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
Copyright in the High Court of Australia
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 correct test is to be found in the decisions of the United Kingdom, particularly the Supreme Court, or of the Canadian Supreme Court. That appears from my friend’s outline at paragraph 30. The third observation is that however one describes the test it is, in my respectful submission, properly to be regarded as an exceptional form of liability.
It is imposed regardless of actual fault. It is imposed in a manner that raises real difficulties as a matter of both principle and policy. That was explicitly recognised by Justices Gummow and Hayne at paragraph 242 where they made the pertinent observation that some of the difficulties in this area arise because of a pursuit of policy over principle. It is also acknowledged explicitly in decisions of this Court in Hollis v Vabu in 2001 as well as in Sweeney v Boylan, and Justice Gray extracts at paragraph 125, appeal book page 1775, a summary by this Court of some of the difficulties which have beset this area of the law.
Nevertheless, on all views, there seems to be agreement that there is an important focus required on the connection, if any, between the nature of what the employee is employed to do or held out by the employer as doing, on the one hand, and the employee’s criminal wrongdoing on the other. In other words, in my submission, it is about the allocation by the employer of duties and authority to the employee that warrants the conclusion that wrongdoing was in the course of employment.
One sees that in a number of places in Lepore’s Case, including at – if I might refer simply to the paragraph numbers – Chief Justice Gleeson’s decision at paragraphs 46, 51, 52 and 54 where, particularly in paragraphs 46 and 51, he makes the important point about acknowledging what it was that the employee was employed to do and the level of generality at which one asks the question about the employee’s duties. One sees that also in Justice Gaudron’s decision at paragraph 131, where her Honour made the point, admittedly in the context of estoppel, that there is necessary to be:
a close connection between what was done and what that person was engaged to do.
The same may be said of the decision of Justices Gummow and Hayne between paragraphs 231 and 232, but also, importantly, at 213, where their Honours said this:
We would accept that an important element in considering the underlying policy questions . . . is the nature and extent . . . of the relationship between the employee’s authorised conduct and the wrongful act or, as was said in Dubai Aluminium, “the closeness of the connection” between the employment relationship and the wrongful act.
Their Honours went on to point out, however, really by way of criticism of the English approach, that the English approach was merely a means of restating the problem presented by the course of employment.
FRENCH CJ: The test and its application, which you propound, is at paragraph 28 of your written submissions. Is that right?
MR LIVESEY: Yes, it is.
FRENCH CJ: The elements that, as it were, should have enabled your client to avoid liability were what, the independent and unauthorised nature of the act?
MR LIVESEY: Yes.
FRENCH CJ: Does it say anything more to say that it was not in the intended pursuit of the school’s business or in the apparent execution of authority?
MR LIVESEY: Does your Honour the Chief Justice have our three‑page outline?
FRENCH CJ: Yes. I am just looking at your written submission.
MR LIVESEY: Certainly. Our written submission makes the same point that appears at paragraph 9. Your Honour the Chief Justice has put to me the first consideration, namely the intended pursuit of the employer’s interests or in the intended performance of the contract. In my respectful submission, the weight of this case is on the second, namely whether the wrongful act is done in the ostensible pursuit of the employer’s business or in the apparent execution of authority which the employer holds out to the employee as having.
What we say is that, whilst that is in the language utilised by Justices Gummow and Hayne, it faithfully reflects what was said by this Court in Deatons v Flew and it is important, whichever way one approaches the problem, to identify exactly what it was that the employer employed the employee to do or exactly what it was that the employer held the employee out as having the authority to do.
One of the problems with the decision of the Full Court, with respect, is to fasten on what the wrongdoer actually did and then ask whether it is conceivable that what the employee actually did could have been cloaked by some legitimate purpose when, in fact, as their Honours in the Full Court acknowledged, what was being done by the perpetrator in this case was but a contrivance. It was an excuse whether to groom or to carry out – it was an activity. It was not actually in the performance of anything that was required to be done.
FRENCH CJ: It has been suggested, in some writing on the topic – I have in mind a recent article in the Sydney Law Review – that it may be a simpler and appropriate test to say has the employee been conferred with authority and has the employee taken advantage of the authority conferred upon him by the employer to undertake the wrongful acts which he has done - a kind of “taking advantage of power” concept.
MR LIVESEY: Yes, which is not entirely dissimilar from what Justice Gaudron spoke about when she spoke about an estoppel that might arise.
FRENCH CJ: One does not have to put it in terms of estoppel.
MR LIVESEY: No, I accept that.
FRENCH CJ: It brings in a whole other load of baggage.
MR LIVESEY: I accept that. I am simply drawing that there are close relationships but, as Mr Doyle anticipates, on either view the critical question is the authority to do what? That is what lies at the heart of the error by the Full Court in this case.
What the Full Court did, with respect to them, is speculate that it may have been appropriate for a boarding housemaster to settle boarders at night after lights out, in circumstances where there was never any evidence whatsoever that that was required or actually being done on the occasions that the perpetrator went into the dormitory which housed 12 young boys.
NETTLE J: You could just about take judicial notice of the fact that they do, could you not, in one’s life experience?
MR LIVESEY: With respect, there are two responses to that. The first is to point to ‑ and I will come to this in a moment ‑ the system actually in place, more than 50 years ago in the boarding house, which was to repose on the prefects the responsibility for maintaining order, not only at the time of showering, cleaning teeth and what not but, critically, after lights out. It was the prefects who policed the fact that the lights would remain off and that the boys were not to talk.
Associated with that was the evidence, unchallenged, that if there were problems with that, the prefects referred the matter to Mr Prest, the senior housemaster. There was never any suggestion of a referral or engagement, as it were, of any other housemaster and that brings me to the second point. The evidence shows comprehensively – and I will come to it in a moment, it is within a very narrow compass ‑ but the evidence shows comprehensively that no other master acted as did this perpetrator.
KIEFEL J: Well, when you say the evidence showed, one of the difficulties in cases like this is, the evidence such as it was, because we do not have the evidence from the principal of the school at the time or other housemasters of the time, so we are necessarily limited and that is one of the problems in these cases, is that we proceed on the basis of limited evidence, mostly the plaintiff’s own evidence.
MR LIVESEY: In my respectful submission, what your Honour Justice Kiefel says, with respect, is quite right, but that ultimately was recognised by the trial judge as having important implications for the burden of proof and what ultimately was established by the plaintiff by way of proof of the elements necessary before one could ground liability in vicarious liability. Even if one moves off vicarious liability and goes to the question of employment, there are obvious difficulties when Mr Jack Dunning, the then headmaster of the school, was dead and Mr Dawes, the then headmaster of the Cummins Area School was dead. Ms Gleaves’ evidence showed that there were no documents extant by the time of the police investigation in about 2007.
That creates obvious difficulties; but for so long as the question is to be approached from the perspective of proof on the balance of probabilities, then it is inevitable that in many cases there may be an absence of proof to the requisite degree of what the actual allocated duties were and that throws up one of the issues, important issues, which sets apart the decision of the trial judge from the decision of the Full Court and that is this. Her Honour recognised, as was the fact, that those men in their 60s who were giving evidence before her, were recalling events more than half a century ago of what they saw occurred. She regarded it is fallacious to assume that what they saw occur corresponded with the allocation of duties by the employer.
There are a number or reasons for that but, in my submission, there are three obvious reasons which support the inference or the trial judge’s refusal to draw the inference as distinct from what the Full Court did. The first is this ‑ and I have already mentioned it – that is to say that no other master did as to the perpetrator; second, was that the perpetrator’s presence in the dormitory after lights out and after boys were to be quiet was in flagrant contradiction of the school rule. What he was doing was speaking to boys and entertaining them – that is what comes out of the evidence.
Now, it may be in other cases there may be a degree of settling required. Your Honour Justice Nettle put to me that one might take judicial notice of that. With great respect, there were three former boarders who were called to give evidence and none of them suggested that that was what was involved. That is important.
If there had been some response to a calamity or a response to tomfoolery or some other kind of activity, one would have expected some evidence of it and there was none. What he was doing was coming in, breaking the law regarding no speaking after lights out and entertaining the boys with a story. The evidence is not entirely uniform on that and I will come to it directly.
The third thing – and I have mentioned this also – is that it was the prefects who had the responsibility for policing these matters and, if necessary, for making a referral to Mr Prest. As it was described in the enough, the prefects had primary responsibility. They were authorised in the early 1960s to use a leather slipper and if that did not work then there was a referral to Mr Prest, who might use the cane on a Friday morning. That was the way things worked.
It is obviously a long step away from how things might operate today or even in the last decade, but that is how things were during the early 1960s. Mr Bean, the subsequent headmaster from 1970, gave very clear evidence about his experiences in boarding schools, both in England and in Australia during the 40s, 50s and 60s, before his time as headmaster, to the same effect.
I should mention that between appeal book pages 1176 and 1177, Mr Bean described that fact that paedophilia at that time, the 1970s and before, simply was not, as he described it, a topic of discussion. I accept that one cannot necessarily point to what was done as evidence of what was reasonably done but it is important when looking at particularly the risk analysis advocated by Justice Kirby or in the Canadian courts the degree of risk awareness that there was.
In this case, unlike some of the English and Canadian cases, there was no acknowledgement of this pervasive threat that required particular matters to be addressed. That was the thrust of the evidence of Mr Bean about the importance of trust and the way in which the boarding school operated during that period more than half a century ago.
Mr Anderson’s evidence – he was one of the officers with the Independent Schools Association – demonstrated that it was only as the result of royal commissions held in South Australia during the early 2000s that there was developed the various responses required, including mandatory reporting to the police and, it must be pointed out, police checks.
The trial judge was somewhat surprised about it but it was not until the early 2000s that police checks were required as a matter of course in independent schools within South Australia. So these things that we now take for granted are a very recent invention and development.
It is very difficult, in my submission, to try and disengage what we now assume from the practices that applied more than half a century ago. But that is very important not merely for the determination of vicarious liability but obviously for the determination of actual fault in negligence. Mr Anderson’s evidence appears between pages 1145 and 1156 in that regard.
Can I say something else about the English cases? Regardless of the criticisms that one might make – and, with respect, there are criticisms to be made of the English approach – what is agreed is that one necessarily focuses on the connection, if any, between the employment relationship and the wrongdoing which is the subject of attention. That appears in the Claimants decision. I might refer to it as that. In Lord Phillips’ decision, between paragraphs 21 and 22, he describes the two stages. This is the second stage. It also appears in Lord Toulson’s decision in Mohamud at paragraphs 1 and again between paragraphs 44 and 45. I might briefly turn up the Claimants decision.
That is case number 12 on our list – Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. From the decision of Lord Phillips, particularly at 19, one sees the analysis of vicarious liability. His Lordship says at 19 that “The law of vicarious liability is on the move”. What becomes clear from the later decisions of Cox and Mohamud is that it may be on the move so far as the first stage is concerned, but not the second.
KIEFEL J: You mean a broadening of the notion of the course of employment?
MR LIVESEY: That is so. That has been entrenched for a very long time in England, in contradistinction to what I submit is the preferable approach applied here in Australia and which was recognised in Deatons v Flew. Lord Phillips then at 20 set out developments in the law of vicarious liability before, at 21, pointing out that counsel for the institute did not challenge those. Then his Lordship referred to what he described as the test requiring a synthesis of two stages. The first is the relationship between a putative employer and the employee or, in this case, the institute and the relevant ‑ ‑ ‑
FRENCH CJ: Would you accept that the authority that is conferred upon an employee, the housemaster in relation to the boys, is an aspect of what the housemaster as an employee is actually employed to do?
MR LIVESEY: Again, with respect, it depends on the level of analysis at which one approaches the question. To approach it, let us say, at the first stage as a general inquiry of what a boarding master might be required to do, one can predicate ‑ ‑ ‑
FRENCH CJ: All I am putting to you is the notion of what someone is actually employed to do would subsume, would it not, as an element which does not exhaust its content, the authority that is conferred upon that person in relation to others in the discharge of particular tasks?
MR LIVESEY: In my respectful submission, it depends.
FRENCH CJ: What is the logical difficulty with that?
MR LIVESEY: The logical difficulty is that it ignores the actual allocation of duties by the employer. The difficulty is that what one does is by positing a title or status one then makes a series of assumptions as to what might be carried with it by way of authority or ‑ ‑ ‑
FRENCH CJ: You can argue what the authority is. All I am saying is once you identify something as a relationship, as an authority relationship which flows from the terms of employment, then it is an aspect of but not the totality of what the employee is employed to do, is it not?
MR LIVESEY: I accept that.
FRENCH CJ: That is all I am putting to you.
MR LIVESEY: I apologise if I misunderstood. What I had in mind was Chief Justice Gleeson’s warning that one does not fasten on such things as teaching involves cares – as his Honour put it – so it does, but there is more to it and one needs to travel on before one looks at this exceptional form of remedy to see whether it is triggered in a case such as this.
KEANE J: Is the distinction that you are drawing between what the employer authorises the employee to do and the opportunities that the employee may have because the employee has been employed?
MR LIVESEY: With respect, that is so. And, again, on any view of it, even in some of the statements by their Lordships in England, mere opportunity is not enough, that the mere putting of an employee into a position is not enough. That, in part, is because despite the difficulties associated with principle and policy, one is searching for reasons why it is appropriate to visit the employer, who, for this purpose, is not at fault, with liability of a strict nature. And, in my submission, the resolution to that inquiry is by looking at what it was that the employer asked the employee to do or what it was that the employer in fact cloaked the employee with authority to do.
BELL J: Looking at the latter and going back to Deatons, to the extent one is concerned with whether the act was committed under cover of the authority that the servant is held out as possessing and looking at the situation of a boarding master, why would one drill down to the degree of specificity of what in fact was this boarding master instructed to do, as distinct from considering that a boarding master would be understood as held out as having power to supervise the young pupils in the boarding school? And the fact that some might do that through the medium of the prefects and another might choose to do it personally might be looking at it with too great a degree of specificity, having regard to what informs that second aspect of the principle in Deatons.
MR LIVESEY: With great respect, your Honour Justice Bell’s question lies at the heart, in my submission, of the difference between the approach taken in the United Kingdom and the approach taken in Australia. It is very clear now since Mohamud’s Case that the level of detail is not that which the High Court took in Deatons v Flew, and not that which Chief Justice Gleeson and Justices Gummow and Hayne took in Lepore’s Case.
NETTLE J: This is the essence of Lord Toulson’s criticism of Deatons v Flew, is it not?
MR LIVESEY: It is. Might I turn up that decision for a moment because, in my respectful submission, it is a very stark illustration of the divergence in the paths between the United Kingdom and Australia. That is on my friend’s list, case No 8. The media neutral citation is [2016] UKSC 11. Judgment was given in early March of this year. One sees in paragraph 1 of Lord Toulson’s decision the two‑stage approach reviewed by his Lordship, this being a case about the second stage.
The counterpart case of Cox was about the first stage. That, again, was a somewhat remarkable case where the liability of a prisoner was something which the prison authority was held vicariously liable for. One then goes to see the facts, paragraph 3. This is a case about an assault at a petrol station. One sees at paragraph 3:
One of the company’s employees was Mr Amjid Khan. His job was to see that the petrol pumps and the kiosk were kept in good running order . . .
The claimant was of Somali origin –
and then, at paragraph 5, the claimant asked whether he could download a document from a computer. Mr Khan reacted in a way that could only be described as incredibly violently, and not merely within the shop. That is important, in my respectful submission.
As his Lordship emphasised, it was not merely the use of “foul, racist and threatening language” in the shop, which culminated in a demand to leave, but when the claimant got into his car and switched on the engine, and before he could drive off, Mr Khan came out of the shop over to where the car was parked, opened the passenger door and punched the claimant in the head. Not satisfied with that, when the claimant walked around to close the passenger door, Mr Khan again attacked the claimant and, in the course of a vicious attack, punched and kicked him whilst he lay curled on the petrol station forecourt, trying to protect his head:
Mr Khan ignored instructions from his supervisor, who came on the scene at some stage and tried to stop Mr Khan from behaving as he did.
Now, a very dramatic case such as this has obvious implications for the continuing authority of a case such as Deatons v Flew, and his Lordship recognised that expressly when one comes to paragraph 29 of his Lordship’s decision where the well‑known facts of the unprovoked attack by the barmaid on the customer are recited:
The High Court of Australia held that there was no basis for finding that the barmaid was acting in the course of her employment –
They also, and this is important for the second stage of the analysis:
rejected the argument that her conduct was incidental to her employment –
Justice Dixon’s decision is reviewed and then paragraph 30 is important and might I invite the Court to read paragraph 30.
NETTLE J: It is the last sentence of paragraph 30 that is critical and goes to the heart of Justice Bell’s question to you as to why you would draw a distinction between the functions of a housemaster generally and those of a specific housemaster.
MR LIVESEY: Yes.
NETTLE J: Surely his Lordship is right in what he says in that last sentence of paragraph 30.
MR LIVESEY: With respect, that was not the analysis preferred by the High Court in Deatons v Flew and it does not pay sufficient regard to the necessity to identify the requisite relationship between the employment relationship, on the one hand, and the wrongful conduct on the other. To fasten onto how the claimant might perceive matters is not really to address the correct question, in my respectful submission, because it is not about which of the two potential defendants the claimant can pursue, it is about why one of the innocent parties, the employer in this case, completely without fault, should bear liability for the wrongdoing that has been visited.
It is by focusing on the connection between the employment relationship and what the employer required or authorised the employee to do and the wrongdoing that one sees the rationale for the imposition of liability.
NETTLE J: It is both to some extent, is it not? You have already referred to a power and to authority or what goes with the scope of the activity that the servant is employed to discharge.
MR LIVESEY: Yes.
NETTLE J: You are talking about little boys in a boarding house. It surely is relevant to ask how they would perceive the authority of the housemaster.
MR LIVESEY: There is no doubt that there is a tension in these cases between identifying what it was that the employer cloaked the employee with authority to do and how that might be viewed by a claimant such as the plaintiff in this case or the claimant in Mohamud’s Case, but either way one must start and focus on what it was that the employer did.
For example, in the well‑known case of Lloyd v Grace, Smith & Co – this is one of the criticisms we have with Justice Peek’s decision – he says that there is simply no difference between predatory sexual misconduct on the one hand and the fraud in Lloyd v Grace, Smith & Co or the breach of bailment in Morris’s Case. Both of those cases are distinguishable.
Can I take Lloyd v Grace, Smith & Co. The critical point about Lloyd v Grace, Smith & Co was, as Chief Justice Gleeson recognised, that the solicitor’s clerk was a fiduciary and was cloaked or clothed by the employer with the authority to conduct the firm’s business associated with conveyancing. So not only was it a question of the employer authorising the clerk, Sandles, to take the widow’s deeds but that is exactly what the widow wished. So there was no disconnection in that sense. Both the client and the employer intended that the employee would take the deeds into the custody of the firm.
NETTLE J: But not convey the land to himself, he was never authorised to do that.
MR LIVESEY: With respect, it is only by seeing the degree of closeness between what was authorised and the extent to which that was or was not a departure from what was in fact done wrongfully that one can see the requisite connection or absence of connection between the employment on the one hand and the wrongful conduct on the other.
So it was that Sandles was employed to take the deeds, to make notations to discharge the mortgage and do all of those things. What he was not authorised to do, and what was a fraud, was to make off with the benefit of the value in those securities.
NETTLE J: Does that mean in a case of the kind we are talking about the housemaster would have had to have been authorised to touch the little boys, albeit non‑criminally, but to touch them?
MR LIVESEY: That is one response, yes, and that harks back to what Chief Justice Gleeson described as the requirement for an intimate, close duty – or an aspect of the duties requiring intimate closeness.
NETTLE J: We are down to how close it must be, are we not?
