that such a meeting would undoubtedly assist him in getting on with his life in a more constructive and confident fashion, without being consistently haunted by a debilitating past. [The plaintiff] is actively concerned with preventing such abuse in the community, and would thus benefit from the opportunity to be reassured over Mr Bain’s behaviour beyond his relationship with [the plaintiff].
[Emphasis added.]
At about this time, the plaintiff campaigned for the removal of the statutory immunity for prosecutions for sexual offences committed before December 1982.
In the late 1990s, the plaintiff continued to suffer the symptoms of a post-traumatic stress disorder. His marriage deteriorated and he found it difficult to cope with the civil action against Bain. His good prospects of recovery from his post-traumatic stress disorder and depression did not eventuate. In 1998, the plaintiff reached a settlement with Bain. Following this settlement, the plaintiff’s condition further deteriorated. He continued therapy sessions with Mr Coats, tried alternative therapy and consulted other counsellors. He reduced his workload. He attempted to withdraw from his use of medication, but panic attacks immediately re-emerged. As a consequence, Dr Maxwell prescribed antidepressant medication. The plaintiff’s deteriorating condition impacted on his ability to work and his capacity to control his consumption of alcohol. He had difficulty in maintaining family and social relationships. His antidepressant medication was increased and other medication was prescribed. Attempts through medication were made to control his consumption of alcohol.
In 2002, the plaintiff’s condition rapidly deteriorated, resulting in an urgent referral from his general practitioner to Dr Kelly and his immediate admission to a psychiatric hospital. The plaintiff had self-harmed. He was treated by Dr Kelly with support from a psychologist, Silvana Shafik. Dr Kelly was of the opinion that the plaintiff suffered from post-traumatic stress disorder and depression. The plaintiff attempted to return to work upon his discharge from hospital. He continued to see Dr Kelly and Ms Shafik. His mental state and alcoholism worsened. In December, he wrote to his solicitors seeking to challenge his settlement with Bain.
In early 2003, the plaintiff engaged assistance to help in the running of his stationery business. By mid-2003, the plaintiff was suicidal. He was readmitted to the psychiatric hospital. He saw specialists concerning panic attacks.
By late 2004, the plaintiff was not coping. He had ceased going to work. He remained suicidal. He sought assistance from Prince Alfred College and the Uniting Church, but none was forthcoming. He became angry at the school. He had understood that the school would continue to help him. He felt let down. In December 2004, the plaintiff was admitted to a psychiatric hospital, having again become suicidal.
In February 2005, Bain was arrested for his past sexual abuse of number of Prince Alfred College students, including the plaintiff. The plaintiff attended a number of court hearings and provided a victim impact statement. He learnt for the first time that Bain had a conviction in 1954 for gross indecency. Bain pleaded guilty to two charges of indecent assault and was sentenced in December 2007 following a disputed facts hearing.
In April 2005, the plaintiff’s office stationery business went into voluntary liquidation and was sold, as was his family home. He contacted Prince Alfred College setting out his suffering and financial losses and requesting a refund of school fees and the sum of $1,000,000.00. At about that time, he was readmitted to psychiatric hospital and underwent electroconvulsive therapy. This treatment affected his short term memory. In June 2005, the plaintiff attempted to speak with the headmaster of Prince Alfred College, but was left frustrated by a lack of support. In August 2005, he was again suicidal and readmitted to psychiatric hospital. His marriage broke down and he moved out of the family home.
By October 2005, the plaintiff was planning to commence proceedings against Prince Alfred College. He was resentful that the old scholars’ network had not assisted him with employment. The plaintiff was readmitted to psychiatric hospital in May 2006 and again in November 2006, following a few days work at a hardware store. In a report of 23 January 2006, Dr Kelly recorded that the plaintiff had been his patient for some time, both as an inpatient and an outpatient. In his report, Dr Kelly expressed the following summary and conclusions:
At this point in time [the plaintiff] demonstrates [sic] a man who experienced significant repeated incidents of sexual abuse and bullying during his early adolescent life. This has affected his subsequent development as an adult, culminating in the development of a depressive illness associated with a Post Traumatic Stress Disorder. His recurrent use of alcohol has in my opinion, been an attempt to avoid the symptoms associated with these conditions. These conditions and the alcohol abuse have contributed to his business failure, as well as in more recent times the breakdown of his marriage.
There is a possibility that there is a biological predisposition to depression in the form of a family diathesis, however it is my opinion that the major contributor to his level of disability during his adult life and at this point in time, have been the events that occurred during adolescence.
On 6 December 2007, Dr Kelly provided a supplementary report and expressed the following opinions:
In view of this it is my opinion that it is unlikely that [the plaintiff] will at any stage in the future be able to return to the level of functioning that he had had during much of his adult life. In particular it is my opinion that he will not able to own and manage his own business, as he had been able to previously. It is likely that the type of employment that he has currently obtained will be appropriate for him through the rest of his working life.
[Emphasis added.]
From November 2008, the plaintiff’s psychiatric care was undertaken by Dr Ford, again on referral from Dr Maxwell. In his report of 16 September 2010, Dr Ford expressed the opinion that the plaintiff suffered from a post-traumatic stress disorder. He considered that, although the disorder was first diagnosed in 1996, there were strong hints that the symptoms developed in the 1980s, and possibly earlier. In Dr Ford’s opinion, clinical experience and the relevant professional literature did not support the prospect of recovery by the plaintiff from his chronic post-traumatic stress disorder. At the conclusion of his report, Dr Ford expressed the following opinion:
He suffers from a chronic Post Traumatic Stress Disorder and alcohol dependence, this latter in partial remission.
...
