The decision of the NSW Court of Appeal in Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10 (11 Feb 2013) http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=163021 contains a number of interesting features, but the one I think worth comment on (from a legal principle point of view) is the question of whether the State of NSW was liable for harm caused by their teacher, Ms Blackburn, who had sex with her 17 year old intellectually impaired student, Mr Withyman. 

The legal point is this: the claim was made that the State owed a non-delegable duty of care to the student. As discussions over the last year on this list have revealed, this is a well-established category in the law of NDD in Australia, although not recognised so far in the UK. (I think under review in the appeal before the UKSC in Woodland v Essex.) But in Australia we also have the view of the HCA majority in Lepore v NSW (illogical as some of us think it is) that there can be no NDD at common law for what amounts to an "intentional" tort.

Here, however, the complexities of this were resolved by Allsop P at [132] when his Honour simply noted:

"The accepted non-delegable duty of the State is to be determined as if the liability were the vicarious liability of the State for the negligence of Ms Blackburn: the CL Act, s 5Q."

That is certainly one view of the operation of the otherwise impenetrably obscure s 5Q. Having equated the claim in NDD with a claim that the State was vicariously liable, Allsop P then applied the reasoning of the High Court in Lepore to find that the relationship between Ms Blackburn and Mr Withyman was not such as to create the "close connection" (that is, she was not required to be engaged in intimate care, he was an older student, they met in the course of an ordinary teacher/student relationship.) This seems correct.

I cannot leave the decision without commenting, however, that it seems to me quite unclear that the Civil Liability Act 2002 actually applied to the State when its non-delegable duty for the assault was being considered. (Colleagues outside NSW can stop reading now!)

The earlier part of the judgment shows why the trial judge was correct to say that the Act did not apply to the action by Mr W directly against Ms B (because under s 3B(1)(a) her acts fell under the description of "an intentional act that is ... sexual misconduct"- see [52]-[53].) The action against the State, then (insofar as it was based on Ms B's wrongdoing, rather than any failure of supervision by the State) would also have fallen within this paragraph. (Their liability was "in respect of" that very activity in terms of s 3B.) But if that is the case, then s 5Q did not apply! (See s5A(2).)

However, no different result would follow at common law, as due to Lepore the NDD action based on the intentional acts of sexual misconduct would also have failed.

Regards

Neil