MR LIVESEY: With respect, that is one answer. One needs to take a step back and ask that same question before the boarding house master ever steps inside the dormitory. Was that authorised? Was that forming part of his duties? The same might be said, albeit with less relevance, about the visits to the shower room. Unless one can draw that connection at each relevant stage, on the Australian approach, it is my submission that one cannot draw the requisite connection.
FRENCH CJ: Lloyd v Grace, Smith & Co might be described as a case in which the clerk took advantage of or used the authority conferred upon him.
MR LIVESEY: Yes, I accept that, the critical point being that he was authorised by the employer to do those very things, which he in fact did, which were essential to the four that he ultimately perpetrated.
FRENCH CJ: It is a slightly different question, I suppose; a slightly different criterion.
MR LIVESEY: With respect, it is a question of tracking through the employment relationship of what it required, or what it cloaked the employee with authority to do, and then comparing that very closely with the wrongdoing in question and seeing the symmetry and the overlap between the two.
GORDON J: Having put that proposition, can you explain to me how it is that is not consistent with the way in which Lord Toulson deals with it in Mohamud? He starts with the first question and says, “What’s the job? What’s the field of activity? What’s the nature of the activities?” Having asked that question and answered it, he then proceeds to the second stage and says, “Is there a sufficient connection between the wrongful act and that field of activity?” One is not looking at, as Justice Bell put it, drilling down to specific events. One is taking a two‑stage process with simple language and simple ideas and no debate about whether or not it is authorised or unauthorised – none of these questions which are difficult and, especially given the time lapse, difficult by way of evidence. What is wrong with that approach?
MR LIVESEY: The response is that that requires the analysis to stop, in my submission, at a little more than the labour one affixes to the employee’s duties. In Deatons v Flew, a barmaid: what might one conceive a barmaid as having authority to do, as distinct from what in fact the employer authorised her to do? In Mohamud’s Case: what might one conceive a petrol station attendant as having authority to do, as distinct from what in fact he had authority to do, quite apart from what in fact he did?
GORDON J: It is not a question of authority in the way in which Lord Toulson deals with it, is it? It is a question about what is the nature of the job and the field of activities. One looks at a case involving the conductor who takes the bus and drives it. He was a conductor; he was not a bus driver. There is no connection between the wrongful act and his field of activities.
MR LIVESEY: With respect to his Lordship, by putting the test as generally as, is this within the field of activity, one is really moving towards a position of judicial legislation because what that does is create liability by the affixing of a label or a concept rather than what the employer actually did. Now, looking at ‑ ‑ ‑
GORDON J: What the employer actually did? I mean, the question is, is what is the nature of his or her job?
MR LIVESEY: What is it that the employer employed the employee to do? What is it the employer cloaked the employee with authority to do, is what I meant by that, with respect. But, to take Mohamud’s Case, it is almost impossible, with respect to their Lordships, to see how this assault had anything at all to do with either a general conception of what a petrol station attendant might be expected to do or the specific conception of what an employer may have asked him to do, by way of duties or authorised him to do, by way of his activities.
What has occurred in the English cases, in my respectful submission, is to stop the analysis at a very high level of abstraction and ask whether, if it is possible ‑ and their Lordships make it plain that one does not drill into the detail, one stays at a very general level of abstraction, and if one can say in a general way that there is some connection with employment associated between the affixing of the label of petrol attendant and the criminal activity that occurred, then that is enough and, in my respectful submission, that is a very long step away from Deatons as well as a very long step away from Lepore’s Case. It is, in a sense, nothing at all to do with the course of employment and vicarious liability as it is traditionally understood, whatever the difficulties that there may be.
GORDON J: In paragraph 36, Lord Toulson draws a distinction in adopting the phrase “field of activities” between a range of conduct and then “acts done in furtherance”. He acknowledges it is a wider range of conduct and that is, in a sense, the heart of your argument. Your argument is, as I understand it, you look to see what they are employed to do, what they are authorised to do and you draw the line.
The distinction which is drawn here, it seems to be, well, that itself, which would put it back to you, in a sense, answers your question as well, because if you draw the line there, then the answer of course is, no. You necessarily have an answer to stage 2.
MR LIVESEY: One does ‑ ‑ ‑
GORDON J: The way in which Lord Toulson – whether it is right or wrong, what Toulson says is, well, there may very well be a wider field of activity arising from the employment which extends beyond that which is the subject of, to adopt your language, authority.
MR LIVESEY: Yes, and with great respect to his Lordship, what his Lordship advocates in that three‑line passage is a new test. It is a new approach. It is not the approach that has hitherto been understood. It is not the approach that I understand my learned friends to advocate. It is an approach which is supported in the United Kingdom and, to an extent, albeit through the area of at risk enterprise in Canada.
It is an entirely different approach, and might I emphasise that it is not unlike the statutory approach advocated in the Redress and Civil Litigation Report by the Commonwealth Royal Commission that is a step to be taken by way of legislation, to impose liability unless it can be said ‑ and there are various statutory defences provided, that is at page 495 of the Redress Report ‑ but that, in my submission, is frankly a question of legislation and that is not the approach, because one of the things that is recognised across all of these cases is that it is not merely for the hard cases such as sexual abuse cases or violent assault cases, these principles must be made to work across the full gamut of employment and other cases where vicarious liability is in contest.
KIEFEL J: Mr Livesey, when one comes to consider how Lord Toulson actually applied the language, which is always at a kind of level of abstraction in these discussions, the field of activities at [2016] 2 WLR 835, paragraph 47, the first step his Lordship appears to take is to say:
His conduct in answering the claimant’s request in a foul‑mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him.
If one stops there, that does not seem to be anything out of the ordinary in terms of the Deatons approach. I mean, his field of activities was to respond to customers’ inquiries. It is the next step, though, that is the critical one – what happened thereafter, which is when the act causing injury occurred is said by Lord Toulson to be “an unbroken sequence of events.” On this approach it is arguable, is it not, that Lord Toulson is basing liability on causation?
MR LIVESEY: Yes. And that is not the approach that has been advocated either by my friends or by any member of the High Court in Lepore’s Case or indeed by the High Court in Deatons Case.
KIEFEL J: If causation is bound up in the field of activities, that is giving a very broad range to the field of activities.
MR LIVESEY: It is difficult to see what the proper limits would be. Certainly, and for the purposes of my argument, importantly, that disengages the analysis from what it was that the employer has done, which warrants the imposition of vicarious liability, whether it be by the allocation of specific duties or the allocation of a particular authority.
Can I hark back, just briefly, to Lloyd v Grace, Smith & Co? When one reads the speeches of their Lordships, it is very clear that that is an agency case. It is very clear that that is the way in which their Lordships approached the analysis.
KIEFEL J: It is one of the cases referred to by Justices Gummow and Hayne in Lepore, is it not, as an authority case?
MR LIVESEY: It is. Justice Callinan in Lepore’s Case made the perfectly proper point that it is also a case capable of being considered in the context of the law of contract. Likewise, when one looks at the Morris Case – that is, the white mink stole that was stolen by the employee Morrissey ‑ that is a bailment case. There was a sub‑bailment. The owner of the fur stole placed it in the hands of a furrier, the furrier in turn effected a sub‑bailment with the cleaning company.
So it is not difficult to see in that particular setting, given the law of bailment and the way in which the law of bailment imposes very strict obligations on the bailee to take care not only to safeguard the chattel but also to ensure that there is no dealing with it inconsistent with ownership, such as conversion, subject of course to a defence of no negligence, why there might be liability in that sort of situation. But it rather confuses matters to try and use those cases, fiduciary obligation cases involving agency, sub‑bailment cases involving the potential questions of a defence of non‑negligence as in some way informing the proper approach to vicarious liability more generally.
In my submission, there is a danger in trying to draw some sort of general analogy between a bailment case and a case such as this involving predatory child sexual abuse. On the one hand, the law of bailment creates very strict obligations. One is dealing with chattels, whereby it is easily seen how they can be safeguarded – locked away in a safe, for example – and the loss of the chattel can be made the subject of quite specific certain compensation.
There is no proper analogy between that and the inestimable value of a child and the many multiple examples of interaction that might take place when dealing with the safeguarding of children and their interests. There is no reliable analogy between those scenarios at all, and Justice Peek’s calling in aid of an analogy is simply, with respect to him, wrong.
To pick up the point that was made a moment ago, both in Justices Gummow and Hayne’s decision as well as in Chief Justice Gleeson’s decision, the limits on the application of those cases was recognised by their Honours. I said that I would turn briefly to the evidence, and may I do that?
BELL J: Perhaps just before you turn to the evidence, you repeatedly speak of the Australian position in terms of Deatons. There is suggested by the respondent to be a distinction between the statement of the principle by Justice Dixon in Deatons – put to one side the particular facts and the way one might view them, but look at the principle – and what is suggested to be a narrowing of that principle in the joint reasons in Lepore which, in the context of a boarding master and the 12‑year‑old pupils under his supervision, might be significant.
In other words, what is put against you is that Justice Dixon spoke of the ostensible performance of the master’s work giving the occasion for the wrongful act, or the wrongful act being committed under cover of the authority; neither of those parts of the principle finding expression in its restatement in the joint reasons in Lepore. I am not sure how you deal with that.
MR LIVESEY: Directly, with respect. This is the passage that appears in my friend’s outline on page 6 and the top of page 7.
BELL J: I am looking at it in 23 and 24 in the submissions, yes.
MR LIVESEY: Yes, thank you, that is quite so. The answer to that is to be found by looking at the way in which their Honours expressed themselves – including Justice Dixon, as he was – in Deatons v Flew. I will come to that directly, if I may.
BELL J: Yes.
MR LIVESEY: That is reported in (1949) 79 CLR 370. Before I go to the detail of it, one must pause for a moment and reflect on what is meant by the word “occasion” because, if what is being driven at by that submission is that there is merely the occasion for wrongdoing, that is no different from saying that the employment provided the opportunity for wrongdoing. All judges, whether here or overseas, agree that that is not enough.
When one comes to Deatons v Flew itself, and particularly in the passage at 378, Chief Justice Latham’s decision – and I should emphasise, as a further preliminary remark, I have been questioned at times about why is it necessary to go into the detail of what the duties were. Is that an unnecessary inquiry? What one sees in Deatons v Flew is precisely that inquiry being engaged in. One sees the same approach in Lepore’s case, to ask what the duties are, to ask what the authority it is that is actually conferred. So one sees analysis by their Honours of what it was that one might infer is within the authority of a barmaid or within the duties of a barmaid.
The passage to which I invite attention is in the second half of page 378, the passage commencing “The liability of the employer” and concluding with the reference to Canadian Pacific Railway, and if I might invite the Court’s attention to that. The important word there of course is “incidental”. So when one looks at the second limb of what we have set out from the decision of Justices Gummow and Hayne in paragraph 9(b), that is where the emphasis applies in connection with the use of the word “apparent” execution.
BELL J: Their Honours were purporting to take the principle from Justice Dixon at 381.
MR LIVESEY: What he says is perfectly consistent with Chief Justice Latham.
GAGELER J: I think what you have to do is read what His Honour Justice Dixon said at page 380 about the way in which the case was put by the plaintiff. In the middle of the paragraph it is said:
For upon the plaintiff’s case the assault was as unexplained as it was unprovoked and might have proceeded from private spite . . . So far as the plaintiff’s case went to show, nothing occurred which would in any way relate her action to the duties of her office ‑ ‑ ‑
MR LIVESEY: Yes, that is so.
GAGELER J: That is a long way from the sort of case with which we are concerned here.
MR LIVESEY: Save this, that their Honours dealt with not only the plaintiff’s case but the defence case and said whether one looks at it from the perspective of the plaintiff’s case, an unprovoked assault, or the defence case, an act of quite violent retribution, on either analysis it fell outside the course of employment. It could not be said to be incidental to the duties the barmaid was exercising as a barmaid.
One can see that at 381 in Justice Dixon’s consideration and rejection of the suggestion that the barmaid was simply “keeping order”. I will not read but I refer to “She did not throw the beer”, et cetera, “in the course of maintaining discipline”. Then he goes on:
The general and somewhat indefinite position was relied upon that the barmaid was there to deal with customers -
Again, a very general approach, as can be seen in Mohamud’s Case.
BELL J: When one comes to the statement of the principle, which is then restated in the joint reasons in Lepore, Justice Dixon is giving, so it might be thought, his Honour’s understanding of the rationale of Lloyd v Grace, Smith, and that is that the conduct of the fraudulent clerk was done in the ostensible performance of his master’s work to which the work gave occasion or committed under cover of the authority that he had been held out as possessing. So that though one can look at Lloyd v Grace, Smith on a number of analyses, including the contractual retainer, when Justice Dixon came to state the principle in Deatons he was viewing Lloyd v Grace, Smith through the prism of vicarious liability.
MR LIVESEY: Yes. I accept that is what his Honour was there doing, but one, with respect, needs to go further and see the way in which he circumscribed the approach. Just in the next line:
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 ‑ ‑ ‑
BELL J: The latter is an alternative.
MR LIVESEY: Yes.
BELL J: The point that is being raised, as I understand it, on the respondent’s behalf, in the context of a boarding master supervising 12‑year‑old boys, it is the first two limbs of the proposition.
MR LIVESEY: With respect, it is difficult to simply stop the analysis at the title or the label or the general job description without going further. One sees that at the foot of 381:
The truth is that it was an act of passion and resentment done neither in furtherance of the master’s interests nor under his express or implied authority nor as an incident –
and I emphasise the use of the word “incident”:
to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.
If one follows that through then one does not take the path that committed itself to Lord Toulson in Mohamud’s Case because that was all regarded as maybe, in a sense, by his Lordship.
BELL J: A difficulty, I think, in this area is taking facts from one case to another.
MR LIVESEY: I accept that.
BELL J: Let us put Mohamud to one side and look at boarding masters supervising 12‑year‑old children in bed.
FRENCH CJ: We are talking here about not the general concept of authority as a description, if you like, of the incidence of the employee’s duties but a particular kind of authority in relation to the supervision of people which brings them within the power of the housemaster.
MR LIVESEY: Yes. Whilst I accept that it is necessary to exercise caution when looking at one factual scenario and what the judge might say about that, and a different factual scenario, it is instructive, in my respectful submission, to see what Lord Toulson said about Deatons v Flew. He is clearly of the opinion that the result was not a just one, and that undoubtedly informs his approach to the resolution of the question of vicarious liability.
He answers the way in which the High Court dealt with Deatons v Flew by positing what I have described as “the United Kingdom approach”, looking at it in a broader sense. It occurred in the course of employment. She was employed to serve customers. She was approached. Ordinary members of the public would surely expect the company who employed her, and so forth. All of that is a very broad general approach.
KIEFEL J: Is it anything to do with customers as within the scope of employment?
MR LIVESEY: Yes, anything at all, including racing out onto the forecourt of the petrol station and punching and kicking a customer that wishes to simply leave the petrol station. With respect, in my submission, that surely cannot be right.
I have said a couple of times that I will come to the evidence, and I will directly, but can I go to the evidence with this concept in mind? Whatever might be said about Mohamud’s Case, at least there was a customer who was actually asking for some assistance on the evidence. That cannot be said about this case. What the perpetrator was doing was an utter contrivance, on the evidence. There was no evidence to suggest that he was settling anyone, or that he was responding to any particular issue that required a boarding master to respond or actually carry out activities.
To say that he had general oversight and supervision as one of a number of masters rostered on during the course of a week does not answer the question, because one must answer the question by reference to the actual duties and the actual authority conferred. Admittedly, it is approached indirectly here from the perspective of what middle‑aged men remembered half a century before, and there is no direct evidence of duties, but that is a matter that supports rather than hinders the refusal or liability.
It is wrong, in my submission, to look at what a perpetrator may have contrived to construct and then ask, in effect, after the event, is it conceivable that that might have been justifiable in some manner when that hypothesis is not to be found in the evidence? Justice Peek refers to tomfoolery in the showers. Of course, one might expect that as a matter of judicial notice, but that is not what was being done at the time of the wrongdoing. Showers in that sense are a red herring in this case. Likewise, at night, it was a very spartan environment. The boys were told “lights out, no talking after 9.00 pm”, and it was the prefects who did the spot checks. What the perpetrator did had nothing to do with that.
KIEFEL J: But you are focusing upon what ordinarily occurred. If a housemaster walked into the dormitory to talk to the boys, it could scarcely surely be said that he was acting outside the scope of his employment and duties, or that the boys would regard him as not authorised to do it, or ‑ ‑ ‑
MR LIVESEY: The question here of course is whether the trial judge was wrong to decline to draw the inference that she was being urged to draw on the evidence as it was heard by her. What the Full Court has done is to postulate settling between something that might be appropriate and to use that, in a sense, as a means of justifying the contrivance that the perpetrator set up.
KIEFEL J: But did not the primary judge really focus attention upon actual expressed tasks that were to be undertaken which could be seen by what was actually done from time to time and not upon the question of what the extent of his authority granted to him by his position as housemaster?
MR LIVESEY: With respect, in a sense, it may be the obvious. What she did is to say that “I have evidence about what the perpetrator did and I am being asked to find that that accorded with the duties – as was submitted to her – that he was authorised and required by the employer to carry out and the authority that he was given by his employer and I decline to draw that inference”. And her reasons are, with respect, quite compelling.
GORDON J: Is that the right question? The inference that her Honour was asked to draw; is that the right question? I start with the, in effect, wrongful conduct and work backwards?
MR LIVESEY: My submission is one does not start there.
GORDON J: No, so it is not the right question.
MR LIVESEY: What her Honour was trying to do was identify what the duties were.
NETTLE J: He was a housemaster. He is there to discipline and control the children.
MR LIVESEY: With respect, no, that was not the evidence. The evidence was that the housemasters were there and available, but the prefects did those very things. The prefects were the ones exercising control, supervision and putting the lights out, keeping ‑ ‑ ‑
KIEFEL J: And who supervises the prefects?
MR LIVESEY: The evidence was that the housemasters were rostered on but not doing anything.
NETTLE J: So they pay housemasters to sit there and do nothing whilst the prefects did the job ‑ hardly likely.
MR LIVESEY: With respect, on the evidence what it demonstrated was that only Bain came in after lights out not for the purpose of administering discipline, not for the purpose of settling anyone, but to talk, smoke cigarettes and tell stories, after all the boys were supposed to be quiet.
One can conceive of all manner of activities that a boarding housemaster might be required to respond to and why it was appropriate to have someone rostered on, bearing in mind that it was not just Bain and his two or three nights a week, there were two or three other housemasters rostered on other nights each week. One can conceive of all manner of scenarios but, on the evidence, they did not occur. There was no evidence to suggest that they occurred. One only gets to that, in my respectful submission, by speculating as to what might have happened and it was that which her Honour expressly declined to do. Her Honour said, for example – the passage starts at 173 ‑ ‑ ‑
GORDON J: What page is it please, Mr Livesey?
MR LIVESEY: I am sorry, appeal book page 1706.
GORDON J: Thank you.
KIEFEL J: What was the paragraph number, Mr Livesey?
MR LIVESEY: Paragraph 173.
KIEFEL J: Thank you.
MR LIVESEY: There her Honour describes the assumption as “fallacious.” She describes the effect of the evidence before her about the prefects and what they did and, importantly, what no other housemaster did, in the last six lines or so, and of Mr Prest being the one who was seen only rarely and then before lights out. She refers, as was entirely appropriate, in my respectful submission, in the last half of paragraph 174:
that there is simply insufficient evidence of a reliable nature about Bain’s designated role – as opposed to assumed role –
what might be otherwise described as the role speculated.
BELL J: The assumed role there is the role that he assumed regardless of what instructions he had been given, but that does not direct attention to the authority that he apparently exercised by virtue of being rostered as a boarding house master.
MR LIVESEY: To take Lloyd v Grace, Smith & Co, if what Sandles did was construct a scenario that was entirely and utterly fictitious whereby he managed to get hold of the widow’s deeds, an utter contrivance, it would be wrong, in my respectful submission, and I would suggest that their Lordships would have decided otherwise, that what he was doing could be regarded as acting in the course of the authority conferred by the solicitor or in connection with the authority conferred by the solicitor. But the thing starts ‑ ‑ ‑
KIEFEL J: But in Lloyd v Grace - I am sorry to interrupt you.
