Historically, Courts have been disinclined, in the absence of a negligent act of an organisation, to make the organisation liable for a deliberate wrongful or criminal act of its employee. The recent decision of the High Court in Prince Alfred College Incorporated v ADC  HCA 37 has provided some guidance on the circumstances in which an organisation may be vicariously liable for such conduct.
An organisation will be vicariously liable for another person’s act where:
- that person was an employee of an organisation, and
- the act was committed in the course of their employment.
The majority of the Court in Prince Alfred College set out what they termed as the “relevant approach” when considering what conduct would be considered to be “in the course of employment“, which was stated to involve:
- consideration of 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.
Prince Alfred College Incorporated v ADC
The Plaintiff’s claim
In 1962, the plaintiff, then aged 12, was a boarder at Prince Alfred College (the College).The plaintiff was sexually abused on a number of occasions by a boarding housemaster employed by the College.
Despite entering into a negotiated settlement with the College in 1997, the plaintiff commenced proceedings against the College in the Supreme Court of South Australia in 2008. The plaintiff alleged that the College was liable for personal injury he had suffered because it had either:
- neglected and breached its duty of care to the plaintiff; or
- breached a non-delegable duty of care to the plaintiff; or
- was vicariously liable for the criminal conduct of its employee, the housemaster.
No extension of the limitation period
In order to be successful in any of the above causes of action, the plaintiff first required an extension of the limitation period in which to commence his action. Ultimately, it was on this issue that the plaintiff failed, as the Court considered it was no longer possible for there to be a fair trial on the merits of the case given what was described by the trial judge as an “extraordinary” delay in commencing proceedings, combined with the loss of some evidence. The plaintiff’s election to enter into a settlement arrangement with the College in 1997 was also relevant.
In this regard, the full Court unanimously held that the plaintiff should not be granted an extension of time under s48(3) of the Limitations of Actions Act 1936 (SA).
Vicarious Liability – “the relevant approach”
Recognising the need for clarification of the law in this area, the High Court took the opportunity to provide guidance on the circumstances in which an organisation may be vicariously liable for the deliberate wrongful act of its employee.
The Court spent some time considering decisions of superior courts in Canada and the United Kingdom where the law of vicarious liability has developed more broadly than it has been in Australia. The tests adopted in these countries have had regard generally to the connection between the wrongful act and the employment, and in the United Kingdom to what is fair and just.
The majority of the Court being, French CJ, Kiefel, Bell, Keane and Nettle JJ, set out what they termed as the “relevant approach” in Australia:
“… in cases of this kind, 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. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”
In the factual circumstances of Prince Alfred College, the relevant approach was said to require careful examination of the role the College actually assigned to the housemaster and the position in which the perpetrator was placed vis-à-vis the plaintiff and other students. In this context, the Court referred to the fact that the primary judge was unable to determine the nature of the housemaster’s role given the passage of time, and the fact that most of the evidence necessary to determine the issue had been lost.
Gageler and Gordon JJ delivered a separate judgment. Having regard to historical decisions in Australia and overseas, they noted that vicarious liability for intentional wrongdoing was particularly fact specific. They accepted that the approach described by the majority would be the approach to be applied in Australia moving forward, but warned that this approach was necessarily general and did not prescribe an absolute rule.
Non-delegable duty of care
The plaintiff also contended that the College had breached its own non-delegable duty of care to the plaintiff. This submission was dismissed by the Court, on the basis that the plaintiff did not “address the matters required to invoke the authority of this Court to reconsider a previous decision.” Therefore, the decision in New South Wales v Lepore (2003) 212 CLR 511 remains law in Australia, and an employer does not owe an absolute duty of care to a person who is sexually abused by their employee.
Implications of the case and moving forward
Limitation periods for sexual abuse cases
The Court’s decision not to extend the limitation period is a reminder that an extension of time in cases of historical sexual abuse is not presumptive, and the Courts will examine very closely the circumstances in which a plaintiff seeks an extension of the limitation period.
In the context of claims involving child sexual abuse however, the case will have relevance in only some Australian jurisdictions moving forward. Following the recommendations of the Royal Commission, New South Wales, Victoria and the Australian Capital Territory have all enacted legislation to remove limitation periods for proceedings involving a claim for damages resulting from child sexual abuse. Queensland is presently seeking submissions on the topic via its Issues Paper, The Civil Litigation recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse: Redress and Civil Litigation Report – understanding the Queensland Context. In Western Australia a private members bill was introduced into the Legislative Assembly on 12 November 2015, but the Bill has not been passed.
Despite the fact that limitation periods in respect of sexual abuse cases are, or will be in the future, no longer applicable, delay by a plaintiff remains relevant to whether a claim might proceed in court.
In Price Alfred College, the trial judge, Justice Vanstone was concerned with the lengthily delay in the commencement of proceedings by the plaintiff against the College. In this regard, despite there being no limitation period for sexual abuse in some jurisdictions, it may be the case that a fair trial cannot be achieved due to delay, and a plaintiff’s claim may nevertheless be dismissed on this basis.
Organisational liability for the deliberate wrongful or criminal acts of employees
Given the Court’s ruling not to grant the plaintiff an extension of the limitation period, the case did not provide the High Court with an opportunity to make a finding or prepare a judgment on the issue of vicarious liability. However, the joint commentary of the majority does provide useful guidance as to how Courts should approach the issue of an organisation’s liability for deliberate wrongful acts of its employees in the future.
We would expect, having regard to what the Court described as the “relevant approach”, that an employee’s contract, the employers policies, and how these operated in practice, would be closely scrutinised by Courts.
Only time will tell how the liability of organisations in this context will ultimately develop in Australia. The Royal Commission has made a number of recommendations for state governments to introduce legislation imposing a non-delegable duty of care on institutions for the deliberate criminal act of a person associated with the institution. These recommendations are presently being considered by state governments.
 Bazley v Curry  2 SCR 354; Jacobi v Griffiths  2 SCR 570
 Various Claimants v Catholic Child Welfare Society  2 AC 1; E v English Province of Our Lady of Charity  QB 722; Mohamud v Wm Morrison Supermarkets  AC 677
 Redress and Civil Litigation Report, September 2015
 Redress and Civil Litigation Report, September 2015