The High Court has allowed an appeal of the Full Court of the Supreme Court of South Australia in relation to vicarious liability of a school for its employee’s intentional criminal conduct. The respondent, ADC, had been sexually assaulted by Bain, an employee of the Prince Alfred College (PAC) in the 1960s. Bain had been a housemaster who had carried out some of the sexual assaults during “lights out” in the students’ dormitories. PAC had dismissed Bain upon being informed of the assaults. In 1997, PAC had agreed to pay for ADC’s medical expenses and son’s school fees (among other things) up to that point. ADC had experienced additional financial and psychological issues since that time, however, PAC were not willing to extend any more assistance. 

ADC brought a claim alleging that PAC was liable because it either breached its non-delegable duty of care that it owed to him, that it was negligent and breached its duty of care; and that PAC was vicariously liable for the wrongful acts of its employee, Bain. ADC was unsuccessful at first instance. An appeal was allowed by the Full Court on appeal.

In an earlier case, the High Court had decided that a “school’s non-delegable duty of care with respect to a pupil did not extend to the intentional criminal conduct of a teacher, in the nature of sexual abuse”. The Court in that decision however, had not formed a majority view as to vicarious liability.

The primary judge did not make a finding on whether PAC was vicariously liable for Bain’s intentional criminal conduct. This was because most of the key witnesses that would have given evidence on the conduct had deceased and notes relating to the incidents had been destroyed over time. The primary judge noted however, that even if it was assumed that the conduct Bain engaged in were part of his assigned role, that is, supervising “lights out”, the sexual abuse was not connected to Bain’s proper role that it could not be seen as being an “unauthorised mode of performing an authorised act, or in pursuit of the employer’s business, nor in any sense within the course of Bain’s employment”. On appeal, the Full Court overturned that decision, with the 3 justices holding that vacarious liability was established based on the connection between Bain and ADC which was provided for by PAC.

In the High Court, the majority (French CJ, Kiefel, Bell, Keane and Nettle JJ) noted that vicarious liability is an unstable principle and there remains a tension between causing undue burden on employers or leaving victims of wrongful conduct without recourse to compensation. The majority did however; discuss the relevant approach to be undertaken in a case like this. It was noted that a wrongful act which constituted a criminal offence did not preclude the operation of vicarious liability. However, the converse was also true, in that merely because employment provided the opportunity for the wrongful act to take place, which by itself is not a sufficient reason for vicarious liability to operate.

The majority stated that in cases of like circumstances, “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”. Authority, trust, power, intimacy and the general relationship are to be taken into account. Thus, the majority directed its attention to whether Bain’s role as housemaster gave rise to the occasion for the wrongful acts and that because he misused his position, the wrongful acts could be situated within the scope of his employment.
Ultimately the majority did not decide the vicarious liability point because it did not have to. The majority agreed with the primary judge’s reasoning that because there was an absence of evidence given the long period of time between the current action and wrongful acts in the 1960s, PAC was at risk of not having a fair hearing. In addition the delay in which ADC chose to bring the current action, after it being seemingly settled in 1997 was also of concern.

Gageler and Gordon JJ also allowed the appeal but did not touch on vicarious liability as they believed that development of common law principles such as vicarious liability should only be done so in contested cases.

This case highlights the problems with vicarious liability and that there is as yet, no settled test as to whether it will arise in cases of an employee’s intentional criminal conduct.