New South Wales v Lepore - [2003] HCA 4

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
STATE OF NEW SOUTH WALES  APPELLANT
AND
ANGELO LEPORE & ANOR  RESPONDENTS
New South Wales v Lepore [2003] HCA 4
6 February 2003
S108/2002
ORDER
1.   Appeal allowed in part.
2.   Paragraph 2 of the order of the Court of Appeal of New South Wales made on 23 April 2001 set aside, and in its place, order that the judgment entered in the District Court on 16 April 1999 be wholly set aside and that there be a new trial.
3.   Appellant to pay the costs of the appeal to this Court.
4.   Costs of the new trial to abide its outcome.
On appeal from the Supreme Court of New South Wales
Representation:
M G Sexton SC, Solicitor-General for the State of New South Wales with C T Barry QC and N L Sharp for the appellant (instructed by Crown Solicitor for the State of New South Wales)
A S Morrison SC with J Oakley for the first respondent (instructed by Milicevic Solicitors)
No appearance for the second respondent
Interveners:
B M Selway QC, Solicitor-General for the State of South Australia with J G Masters intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
B M Selway QC, Solicitor-General for the State of South Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No B20/2002
VIVIAN CHRISTINA SAMIN  APPELLANT
AND
STATE OF QUEENSLAND & ORS  RESPONDENTS
Matter No B21/2002
SHEREE ANNE RICH  APPELLANT
AND
STATE OF QUEENSLAND & ORS  RESPONDENTS
Samin v Queensland; Rich v Queensland
6 February 2003
B20/2002 & B21/2002
ORDER
Appeals dismissed with costs.
On appeal from the Supreme Court of Queensland
Representation:
D O J North SC with R C Morton for the appellants (instructed by Shannon Donaldson Province Lawyers)
P A Keane QC, Solicitor-General of the State of Queensland with P J Flanagan for the first and second respondents (instructed by Crown Solicitor of the State of Queensland)
No appearance for the third respondent
Interveners:
B M Selway QC, Solicitor-General for the State of South Australia with J G Masters intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
B M Selway QC, Solicitor-General for the State of South Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
New South Wales v Lepore
Negligence – Liability of school authority – Alleged sexual assault on pupil by teacher – Whether school authority in breach of non-delegable duty of care – Concept of non-delegable duty – Whether school authority vicariously liable – Test for imposition of vicarious liability.
Practice and procedure – Trial – Negligence – Trial of issues of liability and damage severed – Failure to make necessary findings of fact – Retrial.
Words and phrases – "non-delegable duty", "vicarious liability".
Samin v Queensland; Rich v Queensland
Negligence – Liability of school authority – Sexual assault on pupil by teacher – Whether school authority in breach of non-delegable duty of care – Concept of non-delegable duty – Whether school authority vicariously liable – Test for imposition of vicarious liability.
Words and phrases – "non-delegable duty", "vicarious liability".

GLEESON CJ. If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is "No, never". In Australia, at least until recently, an answer "Yes, always" would also have been surprising. More information would have been required.
One potentially important matter is fault on the part of the school authority. The legal responsibilities of such an authority include a duty to take reasonable care for the safety of pupils. There may be cases in which sexual abuse is related to a failure to take such care. A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil. The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal[1]. Breach of that duty, and consequent harm, will result in liability for damages for negligence.
[1]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 265 [26].
We are not presently concerned with such a case. Our concern is with the more difficult problem of liability in the absence of such fault. The presence of fault on the part of the school authority, causally related to the harm to the pupil, will result in liability. In what circumstances may there be liability notwithstanding the absence of fault? In other common law jurisdictions, that question would be understood as a question about vicarious liability. The assumed relationship between authority and teacher is that of employer and employee. A further assumption is that there has been no want of care on the part of the authority, either in appointing or supervising the teacher, or in any other relevant aspect of the arrangements made for the care of pupils. The teacher has been guilty of intentional criminal conduct that has caused harm to a pupil. An employer is vicariously responsible for the wrongful act of an employee in some circumstances, and not in others. Either the law imposes vicarious responsibility on the school authority, or it does not. Does that conclude the matter? It has been argued that there is another possible basis upon which the authority may be found liable, even though there has been no want of care on its part, and even though the law refuses to treat it as vicariously responsible for the tort of its employee. If it exists, this must be a form of liability even more strict than vicarious liability. It must be, or at least encompass the possibility of, liability for the intentional wrongdoing of an employee in circumstances where the ordinary principles of vicarious responsibility do not entitle a plaintiff to succeed. This, it is contended, is the legal consequence of what has been called the non-delegability of a school authority's duty of care. The argument is that the authority's duty to take reasonable care for the safety of pupils, because it is non-delegable, may become a source of liability for any form of harm, accidental or intentional, inflicted upon a pupil by a teacher.
Three appeals in cases involving sexual abuse of pupils by teachers were heard together by this Court. The first is from a decision of the Court of Appeal of New South Wales[2]. Because of defects in the manner in which the case was decided at first instance, it was an unsatisfactory vehicle for the resolution of the issues involved. However, a majority of the Court of Appeal (Mason P and Davies AJA, Heydon JA contra) accepted in principle that the school authority (the New South Wales government) was liable on the basis of non-delegable duty. The extent of the liability was expressed by Mason P (with whom Davies AJA agreed) as follows[3]:
"In my view the State's obligations to school pupils on school premises and during school hours extend to ensuring that they are not injured physically at the hands of an employed teacher (whether acting negligently or intentionally)."
[2]Lepore v State of New South Wales (2001) 52 NSWLR 420.
[3](2001) 52 NSWLR 420 at 432.
