Prince Alfred College Incorporated v ADC - [2016] HCATrans 163

[2016] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A20 of 2016

B e t w e e n -
PRINCE ALFRED COLLEGE INCORPORATED
Appellant
and
ADC
Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 JULY 2016, AT 10.00 AM

MR M.C. LIVESEY, QC: If the Court pleases, I appear with MR B.J. DOYLE and MR K.G. HANDSHIN, for the appellant. (instructed by Wallmans Lawyers)

MR B.W. WALKER, SC: If it please the Court, I appear with my friend, MS E. HOLMES, for the respondent. (instructed by Astrid Macleod Solicitor)

FRENCH CJ: Yes, I should advise the parties, the Court will propose to sit through till one o’clock just so that we give ourselves maximum time this afternoon. Yes, Mr Livesey.

MR LIVESEY: Thank you, Chief Justice. If the Court pleases, this appeal raises two questions. The first question is whether the Full Court was right to overturn the finding of the trial judge that the appellant’s school was not vicariously liable for the criminal wrongdoing of an employee because it did not arise out of the course of employment as proved more than half a century ago.

The second question is whether the Full Court was right to intervene and overturn the trial judge’s exercise of discretion under section 48(3) of the Limitation of Actions Act whereby, but for her decision on liability, she decided that she would decline to favourably exercise her discretion to extend time by a matter of 35 years after the cause of action arose.

The first question raises for consideration the correct test for the determination of vicarious liability, given the disparate approaches of this Court in Lepore’s Case. There are two further issues raised by my friend’s notice of contention concerning non‑delegable duty and actual negligence, which is as pleaded, confined to between paragraphs 86 and 106 of Justice Gray’s decision.

Might I commence with three observations at the outset. The first is that it appears that neither party to this appeal advocates for an overruling of Deatons v Flew. Rather, this is a question of which of the decisions in Lepore’s Case best reflect the longstanding approach taken to the question of course of employment. We say that the decision of Justices Gummow and Hayne, particularly between paragraphs 231 and 232, best reflects the leading case of Deatons v Flew, as it was described by Chief Justice Gleeson at paragraph 49. But we say further that, on any view, particularly on the approach of Chief Justice Gleeson and the approach of Justices Gaudron and Callinan, when one correctly understands the evidence actually led before the trial judge in this case, there was no requisite connection between the employment relationship and the criminal wrongdoing.

The second observation I wish to make is that neither party suggests that the…

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: [2016] HCATrans 163
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Full Court of the Supreme Court of South Australia in a dispute between Prince Alfred College Incorporated, the appellant, and ADC, the respondent. The case concerned allegations of sexual abuse of a student by a teacher at the College.

The central legal issue before the High Court was whether the College was vicariously liable for the wrongful acts of its employee, a teacher, who had sexually abused the respondent. This required the Court to determine the scope of the employer's vicarious liability for the conduct of an employee, particularly when that conduct was an intentional and criminal act.

The High Court, in a joint judgment, clarified the principles governing vicarious liability. It held that an employer is vicariously liable for the wrongful acts of an employee if those acts are so closely connected with the acts the employee was authorised to do, or so closely connected with the employment, that it is just to hold the employer liable. The Court distinguished between acts that are merely done in the course of employment and acts that are so connected to the employment that they can be considered an unauthorised mode of doing an authorised act. In this instance, the Court found that the teacher's abuse, while a criminal act, was not so closely connected with his employment as to render the College vicariously liable. The appeal was allowed.

Orders