I believe he will need life long psychotherapy. These are with myself monthly; very rarely he requests a more urgent appointment; preferring to “tough it out”. I would not be surprised if at some stage I have to hospitalise him for periods of depression or to withdraw from alcohol. I hope this does not sound pessimistic to [the plaintiff] but there is a need to inform. It is more likely than not he will be require psychotropic medication indefinitely.
The prognosis is for maintenance of his symptoms, constant therapeutic vigilance, and encouragement to re-anchor himself in his family’s life; which may help in the longer term to diminish his feelings of shame and humiliation further. The chances of working in a professional or managerial capacity are remote.
[Emphasis added.]
In 2010, the plaintiff was referred to Professor McFarlane for psychiatric review. Professor McFarlane, in his report of 22 December 2010, reviewed the plaintiff’s history in detail. It is convenient to extract this summary:
[The plaintiff] has suffered a range of psychiatric disabilities including posttraumatic stress disorder, major depressive disorder, alcohol abuse with associated dissociative symptoms as a consequence of his childhood sexual abuse whilst a student in the boarding house at Prince Alfred College. The failure of the school to effectively intervene at the time, in terms of appropriate criminal prosecutions and the provision of psychological assistance for [the plaintiff], are important matters that have predicted his subsequent future. He has been left with a sense of being relatively unprotected and filled with a sense of shame and responsibility for his circumstance.
He was able to establish himself as an independent businessman in his early adult life as a consequence of his father’s support and protection. However, when his own son reached the age at which he was abused, this was a profound trigger to his memories of his own abuse. His inability to act in a self-protective way is indicated by his decision to send his son to Prince Alfred College and his ongoing attempts to negotiate with that school.
[The plaintiff’s] need for justice and reparation and his preoccupation with these issues have been determined to a significant degree by the treatment that he received at the school whist he was a pupil. The failure of the school to effectively intervene has had a pervasive impact on his state of mind.
The abuse has had a disruptive impact on his ability to organise his business relationships and manage staff effectively in his stationery firm. Therefore, he has suffered significant financial consequences of his underlying psychiatric state.
In my opinion, [the plaintiff] is unlikely to make any significant improvements in the future and will require ongoing care and treatment.
Furthermore, he requires a guardian in his negotiations with the school because of the potential for this environment to replicate many of the conflicts and difficulties associated with the abuse relationship.
[Emphasis added.]
In September 2011, the plaintiff’s employment at the hardware store was terminated as he had been stealing money and gift cards. He said theft gave him a buzz and that he did not understand his conduct.
The Appeal – Liability
The Approach of the Trial Judge
The Judge took the view that, in the circumstances of the proceeding, the plea that the school was in breach of a non-delegable duty to the plaintiff added nothing to his primary negligence case and his case based on vicarious liability. As a consequence, the Judge did not address separately the question of a breach of a non-delegable duty.
The Judge accepted that the school owed a non-delegable duty of care to the plaintiff. The Judge found that the school undertook to house, educate and generally supervise, control and care for the plaintiff.
The Judge found that Prince Alfred College owed a duty to take reasonable care to protect its students, in particular boarders. The Judge found that the duty of care “extended to taking reasonable care in employing persons who were suitable to teach and to care for [the plaintiff] ... [and] providing adequate supervision of the work of boarding house masters”. Although the Judge considered the scope of the duty of care in general terms, there was no consideration of the particular scope of the duty owed toward a young and vulnerable child leaving a rural family for the first time and commencing life as a boarder at a city school.
Breach of Duty – Employing Bain
At trial and on appeal, the plaintiff contended that Prince Alfred College had been negligent in failing to make proper and adequate enquiries about Bain’s suitability before employing him as a teacher in 1961. At trial, it was established that Bain committed the offence of gross indecency in the years leading up to his employment at Prince Alfred College and there was a suggested history of misconduct at another school at which he had taught prior to teaching at Prince Alfred College. It was submitted that Prince Alfred College had not made sufficient enquiries concerning his suitability for a position as a teacher at the school. The Judge concluded that the plaintiff had not proved that the school could have obtained information about Bain’s prior criminal record and was not persuaded that information about the suggested misconduct would have come forward on an enquiry. I am not persuaded that the Judge erred in reaching these conclusions as to Bain’s employment in 1961. In my view, it was open to the Judge to take that view having regard to the paucity of the evidence relevant to his initial employment with the school.
The evidence before the Court established that Bain was an entirely inappropriate person to be employed as a boarding house master entrusted with the care of young children. Bain was born on 26 December 1935. He qualified as a high school teacher and obtained his first position on the Eyre Peninsula in 1958. He commenced work with Prince Alfred College in February 1961. At that time, he lived at home. In 1962, he was offered a position as a resident house master in the boarding house at Prince Alfred College. He was aged 27 years, was single and apparently had little or no experience caring for young children. No evidence was led as to any enquiries made by Prince Alfred College as to his suitability to work as a resident boarding house master.
It is to be borne in mind that, as a boarding house master, Bain had the responsibility as the sole master on overnight duty to supervise and attend to the wellbeing of boys as young as 12 years of age spending their first year away from home. His responsibility was to attend to these duties for two or three days a week. A decision was taken to entrust the care of young children to Bain. At the time of making this decision, Bain had been a teacher at Prince Alfred College for 12 months. This experience did not of itself qualify Bain to be appointed a boarding house master. It is self-evident that the responsibilities and duties of a boarding house master differed to those of a classroom teacher.
More importantly, before Bain was appointed to the position of boarding house master, basic checks were necessary. Was he suitable to take on the responsibility for caring for young children. Had he any prior experience with such duties. Had he had any training to address the problems he might encounter. What assistance was available.
