The High Court has allowed an appeal against a decision of the Full Court of the South Australian Supreme Court on vicarious liability of a school for an employee’s child sexual abuse offences. While a student at Prince Alfred College, the appellant was sexually assaulted multiple times by a boarding house master, Bain, who was dismissed once the school learned of the abuse, and who had previously been convicted of gross indecency and suspected of abusing students at a previous school. The appellant contended that the school was vicariously liable for Bain’s abuse, and that it was negligent in failing to make proper and adequate inquiries into Bain’s suitability for employment. The SASCFC overturned the trial judge’s decision to dismiss the action, holding that the school was vicariously liable for the abuse perpetrated by Bain because of the close connection between the abuse itself and the organisational structures that facilitated or supported Bain’s grooming and sexual assaults. In reaching this conclusion, each of the judges emphasised different factors, including his responsibilities for care of the boarders at night, his position of authority, trust and intimacy with boarders, and a lack of appropriate supervision by the school. A majority of the Full Court held (Gray J dissenting) that the negligence claim was not made out. Finally, the SASCFC held that the respondent was not time-barred from bringing the claim against the school.

The High Court unanimously allowed the school’s appeal in two judgments. The plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ) allowed the appeal on the basis that the SASCFC erred in holding that the respondent should have been granted an extension of time under s 48 of the Limitation of Actions Act 1936 (SA) (at [8]). The extension of time is not a presumptive entitlement but requires an applicant to show good reasons why the court ought to exercise the discretion in the applicant’s favour, and must ensure a fair trial on the merits of the case (see [99]–[100]). Here, a lengthy delay of 11 years after the apparent resolution between the parties that the respondent would not proceed against the school, combined with the loss of some evidence, meant the exercise of the discretion was not justified in the circumstances and prevented the possibility of a fair trial (see at [102]–[108]).

In agreeing with the primary judge on the question of extension of time, the plurality noted that it would be inappropriate to rule on the question of liability (contra the primary judge, who erred in doing so): at [9]. Nonetheless, because the principles relating to an employer’s vicarious liability for an employee’s criminal act are relevant to the question of the extension of time — specifically the possibility of a fair trial on the merits — and because of the differing views of the earlier judgment under challenge, New South Wales v Lepore [2003] HCA 4, it was appropriate for the present Court to examine that issue (at [10]).

After reviewing the early English and Australian authorities (at [48]ff) and recent Canadian and United Kingdom case law on vicarious liability (at [58]–[62] and [63]–[73] respectively), and the judgments in Lepore (at [74]–[79]), the plurality outlined the ‘relevant approach’. Their Honours stated (at [80]–[81]):

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. As Lloyd v Grace, Smith & Co shows, it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. 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. As Deatons Pty Ltd v Flew demonstrates, depending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment. Even so, as Gleeson CJ identified in New South Wales v Lepore and the Canadian cases show, the role given to the employee and the nature of the employee’s responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.

Consequently, in cases of this kind, 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.

As applied here, the appropriate enquiry was whether Bain’s role placed him in a position of power and intimacy vis-à-vis the respondent, such that the apparent performance of his role gave him the occasion for the wrongful acts, and that because he misused or took advantage of his position, those acts could be regarded as having been committed in the course or scope of his employment, requiring a careful examination of his actual role and position (at [84]). While the primary judge understood the importance of the evidence concerning the role the school actually assigned Bain, that evidence did not permit her Honour to determine the question: much of it had been lost, raising the question of whether the school could have a fair trial on the issue of liability (at [85], and see above on the delay and fair trial). It was not clear why the primary judge determined the issue of liability before deciding on the extension of time (at [112]), and given the primary judge identified clear difficulties in making findings of fact relevant to determining liability, her Honour ought to have not attempted to do so (see [114]–[118]).

Gageler and Gordon JJ also allowed the appeal, but focused on the statutory limitation issue, holding that the SASCFC erred in extending the time under s 48(3) because the respondent’s conduct did not match the requirements of the section: after initially deciding not to institute proceedings against the school and resolving the issues between himself and the school, he had merely ‘changed his mind’ 11 years later in bringing the present proceedings (at [124]–[126]). Gageler and Gordon JJ refrained, however, from considering in this case what might be a new ‘relevant approach’. Judgments that develop the common law are ‘best made in the context of, and by reference to, contestable and contested questions’, which, because of the refusal to grant the respondent a time extension, cannot be resolved here (at [127]–[128]). This is particularly important in cases involving vicarious responsibility for intentional criminal wrongdoing, and especially ones involving the sexual abuse of children, because those cases turn on their own particular facts (at [128]). Gageler and Gordon JJ concluded by noting that the new ‘relevant approach’ remains general, does not and cannot prescribe an absolute rule, and will be developed in future cases: ‘The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case’: at [131].