MR LIVESEY: Your Honour, I apologise. The thing starts and remains an utter contrivance. What gives really work to the conduct of the employer in Lloyd v Grace, Smith & Co is the conferral of duties and the conferral of authority and the actual request by the widow to seek legal advice. That starts the process. It is not a contrivance. What he does is he misuses for his own ends ultimately the benefit of the securities but it does not start as an utter contrivance.
Likewise, in Morris, there is no doubt that the owner wanted their fur coat cleaned. There is no doubt that the furrier wanted the cleaner to do the cleaning. All of those things were utterly in accord with the duties allocated to Morrissey and in accord with the authority with which the employer cloaked him. What happened is, after those stages, then Morrissey wrapped the fur around his body, put it under his own coat and left the premises, so there are important differences between those cases and a case such as this where the thing from start to finish is a contrivance.
His Honour - I will come to it in a moment, but his Honour Justice Peek says that it is wrong to retrospectively recast the conduct as being unauthorised. I will come to that passage in a moment - but that is not what is going on. In my submission, from start to finish, the conduct is a contrivance. It is designed to infiltrate, and some might describe it to groom, and to do that which the employee wants to do. It is not required by his employment, it is not designated by his employer and only in the most loose sense could it be said to be carried out under the cloak of his authority.
KIEFEL J: Well, just on that point, in Lloyd v Grace the client would have understood that the clerk was in a position to request the deeds which she handed over. That was under cloak of his authority and the client’s understanding is important to an assessment of that.
MR LIVESEY: Yes.
KIEFEL J: Similarly, the boys would have understood that the master had the authority and the power to require them to sit there and listen to a story even if it was boring.
MR LIVESEY: With respect ‑ ‑ ‑
KIEFEL J: That was his position; that is how they would have perceived his position to be.
MR LIVESEY: Perhaps one can take it in three steps. There is the step immediately before the boarding house master steps into the dormitory and, in my submission, contrary to the rules that otherwise applied. The second step is starting to tell the story and speak and chat and smoke a cigarette. The third step involves sitting on the bed and putting one’s hand under the bedclothes. There is no question that no boy regarded that conduct as being in any way authorised or appropriate.
KIEFEL J: But you are only saying then that the authority has to actually be to carry out the indecent act.
MR LIVESEY: What I am putting is that in contrast to Lloyd v Grace Smith, Deatons v Flew, there is a limit at which one draws the line. There is a limit, so one does not start the path unless one can identify a relevant duty or a relevant conferral of authority.
GAGELER J: I had not understood your appeal to involve challenges to inferences of fact that had been drawn by the Full Court.
MR LIVESEY: Our appeal is, on the contrary, a challenge to the inferences drawn by the Full Court in contrast to the inferences drawn by her Honour.
GAGELER J: So it is a fact case.
MR LIVESEY: No. There are one or two limited facts which I have just identified and I will come to the evidence now because one sees in the evidence that the inference drawn about settling is not borne by the evidence at all. It is a very short point.
GAGELER J: Can I just ask – if you go to Chief Justice Kourakis’ judgment at paragraph 18, if the last sentence of paragraph 18 is a correct, factual inference, do you lose?
MR LIVESEY: No. There are two reasons for that. The first is whether it is a correct inference but the second is this. What is done by way of sexual abuse is not incidental to the authorised employment duties or the authority with which the employee is cloaked.
NETTLE J: Neither was conveying the land for the clerk’s own use. What is the difference in point of principle?
MR LIVESEY: In point of principle, what is being done is wholly disengaged, the first step from the employment relationship. It is a flagrant breach of the duties owed to the employer.
NETTLE J: So is fraud.
MR LIVESEY: I accept that is not a complete answer – I accept that. The second step is whether one can draw the connection between that and the wrongdoing that is carried out. What is occurring here is really an affront to the relationship and in no way can it be said to be incidental to the employment relationship. In just the same way ‑ ‑ ‑
NETTLE J: Well, I am not sure. To take Lloyd v Grace Smith, the clerk takes the deeds under cover of purported authority. When the old girl has gone, he whips out the back and conveys them to himself. In this case, ex hypothesi, the housemaster is in the dormitory doing what is apparently within the scope of his authority and then whacks his hand under the bedcover and assaults the little boy.
MR LIVESEY: With respect, one of the differences is in Lloyd v Grace, Smith he had actual authority. He was requested to do that which he was doing.
NETTLE J: To take the deeds.
MR LIVESEY: To take the deeds, to take them into custody.
NETTLE J: But not to convey the land to himself.
MR LIVESEY: But not to convey them to himself or to make off with the benefit of the securities. I accept that.
FRENCH CJ: Even if you do not accept the finding at paragraph 18 of Chief Justice Kourakis in relation to what was in the performance of his employment, from the perspective of the students over whom he exercises authority as a housemaster, this is a use of his authority, is it not?
MR LIVESEY: There is a ‑ ‑ ‑
FRENCH CJ: How are they to question whether he can come in there or not? In other words, what I am putting to you is that it comes back to this proposition I put to you at the beginning that this seems to be a case which involves the use of authority.
MR LIVESEY: Or misuse.
FRENCH CJ: Well, the use or misuse, taking advantage of authority. Now, whether that taking advantage starts at the point of settling or at the point of putting the hand under the covers may not make much difference to the outcome.
MR LIVESEY: Perhaps the essential difference is this: that the two or three steps that precede the predatory sexual abuse are, on the evidence in this case, not shown to be authorised steps, steps required by the duties. Only in the looser sense could they be said to be cloaked by the authority, conferred by the employer. That is very different to the Morris Case and the Lloyd v Grace, Smith & Co Case, where each of the steps leading up to the final fraud or the final conversion were explicitly part of the duties, explicitly authorised. So it is at that final stage where one sees in Deatons v Flew the departure ‑ ‑ ‑
NETTLE J: This is because there is no evidence that it was within his authority to go in the boarding house after dark.
MR LIVESEY: It did not form part of his duties. It did not form part of his duties as required. It did not form part of his authority as conferred. I have already put my submissions about the reasons why, circumstantially, her Honour was quite right to draw that inference. Her Honour made that clear in her analysis at 177 and 178, concluding at 179, 180 - the “activities were unauthorised”, “no direct evidence”. Her Honour declined to draw a conclusion based on inherent likelihood or general knowledge because, as she put it, it remains speculative. She goes on to say at 178:
Even so, were I to assume . . . acted in accordance with the defendant’s instructions in these activities, it would make no difference –
She explains why that is so at 179 ‑ ‑ ‑
GORDON J: That has to be read with 175, though, where her Honour puts it on a duty basis, does it not?
MR LIVESEY: In a sense, it allocated duties or, as might be added to that, allocated authority or conferred authority.
GORDON J: I thought her Honour was saying in the last line of 175:
that is very far from amounting to a duty to engage in intimate physical behaviour with a student –
That is, either you are authorised to engage in improper conduct or you are not.
MR LIVESEY: With respect, no. What her Honour is doing is casting back to Chief Justice Gleeson’s analysis and whether the duties conferred by the employer, or the authority conferred by the employer, go so far as to require intimate contact of a physical nature.
NETTLE J: So in the end it is because of the lack of evidence that he had authority to engage in intimate conduct that the plaintiff was ‑ ‑ ‑
MR LIVESEY: Yes, the lack of evidence that what was being done conformed to the duties conferred by the employer or the authority conferred by the employer.
NETTLE J: By that you mean authority to go into the boarding house after dark to settle the boys?
MR LIVESEY: Yes. There is no evidence from any of the witnesses that there was any settling going on.
NETTLE J: And no basis from which to infer that that was within his scope?
MR LIVESEY: As her Honour said, it was speculative to do so.
BELL J: Her Honour accepted that – this is at paragraph 175 on 1706:
that when rostered on duty overnight [the role] involved responsibility for and overall supervision of the boarding house –
In the context of the sort of intimacy with which Chief Justice Gleeson was speaking, would supervising naked 12‑year‑old boys as they shower, attending to an emergency such as a 12‑year‑old boy who had wet the bed – would those be things that would fall within, as a matter of inference, “overall supervision of the boarding house”?
MR LIVESEY: They are potential issues that, if on the evidence were demonstrated, might arise, particularly if the offending occurred whilst the master was attending to the very things that you posit, with respect. But where, as I have submitted, what the perpetrator is doing is a contrivance, then the conclusion is otherwise. Can I very briefly go to the passages in the evidence on which I rely?
GAGELER J: For what? You want us to make a particular finding of fact? There is nothing in your notice of appeal that identifies a factual basis for the appeal. Can you be quite clear what findings you would have us make?
MR LIVESEY: Certainly. Those findings are set out in the outline, paragraph 2.
GAGELER J: Thank you.
MR LIVESEY: The passage commences in the evidence of the plaintiff in volume 1, appeal book page 64, where he describes the routine, and in answer to questions about supervision, simply describes seeing the perpetrator. For example, one sees that at line 5. Then at line 17 on page 64, he describes the perpetrator being rostered on:
twice, maybe three, times a week but I think we saw more of him than that.
Line 21, no other housemaster supervised in the way in which the perpetrator did. The prefects did that supervising and were rostered on to do that. It speaks of the rules, at line 26, about not getting out of bed. One sees at the foot of 64, top of 65, that it is after a time that the perpetrator “started telling stories”, “serial stories”. Line 29, this was a few weeks after starting school. He came in “after lights out”, line 32, and all the boys were lying down in their beds in the dark, top of 66.
KIEFEL J: Forgive me for interrupting just at this point, Mr Livesey. Can I take it by your approach in relation to these findings of fact that you will not be arguing, in relation to the extension of time argument, that there was any difficulty with the evidence presented?
MR LIVESEY: On the contrary ‑ ‑ ‑
KIEFEL J: Well, you are asking us to proceed on the basis that the evidence was sufficient to make findings of fact.
MR LIVESEY: With respect, it is an upholding of the position taken by the trial judge that on the evidence there was no proof of the duty sufficient to bring the case within the principles of vicarious liability but as her Honour went on to point out in connection with the time point, the prejudice to the defendant was palpable because the defendant was left in the position, given the death of Headmaster Dunning and the death of Senior Master Smith, and the incapacity of the Senior Boarding House Master Prest, of warding off inferences based on indirect evidence.
KIEFEL J: There is, of course, in cases such as this in particular, some difficulty in a primary judge dealing with both an extension of time argument and a liability argument because there is a tension between a view of the sufficiency of the evidence and proceeding to determine liability and that is the area I suspect that you are now approaching.
MR LIVESEY: With respect, this Court has said, quoting in cases such as Wardley that it is necessary to not approach time points disengaged from other aspects of the case and whilst her Honour was entitled to reach the conclusion she reached and the Full Court was not entitled to impose its own view of what a boarding house master should do, disengaged from the evidence, there was no difficulty in her going on to say, but embarking on this exercise there was obvious prejudice to the defendant because of the absence and loss of evidence in the 35 years since the cause of action accrued.
Then on page 68 and following is the evidence about the plaintiff recognising that what was being done was wrong and then likewise at 74 starts a number of passages where the request to go to the room after dark was recognised as being “wrong” and obviously quite disengaged from any authority which a boarding house master might be expected to have. He was afraid, as he put it at line 38:
that someone else might notice.
Can I move to the next witness whom I will refer to as JC. I am sorry, I should have emphasised the passage, before moving on, at 91, where in the course of appeal book page 91 he describes the role of the prefects in supervising and doing the activities associated with bedtime and lights out, emphasising his earlier evidence that other masters such as Mr Connell did not do that. Then there is the passage at 102 where the attempted abuse during the exeat weekend involved the trip to the parents’ farm at Pinnaroo. None of that could be said to be incidental to employment or sufficiently connected with it, in my submission.
Then at appeal book volume 2 in the evidence of JC, at the top of page 823 he refers to the evidence of Mr Webber, later Dr Webber and a headmaster of the school, who read stories at night. Justice Peek suggests that that in some way supported the idea that this fell within the activities of what the perpetrator did. There is an obvious difference between reading a story, necessarily with a light, and going into the dormitory after lights out and walking around in the dark. And there is the obvious further difference that these boys, to whom stories were read, were younger boys in the preparatory school.
Then we come to 824, where JC describes the supervision of the masters not being a lot:
basically the prefects were the disciplinarians ‑
Then at 829 – does the Court have a section of the evidence commencing 829A? I apologise, but there is a –
NETTLE J: Yes, we have it.
MR LIVESEY: I am obliged. What he describes at 829A, 829B and 829C is a discussion with him by the perpetrator which is different to the telling of stories. In fact, at 829C he could not really remember stories, although he thinks there may have been stories. He smoked, sat on the bed and chatted. It refers to Mr Prest not doing those activities at the foot of 829C.
Then if I might move to the evidence at 841, from line 34 through to page 842, it makes the important point that masters were rostered on for particular nights. It was not simply a question of the perpetrator; there were other masters rostered on other nights. He describes it:
Q. . . . boarding masters . . . had set times that they were on duty during weeknights, didn’t they.
A. Yes, that’s correct, yeah.
Q. Can you now remember the nights . . .
A. No, sorry.
He speaks of one or two nights during the week and then:
A.I think they both ‑ there were two if I remember rightly and they would have shared the duties, so probably two, maybe three ‑
nights a week. Line 12:
Q. . . . prefects were always on duty . . .
Q. They were policing such things as . . . ‘lights out’ ‑
and not talking – line 17. Then in volume 3, commencing in the evidence of RE, page 869, it refers to visits to the dormitory. At line 35, sitting on the edge of the bed, talking, “general chitchat”. Then he describes at page 871, line 30 and following:
A.The prefects had a general role in terms of running the boarding house . . . they had a disciplinary role and –
administered corporal punishment. Then at page 880, from line 26, he repeats the evidence about the prefects having the “responsibility for discipline” and ensuring adherence to the rules. The same theme is apparent in his evidence on 881. Then the evidence of DJ at page 970 of the same book ‑ ‑ ‑
GORDON J: Did you say 970 or ‑ ‑ ‑
MR LIVESEY: Page 970, your Honour.
GORDON J: Thank you.
MR LIVESEY: He was in the boarding house in 1962, line 30. He refers to an occasion on a Sunday evening when there were boys having a Coke and ice‑cream, at line 37 on 972. Then he refers to the prefects’ role at 974, line 2 through to line 18. At line 18 he makes the point that if there was a multi‑offender then, on a Friday morning, that person would go off to Mr Prest.
GORDON J: Mr Livesey, so much of this evidence is directed at showing that other people were doing certain jobs and functions. As Justice Bell pointed out, in paragraph 175 the trial judge says:
it may be accepted that when rostered on duty overnight Bain had a role which involved responsibility for and overall supervision of the boarding house –
i.e. that there were functions that overlapped. What is the evidence of what his role actually was? We have a lot of exclusions, but we have got nothing positive to identify ‑ ‑ ‑
MR LIVESEY: Almost none.
GORDON J: Is that right?
MR LIVESEY: Apart from what one might assume or speculate ‑ ‑ ‑
GORDON J: I will ask a different question: what is the evidence her Honour used to come to that conclusion?
MR LIVESEY: Simply that he was rostered on.
GORDON J: No, it says more than that:
rostered on duty . . . had a role which involved responsibility for and overall supervision of the boarding house –
MR LIVESEY: It seems to be based on the plaintiff’s evidence in volume 1.
GORDON J: The point I make is just because someone else has got a function does not mean that others do not have the same or similar functions.
MR LIVESEY: I accept that. I accept that there might be boarding house masters with multiple functions at multiple times but the critical question is what the duties were after lights out and what authority could it be said the employer had cloaked the employee with? The evidence about that, in answer to your Honour Justice Gordon, was very scant indeed.
GAGELER J: As I understand your case, you say that the only relevant authority would be authority to engage in intimate, physical behaviour with a student. Is that right?
MR LIVESEY: That is part of it, but if there was an emergency, on the evidence – if there was a reason to go into the dormitory such as to attend to an incident or a fire or something of that kind then yes, there would be.
GAGELER J: Let us just take the scenario with which Chief Justice Kourakis was concerned – that is, sitting on the child’s bed, reading a story and putting the hand under the bedclothes. Now, if there was authority to sit on the bed and read the story is that enough, or do you say that the authority has to go further and include the physical touching with the hand under the bedclothes?
MR LIVESEY: Intimate contact; not necessarily sexual abuse, but intimate contact.
GORDON J: What does that mean? It is just words, is it not?
MR LIVESEY: Well, basically in Curry and in ‑ ‑ ‑
GORDON J: No, what does it mean here in this case?
MR LIVESEY: It does not arise in this case.
GORDON J: You have got a boarding house ‑ ‑ ‑
MR LIVESEY: With respect, it does not arise.
GORDON J: Can you conceive of any case where you have got a boarding master who has both responsibility for and overall supervision of the boarding house being authorised to have intimate contact with a student?
MR LIVESEY: One can posit harder cases where perhaps an intellectually disabled child required assistance with bathing and for that reason required assistance to be put in and out of a bath, or something of that kind, something that is much closer and more intimate than the conduct that was proved here. This is a number of steps before that.
BELL J: In the ordinary course – assume a boarding school with communal showers and 12‑year‑old boys – would it not follow as day‑night that a person charged with supervision of the boarding house would be engaged in what might be described as intimate contact by supervising the boys as they shower?
MR LIVESEY: Well, with respect, simply watching the boys shower and intervening in the event of some tomfoolery or some incident, that is a possibility. But none of that is related to the abuse in question in this case and that is why I have described, perhaps ineptly, the showering as a red herring. It does not lead to any of the relevant conduct in this case.
What has been put to me is that, in effect, one can imagine that there are scenarios where there are degrees of intimacy which, in my submission, go closer to what Chief Justice Gleeson had in mind. It may be ‑ it is understandable that there is a reluctance to approach the test from the perspective of an approach that requires degrees of intimacy to be recognised but that is inherent in the process. It is inherent in the difference in the results between Bazley v Curry and Jacobi v Griffiths. Those two cases show the difference which is thrown up as a matter of degree and that is what is being put here. At the moment, on the evidence as it was, there was none of the requisite intimate conduct proved to be associated with boarding house masters duties.
Can I quickly turn to Chief Justice Kourakis’ decision from page 1737? In the first sentence he refers to settling – by sitting on the bed as settling the boarders down for the night. As the Court has seen, there was no evidence of that. It remains a matter of speculation at about point 15 on the page.
Likewise, a couple of sentences down, the responsibility “allowed him a discretion” as to the best way to settle the boys at night. That did not form part of any boarding house master’s duties and, likewise, it did not form part of the discretion. That was something left to the prefects. There was no evidence to show that the perpetrator in fact engaged in settling at night.
FRENCH CJ: Now, so far as your challenges to factual inferences drawn by the Full Court are concerned, are they all wrapped up in paragraph 62 of your written submissions? Does it appear anywhere else? I am just concerned that we are spending a lot of time on this, and it may be ‑ ‑ ‑
MR LIVESEY: I think that is right, Chief Justice.
FRENCH CJ: It is that one paragraph, basically, that we have been dealing with?
MR LIVESEY: I think that is right.
GAGELER J: There may have been a question ‑ ‑ ‑
MR LIVESEY: I am sorry, Justice Gageler. Paragraph 62, your Honour the Chief Justice is quite right, but 61 deals with what I have described as contrivance.
FRENCH CJ: Yes, all right.
MR LIVESEY: I am sorry, Justice Gageler.
GAGELER J: No, I will let it pass.
MR LIVESEY: The general submission to be made about – there are two submissions to be made about the Chief Justice’s approach. The first is that he mis‑describes the duties in paragraph 2, and then at paragraph 7, he suggests that the judge erroneously narrowly circumscribed the scope of duties. With respect, she did no more than ask the questions posed by cases such as Deatons and Lepore - what were the allocated duties, what was the authority?
