an ncylc e-bulletin

Issue #1: June 2003

CASENOTE ON LEPORE

Introduction
Facts of the case
Decision of the High Court
Conclusions

Introduction

The judgment of the Full Bench of the High Court of Australia in New South Wales v Lepore; Samin v Queensland; Rich v Queensland[1] is concerned with the physical and sexual assault of students by teachers in the course of their employment. The case discusses the liability of State education departments for acts performed by teachers during school hours, on school property and in the fulfilment of their duties. The Court examines this question in the context of two foundations for the legal liability of the State. Firstly, a non-delegable[2] duty of care (direct) for the safety of children in the care of the school provided by the State, and secondly, a vicarious liability[3] for the torts committed by the teacher. The court concludes that while there is a general duty owed by State education departments to take reasonable care for the safety of students, sexual abuse falls outside the scope or course of employment (one of the elements for a finding of vicarious liability). The court characterised such actions as misconduct in breach of contractual duties and argued that intentional and criminal acts by teachers precluded the imposition of liability on school authorities. Such acts involved a great deal more than a failure to take reasonable care. The decision has serious implications for students hoping to claim damages from school authorities for sexual abuse committed by teachers in the course of their employment.

Notwithstanding that six justices reached agreement on the outcome of the appeals, the construction of arguments varied greatly. Two judgments[4] relied on the principle of vicarious liability and were generally favourable of the approach taken by the House of Lords[5] and the Supreme Court of Canada in recent cases,[6] whilst the joint judgment of Gummow and Hayne JJ rejected the principle as the basis for liability.[7] One judgment relied on estoppel[8] and the remaining judgment argues that vicarious liability cannot apply to intentional wrongdoing.[9]

Facts of the case

The first appeal, New South Wales v Lepore was from a decision of the New South Wales Court of Appeal.[10] The respondent, Angelo Lepore sued the appellant (the State of NSW) and the second respondent (the teacher) in the District Court of New South Wales for damages relating to an assault in 1978 at a State primary school when he was seven years old. The assault took place in the context of Angelo being punished for alleged misbehaviour. The teacher was charged with a number of offences of common assault. He pleaded guilty and received a deferred sentence upon imposition of a good behaviour bond and a fine of $300. He resigned as a teacher and took no part in the proceedings in the District Court or subsequent appeals. At first instance the teacher was found to be liable based on a finding of assault, however the court found that the appellant had not breached its duty and therefore was not liable.

The first respondent appealed against the decision in favour of the appellant on the basis that the trial judge had failed to address the issue of a non-delegable duty of care. A majority of the Court of Appeal accepted in principle that the appellant was liable on the basis of a non-delegable duty and made an order for a new trial to determine the issue of damages.[11]

The other two appeals, Rich v State of Queensland; Samin v State of Queensland were from the Queensland Court of Appeal.[12] Both cases involved the conduct of a teacher at a one-teacher State primary school. The appellants were aged between seven and ten at the time of the sexual assaults, which occurred at school, during school hours in a classroom or adjoining rooms. The teacher was sentenced to a long term of imprisonment. Each appellant brought a claim in the District Court against the State of Queensland (first respondent), the Minister for Education (second respondent) and the former teacher (third respondent) on the sole basis of non-delegable duty. The issue of vicarious liability was not raised. Applications were made by the first and second respondents to strike out each Statement of Claim. They were unsuccessful in the District Court, however appeals to the Court of Appeal were successful. Leave was granted by the Court of Appeal for a further Statement of Claim to be filed. The Court of Appeal declined to follow the decision of the New South Wales Court of Appeal in Lepore and dismissed the appeals.

Decision of the High Court

State of New South Wales v Lepore

In a 6-1 decision the High Court held that the appeal be allowed in part and ordered a new trial in the District Court.[13] The court could see no impediment to the plaintiff being able to amend his pleadings to include a claim based on vicarious liability, even though the case at first instance was argued on a strict liability basis in terms of a breach of non-delegable duty.

Samin v Queensland; Rich v Queensland

In a 6-1 decision the High Court dismissed the appeals. The court held that the Queensland Court of Appeal was correct to reject the appellants’ claims, which were based solely on a non-delegable duty. The appellants were granted unqualified leave by the Court of Appeal to re-plead the claims on the basis of vicarious liability.