It is difficult to accept that the undertaking of basic enquiries would not have led to a disclosure of at least such matters as would have caused the school to have considered him unsuitable to be a boarding house master. Alternatively, at the very least, the school would have been sufficiently on notice to undertake further enquiries.
In my opinion, the absence of direct evidence does not preclude the drawing of an inference that whatever enquiries the school made prior to appointing Bain to a position in the boarding house were entirely inadequate and evidence of a want of care. Prince Alfred College became aware of a potential claim arising out of the abuse perpetrated by Bain against students at the school in 1996. The school at that time had the opportunity to make enquiries about the school’s practices in regard to employment in the 1960s. There is no evidence as to what attempts, if any, were made at that time by the school to seek evidence of these matters. It is relevant to note that the Judge found that the majority of the evidence which had been lost had been lost since 1996. The claims being advanced by the plaintiff were serious and, to my mind, it is self-evident that the school must have been aware of the potential for a legal claim being advanced by the plaintiff, and possibly others.
In my view, Prince Alfred College breached its duty of care by failing to conduct appropriate enquiries as to Bain’s suitability to be employed in the boarding house as a boarding house master with sole responsibility for the care of young boys for two to three days each week.
Breach of Duty – Supervision
A further aspect of the plaintiff’s case at trial was that Prince Alfred College’s supervision of Bain in the boarding house was negligent. On the appeal, the plaintiff submitted that the Judge erred in absolving Prince Alfred College of blame in respect of its supervision of Bain. It was submitted that, as a “novice” boarding house master, Bain should have been subject to greater supervision. It was said that the school accepted that it had a significant responsibility to care for students. On that basis, the school should have exercised a substantially greater degree of oversight over its boarding house staff.
Prince Alfred College submitted that the evidence suggested that Bain had groomed and abused his victims in a covert manner. It was said that non-detection did not prove inadequate supervision. It was further submitted that the evidence suggested that the school’s practice of delegating primary responsibility for discipline to prefects was in keeping with the standards at the time and that it would have been impractical to implement a policy that no staff member could be alone with a student at any time.
There was a body of evidence accepted by the Judge which established the way in which the boarding house was supervised at the time Bain was abusing boarders. That evidence came from the plaintiff and two fellow boarders. That evidence provides a basis for drawing inferences as to the practices in place and as to their adequacy.
It is evident that the ultimate responsibility for the care of students at the school, including boarders, rested with the headmaster. A senior housemaster, Mr Prest, had an overall responsibility for the boarding house. He discharged this responsibility, in part, by giving boarding house masters the responsibility for the overnight supervision and care of the boarders. One of these housemasters was Bain. He had responsibility for two or three nights per week. On those occasions, he was the only master on duty. The school utilised the services of prefects, who were older school boys, to assist in maintaining discipline and the boarding house routine. However, the evidence clearly established, as one might expect, that Bain would supervise the night-time routine, particularly with the younger boarders. There would be a need to settle the younger boarders at night. It was in this latter context that Bain was able to abuse young boys, in particular the plaintiff.
I have no difficulty in concluding that the practice of the school was to have a master on duty throughout the night, that the housemaster’s duties included the maintaining of discipline and a proper routine and that the master was entitled to draw on the assistance of prefects in these tasks. If an analogy was appropriate, the master was in the position of the parent and the prefect that of an older sibling. The master was entrusted with responsibility for attending to the needs of children as young as 12 years of age, living away from home for the first time. The master was under a duty to ensure that those children were cared for during the night-time routine.
In circumstances where a housemaster was the only staff member on duty throughout the night, there was a need to guard against such a person engaging in abuse. If it be the case that only superficial checks were made when first employing Bain as a teacher, the need for appropriate checks was all the greater when he was to take on the duties of a boarding house master. There was no evidence that there was any system in place for any such checks. It is apparent from the evidence is that no meaningful check was made on the way in which he carried out his duties and responsibilities. The evidence of the plaintiff and his fellow boarders establishes that no other master was about the students’ dormitories, shower areas or other recreational areas on the two or three days each week when Bain was on duty. Neither the headmaster, Mr Prest nor any other master made any check or enquiry as to Bain’s activities. None of this evidence was challenged.
Rudimentary checks and supervision would have revealed Bain’s practices of spending an unusually lengthy amount of time in the showering areas, being with the boys and on their beds in the dormitories after lights out. Any enquiry of the young boarders would have revealed the extent to which Bain was engaging in conduct that could be described as grooming. A suggestion was made that boarding house prefects took on responsibility for the management of the young boarders. It would appear that prefects were involved in the management of young boarders. Such an arrangement called for particularly close supervision of those prefects. At the time, prefects had the authority to administer corporal punishment. The prefects, themselves teenage boys, required close and constant supervision when performing their role. This did not occur. Nor was there adequate, if any, supervision of Bain. Within months of his appointment, Bain had groomed and abused the plaintiff and other boys in his care.
In my view, Prince Alfred College breached its duty of care by failing to properly supervise Bain once he was appointed as a boarding house master.
Breach of Duty – Response to Abuse
At trial, the plaintiff argued that Prince Alfred College was negligent in its response to learning of the abuse by Bain. The Judge accepted that the school’s duty of care extended to “taking reasonable steps to care for the plaintiff’s welfare once the abuse was discovered by [the school]” and made the following findings in respect of its response to Bain’s conduct:
I find that once the conduct became known to the Reverend Waters and to the headmaster, Bain was very quickly dismissed. I am only able to make a few bare findings about what information was imparted to the boarders in the assembly and what help was offered to them. I find that the boys were told that Bain had been dismissed for misconduct, or inappropriate conduct, or words similar to that and that the topic should not be discussed either among them or in the wider school. I find that there was mention, probably by the headmaster, of the need to uphold the school’s reputation. I find that the Reverend Waters advised the boys that he, and possibly the matron as well, were available to speak to any boy who needed any help in relation to the issue and, indeed, this was in accordance with the chaplain’s usual role.