Could I move on then to what appears in the passages between 13, 16, 17 and 18, particularly in the passage at 18? What his Honour the Chief Justice is there doing is postulating his conception of what a boarding house master should do, and contrasting that with what the evidence actually was. That, in my respectful submission, is the wrong approach. It is a question of identifying what the duties in fact were. That can be seen clearest in 18, where his Honour puts what he describes as the first question:
did Bain have overall responsibility –
Yes.
The next question was whether that responsibility included the intimate physical contact –
The answer to that is no. His conduct was criminal. His Honour then puts as a third question:
it is necessary to ask whether the offending was engaged in during the ostensible performance of that responsibility.
With respect, that is the wrong question. That is not the same question as arises on the second stage of the approach taken in either Deatons v Flew, or by Justices Gummow and Hayne in Lepore’s Case. It is not about whether one can look at a contrivance and say well, that could have been done. It is possible to imagine that as being done in the ostensible performance. One has to root the conduct in the actual duties and the actual performance of the duties allocated.
Then, finally, to take up the passage that your Honour Justice Gageler put to me a while ago, bedtime stories were in the performance of his employment and that conduct cloaked his offending. There is no evidence to suggest that it was - and it was a contrivance and it was used to cloak offending, but that does not mean that it was in the course of employment.
I move, in the interests of time, to his Honour Justice Gray’s analysis. It is clear that his Honour, with respect to him, went off on a tangent. At appeal book page 1776, after a long series of extracts from the cited cases, at paragraph 128, he, with great respect, simply asserts that there was liability and misstates the evidence that Bain was the only teacher on multiple nights each week. That is not at all clear. Certainly he was rostered on, but the last witness suggested he was rostered on with another master, but even accepting that, he goes on to say:
His role included supervising the boys and settling them at night.
That is the same error that I have already identified. Then what he does is he goes off and looks at his earlier conclusions about supervision and “a want of care”. One sees that in the third‑last line and in the first line at 129. In the last line of page 1776, top of page 1777, he refers to foreseeability and concludes his treatment of vicarious liability on the basis that there was a conclusion about a failure to exercise due care. With respect, there is a conflation of concepts which is inappropriate.
Moving now to his Honour Justice Peek, I will not repeat the submissions I have already made about settling but one sees at 163 the passage to which I referred earlier. This is at appeal book page 1792:
Bain used such occasions as a cover . . . that does not per se transform the act of telling of stories from a legitimate aspect of care . . . to something quite unauthorised -
With respect, that is putting it the wrong way around. There is no evidence that it was legitimate or that it was done in accord with duties allocated. It was from start to finish a contrivance. He refers to the objective need to settle 12‑year‑old children without referring to the evidence demonstrating that that was the task of the prefects and that is what I submit draws an erroneous analogy with what Mr Webber was doing by reading compared with the telling of stories under cover of darkness or chitchat.
Paragraph 165 on page 1794 is inconsistent with what appears at 163, that his storytelling was an appropriate way for Bain to discharge his supervisory responsibilities. With respect, that cannot be so if it is merely a contrivance. Then moving on to his Honour’s treatment of the case of Lepore at page 1800, paragraph 187, after reviewing what Chief Justice Gleeson said, he says that that should be regarded as:
a call to Australian courts ‑
I will not read what follows. With respect, he is simply wrong about that. What the Chief Justice was doing was no more than saying that in Canada and the United Kingdom these problems are analysed from the perspective of vicarious liability, not non‑delegable duty and nothing more. He then says at 188 that there was a reference to Lister with approval, with respect, yes, to the extent of the treatment being one of vicarious liability but it is dangerous, in my submission, to read any more into it than that.
Then from 199 on appeal book page 1804 he embarks on really what amounts to a dissertation on intimacy and what is meant by that when used by Chief Justice Gleeson and perhaps partially in answer to your Honour Justice Gordon’s question of me, he sets out what Chief Justice Gleeson said at [54], and one sees in the last line of [54]:
intimate contact –
an indication of what that might be is in the last lines of [55]:
bathing and tucking in at bedtime.
Then at, if I might move over to 1806, his Honour includes a passage from Chief Justice Gleeson’s reasons where Chief Justice Gleeson describes what, in effect, is his explanation for why this is regarded as an exceptional remedy, namely, that the abuse is:
usually so foreign to what a teacher is employed to do –
in [73]. Paragraph [74], reference to the nature of the responsibilities necessitating the inquiry as to what the duties allocated actually are and, top of the next page:
It is not enough to say that teaching involves care.
One must be more precise and one must be precise as one sees in the third to last line about:
the tasks allocated to teachers ‑
and then what his Honour Justice Peek does is at 203 ‑ ‑ ‑
FRENCH CJ: Chief Justice Gleeson speaks of the use of power to commit sexual abuse.
MR LIVESEY: Yes, he does, but in a context where he allows for the possibility where the tasks allocated involve intimate physical ‑ ‑ ‑
FRENCH CJ: But this is a different question from the question what is a person authorised to do - the general question in relation to the scope of employment duties, what do your employment duties authorise you to do - from the question what is the nature of the authority relationship that is created between this person and the students and one can use the term “power” as a surrogate for that.
MR LIVESEY: Yes, I accept that. Paragraph 203, his Honour prefers the approach of Chief Justice Gleeson over the approach of Justices Gummow and Hayne and explains his reasoning. I will not dwell on his treatment of Lloyd v Grace, Smith and Morris. Paragraph 208 is the passage to which I referred earlier and, with respect, his Honour criticised and the same might be said of Lord Millett’s analogy between children and “sacks of potatoes” at the foot of 210, page 1808.
Really, the heart of it is probably to be found in his conclusion at 1818, paragraphs 229 and 230, where he criticises the trial judge’s findings about who it was proved had responsibility for the routine after lights out and at 231 concludes that it was enough, in effect, that the perpetrator had at least ostensible authority.
With respect, if that were right, then the mere employment of an employee to a position which connotes a sense of power and authority would always be sufficient to warrant the possession of liability because the perpetrator could always contrive a scenario in which, at least in some general way, the perpetrator could call on the perpetrator’s authority and position.
For example, to take the illustration of what the perpetrator did at the Cummins Area School, assume that he had nothing to do with sporting activities but managed to contrive a scenario where he was able to take children into the sports shed, the fact that he had some level of authority at some level of abstraction would be enough to warrant the imposition of liability. In my submission, that is contrary to the approach in Deatons, as well the approach of Justices Gummow and Hayne and Chief Justice Gleeson in Lepore.
Finally, his Honour refers to the commercial - in the last six lines of 250 on page 1823, an assertion that the commercial venture or, in the context of this commercial venture:
it was deemed uneconomic to have sufficient staff to be able to supervise –
With respect, there is no basis for that. The evidence, such as it was, was from former Headmaster Bean. His evidence was quite explicit. In response to the negligence case raised at trial, he said it was uneconomic to forbid a master being alone with a boy at any time. He went on to explain that in order to make good that practice, one would need many more staff members than it would be economic to employ. That is as far as it went. There was no evidence to suggest that there were reasons of economy in not having sufficient staff to supervise.
One sees then, finally, at 1829, paragraph 263, Justice Peek agreeing with the Chief Justice in rejecting negligence, which was upheld by Justice Gray. I move now to the second question and that is the time point. It is clear that there was no issue but that the defendant was prejudiced by the passage of time of around 35 years before proceedings were instituted in 2008 and even longer by the time that the matter reached the trial court in 2014. That can be seen in Chief Justice Kourakis’ treatment of the issue at page 1740. Paragraph 21:
I accept as sound the description of the general prejudice –
The sole basis and, in my submission, a very slender basis for intervention identified by the Chief Justice was what appears in the next sentence:
the Judge’s consideration of the . . . vicarious liability claim found in paragraph [228] . . . proceeds on the basis that vicarious liability could only be made out if Bain was expressly contracted, or directed, to perform the particular duties of settling –
Might I just pause there? On any view of the case, what the particular duties allocated were remained relevant and important. It may not have been, depending on the test one adopts, the end of the inquiry but it was relevant and important. And prejudice in connection with that was an important reason why time ought not be extended or, at least, regarded as relevant to whether or not the discretion should not be favourably exercised.
So with respect to his Honour, that does not negate the existence of prejudice. Prejudice remains nevertheless. But there is a further difficulty. Her Honour did not say what is attributed to her at 228. One can see that at the top of page 1719. What her Honour was in fact doing at 228 is rejecting an argument that the prejudice was worse in connection with negligence than it was in connection with vicarious liability. Her Honour rejected that. Her Honour said:
Fundamental to that issue was a close examination of the role . . . Direct evidence of that came only from former students, who were then very young. Even though –
and this is to pick up your Honour Justice Kiefel’s point:
I consider that, because of the dearth of evidence, no conclusion could be drawn about his role, the fact remains that the defendant was left in a position of warding off inferences and being unable to call evidence on that issue.
I have mentioned that evidence already. That evidence can be seen referred to in paragraph 15, the witnesses that were dead or unable to give evidence, as well as in paragraph 123, the documents that were no longer available. What her Honour had to say in that passage is entirely unexceptionable. With respect, it is correct.
It follows, in my submission, that the Chief Justice had no proper basis for intervening and re‑exercising the discretion that was reposed in Justice Vanstone. If that is right, then what his Honour has to say on page 1741 need not be further considered. In other words, if, on House v The King principles, there was no basis for intervention, then there was no basis to re‑exercise the discretion and, in my submission, her Honour was clearly right to proceed as she did.
But there are errors, and I can be brief about them, in what appears between 22 and 24 on page 1741. His Honour says at 22 that looking at, in effect, the ostensible authority to go into the dormitory at night:
There was no material possibility that the passage of time had denied PAC an opportunity to show that such discretion . . . did not extend to telling them bedtime stories.
With respect, his Honour overlooks his own finding at paragraph 5 on page 1737, at the top of that page, that there was an absence of evidence about “an express direction to the contrary”. His Honour makes the same point at paragraph 13 on 1739, at about point 15 on the page:
There is no evidence that [the defendant] excluded its housemasters –
That, of course, was evidence that one would expect to be given by the headmaster or the boarding house master in charge of the school, which was denied the defendant by reason of the passage of time. Paragraph 23, coming back to the second of the matters referred to by the Chief Justice; he acknowledged that there was difficulty in assessing:
the extent and depth of [the] post‑traumatic stress disorder –
given the long passage of time involved. One of the issues – not the only, but a particular issue – was that on the referral by Dr Maxwell to Mr Coates, the psychologist, Dr Maxwell referred to very general symptoms associated with generalised anxiety and problems with alcohol abuse. The Court will find that at pages 1281 to 1282 of volume 4.
So, there is a general picture of anxiety building up over decades. There is then a two or three year period of treatment by Mr Coates. After that period, the plaintiff starts describing his symptoms in classical DSM terminology. The attack that was made on Mr Coates was that, probably inadvertently, he had effectively schooled the patient into the DSM terminology. That was important because the plaintiff had not revealed to his treating practitioners the family history of anxiety with his mother, the family history of anxiety with one of his brothers, and the family history of alcohol abuse by one of his other brothers – the defence case being that this was a generalised anxiety. It could not be pinned, as post‑traumatic stress does, to a particular event, or stressor.
Mr Coates did not think that that was correct, but he could not answer it clearly, and correspondingly the defendant could not establish it clearly, because he had destroyed his notes. So there was no longer any record of the progression between the general symptoms and the specific symptoms on which her Honour foundered. So that was regarded by her Honour as a most important prejudice.
FRENCH CJ: I do not quite understand the logic of paragraph 23. Is that suggesting some sort of instrumental approach to assessment of damages to offset prejudice by the passage of time?
MR LIVESEY: With great respect to the Chief Justice, it is a novel and unprincipled approach. One simply cannot say, on the assessment, because there has been some difficulty, one awards less damages.
A third point appears in paragraph 24 and that is that the Chief Justice would not give much weight to the acceptance of compensation. What occurred is that by 1996 under the treatment of Mr Coates the diagnosis was made of post‑traumatic stress. The plaintiff wished to engage with the school and did so. He met with the headmaster; he met with representatives of the school. Ultimately the school helped arrange a meeting with the perpetrator.
The plaintiff wanted to see that the school was reacting to these scenarios and doing its best to ensure that they would never be repeated. So it showed him evidence of practices that had changed, educational material available to students and the like. He said that he felt much better about that and in fact he thought that the school had done enough by dismissing the perpetrator instantly, as it had, within a day or two of the discovery.
What the school did is put together with his support and with the advice of his own lawyers a package. That package included payment of his legal expenses and his medical expenses incurred to that time. That legal advice included advice on whether to sue the school. He took advice from well‑regarded solicitors and counsel on whether to take the step of suing the school. He was advised that he had a less than 50 per cent change of success and he declined to take that step because he did not wish to run the risk on costs. As it turned out, he was otherwise happy with what the school was doing by way of response, but that is a further issue.
In addition, the package included that the school educated his son for his last three years at the school at no charge, worth around $10,000 per annum. In a course of correspondence, which can be seen at appeal book pages 1333, 1419 and 1354, a proposal was made and it was accepted.
Now it is true that no releases were engaged in but there was no reason, the plaintiff accepted in his own evidence, to think that he was going to do anything so far as the school was concerned. Matters had come to an end. So the point at 24 is not so much whether the plaintiff accepted compensation, although he did, he decided to take the step of suing the perpetrator. He commenced proceedings, those proceedings were settled and he received over the course of two or three years a sum of money, a sum that was agreed having regard to, amongst other things, the perpetrator’s means.
The issue that lies at the heart of 24 is that the plaintiff had an opportunity to commence these proceedings and he was advised about that on legal advice paid for by the school but declined to do so. In my submission, the Chief Justice, in saying that the reluctance to bring proceedings is symptomatic of the very injury, has it wrong, with respect, because it is very clear that that is exactly what the plaintiff did. He did take proceedings and he took them against the perpetrator.
Insofar as Justice Gray refers to the evidence from Professor McFarlane that in some way there may have been a problem with taking a step against the school, the plaintiff did not ever give any clear evidence to that effect. That was not his thinking. His thinking was that he did not wish to take on the risk, based on reputable legal advice.
Insofar as the Chief Justice goes on to say that the school could have protected itself against the plaintiff changing his mind, with great respect, that is a hindsight consideration. At the time matters were put to rest. An offer was made and it was accepted and, incidentally, the letter that the plaintiff wrote back to the headmaster was drafted by his solicitor and copied out by him and sent. Now, it is true that after these events his condition deteriorated and he changed his mind but it does not change the relevance and importance of the fact of having that opportunity based on advice and declining to take it up.
FRENCH CJ: What aspect of the statutory criteria does that feed into – just to grant the extension of time?
MR LIVESEY: Yes. The formula used in section 48(3) – if I might turn to the annexure on, I think, page 22 of the submission – was to set up, under 48(1), a provision that permits harm to be extended, but it is 48(3) which is relevant because of the opening words:
This section does not ‑
. . .
(b)empower a court to extend a limitation of time prescribed by this Act unless –
The first limb is the ascertainment of facts and material considered by this Court in Sola Optical v Mills, those facts having to be ascertained within 12 months of the institution of proceedings. The second limb is where the failure can be sheeted home to conduct of the defendant.
GORDON J: I had understood that one of the critical factual matters was the report from Dr Kelly. Do you propose to address that report?
MR LIVESEY: Yes. It is sufficient to deal with that in three steps. The first is that Justice Gray says that that report is the first time that the plaintiff is told that he has no real earning capacity moving forward, and that is in contrast to his treating doctors. With respect, that is wrong. Both Dr Maxwell, who said that he should be on a disability pension, and Ms Shafik, the psychologist who was treating him, said that there was virtually no prospect of returning to work and, indeed, he had understood himself, as he described it in his own writings, that his earning capacity was next to zero.
Whilst the plaintiff agreed in cross‑examination that, in a sense, there was nothing surprising about what Dr Kelly said in that circumstance, given the two or three years leading up to it, her Honour found that it was in fact material because it was a psychiatrist expressing that in writing. Her Honour went on to say this –and this, in my submission, is important – that it was easy to overstate the significance of that.
GORDON J: Would you put that again?
MR LIVESEY: Her Honour said that it was easy to overstate the significance of Dr Kelly’s report.
KIEFEL J: Where do we find that, Mr Livesey?
MR LIVESEY: The Court will find that at paragraph 222 of her Honour’s reasons.
BELL J: Do you have the page number?
MR LIVESEY: Yes, I do. It is at page 1718. The Court will see the words in the third line “easily overstated”. Of course, in Napolitano v Coyle and Lovett v Le Gall, Chief Justice Bray had said that the South Australian Parliament had erected what might be described as an undemanding trigger, that is, the ascertainment of fact material.
But the significance of the fact ascertained, whether it motivated a decision to sue and how important it was to the proceedings, were all matters that remained relevant to the exercise of discretion. Her Honour faithfully applied those authorities on page 1716 of the appeal book.
FRENCH CJ: But do you accept that the condition in (3)(b)(i), the fact material not ascertained was satisfied in respect of Dr Kelly’s report?
MR LIVESEY: Yes, we do, Chief Justice. What we say is, as the trial judge said, in the last two lines of 222 on page 1716:
In the overall scheme . . . I do not consider that the 2007 report could be considered to be of much significance.
FRENCH CJ: Well, that goes into the just criterion.
MR LIVESEY: That is so. Then the learned trial judge describes the actual prejudice. I will not dwell on that but that is the extent of it so far as Dr Kelly’s report is concerned. Yes, it allows the plaintiff to qualify for an exercise of discretion but its relative importance needs to be seen in context. So it is a very slight factor in connection with the exercise of discretion.
And one of the criticisms we make about the Chief Justice, quite apart from whether it was right ever to intervene – and if we are right about that, we do not go on – but the Chief Justice in his re‑exercise of discretion does not ever seem to bring to account the relative unimportance of that fact. Nor does he bring to account the sorts of considerations that her Honour clearly adverted to in cases such as Brisbane South – very important matters dealing not only with general prejudice that could be assumed after many decades, more than half a century, as well as specific approved prejudice.
It is my submission that this was a very strong case, and her Honour’s decision to decline to favourably exercise her discretion was, with respect to the Chief Justice, unimpeachable. So far as the other judges were concerned, with respect to Justice Gray, it is not at all clear on what basis he thought it fit to intervene. What his Honour does can be seen from page 1781, commencing with the heading “Section 48”. With respect to him, he sets out the wrong version of the section, because he includes (3a) and (3b), which were not in force at the relevant time.
Then, he simply goes through the judge’s reasons and authorities, refers to Professor McFarlane’s report – I have already emphasised that the plaintiff did not give his evidence in support of what Professor McFarlane said. Then at 147 he does little more than merely assert that the delay resulted from the school’s conduct. Now, that is to emphasise the second limb of section 48(3)(b).
Then, in 148 on page 1787, he wraps together both limbs in what appears in that paragraph. My respectful submission is his Honour seems to simply, without identifying any requisite error, re‑exercise the discretion afresh as if there had been no reasons articulated by her Honour, and that was unwarranted.
Likewise, so far as Justice Peek is concerned, it is very clear indeed that, as with Justice Gray, it is not at all clear on what basis he decided it was appropriate to intervene. At page 1829, paragraph 264, he merely asserted, in a sense, that he would grant the extension. With great respect, that is no basis to question the exercise of discretion by her Honour.
In my respectful submission, there was no basis to intervene in the exercise of discretion, and her Honour was clearly right, given not only the general prejudice, but the specific prejudice that was proved and not questioned to decline to exercise her discretion favourably. Those are the submissions I wish to put in relation to the appeal. I am in the Court’s hands as to whether I should anticipate my friend’s arguments regarding
non‑delegable duty now, as well as negligence, or deal with those briefly in response to him.
