Court rules school “directly liable” for abuse due to the extent of power and control given to the perpetrator

Hadassa Erlich, a victim of sexual abuse at Adass Israel School in Melbourne, was awarded $1,024,000 in compensatory damages for pain and suffering, loss of future and past earnings, and future and past medical expenses. Supreme Court judge Justice Jack Rush also ordered the school to pay $100,000 of exemplary damages and awarded the plaintiff $150,000 of exemplary damages to be paid by the abuser, Malka Leifer.

Adass Israel School Inc, an incorporated association, operates the ultra orthodox Jewish Adass Israel School in Melbourne where the Plaintiff was sexually abused by Malka Leifer, headmistress of the girl’s campus between 2003 and 2006. Although there was some argument about Leifer’s position, it was revealed that during the period of the abuse she was in charge of the girls campus of the school, which for religious reasons is separate from the boys.

The abuse occurred at the school as well as at the home of Mrs Leifer. The abuse involved touching the plaintiff, who was between 15 and 18 years old at the time, on her thighs and back, and rubbing her back, stomach and breasts as well as digital penetration.

Leifer was informed of the allegations and stood down from her position at the school on 5 March 2008. Arrangements were made by members of the Board for Leifer and her family to leave Australia and fly to Israel that night with the flights being paid for by the school’s Board.

In a judgement which was scathing of the school’s role in arranging for Leifer to leave the country, Rush J ruled that Leifer’s conduct was attributable to the school because Leifer operated without any form of appropriate oversight or governance.

Rush J ruled that the way Leifer ran the school meant she exercised control in an unrestrained and unrestricted manner. The Judge found that when Leifer abused the Plaintiff she was acting within her sphere of influence and under the authority, power and control that was bestowed on her. The finding is significant in light of the decision in the matter of Lepore, where the Plaintiff was not successful in establishing that the institution was liable for the intentional criminal acts of an employee. Rush J ruled that the Adass Israel School was directly liable for the sexual abuse committed by Leifer because of the extent of her power and control over the school’s students was such that she was the “mind and will of the School”.

The Plaintiff experienced nightmares, anxiety, sleeplessness and flashbacks and other symptoms of PTSD as a result of the abuse. She also self harmed and experienced suicidal thoughts, has difficulty bonding with her newborn child and was admitted to hospital on three occasions. Rush J remarked that the Plaintiff’s injury was aggravated by the fact that the abuse occurred in circumstances of such a massive breach of trust and awarded $300,000 compensation for pain and suffering.

Rush J refused to discount the Plaintiff’s pain and suffering damages by any other factors, remarking that while the Plaintiff’s family background may have made her more vulnerable to psychiatric injury, the injury itself was a result of the abuse. The Plaintiff was awarded $501,422 for future economic loss and $50,358 for past economic loss.

The Plaintiff was also awarded past medical expenses of $156,007, which were evidenced by treatment she received from Medicare, and awarded $16,641 for future counselling and psychiatric consultations.

The exemplary damages against the school were ordered due to arranging the departure of Leifer overseas without informing police. The Judge concluded that the school’s conduct was “disgraceful” and demonstrated complete disregard for Leifer’s victims of which the Plaintiff was one. It was also revealed that the school was aware of other similar complaints.