Prince Alfred College Inc v ADC

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HIGH COURT OF AUSTRALIA

FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

PRINCE ALFRED COLLEGE INCORPORATED  APPELLANT

AND

ADC  RESPONDENT

Prince Alfred College Incorporated v ADC
[2016] HCA 37

5 October 2016
A20/2016

ORDER

1.Appeal allowed with costs.

2.Set aside the order of the Full Court of the Supreme Court of South Australia made on 10 November 2015 and the order of that Court made on 24 March 2016, and in their place order that the appeal be dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation

M C Livesey QC with B J Doyle and K G Handshin for the appellant (instructed by Wallmans Lawyers)

B W Walker SC with E Holmes for the respondent (instructed by Astrid Macleod Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. FRENCH CJ, KIEFEL, BELL, KEANE AND NETTLE JJ.   In 1962 the respondent was sexually abused by one Dean Bain.  The respondent was then 12 years old and a boarder at the Prince Alfred College ("the PAC").  Bain was employed by the PAC as a housemaster.  In December 2008 the respondent brought proceedings against the PAC in the Supreme Court of South Australia.

  2. In those proceedings the respondent alleged that the PAC was liable in damages to him on three alternative bases:  that it breached its non-delegable duty of care that it owed him; that it was negligent and breached its duty of care; and that even if the PAC was not itself at fault, it was vicariously liable for the wrongful acts of its employee, Bain.

  3. This Court considered issues of this kind in New South Wales v Lepore[1], a case involving the sexual abuse of a child by a teacher at a school.  The Court held, by a majority, that a school's non-delegable duty of care with respect to a pupil did not extend to the intentional criminal conduct of a teacher, in the nature of sexual abuse[2].  The question of the school's vicarious liability for those acts was also considered, but no majority view emerged from the judgments.

    [2]New South Wales v Lepore (2003) 212 CLR 511 at 534-535 [36]-[39], 598-601 [254]-[263], 609-610 [292]-[295], 624 [340].

  4. The respondent required an extension of time within which to bring the proceedings. Section 48 of the Limitation of Actions Act 1936 (SA) ("the Limitations Act") permits a court to extend the time prescribed for instituting an action. The power is discretionary. The respondent was required to show that it was just in all the circumstances for the court to extend the limitation period[3] and that the PAC would not be significantly prejudiced if the discretion was exercised in his favour[4].

  5. The…

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Details
Case
[2016] HCA 37
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Prince Alfred College Incorporated (PAC) against a decision of the Full Court of the Supreme Court of South Australia concerning a claim brought by a former boarder, ADC, who had been sexually abused by a housemaster, Bain. The dispute centred on whether PAC was vicariously liable for Bain's actions and whether ADC should be granted an extension of time to bring his claim, given the significant delay since the abuse occurred.

The legal issues before the High Court included the principles governing an employer's vicarious liability for the intentional criminal acts of an employee, specifically whether the employment provided the "occasion" for the wrongdoing or placed the employee in a "special position" relative to the victim. Additionally, the Court had to determine the correct approach to exercising discretion for an extension of time in personal injury matters, particularly where there was extraordinary delay, potential deficiencies in evidence due to the passage of time, and the absence or death of witnesses.