FRENCH CJ: Yes, I think we will hear you in reply on those matters. Yes, Mr Walker.
MR WALKER: If it please the Court. Your Honours, as you see from our outline we concentrate at the outset on what we say is clear, and we think not disputed, about the content of the doctrine of vicarious liability in this country. We contend that there is no error in the Full Court in finding that the school, on this way of presenting the case, not itself at fault, is liable for Bain’s wrongdoing. As you will see from our first proposition, which is really by far the main one, we contend that the matter can be seen as one that falls within either or both of what I will call Mr Justice Dixon’s two categories. I will be coming to them very soon.
It is correct to note, as Justice Bell raised with my friend, that there are passages – they have been addressed in detail in our written submissions – in the joint reasons of Justices Gummow and Hayne in Lepore. They are part of, not the whole of, what we call in aid in the second proposition in our outline for address and the first two propositions really will be a bit of a portmanteau exercise.
However, before moving to the meaning of the doctrine in this country and as it applies to this case, can I try to select, please, some apparently key notions advanced in the address by my friend? The first one I want to select is what I am going to call a mandate approach – I am trying to use a neutral expression to get away from the precise language of authority or agency.
It has never been, with great respect to my friend, quite as categorical as such a point ought to be but it appears that, after my friend’s address, the position is that touching the boy – and it would appear under bedclothes and it would appear under cover of darkness and it would appear under cover of being their friend and telling a story as housemaster – all has to be within the mandate, granted in some way to which evidence could go by the school to the housemaster.
Now, with respect, there is an outlandish quality to that which need not be pursued in all its detail because at the outset it runs up against the proposition that vicarious liability as has been - if counsel can use this word - impregnably established by the law to date and is not challenged in this case - that is impregnable to today - the law is clear that one can be vicariously liable for wrongdoing which has as characteristic qualities such egregious qualities as being deliberate, that is the deliberate infliction of harm, recklessness and, of course, the criminality which will often come as a consequence of those qualities.
So, as soon as one thinks in terms of express mandate or a mandate in terms which will incorporate and encompass certain activities, one has to deal with the fact that the doctrine permits liability for crime and as soon as that is raised then one does have to return to other parts of the fabric of the law in relation to authority and mandate and one which is critical to the rule of law is that it simply cannot be an effective mandate to commit a crime. Indeed, if a mandate is arranged between two or more people of such a kind, they probably all committed an offence themselves, in the nature of conspiracy or some other ancillary liability crime.
So, it is really, in our submission, quite idle to be looking for this mandate, if one must use the word, authority or agency, perhaps given the language of parts of my friend’s address, a job specification, which would come anywhere near the criminality and, in our submission, this Court in Lepore in its understanding of the principles treated as established by all the reasons, bar perhaps Justice Callinan’s, go nowhere near permitting any such argument to succeed.
The second key notion in the address may or may not bear a logical relation to that fallacy about mandate. It was the much repeated characterisation of Bain’s nefarious conduct as being or being a result of what my friend repeatedly called a contrivance. The word is not a term of art in this area of doctrine. It is, with respect to my friend, a no doubt accurate, derogatory term for what might otherwise be called sneakiness, although that word does not convey the depravity of the conduct.
But beyond observing that it is a contrivance in that sense, far from negativing vicarious liability, which I stress is the liability of a person who for the purpose of that case, not a wrongdoer – far from deflecting that liability it actually fits the notion of the wrong which the defendant is sought to be held vicariously liable, having been committed under cover of the aspects of the relationship to which I will come by reference to Justice Dixon’s formulation.
In short, until this argument today, we cannot find in the books anywhere a record of vicarious liability being defeated because the wrongdoer was employing contrivance – and one can add other words: subterfuge, dishonesty, pretence, fraud – in order to damage the plaintiff. That list of synonyms, of course, immediately conjures up a case which cannot be put to one side by saying it is only about real estate. It cannot be put to one side by saying it is about strict agency or fiduciary – that is, the word in Grace, Smith. That case is, of course, a case of trickery, dishonesty. If contrivance had any role doctrinally to deflect vicarious liability, that case would have been an admirable vehicle to propound it. There is no such proposition.
Your Honours, can I come then to the way in which the matter ought to be regarded in this Court today in relation to the doctrine. Can I try and advance, in portmanteau fashion, my first two propositions by going to the middle of the matter, if one can put it that way, that is, in the reasons of Justices Gummow and Hayne in Lepore (2003) 212 CLR 511. The passage, with which your Honours are very familiar, commences at page 580 in paragraph 196. The whole of what follows is, of course, a critical context to understand the reasoning of their Honours. I want to pick it up where the discussion of case law, both Australian and comparative, reaches Deatons, which is at page 590, paragraph 228.
As has already been observed in argument this morning, their Honours certainly did not flinch from considering Deatons v Flew in the context of the two famous cases about property rather than person – namely, Lloyd v Grace, Smith and Morris v CW Martin. It is, in our submission, quite inapt to suggest that there is some error of legal reasoning involved in attempting to find the level of principle that is appropriate guidance from the approach taken in those two cases.
If my friend should be understood as having put that during one passage in this morning’s argument, it should be rejected. Paragraph 228 in Lepore is just one of many, many places where the level of principle is appropriate. There are not radical differences to be observed between approaches taken to plaintiffs who have suffered loss by dint of fraudulent conveyances, plaintiffs who have lost their mink stole and plaintiffs who have suffered grievous personal injury and related damage. We are talking, after all, about, in each of those cases, holding liable vicariously someone who, ex hypothesi, is not the wrongdoer.
Now, the first thing to be said is that in paragraph 229 and at the top of page 591, an important passage is reproduced from Colonial Mutual Life Assurance Society to which no regard has been made by the argument my friend has raised concerning vicarious liability and what I have called the mandate fallacy. You will recall that in that case, which this Court considered as well in Sweeney v Boylan, as well as in this passage in Lepore – you will remember that it was of no moment to this Court that the insurance company had expressly forbidden – we did not have to read between the lines and worry about the evidence of whether you could read stories, but not tell them; whether the lights had to be on rather than off; none of that. There was an express prohibition of saying anything which would defame, among other people, trade rivals. That is what the canvasser did.
Now, the case is important because it did not need to be an employee. It could be vicarious liable without strict master servant, but another importance in this area – and this occurred to us while listening to our friend about the mandate theory – is that there is not the slightest concern expressed about holding the defendant liable vicariously, even though the defendant had stipulated for the wrongdoer not to do the very thing which constituted the wrongdoing which gave the plaintiff the cause of action.
That is why Deatons is not much discussed in terms of – in any event, it is almost certainly a criminal offence to throw something as dangerous as a beer glass at a person. There is not a jurisprudence about broken glass in licensed premises, but there is certainly a history of it, and it would explain, no doubt, why in many places the receptacles cannot be made out of glass. So it is a complete error to suppose that the criminality, and thus the egregious excess of authority, or even oppositeness of conduct – that is, contrary to a prohibition or a direction – has anything to do with whether or not a defendant can be held vicariously liable.
Then, in paragraph 231, the famous passage is reproduced, following significantly upon the unperturbed reference to vicarious liability, notwithstanding the wrong was contrary to a direction given by the defendant. One sees, that without there being perceived any fundamental difference or split between what had been seen in 1931 and what was being said in 1949, the passage is there set out.
Now, nothing that follows, including the paragraphs to which I am coming upon which our friends rely, nothing in the reasons of Justices Gummow and Hayne can possibly be read as suggesting that the passage they reproduced in 231, which they immediately followed by an observation that it is not to be read as exhaustive, is not only not exhaustive but, by the way, is wrong – the very contrary - or needs to be qualified by references back – it has been quoted in full in 231 – later, including by handy paraphrase, are surely not to be read as indicating that this is a passage that should no longer be regarded as the law. It needs to be rewritten in order to be correct and differences between what their Honours later paraphrase and what they quote in 231 are differences that display a zone of error by Mr Justice Dixon.
That, in our submission, is insupportable and, to be fair, it is not entirely clear that our learned friends have embraced that exercise. Now, it is true, perhaps most of all in this room, that there is a danger of according quasi‑scriptural status to Sir Owen Dixon’s written formulations but, with respect, there is a reason historically why that danger exists and it includes, in our submission, the expectation that if error is to be shown in a much, much cited passage – and that is what this passage quoted in 231 is – one would expect it to be expounded and it is not.
In, of course, the famous passage, in a case such as the present and particularly because of the matter that Justice Keane raised with my learned friend, one really needs to unpack what is meant by the word “occasion” in the phrase “gives occasion”, bearing in mind that which is very well established, that is sometimes called mere opportunity will not be the nexus that renders an innocent person vicariously liable for a wrongdoer.
As a matter of English, of course, and in other contexts it may well be that the word “occasion” or the word “opportunity” will be interchangeable. They are obviously not in the jurisprudence on this topic because the giving of occasion is contrasted with the provision merely of an opportunity and sometimes the dicta go on to say “without more”.
In a sense, this is not a case which really requires much further attention to that distinction. It is a very important distinction. We accept that mere opportunity is not enough. Why this case may not be the – I was about to say “occasion” – why this case is not the one to explore that in much detail is because on any view of it the man who was appointed housemaster and, by the way, not on any imaginable view, evidenced or inferred, forbidden from entering the dormitory – I am going to come back to that later – on any view that amounts to the housemaster’s work, that which is referred to by Sir Owen’s expression “the ostensible performance of his master’s work” – the housemaster’s work here is that which gave occasion to the wrongdoing.
Now, the reason why we say it is either or both of the two categories is because one can go on. Certainly the wrongdoing here was committed under cover of the authority the servant has held out as possessing. Much time has been devoted in address and not quite so much in written submission for the proposition which appears ultimately to be a factual matter, as we understand it, that the evidence showed that the housemaster, Bain, was not authorised by the school as housemaster, with the supervision of the boarding house, including in the rostered‑on night‑time hours, to enter a dormitory or to talk to the boys.
It beggars the imagination as to just how specific, in what Justice Bell invited my friend to consider as a drilling‑down exercise being inappropriate, it beggars the imagination as to just how far one goes. Is he allowed to turn on the light if he hears an untoward noise? Of course he is. Is he allowed not to turn on the light so as not to disturb all the other boys if he thinks it is just one boy sobbing quietly in a bed? Of course he is.
These are matters of inference and it would not matter whether it was 100 years ago, 50 years ago or five years ago. It is impossible to imagine evidence that could, without causing astonishment to its hearers – evidence that would say that this is a school which had forbidden its housemasters, given the general supervision of a boarding house, to enter the dormitory after lights out.
It gets worse on the way in which our friends have put it this morning. The argument comes explicitly to the point of saying that their Honours in the Full Court erred by taking up what the evidence showed about settling the boys. Sorry, your Honours, it sounds as if they are livestock. You can settle cattle and horses but I am not quite sure what “settling boys” means. But my point is this. Can it really be seriously entertained that their Honours have erred by regarding “settling” as within supervision, “settling the boys” as within supervision of the dormitory in such a way as also to inform a limitations argument because people are not available to give chapter and verse on how settling was not within the mandate.
Why we say it is absurd is this. Supervision for dormitory presumably means that if something has unsettled the boys, whether it is a storm breaking a window or a boy misbehaving, or more than one boy misbehaving – that is, lights out has not produced sleep – it is not seriously suggested, is it, that there was ever a possibility that the housemaster was not authorised to open the door and to command discipline or to settle the boys down.
Now, that is all that we need because, as I started out by saying, we emphatically do not need to show that there was express or implied actual authority to slip your hand under the bedclothes onto a little boy’s thigh and if it matters, by what is called a contrivance, to groom, by making yourself out to be their friend and telling them stories.
Grooming is no more authorised than the ultimate terrible conduct for which the grooming is the preparation and it is, in our submission, never any part of a plaintiff’s case, when arguing for vicarious liability of this kind, to show that the various and deliberate wrongdoing which has harmed the plaintiff is something which the defendant, who it must be recalled is, ex hypothesi, not a wrongdoer, is an innocent, not at fault, but the defendant has in fact authorised or encouraged that conduct. It is a contradictory and impossible construct upon which this part of the appellant’s argument is constructed and it ought to be rejected.
In paragraph 231, following the quotation of the classic passage, Justices Gummow and Hayne immediately note that it is a statement to be read in connection with vicarious liability for an intentional tort. That, of course, does nothing to detract from its application in this case, naturally enough.
The other possibilities to which their Honours then turn, using typefaces of emphasis, go back to the expressions to which attention has already been given in the classic passage, namely, not only committed under cover of the authority but also cover of the position in which he is placed as a representative of his master. That, in our submission, is not a passage which is in any way to be supposed to have been criticised or detracted from by the explanation which is ventured in paragraph 231, commencing with the evocative proposition that there are:
two elements revealed by what his Honour said –
They are engaged in exegesis. They are not engaged in correction. Your Honours will, of course, have noted the linking, without seeing any inappropriate jarring of categories, in 232 of Lloyd v Grace, Smith with the kind of issue that was necessary to be considered in Lepore and its companion cases. One sees their Honours reproducing, by paraphrase, in paragraph 233, the second sentence, the notion of a case of liability requiring, as one of the possibilities:
the ostensible performance of the employer’s work [to be that which] gave occasion –
Again, in our submission, it is to be seen that when one adds together what one finds from Chief Justice Gleeson, Justice Gaudron, in the manner we have argued it in our written submission – also Justice McHugh – that these reasons of Justices Gummow and Hayne resoundingly show that Deatons v Flew is the statement of the law in this country. It is, of course, paragraphs 240 and 241 upon which our learned friends base their argument against us, and the last sentence of 241 is the one that we have confronted in our written submission.
It cannot be supposed, bearing in mind what I have already drawn to attention of the larger context of this part of their Honours’ reasons, that in these paragraphs as a general proposition – that is, as an enunciation of the principles of vicarious liability – it is being said that because something is both deliberate and criminal, let alone adding what would appear to be the legally irrelevant character of being sexual, that vicarious liability cannot be extended, or that it would be an extension of the doctrine for it to expose a defendant to liability for another person’s wrongdoing.
FRENCH CJ: What limitation is there on the range of wrongdoing that would attract vicarious liability in this circumstance? Let us suppose the housemaster instead of doing what he did had physically assaulted a boy or stolen a boy’s property.
MR WALKER: Stealing of property is a good example, in our submission, of where there would be, one imagines, a very hot contest about whether that was mere opportunity, so that you are in the premises where the boys’ lockers are, they are in bed and while they are in bed you take his first edition of Paradise Lost or whatever. We think at the level of what I will call the jury question – and this is a jury question – the jury being properly directed, one can well and truly imagine that being a mere opportunity case for which the school would not be liable.
BELL J: I think Chief Justice Gleeson distinguished in relation to Lloyd v Grace, Smith, if the clerk had stolen something from the purse of the client, that would be, as Chief Justice Gleeson characterised it, an independent act.
MR WALKER: And, to use the fur stole case, if the employee who took off with the fur stole was in fact the delivery van driver who just managed to slip into a place where he was not meant to be, it is not because he is unauthorised; it is because that would not bear a sufficient connection to the relationship between him and his employer.
KIEFEL J: In the case of the locker, if the stealing occurred during the course of searching the lockers for a proper purpose?
MR WALKER: Exactly. So if the housemaster’s duties included checking for contraband chocolate and the opportunity was taken, that would not be a mere opportunity, that would be an opportunistic taking advantage of the power to open somebody’s suitcase to check to see what they had in it.
FRENCH CJ: Does that describe a sufficient condition for liability, that the wrongful act was done by “taking advantage” of the power or the authority that the wrongdoer had?
MR WALKER: Yes, it is, but I am bound to concede that that is because the idiomatic understanding of the words “taking advantage” will always include abusing the power and exceeding the true authority. Then there is a danger of it being too broad, but perhaps that leads to a wider case where that would really arise. I stress: they may not always present issues for this Court because one doubts whether principle would require to be refined. There will be borderline, I will call them, jury questions. So properly directed in general terms, one can well see good faith, intelligent, opposite conclusions about whether or not this was a mere opportunity case or an occasion case.
We seek to persuade your Honours that the Full Court were correct in finding no difficulty whatever in this housemaster with what inevitably follows from the nature of that position, being someone who under cover of that position, under cover of the ostensible authority and on the occasion given by the work he was to do, perpetrated the wrongdoing.
FRENCH CJ: What does ‑ it is a metaphorical term “under cover of the relevant authority”.
MR WALKER: Yes, it is.
FRENCH CJ: What does it mean beyond using the position that the authority gives in ‑ ‑ ‑
MR WALKER: It is a bit like the phrase “taking advantage”. It has at least a flavour of wrongfulness. It need not always but there is the notion of dissimulation or perversion of proper purpose, both in your Honour’s suggestion to me of “take advantage” and in Sir Owen’s “under cover of”. It emphasises that above all things, this is not an issue that is to be determined by asking, was the wrongdoing authorised by the employer.
Why one would ever go to that question in a doctrine which is imposing liability on a person who is not at fault, one cannot imagine because a more egregious way of becoming a wrongdoer than inciting or authorising or even requiring your servant to do something wrong, cannot be imagined.
KIEFEL J: Mr Walker, do we take it that the phrase “in the course of employment” is discarded by Deatons and by Justices Gummow and Hayne in Lepore or the two inquiries are an explanation of it?
MR WALKER: It is tempting to say the second. I cannot say the first, even though for those preparing arguments in this area it is a phrase that bedevils the literature. It is another cognate phrase – “scope of employment” which is even less useful, because it confusingly suggests a search for actual authority, which seems absurd. “Course of employment” at least looks to the narrative rather than to ‑ ‑ ‑
KIEFEL J: “Course” or “scope”, yes.
MR WALKER: “Course” and “scope” do not seem to have had the difference between the two of them explored in the literature, judicial and extrajudicial, but they seem to be used almost interchangeably. We think it is the second that Justice Kiefel has raised with me, namely, that it is a label – I am tempted to say “slogan” – for the more pointed inquiry, which is more usefully enunciated by Sir Owen in the passage that I have been attending to.
KIEFEL J: Or is it the conclusion and these are the tests?
MR WALKER: That is another way of putting it. You need course of employment and you will get course of employment if you fall in one or other of these categories, in which case it is only a label – you do not need it. In other words, it does not seem to have any extra ingredient to success over and above the categories.
KIEFEL J: Except that it may anchor what the tests are, otherwise in the development of tests they can become diffusive. They are not directed towards ‑ ‑ ‑
MR WALKER: We would not, for a moment, resist that at all. This is a doctrine that operates through the prism of the relationship between the defendant, usually correctly called an employer, and a wrongdoer, usually correctly called an employee. Now, they do not have to be strict master/servant. We accept that. So emphasising that it is a liability that arises because of conduct in the course of employment appropriately packs, in a compressed way, the elements together which emphasise the foundation of the liability of an innocent person being because of the employment.
Now, that raised the question, which has been settled by authority, as to whether you can simply exclude that liability, as the life insurance company plainly tried to do, by stipulating that the sale of the canvases were not to blaggard the rivals. The emphatic answer is no, that does not do it. But, of course, criminality, and for that matter, acting contrary to direction, will often be a hallmark of something which, to use that inappropriately frivolous expression, is a frolic of the workers own. But that will not be as a matter of law. That will simply be as a matter of the combination of facts which enable you to know whether or not the Deatons v Flew categories have been met, one or other of them – in which case, it would be perfectly salutary to regard that as demonstrating that it being done of the course of employment, it renders the defendant liable, though the defendant has itself, herself or himself not done anything wrong.
NETTLE J: Mr Walker, is there any difference between scope of employment or course of employment, as you have just described?
MR WALKER: We think not, on the literature that we have examined on that point.
NETTLE J: Is there, then, any difference between either of those and “field of activities”, as Lord Toulson refers to it?
MR WALKER: There is more than a rhetorical difference by going to field of activity but there is, on any view of it, a very very large degree of overlap because it is employment to which one looks to so‑called course or so‑called scope, in which or for which the activities are carried out. So they are not separate.
