The High Court’s recent view on vicarious liability of employers for the criminal conduct of employees will be of interest to employers in the education sector, boarding schools and similar institutions.
The case involved a Plaintiff who was sexually abused by a housemaster employed by the Prince Alfred College in South Australia in 1962 when he was a 12 year old school boarder. The Plaintiff brought an action for damages for personal injuries against the PAC for vicarious liability of its employee.
The High Court delivered judgment on 5 October 2016 considering two primary issues:
- whether the PAC should be vicariously liable for the criminal conduct of its employee; and
- whether the limitation period should be extended.
The High Court was unable to determine whether the PAC was vicariously liable in this case. However they seemed to want to take the opportunity to use this case to provide commentary on cases involving the vicarious liability of institutions employing people who are found to have abused those within their care.
The perceived need arose from differing judgments previously expressed by the High Court in the State of New South Wales v Lepore in 2003, and developments in the law internationally, particularly in the United Kingdom and Canada, in responding to claims of this nature.
Unfortunately, the PAC decision does not help either lawyers or employers differentiate between those cases where an employer would or would not be vicariously liable for criminal abuse. So, what does this mean for employers?Employers responsible for the care of children, for example, might want to consider developing systems whereby the “authority, power, trust, control and ability to achieve intimacy with” potential victims is not left with an individual, either through closer supervision or technology.
You can read more about the case here:
Commentary by Jim Tealby.