That is a proposition with wide implications. Because of the principle upon which it is said to rest, its significance extends beyond schools, and beyond activities involving the care of children. The ambit of duties that are regarded as non-delegable has never been defined, and the extent of potential tort liability involved is uncertain, but it is clearly substantial.
The other two appeals are from the Court of Appeal of Queensland, which heard the cases together, and which declined to follow the decision of the New South Wales Court of Appeal[4]. There is thus a conflict of authority between intermediate courts of appeal in this country that requires resolution.
[4]Rich v State of Queensland; Samin v State of Queensland (2001) Aust Torts Reports ¶81-626.
The plaintiffs' claims
In the first matter, the first respondent sued the appellant (the State of New South Wales) and the second respondent (the teacher) in the District Court of New South Wales. The events complained of occurred in 1978, when the first respondent, then aged seven, was attending a State primary school. He alleged that he was assaulted by the second respondent. The assaults were said to have occurred in the context of supposed misbehaviour by the first respondent, and the imposition of corporal punishment for such misbehaviour. On a number of occasions, the first respondent, after being accused of misbehaviour, was sent to a storeroom, told to remove his clothing, smacked, and then touched indecently. On some occasions, other boys would be present, also ostensibly being punished.
The behaviour of the second respondent was reported to the police. He was charged with a number of offences of common assault. He entered pleas of guilty. Sentence was deferred upon his entering into a recognizance to be of good behaviour. He was also fined $300. He resigned as a teacher.
The second respondent took no part in the proceedings in the District Court, or in the subsequent appeals. Judge Downs QC, who was about to retire, dealt separately with the issue of the liability of the State and the teacher, and deferred questions as to damages to be heard by another judge. He heard evidence, and then delivered a judgment which found that the second respondent had assaulted the first respondent. Regrettably, the judgment left unresolved the nature and extent of the assaults. The learned judge did not accept all the evidence of the first respondent, but it was not disputed that the second respondent had struck the first respondent on his bare bottom. This was found sufficient to justify a finding of assault, and it resulted in liability on the part of the second respondent.
As to the liability of the appellant, Judge Downs found that there was no failure on the part of the State to exercise proper care. He said:
"It remains now for me to consider if the first defendant breached the duty it owed to the plaintiff. The evidence discloses that the second defendant in or about September 1978 firstly was a qualified teacher aged 23 years; secondly with between one and a half to two years experience as a primary school teacher; thirdly he worked under the direct supervision of the head mistress of … Infants School and the general supervision of the principal of its primary school; fourthly and that there were guidelines as to the nature of the supervision. As to this the inspector's report indicates that so far as the first defendant was aware the second defendant worked within those guidelines.
The assaults alleged were deliberate and isolated acts of abuse which occurred in an enclosed room and which were inimical or totally foreign to the second defendant's duties as a teacher. Furthermore there was not any evidence before me: (1) over what period the various assaults took place; (2) the length of time that any one of the assaults might have lasted; (3) that any member of the staff at the school or of the department had any opportunity to witness the assaults; (4) that any member of the staff or of the department knew of the assaults; (5) that any member of the staff or of the department had any reason to believe that the second defendant might commit the assaults. For example there was not any evidence that any parent warned any member of the staff and the inspector, as I have already stated, found him to be a teacher with above average potential; (6) that the second defendant had a predisposition to commit such assaults; and finally (7) there is not any evidence as to what system of work or supervision might reasonably have been implemented so as to avoid the isolated assaults which took place.
Bearing in mind all of these matters together with the fact that the evidence of the isolated acts fell from the lips of children who were aged 7 or 8 years more than 20 years after the event, the only conclusion I can come to is that there is no evidence that the first defendant breached the duty that it owed to the plaintiff. That completes my judgment on the issues that were before me."
Regrettably, Judge Downs did not make any detailed findings about the nature of the teacher's conduct. That some assaults occurred was not in dispute. His Honour was apparently content to let the judge who was to deal with the issue of damages work out the extent of the assaults. The judge also failed to deal with an argument based on breach of a non-delegable duty. The first respondent appealed against the decision in favour of the appellant. The Court of Appeal was left with an unsatisfactory factual basis for a review of the decision. There was no challenge in the Court of Appeal to the factual findings absolving the Department of Education of negligence. The principal complaint was that the trial judge failed to address the issue of breach of a non-delegable duty of care.
Neither at first instance, nor in the Court of Appeal, was the case against the appellant put on the basis of vicarious liability. There may have been an arguable case based on vicarious liability, even on a narrow view of the potential scope of such liability. Chastisement of a pupil is within the course of a teacher's employment[5]. On the account given by the first respondent, the inappropriate conduct seems to have taken place in the context of punishment for misbehaviour. However, no such argument was advanced, and the factual findings necessary for the purpose of considering such an argument were not made. Indeed, the judge was told by counsel that he "[did not] have to get into the area of the case about the barmaid and the hotel". This was obviously a reference to Deatons Pty Ltd v Flew[6].
[5]Ryan v Fildes [1938] 3 All ER 517.
[6](1949) 79 CLR 370.
The second and third matters both arose out of the conduct of a teacher (the third respondent) at a one-teacher State primary school in rural Queensland. In each case, the appellant was a young girl attending the school. At the relevant times (between 1963 and 1965) the appellants were aged between seven and ten. The third respondent has taken no part in the proceedings. He was sentenced to a lengthy term of imprisonment[7]. Each appellant alleged serious acts of sexual assault by the third respondent. Those acts, as particularised in the Statement of Claim, occurred, at school, during school hours, and in a classroom or adjoining rooms. Because no evidence has been taken, the full circumstances of the alleged assaults are not apparent. For example, it is not clear whether the third respondent's behaviour allegedly occurred in front of other pupils, or how he came to be in intimate physical contact with the appellants.
