High Court finds schools not liable for sexual assaults by teachers


High Court finds schools not liable for sexual assaults by teachers

The High Court has held that certain illegal acts committed by teachers while at work were not the responsibility of the schools.


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The High Court has held that certain illegal acts committed by teachers while at work were not the responsibility of the schools. 
The legal principle of ‘vicariously liability’ was in issue. This principle had been applied very broadly in many cases, over many years, so as to make the employer liable for civil damages in such circumstances. Appeals in three cases on the same essential point were decided by the court.
The crimes involved in each case were sexual assaults by school teachers on pupils in their care. The argument from the students was that the school authorities were liable for civil damages because they were 'vicariously liable' for the activities of the teachers.
This argument was rejected – the court considering the long history of cases on this principle and a change in the attitude of courts in recent times. There has been a move away from its strict application in the UK and Canada and the High Court took this opportunity to express the current Australian law in a similar vein.
It should be noted that the principle of vicarious liability has not been abandoned. It has, however, been placed under more scrutiny – to assess whether it is appropriate to extend the wrongdoing of an employee so as to require the employer to pay for the consequences of that wrongdoing.
Chief Justice Gleeson still considered that some illegal acts of employees could result in the employer being liable for damages. Justices Hayne and Gummow came to the same conclusion as the Chief Justice, as did Justices Gaudron, Kirby and Callinan. 
The reasoning in each instance differed to varying degrees – noting that Justice Kirby was more strident in his view that illegal activities of employees were outside the scope of employer’s responsibility. Justice McHugh favoured the traditional line and found the school authorities liable.
Chief Justice
The Chief Justice modified the position that illegal activity by an employee does not involve the employer in liability by stating that it has long been accepted that some forms of intentional criminal wrongdoing may be within the scope of legitimate employment. 
Larceny, fraud and physical violence, even where they were plainly in breach of the express or implied terms of employment, and inimical to the purpose of that employment, may amount to ‘conduct in the course of employment’.
Justices Gummow and Hayne
Justices Gummow and Hayne noted that the deliberate sexual assault on a pupil was not some unintended by-product of performance of the teacher's task, no matter whether that task requires some intimate contact with the child or not. It was a predatory abuse of the teacher's authority in deliberate breach of a core element of the contract of employment.
Their Honours went on to draw a contrast:
‘Unlike the dishonest clerk in Lloyd, or the dishonest employee in Morris, the teacher has no actual or apparent authority to do any of the things that constitute the wrong. In Lloyd, the clerk had, and was held out as having, authority to act in conveying the property which Emily Lloyd had and which he took to his own use; in Morris, the employee had authority to receive the garment that he stole. When a teacher sexually assaults a pupil, the teacher has not the slightest semblance of proper authority to touch the pupil in that way.‘
Justice Kirby
Justice Kirby expressed the view that if a change to the law was in issue, it was not really feasible to apply selectively the more recent authority that has adopted a new approach to vicarious liability. 
There was no reason why the common law of Australia should be less protective of the legal entitlements of child victims of sexual assault on the part of teachers and carers than is the common law of England and Canada. 
In particular, there was no reason why the common law of Australia should protect those who claim against employers for fraud, theft of property and other property crimes by employees but not protect them for the crime of sexual assault by employees. 
Consistent with the developments of the common law elsewhere, and with developments that this Court has itself approved in general terms, the same principles of legal liability for the wrongdoings of employees should apply.
Justice Callinan
Justice Callinan adopted a similar position to the Chief Justice.
Justice Gaudron
Justice Gaudron summarised her view by stating that the only principled basis upon which 'vicarious liability' can be imposed for the deliberate criminal acts of another was that the person against whom liability was asserted (the employer) was stopped from asserting that the person whose acts were in question (the employee) was not acting as his or her servant, agent or representative when the acts occurred.
Although she came to a similar conclusion to the majority she was less inclined to a new view of the law on vicarious liability.
Justice Gaudron noted that vicarious liability was not necessarily limited to the acts of an employee, but might properly extend to those of an independent contractor or other person acting as the servant, agent or representative of the person against whom liability was asserted.
Justice McHugh
Justice McHugh dissented and stated that it has been the law in this country for a very long time that an education authority is legally liable for the wrongs and neglects of those that it employs to carry out its duty to take reasonable care of its pupils. 
The doctrine of non-delegable duty no doubt makes the position of education authorities difficult. But they are not totally helpless to prevent teachers from assaulting or sexually assaulting pupils. Education authorities can introduce vetting mechanisms to find likely offenders, introduce training and safety procedures and practices.
See: New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4 (6 February 2003) – High Court (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
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