The High Court allowed the appeal, setting aside the orders of the Full Court. The Court reasoned that the primary judge had correctly concluded that PAC was not vicariously liable for Bain's abuse. The Court found that while Bain's employment as a housemaster provided him with the opportunity to abuse ADC, his criminal acts were not so closely connected with his employment that they could be considered to have occurred in the course of his employment. The Court also upheld the primary judge's decision to grant an extension of time for ADC to bring his claim, finding that it was just and fair in all the circumstances, despite the delay and evidentiary challenges. The Court noted that the principles of vicarious liability were relevant to assessing the possibility of a fair trial on the merits, which is a key consideration for an extension of time.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the order of the Full Court of the Supreme Court of South Australia made on 10 November 2015 and the order of that Court made on 24 March 2016, and in their place order that the appeal be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the same reason, this Court, in upholding the primary judge's conclusion as to the extension of time, could not determine the question of liability for itself. Nevertheless, the principles governing the liability of an employer for the intentional criminal act of an employee are relevant to the question of extension of time. This is because it is within the framework of those principles that the possibility of a fair trial on the merits, relevant to the extension question, must be considered. Moreover, as a result of the differing views expressed in the judgments in this Court in New South Wales v Lepore, there is a need for some guidance to be provided by this Court to intermediate appellate courts so as to reduce the risk of unnecessary appellate processes arising out of the existing uncertainties.The respondent's evidence It was not in dispute that the respondent had been subjected to abuse by Bain. Bain was convicted in 2007 of two counts of indecent assault against the respondent and of other offences involving two other boarders at the PAC. The primary judge found that the abuse of the respondent continued for some months. The respondent gave evidence that there was a senior housemaster and three housemasters, of which Bain was one, in charge of the three dormitories in the boarding house of the PAC in which the respondent resided. He said that the housemasters were present during meal times. The prefects supervised the day-to-day activities of the junior boys including study, showering and "lights out" and disciplined them when rules were broken. The prefects could, if necessary, send boys to the senior housemaster for discipline. The respondent said that Bain was rostered on two to three times a week and was often around during shower time. He often told stories to the boys in the dormitory after lights out. The respondent said that the other housemasters did not supervise lights out and did not come into his dormitory. The respondent gave evidence that the abuse commenced on an occasion when Bain was telling a story after lights out. Bain placed the respondent's hand on Bain's penis. The second incident occurred while Bain was telling a story after lights out when he fondled the respondent's genitals under the bedding. Thereafter the respondent attended at Bain's room at Bain's request on about 20 occasions and was there molested by Bain. On another occasion the respondent said that he was taken by Bain to a house where they spent the night together, during which Bain molested him again. Bain was dismissed from his employment shortly after the PAC came to hear of the abuse of the respondent. The boarders were told of the dismissal and told not to talk about it outside of the school. The respondent was told by the school chaplain that he could talk to him if he needed help. The respondent suffered symptoms of psychological injury and they continued, intensifying in their effects from time to time. After marrying and having children the respondent described feeling an abnormal depth of fear for his children's welfare. By the early 1980s he was suffering anxiety and was drinking heavily. In the 1990s he started attending "Alcoholics Anonymous" meetings.

Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL, KEANE AND NETTLE JJ GAGELER AND GORDON JJ
By the time the proceedings were commenced in December 2008 a number of persons who may have been witnesses in the proceedings had died. They included the persons who had been the headmaster, the senior master and the school chaplain of the PAC in 1962. The senior housemaster was ill and unable to give evidence. The psychologist whom the respondent first consulted had destroyed his notes.Liability – the decisions below The primary judge held[8], by reference to New South Wales v Lepore, that the non‑delegable duty of care which the PAC owed to the respondent did not extend to a duty to protect him against the intentional criminal conduct of Bain, in the absence of fault of its own. [8]A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [108]. The respondent's case that the PAC breached its duty of care to him had three limbs: it failed to make proper enquiries before employing Bain; it failed to supervise Bain; and it did not respond appropriately when it learned of the abuse that the respondent had suffered. The primary judge held[9] that this case was not made out.[9]A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [138], [151], [166]. Her Honour was not satisfied that any enquiry which the PAC could have made of Bain's referees would have resulted in information about rumours concerning his conduct at a previous school being provided[10]. It had not been established that the PAC could have obtained information about his criminal record at that time. Moreover, there was no practice of schools undertaking criminal record checks at the time[11]. The primary judge was unable to find on the evidence before her that the systems in place, or the level of supervision of housemasters, were so deficient as to amount to a breach of duty. It was found that it would have been wholly impractical to prevent a housemaster being alone with a boarder[12]. The evidence did not permit the primary judge to make sufficient findings to determine whether the PAC breached its duty to the respondent in its response to learning of Bain's conduct[13].[10]A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [133].[11]A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [134].[12]A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [151].[13]A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [166]. The primary judge was unable to make findings relevant to the question of vicarious liability because of the state of the evidence. There was insufficient evidence of a reliable nature about Bain's designated role upon which to base a conclusion that what he did was done in the course of employment, her Honour explained[14]. Any conclusion about whether the activities generally undertaken by Bain in the dormitories after lights out were within the role assigned to him by the PAC was necessarily speculative[15].[14]A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [174].[15]A, DC v Prince Alfred College Incorporated [2015] SASC 12 at [177].

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL, BELL, KEANE AND NETTLE JJ, GAGELER AND GORDON JJ

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