[7]D'Arcy (2001) 122 A Crim R 268.
In each case, the former pupil commenced action, in the District Court of Queensland, against the State of Queensland, the Minister for Education of Queensland, and the former teacher. We are not presently concerned with the action against the teacher. In relation to the claims against the State and the Minister (which reflected some uncertainty as to the identity of the school authority) each Statement of Claim alleged, in terms of a non-delegable duty, that the State was under "a duty to ensure that reasonable care was taken of [the appellant] whilst she was at the school" and that, in breach of the State's duty, the teacher sexually assaulted the appellant. It then alleged psychiatric injury and other harm to the appellant. There was no allegation of fault on the part of the school authority in relation to its conduct of the school, or appointment of the teacher, or failure to respond to warnings or complaints. It was simply alleged that the teacher sexually assaulted the appellants at school, and that this constituted a breach of the duty owed by the school authority to the appellants.
Applications were made by the first and second respondents to strike out each Statement of Claim. Those applications failed in the District Court. There were appeals to the Court of Appeal of Queensland. The appeals were successful. The Court of Appeal (McPherson, Thomas and Williams JJA) ordered that each Statement of Claim be struck out, and that each plaintiff have leave to deliver a further Statement of Claim. The claims were argued solely on the basis of non-delegable duty. No reliance was placed on vicarious liability. In noting that fact, McPherson JA said:
"Nothing can be clearer than that the assaults alleged to have been committed here were independent and personal acts of misconduct by [the teacher]. They were in no sense capable of being regarded as methods of conducting his teaching function, but were done in utter defiance and contradiction of it and of his duties as an employee of the State."
The Court of Appeal of Queensland declined to follow the reasoning of the majority in Lepore, preferring the minority opinion of Heydon JA.
In this Court, counsel for the appellants in the cases of Samin and Rich indicated that, pursuant to the leave to re-plead, reliance would be placed on vicarious liability. The Court was shown the proposed form of Amended Statements of Claim. The only difference from the original pleadings is that they assert that the school authority is vicariously responsible for the assaults perpetrated by the teacher, and give as particulars the opportunity which the school afforded the teacher to abuse his authority, the intimacy inherent in the relation between teacher and infant pupils, the power of the teacher and the vulnerability of the pupils, the fact that the teacher had sole control of the school, and the fact that the assaults occurred during school hours and at school premises. By reason of those matters, it is contended, the assaults "occurred in the course of or were closely connected with" the teacher's employment. Once again, there is no allegation of any act or omission of the school authority involving a want of care for the safety of the pupils. Apparently, the appellants did not, and do not, intend to take advantage of the opportunity to re-plead to seek to make out a case of direct liability based on some act or omission of the school authority.
In all three cases, the issue is whether, there being no allegation of any fault on the part of the school authority in its systems or procedures, its appointment and supervision of staff, its arrangements for responding to complaints or warnings, or any other matter which might have given rise to a claim that the authority itself was guilty of a want of care, the acts of the teacher make the authority liable. In this Court, primary reliance is again placed on the principle of non-delegable duty, and the reasoning of the majority in the New South Wales Court of Appeal. However, in the alternative, it is now argued that the school authorities are vicariously liable. Recent decisions of the House of Lords[8] and of the Supreme Court of Canada[9] are said to support that alternative approach. It is not suggested that there is any procedural unfairness involved in permitting that argument to be raised at this stage.
[8]Lister v Hesley Hall Ltd [2002] 1 AC 215.
[9]Bazley v Curry [1999] 2 SCR 534; Jacobi v Griffiths [1999] 2 SCR 570.
The non-delegable duty of care

For more than a century, courts have described certain common law duties of care as "non-delegable" or "personal"[10]. The purpose and effect of such a characterisation of a duty of care is not always entirely clear[11]. However, in a number of cases, members of this Court have so described the duty owed by a school authority to its pupils.
[10]Kondis v State Transport Authority (1984) 154 CLR 672 at 685 per Mason J.
[11]Glanville Williams, "Liability for Independent Contractors", (1956) Cambridge Law Journal 180.
In Dalton v Angus[12], Lord Blackburn referred to the inability of a person subject to a certain kind of responsibility to "escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor". His Lordship's reference to a responsibility of "seeing" a duty performed has echoes in later judicial statements. The concept was taken up in relation to the duty of an employer to take reasonable care for the safety of a workman. In Wilsonsand Clyde Coal Co v English[13], Lord Wright described the duty as "personal", and said that it required the provision of competent staff, adequate material, and a proper system of effective supervision. Lord Thankerton[14] said that such duties "cannot be delegated", explaining that "the master cannot divest himself of responsibility by entrusting their performance to others". It would, perhaps, have been more accurate to say that the duties cannot be discharged by delegation. At all events, to describe a duty of care as "personal" or "non-delegable", in the sense that the person subject to the duty has a responsibility either to perform the duty, or to see it performed, and cannot discharge that responsibility by entrusting its performance to another, conveys a reasonably clear idea; but it addresses the nature of the duty, rather than its content.
[12](1881) 6 App Cas 740 at 829.
[13][1938] AC 57 at 84.
[14][1938] AC 57 at 73, adopting the statement of the Lord Justice-Clerk in Bain v Fife Coal Co [1935] SC 681 at 693.
