Emil Ford Lawyers

Vicarious liability & time limitations on historical sexual abuse - revisited

Subscription ButtonOver the last year or so we have written a couple of times about the case of ADC v Prince Alfred College Incorporated as it was heard in the Supreme Court of South Australia and South Australia’s Court of Appeal. Read our previous article regarding this case.

ADC was a boarder at Prince Alfred College in the early 1960s. He was abused by a boarding house master named Bain. The Supreme Court initially ruled that the College was not liable for the abuse and that ADC was out of time to make his claim. The Court of Appeal reversed both of these decisions giving ADC an extension of time and ruling that the College was vicariously liable for Bain abusing ADC.

The College appealed to the High Court and, in October 2016, the High Court delivered its judgment. It ruled that, under the South Australian Limitation Act 1936, ADC was not entitled to an extension of time and, given that finding, the Court would not decide whether the College was vicariously liable. However, in order to decide whether ADC was entitled to an extension of time, the Court had to consider how an employer could be vicariously liable for sexual abuse and whether there could be a fair trial. In doing so, the Court set out what it considers to be the appropriate test for vicarious liability.

 

"...in order to decide whether ADC was entitled to an extension of time, the Court had to consider how an employer could be vicariously liable." 

Schools are vicariously liable for the acts of an employee committed in the course of employment. This does not mean that schools are liable just because a teacher abuses a student. In cases involving sexual abuse, courts will consider whether the school has assigned the teacher to any special role and the position in which that role places the teacher in relation to the student. The court then must determine whether the apparent performance of the role may be said to have given “occasion” for the abuse. Particular features of the role will be taken into account such as the authority, power, trust, control and the ability to achieve intimacy with the victim. Perhaps the last feature will be especially important.

If a teacher, or other employee, takes advantage of such a role to abuse a student, a court may rule that the abuse occurred in the course of employment.

This test is very general but it needs to take into account the different circumstances in which abuse may occur. However, despite the generality, it is clear that some roles are more likely to attract vicarious liability than others. For example, the role of a boarding house master involves greater degrees of power, trust, control and potential intimacy than a classroom teacher.

Ultimately, the High Court decided there was not enough evidence about Bain’s role in the boarding house to decide whether the College was vicariously liable. This was one of the reasons why the Court decided that ADC was not entitled to an extension of time.

It is important to note that, in New South Wales and some other jurisdictions, the limitation period for sexual abuse claims has been abolished. The result of the case could have been very different if the abuse took place somewhere else in Australia.

If you have queries about vicarious liability or any other issue relating to this matter please contact or .

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