The High Court of Australia considered the circumstances in which an employer is vicariously liable for the criminal acts of an employee in Prince Alfred College Incorporated v ADC [2016] HCA 37.

ADC was sexually abused by a housemaster employed by Prince Alfred College, where he was a boarder, in 1962. He brought proceedings against the College in 2008 (46 years later) claiming damages for the psychological injuries he sustained by reason of the abuse.

ADC’s claim was dismissed at first instance. The Supreme Court of South Australia found that he had not established liability on the part of the College and that, in any event, it would not grant an extension of time for ADC to bring the proceeding outside of the time prescribed by the Limitation of Actions Act 1936 (SA).

This decision was overturned by the Court of Appeal, which held that the College was vicariously liable for the actions of its employee, the housemaster and that the extension of time should be granted. The College appealed this decision.

The High Court refused to grant ADC an extension of time within which to bring the proceeding. It considered that the extraordinarily lengthy delay by ADC in bringing the proceeding (when he had clear knowledge of his right to do so) and the resulting prejudice to the College’s ability to mount a defence rendered it unlikely that there could be a fair trial on the merits of the case.

However, the Court also took the opportunity to clarify the approach to be taken when determining whether an employer is vicariously liable for the criminal acts of its employees. After canvassing the case law, the joint judgment of five out of seven High Court Justices concluded that the fact that a wrongful act by an employee is a criminal offence does not preclude the employer from being held vicariously liable in circumstances such as these.

The Majority held that the relevant approach is to consider any special role that the employer has assigned to the employee and whether that role gave rise to the “occasion” for the wrongful act. It stated that “factors such as authority, power, trust, control and the ability to achieve intimacy with the victim” were particularly important.

Where the employer has put an employee in a position which enables them to take advantage of a victim, that may be sufficient for it to be determined that the wrongful act was committed in the course or scope of employment, such that the employer is vicariously liable for the wrongdoing.

The High Court did not determine whether the College was vicariously liable for the actions of the housemaster in this case.