I can make no finding about what information was given to the plaintiff’s parents or what, if any, views they expressed about any assistance for the plaintiff. I can make no finding about any discussions within the school, or with the plaintiff’s parents regarding whether any report should be made to the police. I can make no finding about any particular steps which Mr Prest or any of the other housemasters took to make themselves aware of the plaintiff’s reaction to the event, or as to any extra attention given him. Indeed, I can make no finding as to whether the school was apprised of the fact that other students, apart from the plaintiff, had been abused. Knowing next to nothing of the school’s reaction to the situation I cannot find that there was a want of care for the plaintiff’s plight.
I accept that the standards to be applied to this issue are those which prevailed in 1962 and not the standards which prevail 52 years later. While by contemporary standards it appears that more could have been done for the plaintiff, that perhaps counselling should have been insisted upon, and that the police should have been advised (if that is what the plaintiff’s parents wished) I cannot find that the school’s response to the situation was in breach of its duty of care in terms of the standards then prevailing.
I find that the plaintiff has failed to prove that the school was in breach of its duty to the plaintiff in its response to learning of the abuse.
[Emphasis added.]
The grounds of appeal concerning vicarious liability are as follows:
3.The learned trial judge ought to have found in favour of the plaintiff and, in particular:
…
Vicarious liability
3.4.Ought to have held that the defendant was vicariously liable for the sexual abuse perpetrated upon the plaintiff by its boarding housemaster, Mr Bain.
3.5.Erred in finding (at [179]), that Mr Bain’s employment as a boarding housemaster at the respondent school was not sufficiently connected to the sexual abuse perpetrated on the plaintiff in the boarding house so as to render the defendant as his employer vicariously liable for that sexual abuse.
3.6.In so finding (at [179]), overlooked the significance of the evidence of Mr Bean, who described the responsibility of the defendant school, and particularly boarding housemasters, for the safety and wellbeing of its boarders, as an awesome responsibility.
3.7.Erred in finding (at [143], [149] and [173]) that the “primary responsibility”, and the “general responsibility”, for supervising the younger boarders in fact lay with the boarding house prefects and moreover in doing so failed to give effect to that consideration when addressing the negligence of the defendant.
3.8.Erred in apparently concluding that the employees of the defendant were thereby relieved of that responsibility (a state of affairs which, were it true, would lead inexorably to the conclusion that the respondent was negligent).
3.9Overlooked or failed to have proper regard to the Director of Public Prosecution’s submissions on the sentencing of Mr Bain, where the Director, correctly, adverted to the particular gravity of Mr Bain’s repeated sexual abuse of the plaintiff, committed as it was over a protracted period in the course of his employment as a boarding housemaster, where Mr Bain was in a position of trust and confidence and the plaintiff was vulnerable having been entrusted to Mr Bain’s care by the defendant (Exhibit D66 at p.29/32-31/18).
3.10.Erred in failing to conclude at [177] that Mr Bain was authorised to supervise the plaintiff’s bedtime routines including showering and at “lights out”.
3.11.Erred in not characterising the role of Mr Bain as boarding housemaster as having been charged with responsibilities involving intimate contact with adolescent boys, and requiring concern for their personal welfare and development.
3.12.Accordingly (cf [169]) misconstrued where Mr Bain’s duties at the boarding house placed him in the spectrum of situations affecting the imposition of vicarious liability as described by Gleeson CJ in New South Wales v. Lepore (2003) 212 CLR 511 at paragraph [53].
3.13.Erred in applying at [171], [176] Withyman v State of New South Wales (2013) NSWCA 10, a case which involved a day student and not a boarder, given that the duties of the boarding master are quite different from those of a day master involving, as they do, all of the aspects of the boarders care in loco parentis.
3.14.Erred in apparently concluding, contrary to the evidence, that the role of boarding housemaster did not substitute for that of a parent, necessarily requiring as it did that a vulnerable child of the plaintiff’s age in the defendant’s boarding house should trust and depend upon the boarding housemaster engaged by the defendant in that role, in substitution for a parent.
3.15.Erred in finding at [179] that the defendant did not create or enhance the risk of Mr Bain sexually abusing the plaintiff.
As the argument developed, the main contentions for the appellant may be summarised as follows:
A.The Judge erred: in her approach to the evidence as to supervision and discipline of the year 8 boarders; in finding that the prefects bore “primary” and “general” responsibility for supervision and discipline; and in failing to find that Bain had ostensible authority to supervise and discipline.
B.The Judge erred in her approach to the question of whether there was an “intimate” relationship between Bain and the appellant as that term is used by Gleeson CJ in Lepore.
C.The Judge erred in that her Honour overlooked the significance of, or failed to give adequate weight to, the evidence of Mr Geoffrey Bean as to:
1. the nature of the relationship between the Masters and the boarders.
2. the risk of harm in the carrying out of the venture of running PAC.
D.The Judge erred in her approach to, and resolution of, the questions of whether, and to what degree, the relationship between Bain and the appellant was one of power and intimacy as referred to by Gleeson CJ in New South Wales v Lepore.
E.The Judge erred in concluding that vicarious liability was not established in the light of all relevant factors.
I turn to each of these contentions.
A. The Judge erred: in her approach to the evidence as to supervision and discipline of the year 8 boarders; in finding that the prefects bore “primary” and “general” responsibility for supervision and discipline; and in failing to find that Bain had ostensible authority to supervise and discipline
The appellant’s evidence in relation to routine and discipline is referred to above. On one level, the Judge appears to have accepted this evidence. Apart from her Honour’s statement as to generally accepting his evidence, her Honour’s observation that it “may be accepted that when rostered on duty overnight Bain had a role which involved responsibility for, and overall supervision of, the boarding house”[101] was drawn from the appellant’s own evidence.