This point was made in relation to another class of case in which resort was had to the concept of a personal or non-delegable duty: cases concerning the relationship between hospital and patient. Cases of that kind caused difficulty for the application of the principle of vicarious liability because of the variety of professional skills and arrangements that may be involved in a hospital organization. In Gold v Essex County Council[15], Lord Greene MR, referring to the duty of care undertaken by a hospital, said:
"Apart from any express term governing the relationship of the parties, the extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, while in the latter the only remedy is in tort, but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill. It is also true that, if the obligation is undertaken by a corporation, or a body of trustees or governors, they cannot escape liability for its breach, any more than can an individual, and it is no answer to say that the obligation is one which on the face of it they could never perform themselves. Nor can it make any difference that the obligation is assumed gratuitously by a person, body or corporation which does not act for profit … Once the extent of the obligation is determined the ordinary principles of liability for the acts of servants or agents must be applied."
[15][1942] 2 KB 293 at 301-302.
His Lordship's insistence that the first step is to identify the extent of the obligation that arises out of a particular relationship, whether contractual or non-contractual, is important. In the context of employment, for example, a duty to take reasonable care for the safety of workers cannot be discharged by delegation; but delegation does not transform it into a duty to keep workers free from all harm. A duty to see that reasonable care is taken for the safety of workers is different from a duty to preserve them from harm. Some confusion may result from describing it as a duty to "ensure" that reasonable care is taken for the safety of workers, which may give rise to the misconception that the responsibility of an employer is absolute.
Because the hospital cases were treated by Mason J (of this Court), in The Commonwealth v Introvigne[16], as analogous, it is useful to note the state of the Australian law in relation to the duties owed by hospitals to patients at about the time Introvigne was decided. This appears from the decision of the Court of Appeal of New South Wales in Albrighton v Royal Prince Alfred Hospital[17], which was decided two years before Introvigne. Reynolds JA, with whom Hope JA and Hutley JA agreed, said that the concept that a hospital fulfils its duty of care to persons treated in it by selecting and appointing competent medical staff had been discarded[18]. Referring to an argument that the hospital was in breach of a duty which it owed to the plaintiff, and of which it could not divest itself by delegation, he said that the precise content of the responsibility assumed by a hospital might vary with individual cases, and had to be determined by reference to the particular facts[19]. It is significant that the duty of care is personal or non-delegable; but it is always necessary to ascertain its content.
[16](1982) 150 CLR 258 at 270.
[17][1980] 2 NSWLR 542.
[18][1980] 2 NSWLR 542 at 557.
[19][1980] 2 NSWLR 542 at 561.
The case of Introvigne raised an unusual problem. The plaintiff, a schoolboy aged 15, attended the Woden Valley High School in the Australian Capital Territory. One morning before class, he and some friends entertained themselves by swinging on a flagpole in the school grounds. As a result of their exertions, the truck of the flagpole became detached, and fell on the plaintiff's head. He was injured. The plaintiff's case was originally based on the allegedly defective condition of the flagpole. He sued the Commonwealth as occupier of the school premises. He also sued the designer of the flagpole. On the first day of the hearing, the plaintiff obtained leave to amend his Statement of Claim by alleging negligence on the part of the teachers. In particular, he alleged that the acting principal failed to arrange for adequate supervision in the school grounds. The plaintiff claimed that the Commonwealth was liable as a result of that failure. However, the Commonwealth was not the employer of the acting principal, or the other teachers. They were all employees of the New South Wales Department of Education which, at the relevant time, operated the Woden Valley High School on behalf of the Commonwealth pursuant to an inter-governmental arrangement. It was too late for the plaintiff to sue the State of New South Wales. The trial judge found no negligence. That finding was reversed on appeal. The factual issue is presently irrelevant. What was significant for future cases was the basis on which the Court attributed responsibility to the Commonwealth for the negligence of the teachers.
Mason J, with whom Gibbs CJ agreed, said that, although the case had been presented by the plaintiff, and dealt with at first instance and in the intermediate appellate court, as one of vicarious liability[20], the plaintiff was entitled to succeed on a different basis. He did not reject the possibility that the Commonwealth might have been vicariously liable for the negligence of the teachers[21]. However, he rested his decision on the ground that "[t]he duty … imposed on a school authority is akin to that owed by a hospital to its patient"[22]. In Gold, it had been held that the liability of a hospital arises out of an obligation to use reasonable care in treatment, the performance of which cannot be delegated to someone else. This is a "personal" duty. It is more stringent than a duty to take reasonable care; it is a duty to ensure that reasonable care is taken. The reason for its imposition in the case of schools is the immaturity and inexperience of pupils, and their need for protection. This gives rise to a special responsibility akin to that of a hospital for its patients[23].
[20](1982) 150 CLR 258 at 264.
[21](1982) 150 CLR 258 at 271.
[22](1982) 150 CLR 258 at 270.
[23](1982) 150 CLR 258 at 270-271.
Having regard to the existing authorities on personal or non-delegable duties, and in the light of what he said in later cases, it is clear that Mason J intended to make no distinction between a duty to ensure that reasonable care is taken and a duty to see that reasonable care is taken. It also seems clear that the increased stringency to which he was referring lay, not in the extent of the responsibility undertaken (reasonable care for the safety of the pupils), but in the inability to discharge that responsibility by delegating the task of providing care to a third party or third parties.
Murphy J found against the Commonwealth both on the basis of non-delegable duty and on the basis of vicarious liability. He said that, because the Commonwealth assumed the role of conducting a school[24]:
"In terms of the prevailing concepts of duty, the Commonwealth became fixed with certain non-delegable duties:
1. To take all reasonable care to provide suitable and safe premises. The standard of care must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards.
2. To take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out.
The Commonwealth also became vicariously liable to pupils and parents for the acts and omissions of the teaching and other staff (whether or not these were supplied by another entity or agency)."
[24](1982) 150 CLR 258 at 274-275.
Brennan J held that the Commonwealth, as a school authority, was under a duty to provide adequate supervision of the pupils, and, as no such supervision was provided, there was a breach of duty[25].
