A, DC v Prince Alfred College Incorporated - [2015] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
A, DC v PRINCE ALFRED COLLEGE INCORPORATED
[2015] SASC 12
Judgment of The Honourable Justice Vanstone
4 February 2015
EMPLOYMENT LAW - RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PARTIES - LIABILITIES OF EMPLOYER - FOR TORTS OF EMPLOYEE - ACT IN COURSE OF EMPLOYMENT AND WITHIN SCOPE OF AUTHORITY - PARTICULAR CASES
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - SCHOOLS
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - GENERALLY
Claim for personal injury loss and damage arising from being sexually abused by a master in 1962 as a 12 and 13 year old when a boarder at the defendant school - claim in negligence and on the basis of vicarious liability - claim that cause of action did not arise until 1996 when plaintiff was diagnosed with post traumatic stress disorder - whether plaintiff suffered injury loss and damage arising from the sexual abuse - if he did when did the cause of action arise - did the defendant breach the non-delegable duty owed to the plaintiff - did the defendant breach its duty of care to the plaintiff in employing or supervising the offending master or in the way it dealt with the matter after discovery of the sexual abuse - whether the sexual abuse was committed in the course of the master's employment so as to make the defendant vicariously liable - whether the plaintiff was under a disability in terms of s 45 of the Limitations of Actions Act from the time of his diagnosis in 1996 so as to extend the time for bringing the action - whether the plaintiff was in need of an extension of time under s 48 of the Limitations Act - whether an extension should be granted - whether the delay resulted from conduct of the defendant - whether the plaintiff discovered facts material to his case within 12 months prior to instituting the action - whether it was just to grant an extension of time in all the circumstances.
Held: plaintiff's claim dismissed - negligence on the part of the defendant not proved.
Limitation of Actions Act 1936 (SA) s 36, s 45, s 48; Evidence Act 1929 (SA) s 34; Limitation Act 1969 (NSW) s 11(3); Law Reform (Ipp Recommendations) Act 2004 (SA) s 1, Schedule 1, referred to.
The Commonwealth of Australia v Introvigne (1982) 150 CLR 258; State of New South Wales v Lapore (2003) 212 CLR 511; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Withyman v State of New South Wales [2013] NSWCA 10; Pointon v Walkley [1951] SASR 121; Curic v Sprudzans (1980) 91 LSJS 232; Johnson v State of South Australia (1980) 26 SASR 1; State of South Australia v Johnson (1981) 42 ALR 161; Wright v Donatelli (1995) 65 SASR 307

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] SASC 12
Decision Date: 4 February 2015

CaseChat Overview and Summary

A, DC sued Prince Alfred College Incorporated (PAC) seeking damages for personal injury caused by sexual abuse by a boarding house master in 1962 when the plaintiff was a 12 or 13 year old boarder. The plaintiff alleged that the abuse caused ongoing trauma and significant loss, including the loss of his marriage and business, and diagnosed post traumatic stress disorder in 1996. The plaintiff claimed negligence and vicarious liability by PAC, as well as an extension of the limitation period under the Limitations of Actions Act. The court considered whether the plaintiff suffered injury, when the cause of action arose, whether PAC breached a duty of care, and whether PAC was vicariously liable for the master's actions. The court also examined whether the plaintiff was under a disability from his diagnosis in 1996, and whether an extension of time should be granted under the Limitations of Actions Act.

The court found that the plaintiff suffered significant ongoing trauma from the sexual abuse, but that PAC was not negligent in employing the master, its supervision of him, or the steps it took to address the issue after it was discovered. The court also found that the sexual abuse was not committed in the course of the master's employment, and therefore PAC was not vicariously liable. The court held that the plaintiff was not under a disability from his diagnosis in 1996, and that the delay in instituting proceedings was not caused by PAC. The court further found that the plaintiff did not discover facts material to his case within 12 months of instituting the action. The court held that it would have declined to grant an extension of time even if PAC was otherwise liable, due to the significant lapse of time since the relevant events and the prejudice to PAC. The court dismissed the claim.

The court dismissed the plaintiff's claim and ordered that the plaintiff pay PAC's costs of the proceeding.