[101] Judgment, [175].
However, the Judge stated, “In a number of respects, including his (Bain’s) supervision of showering of the boys and his presence in their dormitories after “lights out”, I am inclined to think that those activities were unauthorised”.[102]
[102] Her Honour went on to concede that such a conclusion would be speculative, and stated that her finding against vicarious liability did not turn on that point. Judgment, [177].
With respect, I consider that the Judge’s “inclination” was incorrect. What is here being considered is the correct delineation of Bain’s powers, duties and responsibilities and one cannot limit Bain’s authority by reference to the conduct of the prefects. The prefects were, after all, not much older than the boarders themselves and their time at the school was very limited, with outgoing prefects being continually replaced by incoming prefects. The prefects were subject to the supervision of the masters (including Bain) and did not have some form of inherent powers that could not be exercised by the masters themselves. Thus, the power to supervise the boys during their showers, and to walk through the dormitories after lights out, could not have been the sole prerogative of the temporary prefects and unavailable to the continuing masters who were ultimately responsible for the wellbeing of the boarders.
There is no doubt that the evidence shows that the prefects had a part to play in supervision and discipline, but I consider that the Judge’s findings at paragraphs [143], [149] and [173] that the prefects bore “primary” and “general” responsibility for the supervision and discipline of the year 8 boarders is against the weight of the evidence and should be set aside.
Nor is there any basis for limiting Bain’s authority by reference to the conduct of the other housemasters. The Judge stated at paragraph [143] that “None of the former boarders suggested that any housemaster, apart from Bain, would be present in the dormitories after lights out” but the purport of this statement is somewhat unclear. At face value, it is consistent with the appellant’s evidence that Bain was the only master so rostered, thus rendering a comparison with other masters in this regard otiose. However, if it is intended to convey the opposite meaning, namely that it can be deduced that Bain had no duty to be present in the dormitories after lights out because no other masters behaved in that way, I cannot agree. The fact is that the masters had a duty to supervise the activities of the prefects, but how individual masters might carry out such duties might vary greatly.
I consider that the Judge erred in failing to find that Bain had at least ostensible authority to supervise and discipline the year 8 boarders and that this included supervision of showering and other preparations for bed and telling stories to the boarders to settle them into sleep.
B. The Judge erred in her approach to the question of whether there was an “intimate” relationship between Bain and the appellant as that term is used by Gleeson CJ in Lepore
The appellant asserts that there was a failure by the Judge to direct herself correctly concerning the concept of an intimate relationship; that the Judge erred in directing herself that the ordinary relationship[103] between the appellant and Bain was not one of intimacy; and that the Judge erred in effect directing herself that a duty arising out of Bain’s employment to engage in intimate physical behaviour with a student had to be demonstrated for vicarious liability to arise. I consider that this complaint is made out. My reasons follow.
[103] That is to say putting aside all sexual aspects.
After referring to passages in the judgment of Gleeson CJ at paragraphs [53] and [54] in Lepore[104] concerning “intimate contact”, the trial Judge later proceeded to state:
[175] In any event, although it may be accepted that when rostered on duty overnight Bain had a role which involved responsibility for and overall supervision of the boarding house, that is very far from amounting to a duty to engage in intimate physical behaviour with a student.
…
[178] Even so, were I to assume that Bain acted in accordance with the defendant’s instructions in these activities, it would make no difference to my conclusion that the defendant is not vicariously liable for Bain’s abusive conduct.
[179] I find that notwithstanding that the relationship between boarding housemaster and boarding student would likely be a closer one than that of a day student and teacher of like age, the ordinary relationship was not one of intimacy and 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. I find that the defendant did not, by means of any proven requirement of Bain, create or enhance the risk of Bain sexually abusing the plaintiff. (Emphasis added)
[104] (2003) 212 CLR 511, 540-541.
With respect, there are a number of problems with this process of reasoning. The development of Gleeson CJ’s thesis in Lepore that the cumulative effect of a large number of factors will determine whether vicarious liability will arise is discussed in some detail above at paragraphs [185] to [200] of this judgment. There may be many factors relevant to the imposition of vicarious liability in cases of the present type, including whether the relationship is the closer one of master/boarder rather than of day-teacher/pupil, whether the student is a child of the tender age of 12 years rather than say 17 years, whether the offending occurs on school premises, and so on. Whether, and to what degree, the relationship is “intimate” will be a further such cumulative factor to be considered, but this factor of “intimacy” is not to be regarded as a condition precedent to vicarious liability arising.
The true position is that a spectrum extending from an unlikely case of vicarious liability to a likely case of vicarious liability may be fashioned according to the presence of various factors. The matter of “intimacy” is one such relevant factor. But importantly, while the adjective “intimate” connotes close, personal and familiar associations, it does not necessitate physical touching.[105] The term or concept of “intimacy” in fact contains within itself a further spectrum grading from, say, a developed friendship on a first name basis, through intimate personal conversations about delicate matters and then ascending to actual physical contact (which physical contact of itself may involve once again ascending degrees of physical intimacy).
[105] See, eg, Macquarie Dictionary’s first three definitions of “intimate”: associated in close personal relations; characterised by or involving personally close or familiar association; private, closely personal.
Different persons when asked to suggest what might constitute the near top level of the overall spectrum being considered by Gleeson CJ might give very different answers. One person might suggest a highly physical example, say a master at a boarding school who coaches 12 year old students in a sport which might legitimately involve the giving of an upper thigh massage following a sports injury; the school would likely be vicariously liable if such a master started giving such a proper massage but then deliberately and improperly touched the student in the genital area.