[25](1982) 150 CLR 258 at 280.
The other member of the Court, Aickin J, died before judgment was delivered.
What was decided in Introvigne was that, even though it may have been doubtful that the Commonwealth was vicariously liable for the negligent failure of the teachers to provide adequate supervision, (the doubt arising from the inter-governmental arrangement), nevertheless the Commonwealth was under a duty to provide reasonable supervision; it could not discharge that duty by arranging for the State of New South Wales to conduct the school; it had a responsibility to see that adequate supervision was provided; and the absence of adequate supervision meant that it had not fulfilled its responsibility and was in breach of its duty of care. That produced the same practical result as would have followed if the Commonwealth had employed the teachers; an outcome that would have been unremarkable but for the quirk of federalism encountered by the plaintiff when he belatedly amended his Statement of Claim.
The failure to take care of the plaintiff which resulted in the Commonwealth's liability in Introvigne was a negligent omission on the part of the teachers at the school, acting in the course of their ordinary duties. The hospital cases, which were treated by Mason J as analogous, similarly involved negligence. A responsibility to take reasonable care for the safety of another, or a responsibility to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm. Furthermore, although deliberately and criminally inflicting injury on another person involves a failure to take care of that person, it involves more. If a member of a hospital's staff with homicidal propensities were to attack and injure a patient, in circumstances where there was no fault on the part of the hospital authorities, or any other person for whose acts or omissions the hospital was vicariously responsible, the common law should not determine the question of the hospital's liability to the patient on the footing that the staff member had neglected to take reasonable care of the patient. It should face up to the fact that the staff member had criminally assaulted the patient, and address the problem of the circumstances in which an employer may be vicariously liable for the criminal acts of an employee. Intentional wrongdoing, especially intentional criminality, introduces a factor of legal relevance beyond a mere failure to take care. Homicide, rape, and theft are all acts that are inconsistent with care of person or property, but to characterise them as failure to take care, for the purpose of assigning tortious responsibility to a third party, would be to evade an issue[26].
[26]See Lister v Hesley Hall Ltd [2002] 1 AC 215 at 250 per Lord Millett.
As will appear, courts of the highest authority in England and Canada, and courts in other common law jurisdictions, have analysed the problem of the liability of a school authority for sexual abuse of pupils by teachers in terms of vicarious liability. If the argument based on non-delegable duty, said to be supported by Introvigne, is correct, their efforts have been misdirected, and the conclusions they have reached have unduly restricted liability. If the proposition accepted in the Court of Appeal of New South Wales is correct, and represents the law in Australia, then the liability of school authorities in this country extends beyond that which has been accepted in other common law jurisdictions. Moreover, in this country, where a relationship of employer and employee exists, if the duty of care owed to a victim by the employer can be characterised as personal, or non-delegable, then the potential responsibility of an employer for the intentional and criminal conduct of an employee extends beyond that which flows from the principles governing vicarious liability. It is unconstrained by considerations about whether the employee was acting in the course of his or her employment. It is enough that the victim has been injured by an employee on an occasion when the employer's duty of care covered the victim. The employer's duty to take care, or to see that reasonable care is taken, has been transformed into an absolute duty to prevent harm by the employee. It is similar to the duty owed by the owners of animals known to have vicious propensities.
In Burnie Port Authority v General Jones Pty Ltd[27], a case concerning non-delegable duties of care, in which Introvigne was considered and applied, Brennan J identified the fallacy involved in an argument of the kind accepted by the majority in the New South Wales Court of Appeal. He referred to a case where an employer, who is subject to a personal (non-delegable) duty, entrusts performance to an independent contractor. In that connection, he quoted a passage from the judgment of Cockburn CJ in Bower v Peate[28], and said[29]:
"There is a difficulty with this passage if it is applied in a case where negligence is in issue. The difficulty lies in the words 'is bound to see to the doing of that which is necessary to prevent the mischief', for those words suggest that the duty is an absolute duty 'to prevent the mischief', a duty higher than a duty to exercise reasonable care. There are some cases, notably the rule in Rylands v Fletcher and the law of nuisance, where the act authorized to be done does impose on the employer of an independent contractor a duty higher than a duty to exercise reasonable care. Therefore, where the authorized act is or creates a non-natural use of land, or in the absence of preventive measures will create a nuisance, the duty of the employer is, in the one case, to prevent escape of the mischievous thing or, in the other, to prevent the occurrence of the nuisance. But the duty in negligence is not so demanding."
[27](1994) 179 CLR 520 at 575-576.
[28](1876) 1 QBD 321 at 326-327.
[29](1994) 179 CLR 520 at 576-577.
The proposition that, because a school authority's duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad, and the responsibility with which it fixes school authorities is too demanding.
In Kondis v State Transport Authority[30], a case concerning an employer's duty to provide a safe system of work, Mason J developed what he had earlier said in Introvigne. He said that, when we look at the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose a duty to ensure that reasonable care and skill is taken for the safety of another's person or property. He went on[31]:
"The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton[32] the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."
[30](1984) 154 CLR 672 at 684-687.
[31](1984) 154 CLR 672 at 687.
[32](1878) 4 VLR 283.
