Emil Ford Lawyers

Historical sexual abuse claims - What standards apply: those of today or yesteryear?

In 1962, DC was enrolled as a boarder at an Adelaide school. The same year, a man was appointed as a housemaster in the school’s boarding house. He sexually abused DC for up to eight months in 1962. The housemaster was convicted in 2007 of indecent assault of DC and two other students. In late 2008, 46 years after the abuse occurred, DC sued the school for its negligence. The Supreme Court of South Australia gave judgment in early 2015.

The judge said:

… it is impossible not to feel a deep sympathy for [DC] that these events should have befallen him, and that they should have so affected a young, innocent and promising boy. That this abuse should have occurred in a place where [he] and his parents were entitled to expect he would be safe and secure is all but tragic.

Nevertheless, DC did not succeed in his damages claim against the school.

On what basis can a school be liable for sexual abuse?

Schools are vicariously liable for the acts of an employee committed in the course of employment. The current legal position is that sexual abuse of a student is not normally within the course of a teacher’s employment but may be if the school creates or enhances the risk of sexual abuse by the duties assigned to the teacher. In DC’s case, there was uncertainty about whether some of the housemaster’s activities, such as supervising boys while they were showering and being present in their dormitories after “lights out”, were authorised by the school. However, the judge ruled that, even if these activities were authorised, the school did not create or enhance the risk of the abusive behaviour because “the sexual abuse was so far from being connected to [the housemaster’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 [his] employment.”

The other basis on which schools may be liable for sexual abuse is if a school fails to take reasonable precautions to prevent sexual abuse. In DC’s case, the court considered three broad issues when determining whether the school breached its duty of care:

  1. The employment of the housemaster and, in particular, whether the school made appropriate enquiries about him. The court accepted that the scope of the school’s duty of care to DC extended to taking reasonable care in employing persons who were suitable to teach and to care for him.
  2. The supervision of the housemaster. The court also accepted that the duty extended to providing adequate supervision of the work of boarding house masters.
  3. The school’s response when it found out about the abuse. The court said that the school’s duty to DC extended to taking reasonable steps to care for his welfare once the abuse was discovered by it.

These broad issues are not dependent on when the abuse occurred. A court will consider the same issues if the abuse occurred recently. However, the standard required to satisfy a school’s duty of care will be dependent on the standard of care at the time of abuse. For example, the school terminated the housemaster’s employment and offered DC the opportunity to speak to the school chaplain. By today’s standards, these responses appear inadequate. We may think that the school should have reported the housemaster to the police and insisted on counselling for DC. However, the judge said:

I accept that the standards to be applied to this issue are those which prevailed in 1962 and not the standards which prevail 52 years later. While by contemporary standards it appears that more could have been done for [DC], that perhaps counselling should have been insisted upon, and that the police should have been advised (if that is what [DC’s] parents wished) I cannot find that the school’s response to the situation was in breach of its duty of care in terms of the standards then prevailing.

It is important to note that the standard of care varies over time. The standard of care will depend on when the abuse occurred. Any school facing this situation will need evidence of what the standard of care was at the time of the abuse.

Can former students bring claims decades after the abuse occurred?

The High Court of Australia has said that where “there is a delay the whole quality of justice deteriorates.” Over time, documents are lost, memories fade and witnesses pass away. This has led to the practice of fixing time limits for making claims to avoid the risk of an unfair trial.

Limitation periods usually help to avoid potentially unfair trials. However, in cases of sexual abuse, victims are often unwilling or unable to speak about the abuse until years or decades have passed let alone to commence court proceedings. Should victims of abuse be prevented from seeking justice because they could not face what has happened to them? This is a real dilemma for the law.

Courts may extend the limitation period to allow a person to make a claim. This will often involve an assessment of the capacity and the subjective knowledge of the claimant. In DC’s case, the judge considered a number of factors, including:

  • DC’s history of being involved in legal proceedings;
  • DC’s exploration of suing the school more than a decade before he sued; and
  • the actual prejudice to the school in defending the claims because documents had been lost and witnesses had passed away or were unavailable.

The judge said that she would not have granted an extension even if she had found that the school was otherwise liable.

Every claim requiring an extension of the limitation period will be unique. However, as a general rule, the sooner the person takes action after learning of his or her legal rights, the more likely it is that he or she will receive an extension.

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