However, another person might just as aptly suggest a teacher-student relationship which involves no physical contact at all, but nevertheless involves a very high degree of “intimacy”. Thus, if duties of a female master at a boarding school included educating young female students in sexual matters, such duties would not involve any physical contact but would include appropriate private discussions. The degree of power and intimacy in such a teacher-student relationship might be very high and vicarious liability would likely follow if the master, in the course of such a private education session, were to persuade the child to engage in a sexual act or relationship with herself.
Against this background, an examination of Gleeson CJ’s uses of the word intimate (including its parts) from paragraph [53] to paragraph [72] of his reasons shows that his Honour uses the word in various contexts, only some of which connote actual “intimate physical behaviour”.
I consider that the Judge’s words at paragraph [175] of her reasons do constitute a misdirection; they convey that her Honour considered that it is necessary to establish a duty arising out of Bain’s employment to engage in intimate physical behaviour with a student and that the present case must fail because, even on the most favourable construction for the appellant, it is very far from amounting to such a duty. With respect, this is an error; it puts the test for vicarious liability much higher than that formulated by Gleeson CJ.
I also consider that the misdirection carries through to paragraph [179] and to her Honour’s statement that “the ordinary relationship was not one of intimacy”. As I understand it, her Honour here asserts that, even accepting that Bain’s activities of supervising the showering and telling stories to the juniors at bedtime was within his range of duties, the ordinary relationship (that is to say that relationship without the sexual offending he in fact committed) was not one of intimacy. Again, I consider that her Honour has erred in adopting an unduly high requirement for a relationship involving “intimacy”.
As noted above, the concept of intimacy itself involves a spectrum. Having regard to the various authorities in this area, I hold that a relationship between a 12 year old boarder and a resident master who exercises such quasi parental authority over him in relation to such “intimate” matters as showering and preparing for bed; who reads to him in bed; and who has private sessions alone with him in the master’s room (even if there be no hint of impropriety) is indeed “an intimate relationship” in the sense in which Gleeson CJ sought to convey in Lepore.
C. The Judge erred in that her Honour overlooked the significance of, or failed to give adequate weight to, the evidence of Mr Bean as to:
1. the nature of the relationship between the masters and the boarders
2. the risk of harm in the carrying out of the venture of running PAC
Aspects of the evidence of Mr Geoffrey Bean that are important to the case for the appellant are referred to in detail above. Unfortunately, the Judge did not refer to those aspects of his evidence, an omission made the more stark by the fact that her Honour did record the uses to which she put his evidence in favour of the respondent in the area of other causes of action:
[144] In his pleadings the plaintiff asserts that there should have been a policy in place prohibiting contact between young boarders and masters where no third person was present. It may be accepted that there was no such policy. The defendant argues that to suggest that such a rule should have been in place ignores the reality of boarding house life, both in 1962 and later. The former headmaster, Mr Bean, gave evidence touching this issue. He said that a policy requiring that no boy should be alone with a master could not have been implemented without a dramatic change in the staffing of the school. Mr Bean referred to the “incredible number of interactions that take place” between masters and boarders and said that such a policy would have required the availability of “a very considerable body of adults” at all times. No such policy was in place during Mr Bean’s years at PAC.
…
[151] I am unable to find on the evidence before me that the systems in place in the boarding house or the level of supervision of the behaviour of masters and of Bain in particular was so deficient as to amount to a breach of duty by the defendant. I find, in accordance with Mr Bean’s evidence, that it would have been wholly impractical to insist that a boarder should never be alone with a master.
At paragraph [162], the Judge also referred to Mr Bean’s evidence that in his time as headmaster the use of professional grief counsellors was unknown as supportive of a defence submission not of present relevance.
The reference to Mr Bean’s evidence in such contexts is understandable. However, I consider that it was also necessary to have close regard to the light his evidence shed on two important matters bearing upon the matter of vicarious liability. First, the nature of the relationship between the masters and the boarders and second, the risk of harm in the carrying out of the venture of running PAC.
As to the first matter, Mr Bean’s evidence as to the ‘more generous’ human relationships in the boarding house as compared with the day school, the “natural affinity” between the boarders and the housemasters and the common longer-term relationships between housemasters and parents, all indicate that Bain was able to develop (albeit for his own illegitimate gratification) a close and familiar relationship with the appellant under the cloak or guise of the ordinary legitimate relationships that the boarding house positively fostered. The evidence is clear that the reason why the 12 year old appellant continued to go to Mr Bain’s room on multiple occasions, knowing that he was likely to be molested, was because he had been groomed in the above circumstances and simply did what he was told because Mr Bain was “in charge.”
As to the second matter of the risk of harm in the carrying out of the venture of running PAC, it is best to say a little more.
The risk of harm in the carrying out of the venture of running PAC
The Canadian Supreme Court decisions in Bazley v Curry[106] and Jacobi v Griffiths,[107] were delivered on the same day and came to different results having regard to the different facts in the cases.
[106] [1999] 2 SCR 534.
[107] [1999] 2 SCR 570.
In Bazley, a non-profit residential facility for emotionally troubled children aged 6-12 years was held vicariously liable for the sexual abuse of a child perpetrated by an employee. The test as formulated in Bazley was whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm.
In Jacobi, a children’s recreational club was held not to be vicariously liable for a program director’s sexual assaults on two children which took place at his home. The test adopted was whether there was “a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm”.[108] Binnie J, on behalf of the majority, said of the facts in Jacobi that the power which the employee “used to accomplish his criminal purpose ... was neither conferred by [his employer] nor was it characteristic of the type of enterprise which [the employer] put in the community”.[109]
[108] Jacobi [1999] 2 SCR 570, 617 [79].