In cases where the care of children, or other vulnerable people, is involved, it is difficult to see what kind of relationship would not give rise to a non-delegable duty of care. It is clearly not limited to the relationship between school authority and pupil. A day-care centre for children whose parents work outside the home would be another obvious example. The members or directors of the club, which provided recreational facilities for children, considered by the Supreme Court of Canada in Jacobi v Griffiths[33], presumably owed a non-delegable duty of care to the children who were sexually assaulted by the club's employee. It would be wrong to assume that the persons or entities potentially subject to this form of tortious liability have "deep pockets", or could obtain, at reasonable rates, insurance cover to indemnify them in respect of the consequences of criminal acts of their employees or independent contractors. Whether the organization providing care is public or private, commercial or charitable, large or small, religious or secular, well-funded or mendicant, its potential no-fault tortious liability will be extensive. Furthermore, if deterrence of criminal behaviour is regarded as a reason for imposing tortious liability upon innocent parties, three things need to be remembered. First, the problem only arises where there has been no fault, and therefore no failure to exercise reasonable care to prevent foreseeable criminal behaviour on the part of the employee. Secondly, it is primarily the function of the criminal law, and the criminal justice system, to deal with matters of crime and punishment. (Most Australian jurisdictions also have statutory schemes for compensating victims of crime.) Thirdly, by hypothesis, the sanctions provided by the criminal law have failed to deter the employee who has committed the crime.
[33][1999] 2 SCR 570.

There is a further difficulty with the proposition under consideration. If a pupil is injured by the criminal act of another pupil, or of a stranger, then the possible liability of the school authority is determined by asking whether some act or omission of the school authority, or of some person for whose conduct it is vicariously responsible, was a cause of the harm suffered by the pupil. Why is a different question asked when the injury results from the criminal act of a teacher?
There is no reason, either in principle or in authority, to treat the existence of a non-delegable duty of care as having the consequences held by the New South Wales Court of Appeal. In that respect, the reasoning of Heydon JA, and of the Queensland Court of Appeal, is to be preferred.
The orthodox method of analysing the problem is that adopted by the House of Lords and the Supreme Court of Canada. On the assumption that there has been no fault on the part of the school authority, the question to be addressed is whether the authority is vicariously liable for the wrongdoing of its employee.
Vicarious liability
An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. The limiting or controlling concept, course of employment, is sometimes referred to as scope of employment. Its aspects are functional, as well as geographical and temporal. Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours, is not conclusive against liability.
The antithesis of conduct in the course of employment is sometimes expressed by saying that the employee was "on a frolic of his own". The origin of that expression was explained by Diplock LJ in Morris v C W Martin & Sons Ltd[34]:
"A coachman had a tendency, well-recognised in the nineteenth century, to drive off with his master's vehicle upon a 'frolic of his own' and sometimes to injure a passer-by while indulging in this foible. The only connection between the injury to the passer-by and the master's act in employing the coachman was that but for such employment the coachman would probably not have had the opportunity of driving off with the vehicle at all. At a period when judges themselves commonly employed coachmen, this connection was regarded as too tenuous to render the master vicariously liable to the passer-by for the injury caused by the coachman, at any rate if the master had exercised reasonable care in selecting him for employment. The immunity of the master from vicarious liability for tortious acts of a servant while engaged upon a frolic can be rationalised in a variety of ways. The master's employment of the servant was only a causa sine qua non of the injury: it was not the causa causans. It was not 'foreseeable' by the master that his employment of the servant would cause injury to the person who sustained it. The master gave no authority to the servant to create an Atkinian proximity relationship between the master and the person injured by the servant's acts. One or other of these rationalisations underlies the common phrase in which the test of the master's liability is expressed: 'Was the servant's act within the scope or course of his employment?'"
[34][1966] 1 QB 716 at 733-734.
To point to a vivid example of conduct by an employee that is not in the course of employment is a useful method of elucidating the concept, but it may be of limited assistance in resolving difficult borderline cases. It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907[35], and in later editions[36]: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.
[35]At 83.
[36]eg Salmond on Torts, 9th ed (1936) at 94-95.
As Lord Wilberforce explained in Kooragang Investments Pty Ltd v Richardson & Wrench Ltd[37], to hold an employer liable for negligent acts of an employee is usually uncontroversial; negligence involves performing an allotted task carelessly rather than carefully. Intentional and criminal wrongdoing, engaged in solely for the benefit of the employee, presents a more difficult problem. Even so, employers may be vicariously liable for such wrongdoing, even in cases where the wrongdoing constitutes a flagrant breach of the employment obligations.
[37][1982] AC 462 at 472.
A major development in the law occurred with the decision of the House of Lords in 1912 in Lloyd v Grace, Smith & Co[38]. Until then, vicarious liability of an employer for the unauthorised fraud of an employee had been confined to conduct that was engaged in for the benefit of the employer. In that case, the managing clerk of a firm of solicitors defrauded a client of the firm. His employer was held liable to the client. The claim was based both on contract and tort[39]. It was dealt with in that manner. Earl Loreburn said[40]:
"It was a breach by the defendant's agent of a contract made by him as defendant's agent to apply diligence and honesty in carrying through a business within his delegated powers and entrusted to him in that capacity. It was also a tortious act committed by the clerk in conducting business which he had a right to conduct honestly, and was instructed to conduct, on behalf of his principal."
[38][1912] AC 716.
[39][1912] AC 716 at 721.
[40][1912] AC 716 at 724-725.
The Earl of Halsbury[41] explained the rationale of vicarious responsibility in such a case by quoting Holt CJ who had said: "for seeing somebody must be a loser by … deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver should be a loser than a stranger". Lord Macnaghten said that the employer, having put the employee in the place of the employer to do a certain class of acts, must be answerable for the manner in which that agent has conducted himself in doing the business of the employer[42].
[41][1912] AC 716 at 727.
[42][1912] AC 716 at 733.
If the solicitors' clerk had assaulted the client, or stolen money from her purse, a different result would have followed[43]. In neither of those cases would the clerk have been undertaking duties imposed on him by the nature of his employer's business and the nature of his employment. His act would have been an "independent" act, of which no more could be said than that the employment created the opportunity for the wrongdoing. In Deatons Pty Ltd v Flew[44], Dixon J explained the decision as concerning "one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or 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". It is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment.
