JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATES OF HEARING:	5, 6, 7, 8, 11, 12, 13 and 15 May 2015
DATE OF JUDGMENT:	16 September 2015
CASE MAY BE CITED AS:	Erlich v Leifer & Anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 499

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NEGLIGENCE – Claim for psychiatric injury sustained as a result of the sexual abuse of the plaintiff by the first defendant – Nature of the duty of care –Direct and vicarious liability – Whether the second defendant breached the duty of care owed to the plaintiff – Causation of damage – Extent that plaintiff’s injury is attributable to the period when the plaintiff attended the premises of the second defendant as a student – Nationwide News Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu & Anor (2007) 71 NSWLR 471 – Tesco Supermarkets Ltd v Nattrass [1972] AC 153 – Christian Youth Camps Ltd v Cobraw Community Health Services Ltd (2014) 308 ALR 615 – Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 1 AC 500 – Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 – Director of Public Prosecutions Reference No. 1 of 1996 [1998] 3 VR 352 – Hawkins v Clayton (1986) 5 NSWLR 109 – Beach Petroleum NL v Johnson (1993) 115 ALR 411 – State of New South Wales v Lepore [2003] 212 CLR 511 – Sprod v Public Relations Orientated Security Pty Ltd [2007] NSWCA 319 – Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123 – Withyman v State of New South Wales and Blackburn [2013] NSWCA 10 – A, DC v Prince Alfred College Incorporated [2015] SASC 12.

DAMAGES – Damages awarded for pain and suffering, loss of enjoyment of life, economic loss and medical expenses – Claim for aggravated and exemplary damages – Exemplary damages awarded against the first and second defendant – Carter & Anor v Walker & Anor [2010] VSCA 340 – Backwell v AAA [1997] 1 VR 182 – Downes v Amaca Pty Ltd (2010) 78 NSWLR 451.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.F. Hore-Lacy QC with Mr D. Seeman	Lennon Mazzeo Lawyers
For the Second Defendant	Mr C.J. Blanden QC with Ms K.L. Burgess	Perry Maddocks Trollope

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The Adass community and School................................................................................................. 3

The recruitment and employment of Leifer................................................................................. 6

A distinction between Jewish Studies and General Studies at the School.......................... 14

Leifer stood down as headmistress.............................................................................................. 19

Sexual abuse...................................................................................................................................... 27

Duty of care....................................................................................................................................... 30

Direct liability................................................................................................................................... 30

Non-delegable duty of care/vicarious liability.......................................................................... 45

Negligence of the School................................................................................................................ 51

Causation and damages – non-economic loss............................................................................ 57

Damages – economic loss............................................................................................................... 66

Damages – medical expenses......................................................................................................... 69

Exemplary/aggravated damages.................................................................................................... 70

Mitigation of damages.................................................................................................................... 76

Conclusion......................................................................................................................................... 81

HIS HONOUR:

Introduction

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.

Continue reading Erlich v Leifer

Details

AGLC: Erlich v Leifer [2015] VSC 499
Case: [2015] VSC 499
Decision Date: 16 September 2015

CaseChat Overview and Summary

Erlich v Leifer involved a claim for psychiatric injury sustained by the plaintiff as a result of sexual abuse by the first defendant. The plaintiff further alleged that the second defendant, who ran the premises where the abuse occurred, breached a duty of care owed to the plaintiff. The case was heard in the Supreme Court of Victoria. The court was required to determine the nature of the duty of care, the extent of direct and vicarious liability, and the causation of damage. Additionally, the court had to assess whether the plaintiff's injury was attributable to the period when she attended the premises of the second defendant.

The court examined the legal precedents regarding duty of care, causation, and vicarious liability, including cases such as Nationwide News Pty Ltd v Naidu & Anor and Christian Youth Camps Ltd v Cobraw Community Health Services Ltd. The court found that the first defendant was directly liable for the sexual abuse, which constituted a breach of duty. Regarding the second defendant, the court held that there was a sufficient proximity and foreseeability to establish a duty of care. The court also determined that the plaintiff’s injuries were substantially attributable to the period she attended the second defendant's premises, thereby holding the second defendant vicariously liable. Consequently, the court awarded exemplary damages against both defendants for the sexual abuse and the breach of duty.

The court ordered the first defendant to pay damages for pain and suffering, loss of enjoyment of life, economic loss, and medical expenses. Exemplary damages were awarded against both the first and second defendants. The specific amounts were determined based on the principles outlined in Carter & Anor v Walker & Anor and Downes v Amaca Pty Ltd. The final orders included the payment of compensatory damages to the plaintiff and the exemplary damages against both defendants.

Orders