[109] Jacobi [1999] 2 SCR 570, 621 [84].
In the present case, the power or authority which Bain used to accomplish his criminal purpose can be said to have been conferred by the enterprise of running a school and to be characteristic of that type of enterprise in the community. The evidence of Mr Geoffrey Bean is very much in point here. As noted above, it demonstrates that relationships of affinity and trust of a quasi-parental nature existed and amounted to what may properly be termed intimate relationships in the correct non-sexual way in which that term is used in the authorities. Importantly, such relationships not only existed, but were necessary to the undertaking of the commercial venture of running the PAC boarding school since it was deemed uneconomic to have sufficient staff to be able to supervise the master’s activities. Accordingly, it can be seen that the employer’s enterprise model of trust rather than supervision did materially increase the risk of sexual assault and hence the harm that here eventuated.
In Lepore, Gleeson CJ stated that an analysis of enterprise risk may bear upon whether vicarious liability should be imposed and drew upon the Bazley approach. Kirby J considered that the Bazley approach is consistent with the Australian common law, but emphasised that the connection between the creation or enhancement of the risk and the wrongful conduct must be significant. The Bazley approach is, of course, entirely consistent with McHugh’s general approach to broad liability in this area and forms part of the subject matter of his Honour’s comment that that English and Canadian precedents suggest that in most cases of teacher-student abuse, the wrong will be taken to have occurred within the scope of employment for the purpose of vicarious liability.[110] Gaudron J did not reject the Bazley approach, but did consider that it is not “a clear basis for determining whether a person should be held vicariously liable for the deliberate criminal acts of an employee”.[111] On the other hand, Gummow and Hayne JJ criticised the Bazley test as moving too far from the “course of employment” requirement.
[110] At 573 [166]. As noted above, this is a broader view than that adopted by Gleeson CJ and is no doubt the subject of his Honour’s remark at paragraph [72] of his reasons.
[111] Lepore (2003) 212 CLR 511, 560 [126].
This aspect of the case was quite significant. I consider that the Judge erred in failing to consider this matter, except to pronounce without reasons in the last sentence of paragraph [179]: “I find that the defendant did not, by means of any proven requirement of Bain, create or enhance the risk of Bain sexually abusing the plaintiff.”
D. The Judge erred in her approach to, and resolution of, the questions of whether, and to what degree, the relationship between Bain and the appellant was one of power and intimacy as referred to by Gleeson CJ in New South Wales v Lepore.
As noted above, Gleeson CJ stated that the sufficient connection required for imposing vicarious liability may be provided by a combination of a high degree of power and intimacy:[112]
[74] … 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. The degree of power and intimacy in a teacher-student relationship must be assessed by reference to factors such as the age of students, their particular vulnerability if any, the tasks allocated to teachers, and the number of adults concurrently responsible for the care of students. Furthermore, the nature and circumstances of the sexual misconduct will usually be a material consideration. (Emphasis added)
[112] Lepore (2003) 212 CLR 511, 546.
The matter of intimacy has been discussed above. But in addition to intimacy, Bain’s high degree of power over the boarders (at least as apparent to them) is established by his very status as master within the system at PAC and by reference to his broad discretion within the supervisory structure, particularly in relation to order and discipline. Of particular relevance in examining the nature and extent of Bain’s authority as master is the evidence of the appellant describing Bain as being “in charge”, “in authority” and explaining that “I had to do what I was told” such that he simply did what Bain told him to do. Those words characterise Bain’s role, as understood by the junior boarders, as one of exercising authority over them simply by virtue of his position of master.
In evidence, the appellant described being invited into Bain’s private room and that sexual abuse took place there. The appellant explained that Bain would invite him to his room during the day and not explain why he wanted him there:
QWe’ll come to the detail later but could you just overview for the court what happened during the course of that year as far as you were concerned in Mr Bain’s room?
A In his room?
Q Yes.
AThe first night I was invited down, I got there and I was surprised to see that there were 10 or a dozen other boys there and that partly sticks in my mind because they were two years older so it was strange that me, as a little year 8 boy, would be there with the boys from year 10 and then after that there were more visits to room through term 2.
Q During the course of those visits were you often there alone with Mr Bain?
AI was there on each visit alone, except for one and the purpose really was always to molest me.
Q Did that in fact happen?
A Yes.
QThe first time you went there you mentioned there were a number of older boys there. What was going on in the room on that first occasion?
AThe boys were watching a television show which included Mr Bain on the show, something to do with education.
Q When you went there that first time were you anxious at all?
A Very anxious because I had -
Q Why?
ABecause I had to get from my bed through the dormitory, down the stairs, into the corridor in which Mr Prest’s doorway was and then to Mr Bain’s room which - knock on his door hoping that Mr Prest wouldn’t come out of his door. Then afterwards of course get upstairs without being caught by any other masters or the prefects.
The appellant gave evidence that towards the end of term 1, and during term 2, he received regular requests from Bain to go to his room after school or on the weekends:
QCan you recall anything about the manner in which Mr Bain would invite you to come to his room at a particular time?
AI can’t recall specific - specifically what he said or whether it was specific times. It was generally just through the day that he’d let me know that he wanted me in his room at a particular time.
QWhen it happened during the day can you give the court a picture as to at what time during the day in relation to particular events during the day it tended to happen?
A Possibly after school or after tea sometimes and then on the weekends.
QWhen it happened after school, when would that happen in relation to your sport practice?
AI had sport, I had football practice two nights a week so he would select the other nights.
During his evidence, the appellant referred to a number of occasions on which Bain had exploited his position of authority over the appellant:
Q Did you question him as to why he wanted your key?
