Prince Alfred College Incorporated v ADC [2016] HCA 37
On 5 October 2016, the High Court handed down its decision in Prince Alfred College Incorporated v ADC.
The decision provides some welcome direction on the correct approach to take in determining whether an employer is vicariously liable for the wrongful or criminal acts of an employee, particularly in cases involving the sexual abuse of a child in an educational institution. There has been considerable uncertainty in this area of law since the decision of the High Court in New South Wales v Lepore [2003] HCA 4.
Background
The respondent was a boarder at Prince Alfred College (PAC) in the 1960s. When he was 12 years old, he was sexually abused by a housemaster of PAC, Dean Bain (Bain).
In 2008, the respondent issued proceedings against PAC in the Supreme Court of South Australia seeking damages on three bases, including that PAC was vicariously liable for the sexual assault.
The trial judge dismissed the respondent’s claims, but the respondent’s appeal to the Full Court of the South Australian Supreme Court was successful. That court unanimously found that the PAC was vicariously liable for Bain’s actions.
The High Court’s decision
The threshold ground for appeal was whether the respondent should have been granted an extension of time, under the relevant limitation of actions legislation, to bring the proceeding. The High Court unanimously held that the Full Court had erred in granting an extension and, therefore, the respondent’s claims were statute barred. It further held that, because of the state of the evidence, amongst other matters, it was inappropriate for a determination to be made regarding PAC’s liability.
Despite this, the majority felt compelled to provide some guidance on the question of vicarious liability generally and particularly in cases involving an intentional or criminal act.
The majority reviewed Australian as well as Canadian and English authorities, including the decision of the same court in New South Wales v Lepore. In that case, the majority held that vicarious liability was open to be established in circumstances where a primary school student was sexually abused by his teacher. However, like the members of the Full Court in this case, they failed to agree on a common approach or guiding principle.
Against this backdrop, the majority in Prince Alfred College Incorporated v ADC started with the general proposition that, whilst vicarious liability may attach to a wrongful or even criminal act of an employee, the fact that the employment affords an opportunity for the commission of the act is not enough. The employment must also provide the “occasion” for the act to occur.
In determining whether that is the case, the majority said the “relevant approach” is to consider any special role the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In deciding whether the performance of that role gives the “occasion” for the wrongful act, particular features may be taken into account, including authority, power, trust, control and the ability to achieve intimacy with the victim. The later feature may itself be sufficient, particularly where the employee takes advantage of his or her position with respect to the victim.
In this case, the appropriate enquiry was whether Bain’s role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain’s apparent performance of his role gave the “occasion” for his wrongful acts. The High Court made no ultimate finding on this enquiry.
The minority accepted the majority’s approach, but cautioned that it does not prescribe an absolute rule and its application will need to develop on a case-by-case basis.
Implications
The High Court’s decision in Prince Alfred College Incorporated v ADC provides some long-awaited guidance on the question of vicarious liability in relation to wrongful or criminal acts. Whilst the “relevant approach” is likely to have greatest application in cases involving the sexual abuse of children, it should inform a determination of the issue more generally and set the groundwork for the development of a more refined approach to other categories of cases in the future.
This article was written by David Guthrie, Partner and Ashley Harding, Senior Associate.