High Court determines “vicarious liability” in sex abuse case
Prince Alfred College Incorporated v ADC.  HCA 37. 5 October 2016. A20/2016. FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
In 1962 the respondent was sexually abused by Dean Bain. The respondent was then 12 years old and a boarder at the Prince Alfred College (“the PAC”). Bain was employed by the PAC as a housemaster. In December 2008, the respondent brought proceedings against the PAC in the Supreme Court of South Australia.
The Supreme Court of South Australia found that duties not part of the employee’s responsibilities had no relevance to what an employee might get up to away from those duties.
The respondent’s case that the PAC breached its duty of care to him: it failed to make proper enquiries before employing Bain; it failed to supervise Bain; and it did not respond appropriately when it learned of the abuse that the respondent had suffered.
The HC rejected the appeal and awarded costs against PAC.
At this point, I am (like most people) greatly offended by the crime committed by Bain against a 12-year-old boy. However, the purpose of this newsletter is to inform my readers of matters relating to employment. In this case: “vicarious liability” or, as sometimes referenced as “sins of the father being passed to the son”. In other words, is an employer responsible for the (in this case) the criminal acts of its employees.
The HC (in its lengthy and complex decision) referenced Australian and international precedents and writings (including Canada, the UK and Germany). In interpreting this to “simple” English, it is my hope that I have not diminished the erudite deliberations and findings the HC. The HC did find it “understandable that trial courts and intermediate appellate courts in Australia are left in an uncertain position about the approach which should be taken.”
Vicarious liability is imposed despite the employer not itself being at fault. Common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for negligent acts of an employee, let alone for intentional, criminal acts. There have been concerns about imposing an undue burden on employers who are not themselves at fault, and on their business enterprises. On the other hand, the circumstances of some cases have caused judges to exclaim that it would be “shocking” if the defendant employer were not held liable for the act of the employee…
Long ago, Sir John Salmond proposed tests for determining whether an act was in the course of employment. They were whether the act (a) is authorised by the employer; or (b) is an unauthorised mode of doing some other act authorised by the employer. He went on further to explain that an employer would also be liable for unauthorised acts provided that they are “so connected” with authorised acts that they may be regarded as modes, although improper modes, of doing them”.
The HC determined:
“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. [my emphasis].
Put simply, I believe the HC found that if it were not for the fact that the “victim” was not a client of the employer, the employee (perpetrator) would not have had the opportunity to commit the crime.
This is why it is so important to ensure that due diligence is carried out in your hiring, policy and supervisory practices.
Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:
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