A No.
Q Why not?
A Well, he was the master and he was in charge so I just did it as he asked.
...
QTowards the end of term 1 and during term 2 did you receive regular requests from Mr Bain?
A Yes.
Q What were those requests about?
A To go to his room perhaps after school or on the weekends.
Q Did you do so?
A Yes. He was in charge so I did as he asked.
...
Q Did you ever go to Mr Bain’s room without an invitation?
A No.
Q Why not?
AI don’t know. I assumed that he was in authority and, when he wanted to see me, he would ask.
...
Q Did you ever refuse a request?
AI don’t think so. He knew my routine. He would have asked me on a Tuesday. I never refused a request. I had to do what I was told.
...
QWhen you were with him on these occasions you described as molesting, did you enjoy the physical contact?
A Yes.
Q Why?
AIt made me feel special and it felt good. He was introducing me to something, some sort of sexuality. I didn’t realise at the time how perverse it was. If he was doing it, he was a school master, then it sort of must be okay.
(Emphasis added)
There is also evidence that Bain socialised with other boarders. Thus JC said he had been invited to Bain’s room at least once with a group of older boys:
Q From what year or years were the other boys drawn as best you can recall?
AI just remember a cohort of boys, I think they were from basically my year but they might have been from other years as well and did this in groups, so I went up as one group, of five or six I think from recollection.
Q Can you describe his room and what happened in the room when you went there?
AIt was basically a, you know, you watched television and he had sweets and chips and things like that. There was just discussion and talk and -
QDuring the course of the talk, were there any talk in any way concerning the topic of sex?
AYes, yes. I mean, again similar to what I said before lunch, sort of off-colour jokes, if I could put it that way.
Q What do you mean by that?
AWell, basically jokes with a sexual innuendo, as I said focused around things like masturbation and not on women but on - yeah.
Q What time of the day or evening was this occasion?
AThis would have been from recollection after dinner at night, probably in the region of about six to seven, something like that.
The trial Judge stated that she did not infer that Bain’s practice of inviting groups of boys to his room to watch television was inherently undesirable, nor should the practice have alerted other masters to his covert activities even if they knew of it.[113] This may be accepted for immediate purposes. But importantly, it establishes that Bain, under cover of his (at least ostensible) authority, “groomed” the appellant in such a way as to make him vulnerable to sexual exploitation. This process took place within, and was made possible by, a disciplinary power structure that was an inseparable part of the functioning of the business of running the boarding school.
E The Judge erred in concluding that vicarious liability was not established in the light of all relevant factors
[113] Judgment [150].
By reference to all of the matters discussed above, the appellant contends that the Judge erred in concluding that vicarious liability was not established.
Without derogating from the more detailed discussion above, the factors here relevant to vicarious liability may be briefly summarised as including the following:
·The appellant was a 12 year old child, with no previous experience of living away from his parents, and was boarding with strangers.
·Bain was a full-time live-in master at PAC with his living quarters close to the appellant’s dormitory. He had all the status and accoutrements of a master and was treated as such by the appellant.
·Bain was the only adult[114] apparently responsible for the care of the junior boarders, which included supervision of showering and settling at bedtime.
·A close intimate relationship of a quasi-parental nature was fostered by the natural affinity between boarders and by the broader relationships of trust between masters and the parents of boarders (as described by Mr Geoffrey Bean).
·Bedtime story-telling was symptomatic of that intimate quasi-parental relationship.
·That Bain stayed with the appellant’s family on one occasion was also symptomatic of the intimacy of the relationship.
·The combination of intimacy, power and subservience (as described by the appellant in evidence) was a very powerful combination in this particular case and rendered the appellant particularly vulnerable to sexual exploitation by Bain.
·The appellant’s vulnerability was exploited and sexual abuse was committed under cover of telling stories to the pupils to settle them for the night. Bain’s employment and the sexual abuse was so closely connected as to make it just to impose vicarious liability.[115] Bain’s role as a housemaster gave him the power and status to draw the claimant further into his sexually abusive orbit by ostensibly respectable means connected with his employment. The sexual abuse was “inextricably interwoven” with the master’s carrying out of his duties so as to render it fair and just to impose vicarious liability.[116]
·The school actively held itself out to be engaged in a relationship with the parents and boarders designed to be protective of the boarders – a close protective relationship with parents who paid for the school to protect their children (as was confirmed by Mr Geoffrey Bean).
·“Intimate” relationships of trust not only existed, but were deemed by the school to be necessary to the commercial enterprise of running PAC boarding school, it being uneconomic to have sufficient staff to supervise the masters’ activities (as was confirmed by Mr Geoffrey Bean). The enterprise model of trust rather than supervision materially increased the risk of sexual assault, and the harm that here eventuated.
·Ultimately, this was “one of those wrongful acts done for the servant’s own benefit for which the master is liable when they are acts … which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master”.[117]
[114] Putting aside any prefects of majority age.
[115] Lepore passim.
[116] Lister v Hesley Hall Ltd [2002] 1 AC 215.
[117] Deatons Pty Ltd v Flew (1949) 79 CLR 370, 381 (Dixon J, as he then was).
Having regard to the cumulative effect of all of the above matters, I consider that vicarious liability was established. The appellant has made out his grounds 3.4 to 3.10 of appeal, with the exception of ground 3.9 of appeal which I would reject. There should be judgment for the appellant on this basis.
I agree with the Chief Justice that causes of action other than vicarious liability are not established in this case.
Conclusion
I would grant the appellant the required extension of time pursuant to s 48 Limitation of Actions Act 1936.
I would allow the appeal, set aside the judgment and orders of the trial Judge and enter judgment for the appellant.
I would remit the case to the trial Judge for an assessment of damages.
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