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Published: 10 October 2016
Author: Penny Savidis

High Court abuse decision still leaves vicarious liability uncertain

Reform of "vicarious liability" overdue

The High Court of Australia recently handed down a decision about historical child abuse by a housemaster at the Prince Alfred College ( The decision overturned the South Australian Supreme Court’s finding that the College was vicariously liable for the housemaster’s abuse. Although the High Court has further clarified the area of vicarious liability, its comments were only incidental to its decision and still leave uncertainty for abuse survivors.

In short, a 12-year-old boarder was sexually abused by his housemaster, Bain, who was employed by Prince Alfred College. When the case was first heard, the primary judge dismissed his claims. The plaintiff appealed the decision. The Supreme Court of South Australia allowed the appeal and held that an extension of time should have been granted by the primary judge and that the College was vicariously liable for Bain’s conduct. RCT previously reported the decision of the South Australian Supreme Court at:

Prince Alfred College appealed the SA Supreme Court’s decision to the High Court. The High Court allowed the appeal and found that the plaintiff should not have been granted an extension of time. This part of the decision is not particularly relevant to Victorian law because the State government has removed time limits in Victoria for cases of historical child abuse:

Comments on vicarious liability 

Of more interest were the High Court’s comments about vicarious liability. The High Court did not have to decide this issue in light of its findings regarding the extension of time, but noted that the principles regarding an employer’s liability for the intentional criminal actions of its employees were relevant to the issue of whether an extension should be granted.

The High Court referred to the 2003 case of NSW v Lepore ( which was the last time that Court examined the question of vicarious liability in this area. The High Court referred to the different approaches taken by the then High Court judges in Lepore, and to recent developments in the area of vicarious liability overseas since then, including in Canada and the United Kingdom.

The High Court stated that a criminal offence can lead to a finding of vicarious liability in some instances, once the role given to the employee and the nature of his/her responsibilities are considered. According to the High Court majority:

...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 court or scope of employment and as such render the employer vicariously liable.

This approach appears broader than that adopted by some of the previous judgments in Lepore.

Power and intimacy of the role is key

On the facts of the case before it, the High Court stated that the question was whether Bain’s role as housemaster placed him in a position of power and intimacy with respect to the plaintiff, in the sense that his position gave rise to the opportunity to commit the wrongful acts, and whether such acts could be taken to have been committed in the course or scope of his employment. The High Court found that this approach necessitated a “careful examination of the role” the housemaster was assigned by the College, together with the position in which Bain was placed in respect of the plaintiff and other children.

However, the High Court stated that such evidence in the case was not available, mainly due to the passage of time. As a result, the Court stated it could not determine the issue of liability, and, given its decision that an extension of time should have been refused, it did not have to do so.

As noted by the minority judgment (which reached the same conclusion), “resolution of each case will turn on its own particular facts and... existing cases provide guidance...”. Indeed, while the High Court’s decision provides some further guidance regarding the correct approach to vicarious liability to adopt in cases of child abuse, each case will still very much depend on its own facts.

Vicarious liability should be clarified

RCT considers there is still need for reform to clarify the correct approach to vicarious liability. It is disappointing the High Court was unable to provide further clarity in an area that is still a minefield for abuse survivors to navigate. As we have previously argued, in cases of child sexual abuse, the law should not unduly limit the rights of abuse survivors, and the court and/or parliament should adopt a broad, common sense approach.

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