[43]Lister v Hesley Hall Ltd [2002] 1 AC 215 at 246.
[44](1949) 79 CLR 370 at 381.
An act of negligence may be easy to characterise as an unauthorised mode of performing an authorised act. An act of intentional, criminal wrongdoing, solely for the benefit of the employee, may be easy to characterise as an independent act; but it is not necessarily so, and there are many examples of cases where such conduct has been found to be in the course of employment.
Morris v C W Martin & Sons Ltd[45] was a case of bailment. The plaintiff sent a mink stole to a furrier for cleaning. The furrier, with the plaintiff's consent, sent it on to some cleaners. The employee who was given the task of cleaning the fur stole it. His employers were held liable. Applying Lloyd v Grace, Smith & Co, Diplock LJ and Salmon LJ held that, although what the employee did was dishonest, he was dealing with the fur in the scope or course of his employment. Salmon LJ pointed out[46] that the result would have been different if some other employee of the cleaner, who had no responsibility connected with the fur, had stolen it. It is useful to consider why this is so. All employees of the cleaner would have been under an obligation not to damage or steal the fur, and would have been personally liable if they had damaged or stolen it. But the employer was vicariously liable only for the conduct of the employee whose employment duties involved physical possession of, and dealing with, the fur.
[45][1966] 1 QB 716.
[46][1966] 1 QB 716 at 741.
The leading Australian authority on the subject of vicarious responsibility for an assault by an employee is Deatons Pty Ltd v Flew[47]. That was the case that Judge Downs was told he need not be concerned about. The plaintiff sued a hotel barmaid and her employer in trespass. The barmaid had thrown the contents of a glass of beer, and then the glass itself, into his face. He lost an eye. There was conflicting evidence as to what led up to the incident. The plaintiff's version was that he simply asked to speak to the publican, and the next thing he remembered was that he woke up in the eye hospital. There was other evidence that he was drunk and aggressive, and that he had quarrelled with the barmaid, striking her and calling her names. The jury found against both defendants. The employer appealed. The Full Court of the Supreme Court of New South Wales ordered a new trial[48]. Jordan CJ, with whom Street and Maxwell JJ agreed, considered that there had been a misdirection by the trial judge in telling the jury that, if they accepted the plaintiff's version of events, the plaintiff was entitled to succeed. The only doubt he had was as to whether there should be a new trial or a verdict by direction for the employer. He said[49]:
"If the evidence given on behalf of the plaintiff could be, and was, regarded as justifying the inference that the barmaid, without any reason connected with her employment, flung a glass in the plaintiff's face, being actuated by a mere irresponsible personal urge to injure him, it would follow that the employer incurred no liability. If a reasonable inference was that the barmaid's action was an instinctive act of self-defence against an assault made upon her whilst she was doing, and because she was doing, what she was employed to do, I think that it would be open to the jury to find that the employer was liable. A master who employs a servant in a capacity which exposes her to the risk of brutal violence may fairly be regarded as impliedly authorising her to defend herself against such violence. If, however, the reasonable inference is that, the plaintiff's assault upon the barmaid being over and done with, she threw a glass at him, not by way of self-defence or in order to induce him to depart, but as an independent act of personal retribution by way of vengeance for his misbehaviour towards her, the employer would not be liable …
The fact that throwing the glass would be an excessive way of doing something that might otherwise be regarded as coming within the scope of her employment would not, I think, necessarily put it outside the scope, although a very gross excess might in a particular case go to suggest that the act complained of was purely personal and not within the scope of employment".
[47](1949) 79 CLR 370.
[48]Flew v Deatons Pty Ltd (1949) 49 SR (NSW) 219.
[49](1949) 49 SR (NSW) 219 at 222-223.
The employer then appealed to this Court, contending, successfully, that it was entitled, not merely to a new trial, but to a verdict by direction. The Court considered that, on either version of the facts, the employer was not vicariously liable for the trespass: on the plaintiff's version what the barmaid did was a gratuitous, unprovoked act; the only alternative view open was that it was an act of personal retribution. Either way, it was not incidental to the work she was employed to do[50]. It was emphasised that it was not the duty of the barmaid to keep order in the bar. There were other people to do that. Her job was merely to serve drinks[51]. Her conduct was not an excessive method of maintaining order. It was "a spontaneous act of retributive justice"[52].
[50]Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 379 per Latham CJ.
[51](1949) 79 CLR 370 at 381 per Dixon J, 386 per Williams J.
[52](1949) 79 CLR 370 at 382 per Dixon J.
Both in the Supreme Court of New South Wales, and in this Court, the outcome turned upon application of the Salmond test. The test serves well in many cases, but it has its limitations. As has frequently been observed, the answer to a question whether certain conduct is an improper mode of performing an authorised act may depend upon the level of generality at which the authorised act is identified. If, on the facts, it had been possible to treat maintaining order in the bar as one of the barmaid's responsibilities, and if, on the facts, it had been open to regard her conduct as an inappropriate response to disorder, then the jury could properly have held the employer liable in trespass. However, the barmaid's only responsibility was to serve drinks, and throwing a glass of beer at a customer could not be regarded as an improper method of doing that. The level of generality at which it is proper to describe the nature of an employee's duties ought not to be pitched so high as to pre-empt the issue. The fact that an employer owes a common law duty of care to an injured person does not mean that it is appropriate to describe the employment duties of all the employees as including taking care of the person.