It is a rhetorical shift because it starts, as it were, by its use of words to concentrate on the actions of the wrongdoer, whereas we would argue the law should continue to insist that, because the defendant is not a wrongdoer, because the defendant is not at fault, you start with, in effect, why bring the defendant in at all and that is because of the relationship between the defendant and the wrongdoer.
Indeed, one of the problems about concentrating – it may only be a rhetorical point that fields an activity phase ‑ one problem about that is that it may bring back in ‑ and may be used for this today, with my friend’s argument – the danger of, as it were, examining the quality of the wrongdoer’s conduct and, as in that case, Justices Gummow and Hayne show in 240 and 241 almost by what I will call “intellectual exclamation”, saying well, that cannot have anything to do with the authority, that this is outrageous, that this is a total betrayal of what you were put in place to do.
We, of course, respectfully submit that Homer has nodded in those passages and that their Honour’s enunciation of doctrine, to which I have already been, is in accordance with how the other judges, particularly the Chief Justice, to which I will be coming in a moment – I am sorry Justice Gageler.
GAGELER J: No, you have probably just answered the question that I was about to ask. As I read Lepore, it is a difficult case to read, particularly given the procedural history.
MR WALKER: Yes.
GAGELER J: Justices Gummow and Hayne were in the minority in dealing with the outcome in Lepore itself. There were two cases and insofar as they dealt with Lepore ‑ ‑ ‑
MR WALKER: I think there were three cases, yes.
GAGELER J: There were three. It would have been sufficient if the facts were shown to be that the teacher had the responsibility for the maintenance of discipline and that this activity occurred ‑ ‑ ‑
MR WALKER: That is right.
GAGELER J: ‑ ‑ ‑ in the course of maintaining discipline.
MR WALKER: That is right.
GAGELER J: So, I can appreciate that you are taking us through the detail of their Honours’ reasoning but when they get to the crunch point, they are at odds with the majority.
MR WALKER: Yes.
NETTLE J: What about the offending then at the farm? Is that in the course of employment, as properly understood?
MR WALKER: Sorry, your Honour.
NETTLE J: The farm, in the case, it said, some of the offending took place during the weekend at the farm, rather than in the boarding house as was first ‑ ‑ ‑
MR WALKER: At the first instance, her Honour seems to have dealt with that in, perhaps not inappropriate backhanded way; that is of saying, accepting that that took place off campus, on the weekend, it would not prevent a finding of vicarious liability. That is no doubt because it is not the only wrongdoing. I think the principled answer to your Honour is that it is in a separate category and gives rise to questions of ultimately fact of a kind which the record before your Honours, how shall I say, is not replete with solutions and I do not want to engage in the speculation that should not be engaged in on factual matters.
I cannot find in the record, in particular in relation to exeats, whether supervised, off campus, one on one, is anywhere near what would be regarded as…..scope or field and so I think I am bound to concede that that may well stand in a different and less successful position for us.
FRENCH CJ: That might be a convenient moment, Mr Walker.
MR WALKER: If it please, your Honour.
FRENCH CJ: The Court will adjourn until 2 o’clock.
AT 1.02 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.00 PM:
FRENCH CJ: Yes, Mr Walker.
MR WALKER: Your Honours, apropos some of the formulations that your Honours have asked me about, there is, of course, an explanation of a way to justify, in our submission, the continued recourse to the Deatons v Flew approach, but to be seen slightly differently explained, as one sees it in the old case, in the Sydney Law Review article to which I think the Chief Justice was referring – that is, Beuermann at 37 Sydney Law Review 113. I will not take you to it, but there are passages that your Honours will be able to see at 128 to 129 in particular that venture that kind of justification.
If I might put it this way, there is a challenge – not exactly the one we think is necessary to be met – by the learned author at the foot of her remarks at 133 which I draw to attention only because, in our respectful submission, Lepore is not quite so unsatisfactory as a source of the law for the present purposes as the learned author would have it.
That then brings me – proposition 4 in our outline – to the comparative law. It is certainly the case that paragraph 47 of Lord Toulson’s decision, which of course is principally factual and evaluative, in Mohamud [2016] UKSC 11, is confronting in its contrast with Deatons v Flew, but I stress at the level of the factual determination. It is what I might call, without any disrespect to any of the institutions involved, the jury’s answer, once having been properly directed.
KIEFEL J: But it must partially explain what his Lordship intends by “field of activities”, must it not?
MR WALKER: With respect, it illustrates it, and it would appear to be – and I want to link that back to my answer to Justice Nettle just before the break – it illustrates what I would respectfully submit might be the danger of permitting through the change of rhetoric to “field of activities” too much, as it were, determination given to the autonomy of the wrongdoer rather than keeping the focus on the relation between the defendant and the wrongdoer in the scope of/course of what can be conveniently called employment.
KIEFEL J: I do not know whether it is so much in Mohamud, or both Mohamud and Lister v Hesley Hall, but the word “broad” appears quite a lot.
MR WALKER: Yes.
KIEFEL J: One gets the flavour that the new approach to what would be a scope of employment is - the trend is seen to be broadening that question.
MR WALKER: Yes. However, in our submission, this is not a matter satisfactorily dealt with, at least from the Bar table, by references to trends or broadenings or even simply to assertions of justice. They are the first two observations perhaps for scholars who observe, but the last is of course simply a self‑congratulatory description given to an outcome that one approves of. I do not mean that slightingly but it is not a guide to how to get there to describe it as just.
In our submission, the Deatons v Flew category has stood the test of time and, understood appropriately – and it does not require any special treatment – it will bring about an appropriate understanding of what course of employment involves in order to impose this otherwise unusual phenomenon of liability without fault.
It is because it is of that kind and because of the policy of the law in that regard that the need for limits is really important. This relates to one of our contention points about non‑delegable duty, to which I will be coming back. It is because of the importance of limits that we would respectfully submit that, although there is a large amount, perhaps a vast amount of overlap between the approach in London and the approach in Canberra, the better approach is, with respect, one that this Court has hitherto taken and should continue to take.
Paragraph 47, as I say, in Mohamud rather illustrates some what I would call risks. It invites slight counterfactuals, such as did this depend upon the curtilage of the petrol station, for example. Mr Khan was assigned a position to deal with people in the kiosk. I do not know about your Honours’ experience but you cannot get them to leave the kiosk. They certainly will not come out to the bowsers.
So, what happens if he had, in his fury and racist engagement, crossed the road and beaten up the poor man at a bus stop, or down at the newsagent? This is silly, in our submission, to suppose that there is a question of principle and a differing approach to which this Court should pay such regard as to alter its doctrine by reference to the approach taken in those decisions. It may be that, coming from our opposite directions, the parties before you have common ground on that, that this Court should not alter its approach by reference to that kind of approach.
However, we stress the policy of the law that one sees in that perhaps broadening or more lax approach certainly puts paid to any notion that one has to look for any authority given by the defendant to the wrongdoer to carry out that which has caused the plaintiff loss. That is absolutely not supported by anything overseas.
It therefore does not much matter, we respectfully submit, that our learned friend is perhaps exaggerating when describing the foreign law as entirely different from ours. It has a large amount in common. At the very important margins, it does have the differences to which we have both drawn attention.
Your Honours, could I now come in the order of things to two contention points. The first, which are our propositions 5 and 6, we will deal with very briefly. Our learned friends have, understandably and with respect in an entirely orthodox fashion, drawn to attention the considerable obstacle in our way which is the so‑called concurrent findings against us. There is no point me pretending that is not so. It is the case that our case on this point raises a matter of evidence which stands apart from the vicarious evidence case so far as the limitations extension is concerned.
So this is the so‑called direct breaches – a clumsy label – to indicate that it is a case based upon allegations of wrongdoing by the school corporately. There are three that your Honours have seen by way of – if I call them particulars or breaches. They may be described as the recruitment of Bain, the supervision of Bain once employed and the post trauma or post discovery dealing with care for our client.
They are in two classes. The selection and supervision stand differently from the post‑trauma care. We accept that they also stand differently – must stand differently – when considering questions of prejudice in relation to limitations from the position that the Full Court considered in relation to its findings about prejudice with respect to the vicarious liability case. I will come back to that.
The main argument on the merits of the matter so far as Justice Gray’s approach is concerned seems to be an overall criticism that his Honour was engaged in illegitimate retrospective application of current notions to a state of affairs, as my friend says, half a century ago. Again, we are bound to accept that, were that so, that would be an orthodox and complete reason to reject our contention. If your Honours thought that that criticism was warranted, nothing further is necessary in relation to this part of our notice of contention. We should fail on it.
However, the proposition we advance in No 6 in our outline is one that we maintain and can be seen to inform the approach taken by Justice Gray, which we respectfully adopt and urge. That is, there is no need to cast oneself back 50 years either by legitimate recourse to judicial notice or by evidence – what I will call cultural evidence – of how were things done then, nor even more was it necessary to have so‑called experts opine about what was appropriate in times gone by in relation to the matter in hand.
One way of making our point is to challenge the notion, for example, that the law of negligence, the duty of care, did not in South Australia render liable, that is, regard as actionable negligence, an employer for failing to make elementary inquiries about the antecedents of somebody about to be employed to look after children. It does not depend upon the technicalities or the regulation from time to time of what are sometimes called police checks.
The notion that you would have a mind and prudence to the question of what is the prior experience of this person and of his or her previous employers in this field is, in our submission, not something that shows any anachronism in the way Justice Gray approached the matter.
The same is true with respect to supervision which was not a matter of his Honour in effect erecting a system retrospectively whereby every teacher has to be accompanied. We accept that is in itself an absurd proposition and would give rise no doubt in other cases to the question whether every pair of teachers needs to be accompanied as well.
That, in our submission, is a travesty of the way in which Justice Gray put the case and rather we urge that the basic propositions that his Honour upheld, made by way of findings, including secondary conclusions, to which we have drawn attention in the cited passages of our written submissions, are more than sufficient to hold the school directly liable.
Now, we stress that this is absolutely the other side of the coin from the vicarious liability case. The vicarious liability case is the school is not at fault, not a wrongdoer. If we are correct in our attempts to support the Full Court on vicarious liability, this Court need not deal at all with the direct breaches of duty/notice of contention point.
That then brings me to the point concerning non‑delegable duty and at the outset we acknowledge, if only by dint of the headnote in the Commonwealth Law Report that Lepore might well be regarded as an authority for the proposition that a defendant cannot be held liable for breach of non‑delegable duty if the wrongdoer - the delegate, I will call it - if the wrongdoer has been guilty of deliberate criminal misconduct.
In our submission, that is an over‑reading of Lepore for reasons to which I am about to come but before I do so can I spell out what we submit are the established tenets in relation to non‑delegable duty which justify a finding that the school ought to be liable on that ground as well.
Your Honours know that the literature including judicial reasoning referred to in the cases that both sides have cited to you, draw to attention the possibilities of confusion of category between so‑called strict liability, that is, no‑fault vicarious liability outcomes and some ways to rationalise liability for a non‑delegable duty of care having been breached.
We would wish at the outset to suggest that that confusion is unnecessary and that there are two ways in which the categories ought not to be confused and ought to be regarded as not inherently apt to be confused. The first I have already referred to - vicarious liability is the liability of somebody not at fault for the wrong of another. By way of observation, that may be contrasted with the direct liability, so called, of a person in, for example, recruiting and supervising the wrongdoer.
Vicarious liability is where there is no wrong in the supervising or recruiting, no wrong at all, but by dint of the relationship, there is a liability. Non‑delegable duty is very different. It is because of the combination of vulnerability and the nature of the relationship giving rise to the duty of care, and it is just a duty of care; common law duty of care, a breach of which requires negligence and no more, but does require negligence.
The point about non‑delegable duty of care, as, for example, Justice Gaudron points out in her observations in Lepore, is that it will often – perhaps not definitionally – be such as to require things to be done. When one contemplates hospital and patients, teachers and pupils, child carers and infants – you can multiply the list, but those are all three well‑established categories of non‑delegable duties of care - things are required to be done. You will not discharge the duty by mere passivity. That is why, no doubt, employers and employees, given the dangers in workplaces, also fall within the category.
Now, it is non‑delegable as a duty, notwithstanding nowadays, particularly with industrial and administrative and institutional organisations, it is difficult to imagine the case where the function of discharging the duty will not require to be delegated. In many cases, the non‑delegable duty of care will arise in such a situation, for example, that it would be unthinkable for the employer to do it himself or herself. You would need a specialist, a registered nurse, et cetera, a trained teacher.
The law is not disapproving or rendering illicit the discharge of the function. It is simply saying that the discharge of the function, even by careful selection – even, if you like, by careful supervision – will not amount to discharge of the duty if what has occurred shows a falling below the standard required, which is the ordinary standard of negligence.
Now, that last “if” is very important. That is how this is not a strict liability. It means that if I delegate the care of a child to a person, and that person does not care for the child – my words are simply “does not care for the child” – then I have not cared for the child. It is a non‑delegable duty, so that all the care in the world in selecting the person and giving the person the correct instruction will not mean that I have discharged my duty, and I am a wrongdoer, because I am permitted to make arrangements for the care of the child under my non‑delegable duty, but if my arrangements fail, then I have not discharged my duty and I am a wrongdoer. That is not strict liability at all.
Confusion, if anything, arises by seeing non‑delegable duty as if you could discharge it by simply carefully selecting and appropriately instructing people to do the work. That is, of course, to deny the very nature of a non‑delegable duty.
BELL J: When you say that it is not strict liability, on your analysis, having assumed a duty to exercise reasonable care for the child, anything that befalls the child when in the care of the delegate is a breach of the duty.
MR WALKER: No. No, that would be strict liability.
BELL J: Indeed. Surely, then, there is a distinction between a failure to exercise reasonable care by the delegate resulting in harm and the deliberate inflection of harm of a criminal character?
MR WALKER: Your Honour, I am bound to say yes. I have to say yes to that question but I go further and say that this is one of those cases and this particular case before your Honours is one of those cases where, rather than those differences putting the cases in different categories and in particular denying breach of non‑delegable duty, the greater comprehends the lesser. May I explain?
When arrangements are made by the school for the boys to be looked after at night, the selected method is the appointment of a housemaster. Being a non‑delegable duty, if the housemaster fails to look after the boys then the school is liable because the arrangements it made have failed. If some harm comes to the boys, not because the arrangement failed, but because a hoodlum throws a stone through the window, something quite beyond the standards of care, then there is no question of breach of non‑delegable duty.
It is not mishap suffering, injury being suffered by the schoolboys that will be the mark of the arrangements having failed. The arrangements have to fail in the sense that what was done pursuant to the arrangement fell short of the standard. It still has to be negligent for all the reasons emphasised by Chief Justice Gleeson in particular in his quotation from Justice Brennan in Kondis, which you find in Lepore, which, with respect, Justice Bell may well have in mind at this point.
We are certainly not saying any harm that befalls a boy while the arrangements are in place shows that the arrangements fail in the sense that I am using it. We use the expression of the arrangement failing in the sense that what he has done pursuant to the arrangement falls short of the standard and, because causation of loss is an element, has caused loss.
It must fall short of the standard and there must be negligence. It must therefore be something which, in order to render the school otherwise not at fault - it must be in an ordinary case the falling short of the standard by the delegate ‑ that is, the person to whom the function has been delegated.
BELL J: The delegate falls short of the standard by his deliberate criminal conduct.
MR WALKER: That is where I want to come to the matter. He can fall short – assuming it is a he – by not attending when he should attend, a breach of contract no doubt by him. That is unquestionably, in our submission, a breach of the non‑delegable duty by the school. They made arrangements; the arrangements failed because the person expected to be in attendance was not in attendance. That is obviously short of the standard if that absence caused loss to be suffered, cadit quaestio.
If he attends and does something carelessly, engages in rough horseplay negligently, failing to attend to the difference in body masses – for example, a boy’s wrist is broken – accident, good faith, accident, there is no question that would be a breach of the non‑delegable duty of care. An arrangement was made and the actors engaged under that arrangement had not met the standard required which is only the standard of reasonable care. I stress this is a negligence case.
Now we come to the third one. Arrangements are made and the person – the actor under those arrangements – does something criminal. It need not be sexual. The law is not triggered by the particular horror of sexual offences. It can be simply the excessive violence that nowadays would be very easily regarded as occurring by an adult striking a child.
In our submission, it can equally be said, if anything, with more force, that an arrangement has been made and the actor engaged for that arrangement by the defendant has failed to live up to the standard. You are meant to look after the children, not to break their wrist. This is not strict liability – that is, there is no spectre here of a strict liability. Rather, in our submission – the approach which is usually attributed to a reading of the reasons in Lepore on this point – suggests that if the arrangements fail by negligence, then the defendant is liable. If the arrangements fail, if you like, all the more terribly by not carelessness but by deliberate infliction of harm, then the defendant is not liable at all.
So, far from being a non‑delegable duty of care, it would appear then to have been a duty of care which has not been breached, notwithstanding that the arrangements made have entirely failed. That is the general sense in which we say that which we accept is the usual understanding of the holding in Lepore - if I can persuade your Honours in particular that is not what Lepore says but, perhaps, even if it does mean that, it goes too far.
BELL J: How does the non‑delegable duty that you identify sit with the continuing concept of the vicarious liability of the employer? On this analysis there is no inquiry into the course of employment.
MR WALKER: No, and that is a matter, as your Honours appreciate, in particular Chief Justice Gleeson attends to in rejecting the unsuccessful non‑delegable duty argument in that case.
BELL J: What is your answer?
MR WALKER: I am going to give it in two parts: generally now and then when I come to that paragraph I will have some further comments. The two kinds of case operate in utterly dissimilar settings because the one is the liability of a person who has committed no fault at all, has breached no duty. That is fundamental to vicarious liability.
The other is where a person has breached a duty by having the so‑called personal or non‑delegable duty of care ‑ duty to care – and that awkward ambiguity, duty to ensure care is taken. The ambiguity seems now to be dispelled by making clear that “ensure” does not mean “insure” – does not mean strict liability. It is sometimes rendered as a duty to see that care is taken.
In those cases by definition, that is, the very reason for having a non‑delegable duty is because of the need for the defendant to discharge the obligation. If the obligation has not been discharged, the child has not been taken care of then by definition at that point the defendant is a wrongdoer, is at fault, has breached the duty. We are not talking about moral obliquity. We are talking about breach of duty.
GAGELER J: What is the particular of a breach? How do you state it in pleading terms?
MR WALKER: For a non‑delegable duty?
GAGELER J: No, here what is the actual particular of the breach of the non‑delegable duty of care?
MR WALKER: The duty is pleaded in general terms to take care of the boys at the school, the delegation of the function of housemaster to Bain is pleaded and the conduct which is egregiously short of a standard of reasonable care on the part of Bain is pleaded and proved, and that means that the school has by its delegate of the function of care failed to discharge its non‑delegable duty of care, the whole point being – it is called non‑delegable, the whole point being that if you delegate the function – and the law obviously accepts that practically always you will; every corporation will, for a start – if you delegate the function your liability depends on more than simply – I should say your discharge of the duty requires more than simply reasonable care in the selection, instruction, supervision, et cetera, of the delegate.
FRENCH CJ: If you owe a duty of care for the physical safety of somebody and you assault that person, do you breach that duty?
MR WALKER: Your Honour, in my submission, you do. It will not normally matter because in a simple binary ‑ ‑ ‑
FRENCH CJ: I know, in terms of consequences.
MR WALKER: In a simple binary case, then it will not matter. But yes, is the answer.
FRENCH CJ: Well, then what is the logic of the distinction which would limit a non‑delegable duty so as not to apply to intentional criminal conduct beyond the policy criterion that this is too far?
MR WALKER: If I have understood your Honour’s question correctly, we say there is no principle and no policy of the law that can justify ‑ ‑ ‑
FRENCH CJ: Apart from saying it extends to an unwarranted degree.
