ODG: HCA clarifies vicarious liability for intentional torts, limitation periods
Dear Colleagues;
The High Court of Australia has today handed down what will be a landmark decision on the question of vicarious liability for intentional torts, in Prince Alfred College Incorporated
v ADC [2016] HCA 37 (5 October 2016) http://www.austlii.edu.au/au/cases/cth/HCA/2016/37.html . In effect they have redefined the law of Australia following the confusion left by the
Lepore decision.
They have done this despite the case being able to be resolved on another ground, the
limitation period point. The case was a claim by a former pupil of a boarding school, ADC, against Prince Alfred College, in relation to his sexual abuse at the hands of a boarding school master, one Bain. But the abuse happened many years ago, and in
the interim he had accepted a settlement of money from the College for the harm he had suffered. The trial judge declined to extend the limitation period for bringing an action; the Full Court had over-ruled and allowed the claim to be brought; the High Court
here examines the limitation issue and concludes that this was wrong and that the trial judge was correct to decline permission to extend the period (see paras [86]-[110] for discussion.)
Nevertheless, because the precise basis of possible liability was a factor in deciding whether or not to extend time, the majority judgement gives a detailed examination of the
liability issues. (The brief concurring decision by Gageler and Gordon JJ agrees with the approach put forward by the majority, presumably for the sake of future clarity, though it seems that their Honours would probably have preferred the Court simply
decide the matter on the limitation point- see [126], [130].)
There were three possible bases for liability. One was
personal negligence by the College. The majority says this was not established on the evidence- see [35]. There was an argument raised that a basis for liability could have been found in the area of
non-delegable duty. This was of great interest to me, as I think this is arguably a better basis for many of these institutional abuse cases. However, the majority here declines to really discuss the issue at all- to decide this would require
the overturning of the prior decision in NSW v Lepore on the point, which as they say was a clear majority of the judges in that case, and they hold here that there had not been sufficient material made out to persuade them to depart from the previous
decision- see [36]. This is unfortunate, in my view, but does not preclude a later case raising the issues.
The third basis was vicarious liability of the College for the wrongs of the house master. Here the majority bite the bullet, saying that the previous decision in
Lepore arguably revealed “no majority view”- see [3]- and that for the guidance of lower courts it was time for the High Court to revisit the question. They do so in a clear and compelling way. To summarise, they conclude
that from now on the issue to be considered in cases where liability is to be imposed on an employer for an intentional tort committed by an employee is whether the employment "provided the "occasion" for the wrongful act” - see [76], drawing on the comments
of Dixon J in Deatons v Flew.
The core of the new test is discussed at paras [80]-[81]:
[80] In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility
of vicarious liability. As Lloyd v Grace, Smith & Co shows, it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Conversely, the fact that employment affords an opportunity for
the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. As
Deatons Pty Ltd v Flew demonstrates, depending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment. Even so, as Gleeson CJ identified in
New South Wales v Lepore[1]
and the Canadian cases show, the role given to the employee and the nature of the employee's responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act.
By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee
vis-à-vis the victim.
[81] Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned
to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken
into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances,
the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.
This approach, as the Court’s discussion makes clear, is different to the “sufficient connection” approach taken in some UK and Canadian authority. In particular, the majority make it clear that they do not
think that the decision of the UK Supreme Court in Mohamud should be followed. There the petrol station employee’s role did not provide the “occasion” for his battery of the customer see [83].
On application of this test to the facts in the case of ADC, the majority holds that it was not possible for the trial judge to have determined whether there was vicarious liability or not (even had her Honour
been applying the correct test) because the limitation period was not, and should not have been, extended. Determination of vicarious liability could only have been made by findings of fact about "the role that the PAC actually assigned to housemasters and
the position in which Bain was thereby placed vis-à-vis the respondent and the other children” - [84]. Hence in this case, since the limitation period was not extended, the trial judge should not have made findings of liability, and it was not appropriate
for the High Court to do so either.
A few final comments. The Court does not address the other major question in this area, as to whether vicarious liability should be extended to “akin to employment” relationships (a step taken in the
UK in the Catholic Child Welfare Society decision.) But they show no appetite at all for a broad extension of the doctrine of VL, and so it seems very unlikely that they would want to extend
this limb of the test.
It is also good to see a citation of ODG list member Phillip Morgan’s work at para [83] n 84.
Regards
Neil
ASSOCIATE PROFESSOR NEIL FOSTER
Newcastle Law School LLB/LLB(Hons) Program Convenor
