The legal loophole of “vicarious liability” needs closing by the Royal Commission
Institutions should not be able to wipe their hands of legal responsibility for their subordinates’ actions when things go very wrong and children are abused.
But this is what they have been able to do as a result of a number of very conservative interpretations of the legal concept of “vicarious liability” by the courts.
It is hoped that the Royal Commission in Child Sexual Abuse recommends a complete reform of this area of the law, to close a legal loophole through which institutions have been able to escape moral accountability.
What is “vicarious liability”?
One of the many obstacles abuse survivors currently face in taking their cases to court is proving that an institution is legally responsible for the deliberate criminal actions of its subordinates.
Vicarious liability is a form of liability that can make employers legally responsible for the actions, or ‘torts’, of their employees. To hold an employer vicariously liable, there is no need to show that the employer has done anything wrong; the employer is held strictly responsible for its employees actions.
In Australia, the courts have taken a conservative approach towards vicariously liability. Vicarious liability generally only extends to the acts of employees (not volunteers or contractors), and only applies if those actions occurred in the course of their employment.
But many survivors of abuse are not abused by employees in the strict sense, and the abuse is often not so closely connected with the abuser’s daily duties and responsibilities as to be found to be in the course of employment. So vicarious liability for sexual assaults can be very difficult to establish.
In 2003, in a case called NSW v Lepore, the High Court of Australia looked at vicarious liability. The High Court left the position ambiguous as to whether child sexual abuse can be conduct in the course of employment. The plaintiffs in Lepore argued that the State Governments of New South Wales and Queensland were vicariously liable for child sexual abuse committed by a number of primary school teachers in their schools. Those High Court judges who looked at the issue of vicarious liability each applied different tests to decide whether torts could arise within the course of employment, and were split on whether sexual abuse could be seen to be conduct in the course of employment.
A recent South Australian case has revisited the case of Lepore and vicarious liability. The SA Supreme Court was asked to look at whether the Prince Alfred College in Adelaide was vicariously liable for abuse committed by a boarding house master, Dean Bain, towards a 12 year old student who boarded at the College in 1962.
Bain had been convicted in 2007 in relation to sex offences regarding the boarding student and two other pupils of the college. The boarding student argued that the college should be held vicariously liable for Bain’s abuse in the boarding house. He claimed that this should be the case because there was such a close connection between the abuse and what Bain was employed to do in the boarding house, entailing a relationship with the student that was “characterised by trust, dependence and vulnerability.”
The SA Supreme Court found that Bain’s abuse of the student caused him injury, loss and damage and that “it is impossible not to feel a deep sympathy for the plaintiff…That this abuse should have occurred in a place where the plaintiff and his parents were entitled to expect he would be safe and secure is all but tragic”. The court also found that the plaintiff “has suffered profoundly in a range of ways from that abuse”. The Court further found that it was probable that Bain abused many other boys at the College as well.
But disappointingly, the court found that there had been no negligence by the college. The court referred to the decision of Lepore and found that the college was not vicariously liable for the Bain’s abuse because it did not arise in the course of his employment. The court held that:
“...notwithstanding that the relationship between boarding house master and boarding student would likely be a closer one than that of a day student and teacher of like age, the ordinary relationship was not one of intimacy and the sexual abuse was so far from being connected to Bain’s proper role that it could neither be seen as being an unauthorised mode of performing an authorised act, nor in pursuit of the employer's business, nor in any sense within the course of Bain’s employment. I find that the defendant did not, by any means of any proven requirement of Bain, create or enhance the risk of Bain sexually abusing the plaintiff."
Overseas, courts in the United Kingdom and Canada have adopted a more pragmatic and expansive approach towards vicarious liability. They ask whether the relationship between the person committing the wrong and the person who suffers the wrong is close enough to make out vicarious liability. For example, the Canadian and United Kingdom courts have found that bishops can be vicariously liable for child sexual abuse committed by priests and the courts in the United Kingdom have held Christian teaching brothers at a school vicariously liable for abusing children. They also don’t require that the tort necessarily occur in the course of employment.
What should be done
In cases of sexual abuse, the law should not operate harshly to limit the rights of deserving plaintiffs. The courts should adopt a broad and common sense approach to the issue of vicarious liability. Child abuse is often perpetrated by people who abuse their positions and the trust children have in them because of those positions. The reason they are often able to exploit and abuse children is by virtue of the power, respect and public standing their positions of authority afford. A random predator on the street is unlikely to have the same hold over a child as his/her teacher or priest.
Institutions should not be able to avoid legal responsibility for the abusive actions of their employers. This is especially the case where there is a close connection with the offenders’ jobs and where the institution did not take reasonable precautions to prevent the abuse.
The Royal Commission into Institutional Responses to Child Sexual Abuse’s recent Consultation Paper on redress and civil litigation discusses a number of options for improving the area of vicarious liability. Hopefully recommendations will be made to improve the area, which is in desperate need of reform for child abuse survivors.
*Please note special leave to appeal the decision of A DC v Prince Alfred College Incorporated  SASC 12 was granted by the High Court on 15 April 2016.