Prince Alfred College Incorporated v ADC - [2016] HCATrans 89

[2016] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A31 of 2015

B e t w e e n -
PRINCE ALFRED COLLEGE INCORPORATED
Applicant
and
ADC
Respondent
Application for special leave to appeal

BELL J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 APRIL 2016, AT 9.50 AM

MR M.C. LIVESEY, QC: If the Court pleases, I appear with MR I.L. MAITLAND, for the applicant. (instructed by Wallmans Lawyers)

MR R.A. CAMERON: May it please the Court, I appear with my learned friend, MR J.B. TEAGUE, for the respondent. (instructed by Astrid Macleod Solicitor)

BELL J: Thank you. Yes, Mr Livesey.

MR LIVESEY: If the Court pleases, 13 years ago, this Court in Lepore’s Case decided six different approaches to the determination of the question whether a school should bear vicarious liability for the sexual abuse inflicted on its students. Although the decision of Chief Justice Gleeson regarding the scope of employment is often cited, there remains no consensus and no ratio.

The need for clarity has become acute. In my submission, the royal commissions in Victoria and South Australia, and particularly the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse and in its Redress and Civil Litigation Report, have highlighted that a clear statement of the relevant legal principles is required. As the redress report points out, leaving aside Justice McHugh’s reliance on non‑delegable duty, three of the Justices in Lepore’s Case found that sexual abuse could be conduct in the course of employment and three found that it could not.

In response, the redress report advocates legislation, including the imposition of a non‑delegable duty, which it proposes be applied prospectively. In consequence, even if that step is taken, there remains a need to resolve the proper approach to the determination of vicarious liability at common law. The approaches that have received the closest attention in the years since Lepore’s Case remain Chief Justice Gleeson’s approach to the close connection with employment and also the approach of Justices Gummow and Hayne. It is arguable, in my submission, that their Honours’ approach pays closer regard to the decision of the High Court in Deatons v Flew.

If I might invite the Court to take up very briefly Lepore’s Case at page 591, at the foot of paragraph 231, their Honours, after having cited Justice Dixon’s decision in Deatons Case, identify two elements which, they explain, are important:

First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer’s interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer’s business or in the apparent execution of authority which the employer holds out the employee as having.

In my submission, on any view close attention is directed to what the employee is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] HCATrans 89
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of South Australia concerning the liability of Prince Alfred College Incorporated (the College) for the sexual abuse of a student, ADC, by a teacher employed by the College. ADC brought proceedings against the College alleging negligence and breach of statutory duty.

The central legal issue before the High Court was whether the College was vicariously liable for the wrongful acts of its employee, Mr. Peter John Smith, who had abused ADC. This required the Court to determine the scope of the employer's vicarious liability, particularly in circumstances where the employee's conduct was intentional and criminal, and whether the relationship between the College and Mr. Smith was such that the College should be held responsible for his actions.

The High Court held that the College was vicariously liable for the abuse. The Court applied the principles established in *Various Claimants v Barclays Bank plc* [2014] UKSC 33, which require an assessment of whether the wrongful act is "so closely connected with acts which the employee is authorised to do" that it may be fairly and properly regarded as done while acting in the ordinary course of employment. The Court found that Mr. Smith's employment as a teacher provided him with the opportunity and the means to abuse ADC, and that the abuse was not merely incidental to his employment but was intrinsically connected to the position of authority and trust he held. The College's failure to adequately supervise and protect students from such abuse, given the nature of its enterprise, also contributed to its liability.

The High Court dismissed the appeal and affirmed the decision of the Full Court of the Supreme Court of South Australia, which had found the College liable.

Orders