MR WALKER: We actually submit it does not extend at all.
FRENCH CJ: Yes.
MR WALKER: Because what I have tried, perhaps laboriously, to point out is that a failure of the arrangements you make to discharge your non‑delegable duty of care is a failure, however it is achieved, and so long as it constitutes a falling short of a standard of reasonable care – so we are not just talking about strict liability for mishap – so long as the arrangements fell short of that standard, and the standard is one of reasonable care, then, regardless of whether it comes about because of the breach of duty of the delegate or not, you will – you, the defendant – will have breached your non‑delegable duty of care. In answer to the question, will medical care or childcare fall short of a standard of reasonable care because far from looking after the child, the child was abused, the answer is, of course that falls short.
To put it another way, no one would suppose that you would acquit the provider of childcare of an inadequate standard of care because there had been child abuse committed, or to put it another way, why would the law engage in the absurdity of saying that there is a spectrum of conduct, increasingly morally to be criticised, as negligence increases in the looking after of a child, but suddenly the law ceases to be concerned about that as a falling short of a standard of care at the point that it crosses the line into criminality, at which point apparently the defendant is no longer liable, even though it can be said even more obviously that the standard of care has not been reached. That which has been done falls short of it and you can fall short of any number of safety obligations by committing offences against enacted law, not only by carelessness that does not render you subject to a prosecution.
GORDON J: Was Chief Justice Gleeson dealing with that question though, in Lepore at 36 and 37 where he talks about no fault jurisdiction?
MR WALKER: Yes, that is ‑ ‑ ‑
GORDON J: I mean, I just quickly tried to again reread it. I mean, he does not put it that way, does he?
MR WALKER: No. It is critical in relation to an understanding of Lepore on this point to remind oneself of the fundamental oddity of that case in the way it presented to this Court from its forensic history, and if you go to paragraph 18 it is all brought together in relation to the issues for this Court in Lepore:
no allegation of any fault on the part of the school authority in its systems or procedures –
there is an echo here of my arrangements idea:
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 ‑
So, Lepore is not a case which is authority for a case such as todays. It does not go to the point at all.
GORDON J: But is not paragraph 36 dealing with the more general category?
MR WALKER: Yes, it is, I accept.
GORDON J: I am looking in particular where he deals with the three problems, as he sees it, with the theory, at the foot of that paragraph.
MR WALKER: Now, would your Honour forgive me if I take a bit of run up to that answer.
GORDON J: Certainly.
MR WALKER: In short, that which his Honour is scotching is not the argument I am putting. He was addressing an argument which I stress is an argument about non‑delegable duty having been breached, notwithstanding there is no allegation of anything falling short of any standard. That is the whole point. It was a very, very odd case and it is to be recalled, of course, that issues were being argued in Lepore by what might be called indulgence that do not seem either to have been pleaded in some cases or argued, if they had been pleaded, in other cases.
But paragraph 18 is very important. So the argument that Chief Justice Gleeson is addressing is an argument that somehow there can be a breach of non‑delegable duty though nobody has done anything wrong. That, in our submission, is not correct. What I have been putting in general terms about the nature of a non‑delegable duty of care can be seen being addressed by his Honour on page 528 in paragraph 20. I will not read it, but it has all the familiar phrases, including:
“the master cannot divest himself of responsibility by entrusting their performance to others”.
His Honour ominously ends that paragraph by saying that those statements convey a reasonably clear idea but addresses the nature of the duty rather than its content. Then, in particular, there are passages where – and if your Honours will forgive me for one moment, paragraph 22, the last sentence, his Honour is at pains to clarify what “ensure” means in the notion of ensuring reasonable care is taken. There is a reference to the hospital cases and Introvigne. If I can, with Introvigne, particularly go to paragraph 30. Here was a case where, in the alternative to a vicarious liability theory:
nevertheless the Commonwealth was under a duty to provide reasonable supervision –
of the school children:
it could not discharge that duty by arranging for the State of New South Wales to conduct the school –
There is the non‑delegability. It does not mean it was unlawful to make the arrangement. It means that that would not discharge the duty in itself:
it had a responsibility to see that adequate provision was provided –
Again, this is not strict liability; it is only to see that a standard of reasonable care is met:
and the absence of adequate supervision –
That equates to my formula, the failure of the arrangement. “The absence of adequate supervision” – again, that is not just any mishap for which you are strictly liable. That is only when that which was done, that which was provided under the arrangement, does not meet the standard.
BELL J: It does not meet the standard because the delegate has done something wrong.
MR WALKER: Done something wrong. That is right.
BELL J: Relevantly, for present purposes, the delegate has committed an intentional criminal offence.
MR WALKER: Yes.
BELL J: On your analysis ‑ ‑ ‑
MR WALKER: That is a fortiori, a falling short, is my point.
BELL J: Your analysis is one can see that sexually abusing a child is a criminal offence, but equally it is a falling short of the standard of care.
MR WALKER: That is my point.
BELL J: Yes, that is it, yes.
FRENCH CJ: The anterior question is whether there is a non‑delegable duty of care.
MR WALKER: Absolutely.
FRENCH CJ: If there is then there is no relevant distinction to be drawn between the carelessness or the intentional criminal conduct.
MR WALKER: That is right. It is for those reasons, though I confess there are difficulties (a) generally and (b) for my case in this part of Lepore, properly understood, particularly bearing in mind that the Court was considering a case with no allegation of falling short of anything - it is not surprising that the Chief Justice concludes that the retrial should not have any case of non‑delegable duty at all.
BELL J: But leave had been given to replead, had it not?
KEANE J: In Samin and Rich leave had been given to replead to allege vicarious liability. No leave was given to rerun the case about non‑delegable duty.
MR WALKER: Or, I think, for that matter, so‑called direct breach either, yes.
KEANE J: Mr Walker, is not the problem with this argument one of coherence? These cases – the cases of non‑delegable duty are cases where there is a development of the law of negligence to make someone other than the immediate wrongdoer liable by making them the wrongdoer. It is about negligence and a failure to exercise reasonable care that gives rise to a liability in negligence.
Where you are dealing more generally with torts that are intentional torts the law has adopted vicarious liability as the category that deals with that. If you cannot get home under vicarious liability because what happens is not in the course of employment, does that not give rise to the problem of incoherence in the law if you can get home proving less in negligence where no one has failed to exercise care for anybody, someone has actually committed a crime against them.
MR WALKER: Yes, it would be, without rather more, it would be incoherent. This is paragraph 32, I think, in particular, of Justice Gleeson’s reasons. Halfway down that paragraph on page 532 his Honour says:
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 –
that, is on the hypothesis of the argument his Honour is considering, would extend, I suppose:
beyond that which flows from the principles governing vicarious liability.
Now, that is, we think, in the sense, explained by the next sentence, that is:
It is unconstrained by considerations about . . . course of his or her employment.
Mostly, however, that will be the course – you do not have to consider about course of employment because it will only be if the delegate of the function has fallen short in the arrangement that the employer will be – have failed to discharge a duty of care.
NETTLE J: He will necessarily have fallen short in the course of his employment.
MR WALKER: Quite, because the wrongdoer in the non‑delegable case -and Chief Justice Gleeson does not seem to consider that here, not the least because there is no wrongdoing alleged here but by definition the wrongdoer is the delegate. In other words, you do not breach a non‑delegable duty of care because a stranger climbs through the window and does something to a school child.
You may, coincidentally, breach because you had in place arrangements which did not include reasonable securing of the premises from the street. That would be totally different. If you had delegated those arrangements to a security consultant, then if the duty of care were not delegable that may be all you would have to do, get an appropriate expert, I have discharged my duty of care. It being non‑delegable, the security consultant gets it wrong. You have it wrong.
In our submission, if there be error - and, I stress, these are remarks aimed at a very odd case where there is no wrongdoing by anyone - if there be an error in paragraph 32 it is to fail to take into account that what course of employment serves for vicarious liability is a control mechanism, identifying the delegate whose efforts have been inadequate in the non‑delegable duty of care operates in that other area.
NETTLE J: But you still have paragraph 36 of Chief Justice Gleeson to deal with.
MR WALKER: Yes, I do.
NETTLE J: There was no mistake there. He makes it patently clear that what he says is that there should be no non‑delegable duty because it is a crime.
MR WALKER: Yes. I think I still have some bane in 32 - to see whether I have an antidote; I may not. At the foot of 32 there is a sentence, the next sentence:
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.
FRENCH CJ: That is not your case. Your case is where there is a breach of duty by the employee.
MR WALKER: Exactly. So if the injury was a non‑negligent accident, then it would not be enough, so we would continue to insist, respectfully ‑ ‑ ‑
FRENCH CJ: So you would cavil with the term “absolute duty” in the next sentence?
MR WALKER: Exactly so. That is the point I wanted to make about the balance of 32. I am sorry about this very long run‑up for Justice Gordon; I then come to paragraph 34 as another transition, and there is a proposition which certainly has some resemblance to what we are arguing but, for the reasons I have put, is fundamentally different in relation to the absence of fault. His Honour is there talking about liability:
for any injury, accidental or intentional –
It is not obvious whether “accidental” is intended by his Honour to mean only those things which are negligent or not. If they went further than that, then of course the proposition is wrong, and was correctly rejected by the Court. It is not the proposition for which we contend.
BELL J: But if you read it as whether negligent or intentional, then it does capture your proposition.
MR WALKER: Yes, it does. Then we come to the passage starting with 36, and going over to 39. In the first part of that paragraph there are what I might call supporting considerations of a policy kind; none the worse for that, but they do not go to the present point. The three things that need to be remembered are then raised in relation to what one may assume is an argument, again of a policy kind, by a would‑be plaintiff, namely, this serves to deter the social ameliorative function of tort law. It is in answer to that that these three things are then raised.
The first really makes the point I have been emphasising. The first is the problem – and this is a problem of a kind that would give rise to an incoherence, as Justice Keane has invited me to consider - the problem only arises where there has been no fault, and we insist that what we are talking about in the non‑delegable duty case that we submit was available here is where there is, of course, fault.
NETTLE J: But surely the Chief Justice is speaking of no fault on the part of the defendant rather than the perpetrator? That is apparent from the next sentence.
MR WALKER: That would appear to be, yes. In light of what I will call the direct breach case ‑ that is, where the failure is in negligently selecting someone or negligently failing to instruct them.
NETTLE J: No, rather where it is sought to make an innocent defendant liable for the crime of his delegate.
MR WALKER: But what that does not even address is the notion that a person who breaches a non‑delegable duty of care is not an innocent, is a wrongdoer.
NETTLE J: Certainly in the sense - if there be a non‑delegable duty undoubtedly, but he is innocent otherwise.
MR WALKER: Absolutely, quite so. If there be a non‑delegable duty, as a school surely has to children, if there be one, upon the care not reaching the requisite standard, the breach of duty is committed by the defendant.
NETTLE J: Yes.
MR WALKER: No doubt there are breaches of other duties, perhaps crimes committed by the servant in question, but it is a breach of duty and it is for those reasons that these three propositions are not propositions that can properly be read as saying where there is a non‑delegable duty and the standard is not achieved, so that otherwise there would be liability of the defendant, nonetheless there will not be liability if the standard is so egregiously not met as to reveal the commission of a crime.
NETTLE J: I must say I do read them in that way – that is to say, assuming there were such a duty, these would be the problems with it. First, the defendant is without fault other than that his delegate has committed a crime; secondly, it is the function of the criminal law to deter it and it has not done a very good job.
MR WALKER: Yes. I think we are commanded to believe that it has some kind of effect.
NETTLE J: We are indeed.
MR WALKER: But it obviously does not guarantee anything. These are answers to an argument which I am not putting. These are answers to an argument about deterrence. I am not putting an argument based upon deterrence. I am saying that there is an established category of non‑delegable duty of care.
NETTLE J: But the only question is does it extend to crimes as opposed to negligence?
MR WALKER: I think, with respect, that is a relevant question. My proposition is that in 36 his Honour is not identifying a case where there has been a failure of a system to meet a standard required by a non‑delegable duty of care. He is dealing with an odd case which, on the pleadings and the manner of argument in the courts below, revealed no allegation of fault by anybody and it is fault for a system to fall below standards.
This may be the problem that all of us face from time to time of dealing with the necessary articulation of principle at a level of generality which can produce some unforeseen consequences. This is not a paragraph which is directed to a case where, on the hypothesis I am putting, is our case. There has been a falling short of a standard required by the law under a duty imposed personally, that is without being able to be discharged by delegation on the defendant. Paragraph 36 reveals in no way that is addressing that proposition.
GAGELER J: Is not his Honour really saying that in the only scenario where the non‑delegable duty would have a relevant application, the falling short of the standard imposed by law would be constituted by non‑foreseeable criminal behaviour?
MR WALKER: No, his Honour is not really saying that but that is, with great respect, an interesting way of looking at it. Foreseeability does not play any part in 36. Modbury is hovering behind all of this, of course. Lepore was not a Modbury case and this is not a Modbury case. Now, Modbury does involve foreseeability of crime, et cetera, but the answer to your Honour’s question to me, is this what his Honour was doing, is no. That does not mean that is not something that can be done.
No doubt this Court could, as it were, add its own reasoning adverse to my present argument to the effect that the – what is the word – the greater remoteness from control by a defendant of the criminal conduct of another than the negligent conduct of another is a reason not to permit liability for breach of non‑delegable duty when the falling short of the standard comes about by reason of crime as opposed to non‑criminal wrongdoing. I volunteer that, as it were, against us as a ‑ ‑ ‑
GAGELER J: Yes. That is what I read his Honour as saying, but perhaps he is not.
MR WALKER: Certainly his Honour does not anywhere in that paragraph say anything about foreseeability or the lack of control point, which is rather more anxiously specifically considered by the Court in Modbury. Finally, in paragraph 39 his Honour concludes all of this by repeating the proposition that this was a case of:
the assumption that there has been no fault on the part of the school authority ‑
Now, that is an odd way to express an assumption if you are dealing with an argument where, for the purposes of argument, there is a breach of a non‑delegable duty of care, because his Honour nowhere, particularly in the earlier passages to which I drew attention, nowhere suggests that he considers that the breach of a non‑delegable duty of care is not a wrong or is not a fault. It is for those reasons, as I say, that a proper reading means Lepore does not stand in our way as matter of stare decisis. Alternatively, if it did, it ought to be revisited in the manner we have suggested.
BELL J: Are you able to point to a single authority where a non‑delegable duty has been imposed in relation to breach of a standard by the commission of a criminal offence that was not foreseeable?
MR WALKER: No, I cannot. Can I rephrase, however – this may make the matter more demanding of me – what we would really need to show is a case where it is accepted there is a non‑delegable duty of care, so hospital, patient, school child, as here. So, the duty does exist and it requires a standard to be achieved. All of that is unexceptionable. All the cases are just that. Kondis in this Court reminds us that it is just a negligence standard; nothing special. The only special thing is you cannot discharge your duty by delegating to another even though, in order to be reasonable, you must delegate to another. It means that the failure by the other to meet the standard will be your failure. That is the theory of non‑delegable duty. So if we were looking for precedents we would need to find a case where the Court finds on facts where issue had been joined on allegations of fault.
Now, why have I said all of that? That is because that is the opposite of Lepore. That did not happen in Lepore. But there has been issue joined and the Court has said the standard has not been reached. Far from feeding the children, you have criminally neglected them. It is a crime not to feed children. And therefore, though if you had not so starved them as to commit a crime, the defendant would be liable because the starvation continued to the criminal point you are now not liable ‑ ‑ ‑
NETTLE J: That is slightly different. That is criminal negligence as opposed to intentional ‑ ‑ ‑
MR WALKER: Quite, but it appears to be the criminality as opposed to the nature of the crime.
NETTLE J: I thought the question was limited to intentional crime.
MR WALKER: Yes, criminal negligence, however, does have elements of intention and intentional wrongdoing by the criminal neglect of a child, that is intentional wrongdoing, certainly involves notions of intended suffering of harm.
BELL J: I am not sure that is right.
NETTLE J: No, it is not ‑ ‑ ‑
BELL J: I mean, the standard is a high one with respect to criminal negligence but to introduce intention seems a stretch.
MR WALKER: Well, certainly intentional withholding of food, knowing what withholding of food does to a human organism and the jury will be instructed, it has to be in such circumstances as to attract criminal – as to justify the attraction of criminal sanction. But rather than get hooked up on the matter of intention, choose another case, a beating case which is perhaps more likely in schools and the hospitals. So, someone commits assault.
In our submission, if you are there to look after the old person and to relieve their bed sores and rather you inflict bruises on them then there does arise the question has there been a case which is said this person failed to meet the standard but because the failure involved the criminal infliction of bruises rather than simply the negligent failure to relieve bed sores, there will be no liability of the hospital. No, I do not have a case but could I turn it against our friends, they do not either. There has never been a case which has said the defendant can win by characterising bad conduct as criminal.
GAGELER J: Mr Walker, if we leave the criminality of the conduct aside for a moment and think about the foreseeability of the conduct, is there any case in which it has been held that a non‑delegable duty of care extends to taking care to ensure the non‑occurrence of an unforeseen risk?
MR WALKER: Absolutely not, because that would be to depart from the fundamental requirement that it is the standards of negligence that govern. We are not putting that. We are – perhaps I can put it more bluntly. If we are putting that then we are wrong.
GAGELER J: So, it must be part of your case on the non‑delegable duty of care that there was a foreseeable risk of sexual interference by the master?
MR WALKER: No. Our case is simply that the arrangement failed for reasons which show an inadequacy of care by the master. Now, we would not have to show in Modbury style that there was a foreseeable risk and that, furthermore, there was a reasonable response that could be made by the school to prevent or minimise that risk.
I fear I am repeating myself. If there is any utility at all – maybe there is not – if there is utility in this notion of non‑delegable duties of care, it is to shift the risk of unsuccessful and inadequate – that is, falling short of the standard arrangements – from the plaintiff to the defendant. It is not a deterrence question; it is a matter of risk shifting. Who should bear the risk when the duty in question is of this kind that we call non‑delegable?
GORDON J: Well, I read the proposition where, if you are right, that the conduct about which you ultimately complain would satisfy vicarious liability as well because of the two ways you put it earlier but that there is an easier route home for those who are in special relationships.
MR WALKER: There would not be an easier route necessarily ‑ ‑ ‑
GORDON J: Well, it is easier in the sense that, as Justice Keane put to you, you have to prove less for hospital and patient, you have to prove less for school and child.
MR WALKER: I am not so sure, with respect. Yes, that is what Chief Justice Gleeson says. But, as I answered earlier, the course of employment, yes, that is a control mechanism for vicarious liability, not in terms, operating in non‑delegable duty of care. But you have something which is functionally exactly the same. You have to look at what is the shortcoming of the delegate. The role of the delegate is functionally the same as the employee whose course of employment is considered in vicarious liability. So it is not at all evident that we have to prove less. It is not going to be an easier route home. If anything, it is a harder route home because you do have to prove a “falling short of a reasonable standard of care”.
FRENCH CJ: You have to start by establishing the duty – the non‑delegable duty.
MR WALKER: Absolutely. That is the first thing.
FRENCH CJ: That has to cover a lesser, a narrower range of cases than those in which vicarious liability can operate.
MR WALKER: Absolutely. That is one of the reasons why they can sit together because vicarious liability does not have at all a prime or explicit focus in negligence cases at all. In fact, we have argued vicarious liability first because it is, in our submission, the proper way for this case to be decided for reasons which, with respect, Justice Keane has raised for my consideration as to how it reflects adversely on the non‑delegable duty of care case, as it does. But it is not the case that the law says if there is vicarious liability for an intentional act, there cannot be a breach of a non‑delegable duty of care. I would be repeating myself if I were to add to that.
BELL J: A moment ago you spoke of if there is any utility in the notion of a non‑delegable duty and, plainly, the law developed the concept in the utility being obvious in the independent contractor cases.
