In the matter of Erlich v Leifer & Anor [2013] VSC 499, the Supreme Court of Victoria recently considered the issue of direct and vicarious liability of a school in circumstances where a student was sexually abused by the principal.

BACKGROUND FACTS

The plaintiff alleged that between 2003 and 2006 she was sexually abused by the principal, Malka Leifer (the Principal), of the Adass Israel School Inc (the School). The School was founded in 1953 by an Ultra Orthodox Jewish community for the purposes of delivering religious education.

The plaintiff brought a claim in negligence against the Principal and the School seeking compensatory, aggravated and exemplary damages on the basis that as a consequence of the sexual abuse committed by the Principal the plaintiff sustained severe psychiatric injury. Prior to the commencement of the trial, judgment was entered against the Principal, who was residing outside the jurisdiction.

The School admitted that they had a duty to take reasonable care to prevent foreseeable injury to the plaintiff, but denied that the Principal was the servant or agent of the school and that the school was vicariously liable for the actions of the Principal. The School also denied that they were directly liable for her actions.

FINDINGS

Direct liability

The plaintiff argued that the role, function, conduct and scope of authority of the Principal was such that she was the mind and will of the School and accordingly the School was directly liable for her conduct. In accepting this argument, His Honour considered the structure of the School, noting that the Principal operated without any form of appropriate oversight or governance. His Honour accepted evidence led by the plaintiff, which was largely unchallenged by the School, that the Principal held a position of power such that no one would speak out against her, nor was there a complaints mechanism which allowed students or teachers to raise concerns about her or other teachers' conduct.

His Honour found that in circumstances where the purpose of the school was to preserve the Ultra Orthodox Jewish traditions responsible for the student's vulnerability and naivety, it was necessary for the School to ensure this naivety and vulnerability was not abused. His Honour found that the Principal's control, power and authority within the School was unrestrained and unrestricted, such that her misconduct committed both inside and outside of the School was built on this position. Thus His Honour concluded that the misconduct of the Principal was the misconduct of the School and hence the School was directly liable for damages.

Vicarious liability

In also finding that the School was vicariously liable for the conduct of the Principal, His Honour referred to the High Court's decision in State of New South Wales v Lepore (2003) 212 CLR 511. In Lepore the High Court held that schools were vicariously liable for acts performed in the course of teachers' employment, however sexual abuse was generally too far outside the scope of teacher's duties to hold a school vicariously liable. The High Court found that in determining whether a school is vicariously liable for sexual abuse of a student by a teacher it is necessary to consider the degree of power and intimacy in the teacher-student relationship. In assessing the degree of power and intimacy factors such as the age of the students, vulnerability, the roles of the teachers, the number of adults responsible for the care of students and the nature and circumstances of the sexual misconduct, should be considered.

Applying the Lepore principles to the current circumstances, His Honour found that as the Principal held a preeminent position of power, that the students were particularly vulnerable due to the fact that the School was essentially closed off from the rest of the world and much of the education was devoted to Jewish studies such that they were completely ignorant in matters of sex, and that the Principal's power and control was unrestrained, the School should be held vicariously liable for her conduct.

His Honour concluded that the Principal used her unrestrained power and control within the School to commit the sexual abuse, such that the conduct should be treated as occurring during the course of her employment.

Ultimately, His Honour held that School was both directly and vicariously liable for the conduct of the Principal. Judgment was entered in favour of the plaintiff, awarding $1,024,428 in compensatory damages, $100,000 in exemplary damages against the School and $150,000 in exemplary damages against the Principal.

IMPLICATIONS

Whether a school can be held vicariously liable for sexual abuse perpetrated by a teacher remains a question of fact and degree. Whilst sexual abuse would generally fall too far outside of the realm of a teacher's duty for a school to be held vicariously liable, if the facts are such that there is a sufficient connection between the sexual misconduct and the teacher's duties, it is open to the court to find that the school is vicariously liable for the teacher's conduct.