In Issue

  • Whether a sexual abuse claim dating back to 1962 was statute barred and whether the Prince Alfred College was vicariously liable for the conduct of its housemaster.

The Background

In 1962 the respondent, a 12 year old boarder at Prince Alfred College (PAC), was sexually abused by his housemaster, Dean Bain.

In 1997 the respondent sought legal advice in relation to symptoms of psychological injury. He was advised by solicitors, including in relation to obtaining an extension of time in any proceedings against PAC. He decided not to sue PAC and accepted PAC’s offer of some financial assistance. He brought proceedings against Bain in 1997, which subsequently settled for $15,000.

In 2002, the respondent’s psychological condition deteriorated and he eventually stopped work. In 2008, he issued proceedings against PAC, on the basis of negligence, breach of non delegable duty of care and vicarious liability.

The Decision at Trial

The trial judge dismissed all of the respondent’s claims and indicated she would have refused an extension of time pursuant to the Limitations of Actions Act 1963 (SA) (the Act) on the basis that the effluxion of time was so great that PAC would be prejudiced in its attempts to defend the claims.

The Issues and Decision on Appeal

The respondent appealed and the Full Court of the Supreme Court reversed the trial judge’s decision both on vicarious liability and the extension of time issue. PAC appealed to the High Court.

The Decision of the HCA

The High Court unanimously upheld the appeal by PAC on the limitation point. The extraordinary delay of over 11 years between the apparent resolution (as between the respondent and PAC) and the commencement of proceedings was unjustified and meant that a fair trial on the merits was impossible.

The High Court held that it was inappropriate for the trial judge or the Full Court to have decided liability. It was incongruous to identify real deficiencies in the available liability evidence due to the passage of time and to find that the proposed defendant could not properly defend the claims, and then to proceed to decide liability anyway.

However, the majority also considered that some guidance was necessary in relation to vicarious liability for intentional criminal acts. The correct 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. Factors to consider include authority, power, trust, control and the ability to achieve intimacy with the victim. PAC’s liability in this regard could not be determined due to the dearth of evidence available because of the lengthy delay in prosecuting the claim.


The case is a sharp reminder that the onus of persuasion in relation to an extension of time is on the applicant, including showing that a fair trial may be had notwithstanding the passage of time.

Prince Alfred College Incorporated v ADC [2016] HCA 37



Accident Compensation Act 1985 (VIC)


Corporations Act 2001 (CTH)


Competition and Consumer Act 2010 (CTH)


Civil Liability Act 2002 (NSW)


Civil Liability Act 2003 (QLD)


Civil Liability Act 1936 (SA)


Civil Liability Act 2002 (TA)


Civil Liability Act 2002 (WA)


Civil Law Wrongs Act 2002 (ACT)


Insurance Contracts Act 1984 (CTH)


Limitation of Actions Act 1974 (QLD)


Law Reform (Miscellaneous Provisions) Act 1946 (NSW)


Law Reform Act 1995 (QLD)


Motor Accident Insurance Act 1994 (QLD)


Motor Accident Compensation Act 1999 (NSW)


Occupational Health and Safety Act 2001 (NSW)


Personal Injuries Proceedings Act 2002 (QLD)


Trade Practices Act 1974 (CTH) now the Competition and Consumer Act 2010 (CTH)


Workers’ Compensation Act 1987 (NSW)


Workers’ Compensation Act 1951 (ACT)


Workplace Health and Safety Act (1995) (QLD)


Workers’ Compensation and Rehabilitation Act 2003 (QLD)


Uniform Civil Procedure Rules 1999 (QLD)

Hayley Towers