Orders

Orders of the court

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Background

Background to the litigation

I am not satisfied that the failure to institute the action in a timely manner is shown to have been caused by the defendant’s conduct at the assembly, or immediately thereafter. There must have been many influences upon the plaintiff that would explain his decision not to disclose what had occurred and not to pursue a claim earlier. The evidence suggests that the plaintiff’s failure to take action in the 60s or 70s was because of his own determination to put the matter aside and get on with his life, both at school and university, and later. There is no evidence suggesting that the plaintiff was “lulled into a sense of false security” in relation to his potential claim by representatives of PAC in 1962: Johnson v South Australia at 52 per Mitchell J. The considerable lapse of time between the plaintiff’s disclosure of the abuse and diagnosis in 1996 and his institution of these proceedings in 2008 undermines the plaintiff’s argument that his failure to bring the claim earlier was a consequence of the defendant’s 1962 conduct. Moreover, the plaintiff made an informed decision in 1997, which in my judgment was a rational and sensible one, not to sue PAC. He had clear legal advice at that time that such a course would have involved substantial risks. I am not persuaded that the conduct of the defendant in the aftermath of learning of Bain’s abuse resulted in the failure to act earlier such as to enliven the discretion to extend time under this provision.(b) Did the plaintiff discover facts material to his case within 12 months before instituting the action? The plaintiff claims to have ascertained two facts material to his case within 12 months before instituting the action on 4 December 2008. The first was Dr Kelly’s opinion, found in his 2007 report, that the plaintiff would never fully recover or manage a business again. The second was Bain’s 1954 conviction for gross indecency, of which he learned during Bain’s sentencing proceedings. The section does not define “material facts”. However, there is a good deal of case law on the provision as it was. The requirements of the paragraph in terms of what amounts to ascertainment of a material fact are modest: Wright v Donatelli (1995) 65 SASR 307 per Cox J at 310. A fact is material if it is both “relevant to the issues to be proved if the plaintiff is to succeed … and is of sufficient importance to be likely to have a bearing on the case”: Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636. The facts must be material to the plaintiff’s case, as opposed to his cause of action, but need not be decisive: Sola Optical. The inquiry into whether a fact is material is an objective one and does not involve consideration of whether it affected the plaintiff’s decision to sue: Sola Optical at 636; Wright v Donatelli at 309 per Cox J and 320 per Lander J. The plaintiff gave evidence that he read Dr Kelly’s report shortly after the date it bears, namely 6 December 2007. In that report Dr Kelly expressed the view:“… 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 be able to own and manage his own business, as he had been able to previously.”The plaintiff said that learning this made him “very distressed”. To this time he still hoped he would get better. He said he was left feeling that it was a “real possibility” he would never recover fully. During cross-examination, the plaintiff conceded that prior to this time he had experienced periods of real doubt concerning his ability to work. He accepted that Dr Kelly’s opinion was “probably not” a surprise to him. He qualified this evidence, however, by reiterating that, despite his doubts, he had maintained the belief that he “might get better by some stage”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances of this case I would have declined to grant an extension of time even had I found that the defendant was otherwise liable.Conclusion I have found that the plaintiff was subjected to sexual abuse by a boarding house master, Bain, over a period in 1962 when he was aged 12 or 13 years. I have found that throughout his life and particularly in the period since about 1996 he has suffered profoundly in a range of ways from that abuse. I have found that the loss of his marriage and the loss of his previously successful business are substantially attributable to the sexual abuse he suffered; for many years he has suffered from post traumatic stress disorder arising from the abuse. However, the plaintiff has failed to prove that the defendant was negligent either in employing Bain, or in the level of its supervision of him, or in the steps it took to address the issue after it was discovered. I have been unable to make such a finding in the absence of evidence from a number of witnesses who had direct responsibility for the boarders and knowledge of the relevant circumstances and events. I have been unable to find that what the defendant did to address the situation once discovered was other than in accordance with the prevailing standards of the time. I have found that it is not proved that the sexual abuse occurred within the course of Bain’s employment so as to make the defendant vicariously liable. Irrespective of my findings on the question of negligence, because of actual prejudice suffered by the defendant arising from the lapse of time since the relevant events, I would have declined to exercise my discretion to extend the time for institution of proceedings under the Limitations Act. There is no utility in hearing the balance of the plaintiff’s evidence on quantum. The claim must be dismissed.

Ratio Decidendi

Legal Principle Established

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