The High Court clarifies the law regarding employers' vicarious liability for an employee's wrongful acts

Summary

In Australia, the law regarding the extent to which employers are vicariously liable for wrongful acts by an employee has, until today, been unclear.

In its judgment delivered this morning in Prince Alfred College Incorporated v ADC [2016] HCA 37, the majority of the High Court1 considered the correct approach to be taken to the question of Prince Alfred College's (PAC) vicarious liability for the criminal acts of its employed housemaster, Bain.

The majority of the High Court held that an employer could be vicariously liable for criminal acts of its employee, and espoused what was referred to as the "relevant approach", which involves considering whether the employer has assigned to the employee any special role, and the position the employee is in as regards the victim. Factors that are relevant include, authority, power, trust, control, and (of particular importance) the ability to achieve intimacy with the victim2.

The Court did not ultimately consider the question of PAC's liability in this case, as it unanimously found that the extension of time sought by ADC to bring the action could not be granted.

The decision is of particular relevance to cases of historical sexual abuse in educational institutions, but also has wider implications for employers' liability.

Background to the case Vicarious liability in effect means that one person is held responsible for another's actions. An employer will generally be vicariously liable for torts committed by employees acting "in the course of employment". In the schools context, it means that, if a teacher is liable, then the school will be liable.

However, there has been uncertainty regarding the extent to which a school may be vicariously liable for sexual assaults perpetrated by its teachers, a critical issue in the context of claims of historical sexual abuse and an issue considered by the Royal Commission into Institutional Responses to Child Sexual Abuse, in its Redress Report in September 2015.

The matter was previously considered by the High Court in 2003, in New South Wales v Lepore & Anor 3 (Lepore). In that case, six of the seven High Court judges concluded that vicarious liability might be established in circumstances where the assault is found to have been committed "in the course of employment". However, various formulations of that test were espoused, and, of the seven judges, three said sexual abuse did not fall within "conduct in the course of employment", one did not...