MR WALKER: Yes.
BELL J: What has perhaps slightly escaped me is your answer to Justice Keane’s question on coherence.
MR WALKER: We are not proposing that there could be liability for breach of non‑delegable duty of care without any fault on the part of the defendant, whereas vicarious liability is just that. We are seeking to persuade your Honours that the fault on the part of the defendant in the case of a non‑delegable duty of care consists in the falling short of the proper standard – what I call the failure – of the arrangements made by the defendant, and trying to persuade your Honours that there is no incoherence in saying “and that might arise in a number of different ways, including, by the way, by such an egregious failure to meet standards as to constitute crime”.
Now, that is not an incoherence at all. It is saying that there are two quite distinct ways in which a person might be liable because another person has done wrong. The first way, vicarious liability, is notwithstanding the defendant is not at fault at all. The second one is because in the circumstances this other person’s wrong constituted yours, the defendant’s, failure to meet a standard that you could not delegate as to its discharge, even though you are permitted to delegate as to its function. That is why it is not incoherent.
Your Honours, without going to them, could I simply give you – in the other members of the Court in Lepore, Justice Gaudron, paragraphs 104 to 105; Justice McHugh, paragraphs 159 and 160 to 163; and Justices Gummow and Hayne, paragraphs 261 to 263, which, in our submission, support what we have been trying to say about Chief Justice Gleeson’s holding.
That leaves only the question of time limitation. We have very little to add to what we have written about this. The key points are the first sentence in our proposition 9 in our outline. The first is that in House v The King terms, for the reasons explained in the Full Court and set out in our written submissions, it was not wrong. It was, in fact, correct for the Full Court to see that the exercise of the statutory discretion had miscarried in House v The King terms, because in relation to the vicarious liability case, her Honour at first instance had regarded it as necessary for the plaintiff’s case to be met by the defendant by an exploration of whether or not there were specific directions about reading with the lights on, telling stories with the lights off, going into the dormitory, et cetera, et cetera – all of which was, for the reasons we have written and elaborated in the Full Court below, wrong. Being the housemaster with the supervisory responsibility was enough, more than enough.
Having correctly revisited, as we put it, the discretion, then comes the question of how to exercise the discretion, as the Full Court was empowered to do in an appeal by way of rehearing, and then House v The King comes in, in this Court and we submit that there is not error shown in the reasons for the exercise of the discretion by the Full Court to allow the extension by the appellant in their present case here.
There is disagreement and there is much that could be said on either side for a very long time about the weight that could be given to different factors but there is no House v The King error shown in that fashion. One example will serve. No doubt there are matters that can be said on both sides of the question of how the dealings between the school and my client; in light of his health and in light of all the other circumstances, should be seen in terms of the discretion, in terms of what is just, to extend or not.
But the fact that one may feel a preference for one side rather than the other, in the weighting of that kind of factor and in the way in which it is shown it should point, does not amount to a House v The King error by the Full Court at all.
BELL J: Is it a House v The King error to conclude in relation to the loss of the psychologist’s notes that one might nonetheless extend time and then take a bit off the damages?
MR WALKER: If that is taken on its own, yes is the answer. That is paragraph 23 at appeal book 1741. There, without any elaboration, on one reading of that, that is just wrong. I think the Chief Justice used the very polite expression “instrumental”. There are other words, perhaps “unprincipled” would be one and I think our friends used that and that is no way to deal with the prejudice in relation to meeting a case whether it be on liability or quantum or any part of it. I accept that.
BELL J: The loss of the notes was a matter that the primary judge considered of significance in the exercise of her discretion.
MR WALKER: Your Honour, I am not going to try and persuade you that the loss of notes in the treatment of people does not matter. Of course it does.
BELL J: But it is a question of significance, Mr Walker, against your acceptance of an apparent House v The King error in the treatment that the Chief Justice brought to bear on this aspect and it is rather difficult to see the reasoning of the other members of the Court on this question of extension, which means it becomes a very important issue.
MR WALKER: That is fair, with respect, your Honour. But paragraph 23, however, lends itself to another understanding which is that the party bearing the onus of proving causation simply will not be able to do it in terms of the extent of loss suffered and therefore of compensation required, in the absence of material to make good the facts necessary. Now, that is a reading of 23 which is less startling than the one that the Chief Justice asked my friend about and that Justice Bell has asked me about and we would urge that as surely to be preferred.
KEANE J: Except that the authorities suggest – and Brisbane South suggests – that the onus is on the applicant for the extension of time to show good reason for the grant of the extension and that encompasses probably fundamentally the notion that a fair trial can be had.
MR WALKER: Yes.
KEANE J: Now, so far as the issue of damages is concerned, if there is a deficit in the evidence available on the issue of damages then does that not mean there is a deficit in the case that seeks to demonstrate that a fair trial can be had?
MR WALKER: No, it shows that there will be less likelihood of the plaintiff succeeding or of succeeding for as much as he or she would like. The onus means that gaps, defects, in the evidence will redound to the detriment of the plaintiff’s case. It does not make the case not fair. Every day cases are fraught with defective evidence.
KEANE J: No, the point is really that the defendant is not able to demonstrate that there is perhaps no loss, certainly not the loss of income‑earning ability and so forth, that is at the heart of the reason for granting the extension.
MR WALKER: One difficulty with that is that insofar as the issue concerns the plaintiff’s disability – I will call it that – then that of course does not need historic notes because the plaintiff’s present state will be available to be examined. I apprehend, however, that your Honour is also asking me about what I will call causation questions as well.
KEANE J: Yes.
MR WALKER: It is because causation is an issue – and my learned friends have made that clear – that the matters, particularly including those that Justice Bell has raised with me on the limitations question, need to be addressed by us. Paragraph 23, in my submission, is a way of expressing the forensic difficulty the plaintiff has in making out all the links through to an award of damages by reason of the lapse of time. It would be wrong, in our submission, to see that as a fair trial issue in the Brisbane South sense. In particular, his Honour is not, in that passage, as it were, wrongly and against principles showing himself insensitive to anything that the defendant might be wanting to set out to prove.
BELL J: The case that the defendant sought to set out to prove was that the plaintiff was a person with a family history of anxiety disorder and alcohol dependence and that, without making any allegation of impropriety against the psychologist, what had happened was that over a course of lengthy psychotherapy the plaintiff had learned to describe his symptoms in a way that supported the psychiatric opinion of Dr Kelly and others.
MR WALKER: Yes.
BELL J: Now, that was critical to the case that the defendant sought to make at trial and that could not be explored in terms of its strength without access to the contemporaneous notes taken at those courses of therapy over the years.
MR WALKER: Or I would accept at least its exploration would be less thorough.
BELL J: Yes.
MR WALKER: We do understand that is the point made against us. We do understand what is suggested as a reading of paragraph 23. I think, however, I have said everything I can about a better alternative way of reading that and then, as I need to, the acceptability of that in House v The King terms so far as the Full Court’s exercise of discretion is concerned. May it please the Court.
FRENCH CJ: Thank you, Mr Walker. Yes, Mr Livesey.
MR LIVESEY: If the Court pleases. I turn first to non‑delegable duty. In my respectful submission, there should be no recognition of criminal conduct as a species of fault sufficient to be classified as a failure by the delegate to take care. I may have misunderstood my learned friend’s point about that but, as I understood it, that is what was being advocated.
In my submission, that is a new species of liability. What it seeks to do, though the words “failure”, “falling short”, “if” and the like are utilised, what it seeks to do is paint criminal conduct as fault in circumstances where, to date, negligence and its species has been the proper subject matter of a non‑delegable duty.
FRENCH CJ: So this argument is on the premise that there is a non‑delegable duty of care. You say under no circumstance does that extend to a duty to prevent intentional criminal conduct?
MR LIVESEY: That is so.
FRENCH CJ: Or it is not breached by intentional criminal conduct.
MR LIVESEY: We do not shy from cases such as Kondis which suggest non‑delegable duty. What we take issue with is the content of that duty and its extension in the way in which my friend advocates.
FRENCH CJ: You say Lepore is to be read as authority for the proposition that the non‑delegable duty is not breached by intentional criminal act?
MR LIVESEY: Precisely, with respect. In order to succeed my friend must convince this Court both to reopen and to overrule Lepore’s Case. In my respectful submission there are at least four reasons why this Court should decline the invitation. The first is, as appears from page 1692 of the appeal book, paragraphs 107 to 108 of Justice Vanstone’s reasons, this case as articulated in this Court was not run below. It was not run at trial and it was not run before the Full Court.
Although Justice Gray suggested that the judge failed to see the difference, in fact it was the way in which the matter was argued that there was in fact no difference. The way in which the matter was argued was really to accept the binding authority of Lepore’s Case and so there was no analysis of what species of fault associated with criminal conduct might be satisfied by this new form of liability.
The second reason is, for the reasons articulated by Chief Justice Gleeson, when criminality is involved that adds something to the analysis. As his Honour put it, to fail to see that is to evade an issue. He described that in paragraph 31 of his reasons, particularly the passage that appears in the last five lines or, sorry, six lines on page 532. I will not read but invite the Court to consider his analysis of the introduction of a factor of legal relevance beyond a failure to take care.
The second reason is that not even, with respect, in the United Kingdom or in Canada has it been thought necessary to take this step. Rather, what the courts there have done is to expand the reach of vicarious liability and, for the reasons articulated by, again, Chief Justice Gleeson, what an embracing of this form of liability would do is introduce a notion of liability that would be too broad and I emphasise without reading what appears at 34, 36 and 39 of his Honour’s reasons.
It is true to say that less would be necessary to be proved because one would no longer be constrained by the concept of that scope of employment. It would be enough on my friend’s analysis that one could identify the relevant actor as a delegate regardless whether that actor, acting under a form of delegation, could be said to be acting within the scope of employment. That brings me to the next ‑ ‑ ‑
GAGELER J: Would it not also be necessary, just on basic principles of negligence, to show that there was a failure to take a precaution against the occurrence of a foreseeable risk and, in that respect, because it speaks directly to that requirement, did section 32 of the Civil Liability Act 1936 apply to this claim?
MR LIVESEY: No. That leads into a debate about the effect of section 32, but the cause of action – your Honour, I need to pause in that. I think the answer is that the cause of action was complete in 1973, and therefore the relevant conduct fell outside the purview of the legislation.
GAGELER J: Thank you.
MR LIVESEY: But that leaves to one side, of course, the debate about the effect of section 32. Can I come to the next point? It is associated with the submission I have just made, and that is that this new form of liability would indeed outflank negligence as well as vicarious liability. It would be a new form of what ultimately amounts to strict liability, and apart from the passages to which my friend has referred, I would add, with respect, what is said by Justices Gummow and Hayne at 269, and Justice Callinan at 342.
Associated with the point about incoherence is that it is unnecessary to take the step. For the reasons articulated by Justice Gaudron at 105 and 124, most of these cases are going to be resolved by orthodox negligence principles, and the need of the school or the other requisite body to take care. So it is simply not necessary to take the step. The final point is that in truth this amounts to legislation. This is very close to what is advocated at page 495 of the Redress Report, and that is a step which, in my respectful submission, this Court ought not take.
Can I move to the case on actual negligence and make this point? It is a little unclear, with great respect to my learned friends, whether the case seeks to resurrect arguments about whether the activities at Cummins and the police checks ought to have been undertaken. As we read some of our friend’s submissions, they seem to be things which are being advocated. It is important to recognise that – and I mean no disrespect – but I think Justice Gray was prepared to accept those matters as being matters requiring correction in her Honour’s Justice Vanstone’s reasons. He accepted her ruling in that regard.
KIEFEL J: The respondent’s submissions in this respect rely entirely upon Justice Gray’s reasons and that is all, is it not?
MR LIVESEY: They do, but there is reference to criminal conduct and there is reference to Cummins, so there is some uncertainty about that. In fact what Justice Gray does at paragraphs 89 and 90 is introduce a new idea, and that is that there ought to have been basic checks, as he described it, which had they been carried out – and with due respect to the judge I ought quote exactly what he said – these things, would have, he said – page 1756, paragraph 90:
led to a disclosure of at least such matters as would have caused the school to have considered him unsuitable to be a boarding house master.
With all due respect, that is a criticism which is just left hanging in the air. There is no analysis of that and certainly no facing up to the requirement to prove causation.
KEANE J: Was there evidence that schools in 1962 undertook those forms of inquiry?
MR LIVESEY: There was, and indeed the approach taken by her Honour was to accept the evidence of the former headmaster, Mr Bean, as to the kinds of inquiries that he undertook, and he spoke of advertising, seeking references, speaking to references if there was permission given to do so, and making those kinds of checks.
At trial, there was no criticism of that approach. It was never suggested that that was an inappropriate way to go about employing staff. What was suggested at the trial was in fact that there should have been, in some manner never really identified, a discovery of what had been going on at the Cummins Area School, notwithstanding the fact that Mr Dunning was dead, Mr Dawes was dead, and such evidence as there was about rumours never coalesced or crystallised into any information that it could be said was ever passed to the school. So her Honour essentially found that there was no basis to find a failure to take proper care in connection with employment. That can be seen between 121 and 122 in appeal book page 1696.
I move to the second topic of supervision. Again, it is important to see the way in which the case was conducted at trial. The case was conducted at trial really on two points. First, because the abuse happened, there must have been a failure. Her Honour rejected that. The second point was that it was necessary to ensure that no master was alone with a scholar at any time. My friend does not embrace that. Once that is acknowledged, it is difficult to go behind the ruling made by her Honour at 148 of her reasons that there was no evidence of a failure to exercise appropriate supervision ‑ of course, bearing in mind that these events too place over half a century ago.
The third point my friend did not dwell on – and that is what might be described, to use his phrase, as post‑trauma care and counselling – was very much a matter firmly rooted in the mores and approaches of 1962. What was established through the evidence of Mr Bean, the former headmaster, was that it was perfectly common in those times to utilise the chaplain to provide pastoral care, to make offers, and if those offers were accepted, to follow those through with conversations. Professional counsellors and the like were simply not known.
I should add that, with all due respect, it is difficult to see what the clear relevance of this is, given that it is something which occurs after the relevant tort is largely complete – that is, after the wrongdoing and after the disassociation that the plaintiff spoke of in his evidence. So the cause of action was complete. Justice Vanstone dealt with these issues at 160, 162, 164 and 165. In my submission, there is no basis to impeach the concurrent findings.
Can I move then to the question of time limitation. There are three points I wish to make. The first is this. The House v The King principles: it is necessary to identify error in connection with the exercise of discretion proposed in the court – that is to say, in connection with the exercise of discretion under section 48. It is not enough to say, on a different branch of the case, there may have been error with respect to vicarious liability. That does not mean that there was any relevant error in connection with the exercise of discretion for the purposes of House v The King.
Second, and with respect to my friend, nothing that was said impeaches in any respect what her Honour had to say in paragraph 228 which is criticised erroneously by the Chief Justice. What she said is correct. That means there was no basis for intervention. The third and final point concerns the construction of paragraph 23. The point that was being agitated at the trial was one of causation.
That issue was fought and lost in circumstances where there was an absence of all of the requisite evidence. It is not possible to then say, well that issue is now put to rest, the extension of time is granted; now, at the next stage of the case, we can trade that off with a discounting on the damages. That is, in my submission, unprincipled. And my friend says, well, it may be that there is a difficulty for the plaintiff in the proof of loss but, with respect, that does not fairly reflect what the Chief Justice is directing his mind to at paragraph 23.
Bearing in mind, of course, that the critical finding made by her Honour was that from 1962 the plaintiff had sustained post‑traumatic stress disorder and so the alternative approach that commended itself to the defendant, based on the medical material of the general practitioner and the change in the history provided to the doctors and psychiatrists thereafter, was rejected.
Can I then come to the final topic which is vicarious liability, and with great respect to my learned friend, this part of his argument really sought to erect and then to demolish at least two straw men. The first was, as he described it, the mandate fallacy, namely, that the criminal touching of a boy must be authorised by the employer. The second is that the master was not authorised to enter the dormitory after lights out. As my friend put it to this Court it gets worse because it is absurd to say that a master cannot settle or supervise the dormitory if there was a disturbance that required attention.
In response, it is not and never has been the appellant’s case that the criminal touching must be authorised. It is not and never has been the appellant’s case that a master lacked authority to enter the dormitory at night, after lights out, in the event that there was some disturbance or something to address.
What we are saying is that this exceptional form of liability depends upon the demonstration of a connection between authorised conduct and the wrongdoing in question. The simplest illustration is that which emerged in the course of argument earlier today and that concerns the theft from the lockers.
Let it be supposed and I accept that one can criticise these sorts of illustrations but, with respect, it really does neatly exemplify the point that we endeavour to make. Let it be assumed that the schoolmaster engages in a random act of theft, simply walking past a bag, picks up a valuable belonging and makes off with it. On my friend’s case, on our approach that would be an opportunistic act of criminal theft and there would be no occasion for a finding of vicarious liability.
Take a step closer - in connection with a search for contraband a teacher orders the opening up of all the lockers and conducts a search of each and every of the lockers. If, in the course of that search, the teacher finds something valuable and makes off with it that would be a step closer to a finding of vicarious liability. According to my learned friend, he accepts that the activity, the search which gives rise to the taking, was a legitimate activity. It is inherent in the analysis.
Contrast a different scenario. Let it be assumed that the teacher knows that there is some valuable belonging in one of the lockers. Wanting that, intending to steal that, the teacher instructs that there be a search of all of the lockers on the basis that there is to be a search of contraband. In that situation it is my submission that that search ‑ and we do not shy from it – that contrived search does not give rise to anything other than opportunistic criminal activity. It is not something, to borrow from Justice Dixon, that can be said to be arising in the ostensible performance of the master’s work of which it has given occasion. It remains opportunistic. It is disengaged from authorised conduct.
The same is true where the entry into the dormitory at night is undertaken for no particular legitimate purpose but simply as part of some exercise in grooming. The fact that the perpetrator can cloak it in some way does not alter its character and the same is true of taking the next step. Once inside the dormitory, going onto the bed, engaging in intimate contact, that too remains opportunistic, it remains a frolic.
Of course, there this the third and final step and that is the criminal touching and that, as their Honours Justices Gummow and Hayne pointed out, is the degree of intimacy that would be unauthorised and lacking. As their Honours emphasise, it is only by identifying that some of the conduct which is inherent in the wrongdoing, which makes up the wrongdoing, is authorised, that one can see that it remains within the scope of employment, though it may be that the final step is not in fact authorised.
One can see that also in the CML Case, to which my friend took the Court. If I might very briefly go to that, one sees in the words extracted, paragraph 229, pages 590 and 591 of Justices Gummow and Hayne, their Honours refer to the class of acts which form part of the test and then in the citation they refer to:
“The class of acts which [the employee] was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies –
that is to say, this conduct was explicitly authorised:
and in pursuing the purpose he was authorised to speak –
that is, explicitly authorised to speak and therefore, one might say, “spoke, with the voice of the defendant.” Now, it is after those steps in the chain were established – authorised steps – that the final step, namely, that the defendant be held liable for defamatory statements, can be seen in its proper context.
The same could be said about the Deatons assault. He was disconnected from anything which was proved to be authorised by the employer. Likewise, in the case at Bar. There was a debate for a time about the course of employment. It is important to recognise that that has hitherto been regarded not merely as a label but part of the necessary element or definition of the extent of liability. One sees that in the decision of Justices Gummow and Hayne at 202.
Finally, we would, with respect, urge this Court not to go down the path of embracing the “field of activities”. It is simply too uncertain. It leads to too many question marks. There are sufficient question marks in
connection with the tests which have been used to date associated with course of employment and the two steps in Deatons v Flew. If the Court pleases.
FRENCH CJ: Thank you, Mr Livesey. The Court will reserve its decision. The Court adjourns to 2.15 pm on Monday, 25 July, in Brisbane.
AT 3.42 PM THE MATTER WAS ADJOURNED
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