Gleeson CJ

His Honour, the Chief Justice undertakes both a comprehensive review of the case law on non-delegable duty in Australia and other jurisdictions from the 1881 House of Lords decision in Dalton v Angus[14] to the 1994 High Court of Australia’s decision in Burnie Port Authority v General Jones Pty Ltd[15] and analyses the Court’s decision in The Commonwealth v Introvigne[16] Gleeson CJ reaches the conclusion that the decision by the New South Wales Court of Appeal cannot be sustained, either in principle or in authority.[17]  In other words, the argument that the non-delegable duty to take reasonable care may be a source of liability for any harm, either accidental or intentional, inflicted upon a pupil by a teacher cannot be supported. Such a proposition is “too broad” and the responsibility placed on the education authorities “too demanding”.[18]

Why couldn’t such a legal consequence be sustained? The answer, according to Gleeson CJ, lies in the fact that the wrongdoing in the present appeals was not negligent but rather intentional. The basis for the Commonwealth’s liability in Introvigne was a negligent omission and similarly, the hospital cases (which Mason J, in Introvigne, had referred to as analogous) also involved negligence.[19]

Gleeson CJ is cautious about the correctness of the position adopted by the NSW Court of Appeal because it would result in the extension of the liability of Australian education authorities beyond that applicable in other common law jurisdictions. His Honour argues that the other difficulty with characterising the duty of care in a employer/employee relationship as being non-delegable is that it extends “the potential responsibility of an employer for the intentional and criminal acts of an employee beyond that which is accepted as flowing from the principles governing vicarious liability.”[20]

Gleeson CJ identifies the central question to be addressed as whether the education authority is vicariously liable for the wrongs committed by its employee.[21] The question is based on the assumption that there has been no fault on the part of the authority. Such an approach was adopted by the House of Lords and the Supreme Court of Canada and represents what Gleeson CJ refers to as “the orthodox method of analysing the problem”.[22]  The difficulty arises in relation to determining whether unauthorised acts by employees should make the employer liable. The applicable test is: “an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.”[23]

The only potential basis for a finding of vicarious liability, according to His Honour, was that “the relevant conduct of the teacher amounted to excessive or inappropriate chastisement”.[24]  This would be the only way to satisfy the requirement of whether or not the act falls within the “scope of employment”.

Gaudron J

Justice Gaudron argues that the question is not whether the duty owed is non-delegable, the Court in Introvigne has established that, but rather what is the nature of a duty of that kind?[25]  Certain relationships have so far been identified, within the law of negligence, as giving rise to the duty: master and servant, hospital and patient, education authority and pupil and, adjoining owners of land. The law of negligence defines the content of the duty as being a duty to take reasonable care to avoid a foreseeable risk of injury to another. The duty on education authorities is to provide a safe school environment or, as Murphy J identified in Introvigne, “[t]o take all reasonable care to provide suitable and safe premises…to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and…to see that the system is carried out.”[26]  The duty is however confined by issues of foreseeability and reasonable care. If this were not the case then it would be a strict liability that would only require proof of injury. This would be the case not because the duty is non-delegable but rather because of its absolute nature.[27]

Gaudron J argues that if an employee does something authorised by the employer or in the course of employment that warrants the imposition of vicarious liability, such an imposition is referable to the general law of principal and agent. If the act is authorised but done in an unauthorised manner, the imposition of vicarious liability can be justified on the basis of ostensible authority.[28]  Gaudron J argues that there is “no advantage and considerable disadvantage in holding a person vicariously liable in circumstances in which he or she is directly liable because of a breach of his or her personal or non-delegable duty.”[29]  The better course of action from both a policy and principle point of view would be for the content of the duty owed to be identified.[30] Furthermore, vicarious liability should only be imposed, in the absence of fault, by reference to legal principle.

Her Honour concludes that the education authority is estopped from arguing that the teacher was not acting as its servant, agent or representative when the teacher chastised the pupil for his misbehaviour.[31]  This is the basis upon which Her Honour finds that a close connection is established between the acts of the teacher and that which he was authorised to do.[32] 

McHugh J

The minority judgment of McHugh J argued that the State education authorities owed a non-delegable duty to ensure that reasonable care was taken for the safety of pupils. Justice McHugh argued that the first consideration must be the “simpler and stricter test of liability”[33] established by the Australian common law.[34]

The education authority owed a duty to take reasonable care for the safety of its pupils and this duty could not be delegated. As is often the case, the performance of the duty is delegated by the authority to the teacher, however this does not absolve the authority of liability, “should the teacher fail to take reasonable care to prevent harm to the pupil, even if the conduct is intentional.”[35]  The rule in Introvigne supports the claim that the educational authority was in breach of its non-delegable duty to take reasonable care for the safety of its pupil. McHugh J rejects both the notion that intentional wrongdoing by the teacher negates the application of non-delegable duty[36] and that vicarious liability is the correct basis upon which to proceed.

