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…
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Details
- Case
- [2015] SASCFC 161
- Decision Date
CaseChat Overview and Summary
This case involved an appeal by the plaintiff, DCA, against a decision of the Supreme Court of South Australia that dismissed his claim for damages for personal injury. DCA, a former boarder at Prince Alfred College, alleged that the school was liable for sexual abuse he suffered at the hands of Dean Rollo Bain, a boarding house master employed by the college in 1962. The school denied negligence and vicarious liability, and also argued that the plaintiff's claims were statute-barred.
The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge erred in finding that Prince Alfred College was not liable for the abuse suffered by the plaintiff, and whether the trial judge correctly refused to extend the time for the plaintiff to bring his proceedings under the Limitation of Actions Act 1936 (SA). The appeal court was required to conduct a real review of the trial judge's findings, weighing the evidence and drawing its own inferences and conclusions, while acknowledging the advantages the trial judge had in assessing witness credibility.
The Full Court allowed the appeal, entering judgment for the appellant and remitting the matter for an assessment of damages. The court found that the trial judge had erred in her assessment of liability. The court applied principles of negligence and vicarious liability, considering the school's duty of care to its boarders and the extent to which Bain's actions were within the scope of his employment. The court also considered the evidence regarding the understanding of child abuse and the need for early intervention in the 1960s, finding that the plaintiff's claim was not defeated by a lack of contemporary understanding of these matters.
The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge erred in finding that Prince Alfred College was not liable for the abuse suffered by the plaintiff, and whether the trial judge correctly refused to extend the time for the plaintiff to bring his proceedings under the Limitation of Actions Act 1936 (SA). The appeal court was required to conduct a real review of the trial judge's findings, weighing the evidence and drawing its own inferences and conclusions, while acknowledging the advantages the trial judge had in assessing witness credibility.
The Full Court allowed the appeal, entering judgment for the appellant and remitting the matter for an assessment of damages. The court found that the trial judge had erred in her assessment of liability. The court applied principles of negligence and vicarious liability, considering the school's duty of care to its boarders and the extent to which Bain's actions were within the scope of his employment. The court also considered the evidence regarding the understanding of child abuse and the need for early intervention in the 1960s, finding that the plaintiff's claim was not defeated by a lack of contemporary understanding of these matters.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
KOURAKIS CJ
(dissent)
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. 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.]
Ratio Decidendi
Legal Principle Established
Established by:
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