When the specific responsibilities of an employer relate in some way to the protection of person or property, and an intentional wrongful act causes harm to person or property, then the specific responsibilities of a particular employee may require close examination. The defendants in Morrisv C W Martin & Sons Ltd were sub-bailees for reward of the article stolen by their employee, and had a duty to protect it from theft. The employee was the person in charge of the article. The defendants in Lloyd v Grace, Smith & Co were fiduciaries. The clerk was the person who was managing the relevant transaction. Although the hotel proprietor in Deatons Pty Ltd v Flew owed a duty of care to customers at its premises, the barmaid's responsibilities were not protective. Stealing a fur stole is not an improper method of cleaning it, but as the employer was a bailee, with custodial responsibility, and it put the goods in charge of a particular employee, then it was proper to regard that responsibility as devolving upon the employee. The theft was so connected with the custodial responsibilities of the employee as to be regarded as in the course of employment; not because it was in furtherance of the employee's responsibilities, but because the nature of his responsibilities extended to custody of the fur as well as cleaning it.
It is the element of protection involved in the relationship between school authority and pupil that has given rise to difficulty in defining the circumstances in which an assault by a teacher upon a pupil will result in vicarious liability on the part of a school authority. The problem is complicated by the variety of circumstances in which pupil and teacher may have contact, the differing responsibilities of teachers, and the differing relationships that may exist between a teacher and a pupil. Some teachers may be employed simply to teach; and their level of responsibility for anything other than the educational needs of pupils may be relatively low. Others may be charged with responsibilities that involve them in intimate contact with children, and require concern for personal welfare and development. The ages of school children range from infancy to early adulthood. Although attendance at school is compulsory for children between certain ages, many secondary school students remain at school for several years after it has ceased to be obligatory.
Where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment. A security guard at business premises who removes a person with unnecessary force may be acting in the course of employment. On the other hand, as Jordan CJ pointed out in Deatons Pty Ltd v Flew, extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of purely personal vindictiveness. Sexual abuse, which is so obviously inconsistent with the responsibilities of anyone involved with the instruction and care of children, in former times would readily have been regarded as conduct of a personal and independent nature, unlikely ever to be treated as within the course of employment. Yet such conduct might take different forms. An opportunistic act of serious and random violence might be different, in terms of its connection with employment, from improper touching by a person whose duties involve intimate contact with another. In recent years, in most common law jurisdictions, courts have had to deal with a variety of situations involving sexual abuse by employees.
In 1999, the Supreme Court of Canada dealt consecutively with two such cases. The judgments were handed down on the same day. The first case was Bazley v Curry[53]. A non-profit organization, which operated residential care facilities for the treatment of emotionally troubled children, required its employees to perform parental duties, ranging from general supervision to intimate functions like bathing and tucking in at bedtime. It employed a man who was a paedophile. He sexually abused a child. The question was whether the organization was vicariously liable for his wrongdoing. That question was answered in the affirmative.
[53][1999] 2 SCR 534.
McLachlin J, who delivered the judgment of the Court, examined the considerations of policy underlying the concept of vicarious liability, and said[54]:
"Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer's enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence."
[54][1999] 2 SCR 534 at 557.
Later, McLachlin J elaborated her views on the concept of sufficiency of connection, saying[55]:
"The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires." (emphasis in original)
[55][1999] 2 SCR 534 at 559.

It follows that I would dismiss the appeals. It was agreed that the first respondent would pay the appellants' costs in any event. Accordingly I would order that the appeals be dismissed and that the first respondent pay the appellants' costs of the appeals to this Court.
State of New South Wales v Angelo Lepore & Anor
The facts and the relevant case law have been fully stated by the Chief Justice.
For the reasons that I give in Sheree Anne Rich v State of Queensland & Ors and Vivian Christina Samin v State of Queensland & Ors, which were argued at the same time as this case, I would hold that the appellant owed no non-delegable duty of care of the kind asserted to the first respondent.
Is there here however, unlike in Rich's and Samin's cases, a basis upon which the appellant might be held to be vicariously liable for the actions of the teacher? If the teacher deliberately excessively chastised, or improperly in any way sexually touched or interfered with the child, the teacher committed a serious criminal act. For the reasons which I have given in Rich's and Samin's cases, the appellant would not, in those circumstances, be vicariously liable for the actions of the teacher.
If however the teacher unintentionally but negligently exceeded what was reasonable in chastising the first respondent, then in those circumstances there could well be a basis for the imposition of vicarious liability upon the appellant.
It is necessary to turn to the finding at first instance to ascertain what was established with respect to the teacher's actions. Among other things, the trial judge found that the assaults "were deliberate and isolated acts of abuse which occurred in an enclosed room" and "were inimical or totally foreign to the second [respondent's] duties as a teacher". Although the exercise of fact finding of the trial judge may have left something to be desired in part no doubt because of his adoption of a course which is to be discouraged of "splitting the trial", the findings of deliberation, and abuse inimical, or totally foreign to the teacher's duties, do amount to an unequivocal finding of improper, deliberate, and criminal conduct for which, for the reasons that I have given in Rich's and Samin's cases, the appellant cannot be vicariously liable.
I would not regard the fact that the teacher was convicted on his own plea of guilt to a number of offences of common assault only, and that these attracted relatively light penalties as dictating any different outcome. Common assault is itself a crime which teachers are certainly not engaged to commit. In any event, there was before the trial judge credible evidence which he accepted, of conduct of a much more serious kind than that to which the teacher pleaded guilty in a criminal court.
I would accordingly allow the appeal and order that judgment be entered for the appellant. By agreement the appellant is to bear the costs of the appeal to this Court and does not seek to disturb the costs orders made in the Court of Appeal which included orders with respect to the costs of the trial. I would order accordingly.