Vicarious liability for intentional acts: High Court of Australia

Prince Alfred College Incorporated v ADC [2016] HCA 37 is a decision today of the High Court of Australia, addressing a claim by a student boarder alleging abuse by a housemaster. The housemaster had been convicted of indecent assault of ADC and others: {11].

The respondent (known as ADC) alleged that the College was liable in damages to him on three alternative bases: that it breached its non-delegable duty of care that it owed him; that it was negligent and breached its duty of care; and that even if the PAC was not itself at fault, it was vicariously liable for the wrongful acts of its employee: [2].

The Court undertook a review of vicarious liability as following New South Wales v Lepore, trial courts and intermediate appellate courts in Australia have been “left in an uncertain position about the approach which should be taken”: [38]  However the Court was not willing to revisit non-delegable duty principles: [36].

In relation to vicarious liability, French CJ, Kiefel, Bell, Keane and Nettle JJ said that:

  • In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability: [80]
  • Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability: [80]
  • 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: [81]
  • In the present case, the appropriate enquiry is 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 as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the PAC actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children: [84]
  • The evidence did not permit the trial judge to determine that question. Much of the evidence necessary to a determination had been lost. That raised a question as to whether the PAC could have a fair trial on the issue of liability: [85].

Gageler and Gordon JJ in a separate judgment accepted the above relevant approach but said at [131]:

The “relevant approach” described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.

Ultimately the outcome turned on a limitation period point, with the Court holding that an extension of time should not have been granted.