High Court of Australia declines to extend limitation period in claim concerning vicarious liability of educational and care institution in sexual abuse case

Prince Alfred College Incorporated v ADC [2016] HCA 37 (5 October 2016)

Summary

In the recent decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 (5 October 2016), the High Court of Australia acknowledged the that the law in relation to the vicarious liability of educational and care institutions when an employee commits sexual offences against children, is unclear. However, because the Court ultimately declined to extend the statutory limitation period relevant to the claim by a former boarding student who had resided at Prince Alfred College (PAC) in 1962 and was the victim of sexual abuse, the issue of vicarious liability was not determined.    

Facts

In 1962, the respondent who was then aged 12, was a boarding student at PAC when he was the victim of sexual abuse by the housemaster, Dean Bain.

In 1997, the respondent sought legal advice about potential claims against PAC and Bain. After receiving advice about relevant limitation periods and prospects of success, the respondent asked for and accepted financial assistance from PAC for medical expenses and tuition fees for his child.  The respondent also commenced civil proceedings against Bain reaching a settlement of $15,000 in 1999.

The respondent suffered from alcoholism and various mental health issues. In 2004 and 2005 the respondent contacted the PAC again asking for further financial assistance. PAC did not make any offer to the respondent.

The respondent brought proceedings in the Supreme Court of South Australia in 2008 alleging that the PAC, alternately, breached its non-delegable duty of care, was negligent in its breach of its duty of care or, even if the PAC was not itself at fault, it was vicariously liable for the wrongful acts of its employee, Bain.

The respondent was statute barred by the Limitation of Actions Act 1936 (SA) (Act) and required an extension of time pursuant to section 48(3) of the Act to bring the proceedings. The primary judge dismissed the respondent's case regarding liability, and refused to grant an extension of time.

By special leave, the matter was appealed to the High Court.

Decision

Limitations of actions

The High Court considered the application of Section 48 of the Act, which permits a court to extend the time prescribed for instituting an action.

In its decision, the High Court recognised two 'fundamental principles', established in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (2 October 1996), being:

  1. that the onus is on the applicant for the extension of time; and
  2. the purpose of the discretion is to 'ensure a fair trial on the merits of the case'.

In determining whether to exercise the discretion, the High Court considered the following factors: loss of key witnesses, lack of documentary evidence, extraordinary delay and previous legal action taken by the respondent against Bain and agreements made with PAC.

Due to these factors the High Court held that the limitation period should not have been extended.

Vicarious liability

In relation to whether PAC was vicariously liable for Bain's actions, the High Court acknowledged that:

[c]ommon 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' and particularly whether such acts are in the course of employment.

The Court noted that this was particularly the case 'concerning the sexual abuse of children in educational, residential or care facilities by persons who were placed in special positions with respect to the children'.

And further, given the differing views expressed in New South Wales v Lepore (2003) 212 CLR 511 (6 February 2003), and the further developments in jurisdictions like Canada and the UK,  it is 'understandable that trial courts and intermediate appellate courts in Australia are left in an uncertain position about the approach which should be taken'.

The High Court then reviewed Australian, English and Canadian authorities and stated:

[I]n 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…

In the present case, the appropriate enquiry is whether Bain's role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain's apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the PAC actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children'.

Commentary  

Unfortunately, the High Court's decision in Prince Alfred College Incorporated v ADC does not resolve issues related to the determination of vicarious liability in cases of abuse of children in institutions by the persons caring for them because of the High Court's refusal to grant the respondent an extension of time. However, it is a positive development that the High Court indicated that the abuse of children in institutions by the persons caring for them is a special category of case.  

In the 'Redress and civil litigation report' released on 14 September 2015 the Royal Commission into Institutional Responses in Child Sexual Abuse recommended that state and territory governments should introduce or amend legislation so that there is no limitation period for survivors bringing action in respect of abuse suffered when they were a child.

The first state to enact such laws was Victoria commencing on 1 July 2015. New South Wales followed on 17 March 2016 and Queensland on 11 November 2016. A Bill to this effect is also before the West Australian Parliament.  

On 5 May 2016, federal Attorney-General George Brandis QC issued a Legal Service Direction directing Commonwealth agencies to 'not to plead a defence to a time-barred child abuse claim based on the expiry of an applicable limitation period in relation to that claim' or 'oppose an application for an extension of a limitation period in relation to a time-barred child abuse claim'.

It is unfortunate, particularly given these developments at a state and federal level, that the High Court was limited in their ability to determine the issue of vicarious liability and did not take the opportunity to clarify the position that will be taken in the future. An indication by the High Court of their position in relation to limitation periods could have shored up legislative changes and encouraged reform in other states.

The full text of the decision can be found here

Alice Alexander is a Graduate at Lander & Rogers.