Gummow and Hayne JJ

Justices Gummow and Hayne delivered a joint judgment in which they rejected the risk analysis approach adopted by the Supreme Court of Canada in Bazley and Jacobi. Their Honours argued that the correct inquiry must be about whether the wrongdoing can be legally characterised as having been done in the course of employment.[37] It is this essential aspect of the principle of vicarious liability that would be jeopardised if the court were to adopt a risk analysis approach because it would shift the inquiry from “course of employment” to “creation and enhancement of risk”.[38] There is also a word of caution against extending the rules of vicarious liability on the basis of policy rather than principle.[39]

Justices Gummow and Hayne conclude that several factors preclude a finding based on vicarious liability, namely:

  • Absence of fault on the part of the education authority;[40]
  • The teacher had no actual or apparent authority to do any of the things that constituted the wrong;[41]
  • The wrongdoing was not in the course of employment (was however, a deliberate breach of the contract of employment);[42]
  • Intentional wrongdoing cannot form the basis for a finding that the education authority breached a non-delegable duty of care.[43]

Kirby J

On a non-delegable duty, Justice Kirby concludes that it is not applicable as a basis for determining liability in these cases because each teacher was an employee therefore a category exists for determining who is the superior and the scope of that superior’s duty, namely vicarious liability. His Honour argues that the concept of a non-delegable duty was “developed to deal with special circumstances and that such rules should not be applied the when broader basis of vicarious liability applies”.[44]

Justice Kirby proposes that the common law doctrine of vicarious liability should now be reconsidered in light of recent decisions in England and Canada and then proceeds to discuss some of the suggested rationales for the imposition of vicarious liability identified in Bazley (and cited in Hollis[45]), namely:

  • The fair and efficient compensation for wrongful conduct; and
  • The “deterrence of future harm”.[46]

On the first point, the Supreme Court of Canada used an “enterprise risk” analysis to find a solvent defendant upon whom it is just and reasonable to impose the burden of legal liability for damages. In other words, the Court said that in the same way that profit-making enterprises must bear the costs of any risks their operation introduces into the community because they derive financial benefits from it, schools benefit the community through education/development services, so the tax-paying community “profits” from the school’s enterprise and therefore, should bear the costs of risks closely associated with the operation of the enterprise.[47]

On the second point, the argument is that the burden of damage should not be left to the victim, nor should the prevention of any future harm.[48]  The idea being that economic sanctions on employers encourage employers to reduce risk, however His Honour acknowledges that this argument is “less persuasive in these circumstances”.

Justice Kirby agrees with the approach taken by the House of Lords in Lister[49] and the Supreme Court of Canada in Bazley[50] where the criterion required was “a sufficiently close connection”, that is, “[W]here the employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community, the employer may justly be held vicariously liable for the employee’s wrong.”[51]

Nor are intentional wrongs a bar to the imposition of vicarious liability.[52] Justice Kirby argues that the common law already offers protection to those who claim against employers for fraud, theft of property and other property crimes by employees. Why isn’t the common law able to afford protection to those subjected to sexual assault by employees?[53]

Callinan J

Justice Callinan finds that a non-delegable duty does not apply and rejects the application of vicarious liability to intentional wrongdoing by employees.[54]  His Honour argues that serious criminal acts exclude the operation of the principle, however if the chastisement by the teacher unintentionally but negligently exceeded what was reasonable, there may be a basis for the imposition of liability on the education authority.[55] With this in mind Justice Callinan refers to the findings at trial that the teacher’s acts “were deliberate and isolated and totally foreign to a teacher’s duties” and therefore unequivocally amount to deliberate and criminal conduct, for which the authority could not be vicariously liable.[56]

Justice Callinan agrees with the Chief Justice’s analysis of the decision in Introvigne and His Honour’s argument that the education authority is not personally liable, given the absence of fault.[57] However, Justice Callinan takes a different view from the Chief Justice on the issue of vicarious liability by rejecting the “close connexion” test enunciated by the House of Lords in Lister. His Honour rejects outright any suggestion of the kind of  “connexion” between duties and conduct proposed in Lister.[58]

Conclusions

The Court’s decisions suggest that an argument based on non-delegable duty will not be of assistance to plaintiffs in a claim against State education authorities for sexual assault by teachers.  The principle of vicarious liability receives a more favourable reception, notwithstanding that four members of the court reject the principle as being applicable in these present appeals. A claim based on vicarious liability would need to overcome the hurdle posed by the requirement that the wrongful act took place in the “course of employment” and would need to address the risk analysis test adopted by the House of Lords and the Supreme Court of Canada.

Lee Spencer

[1] [2003] HCA 4 (6 February 2003)

[2] Non-delegable duty of care:  a “personal” duty (responsibility) to take reasonable care for the safety of others. The duty is more stringent than the general duty of care because it cannot be delegated.

[3] The legal liability imposed on one person for the wrongful act of another on the basis of the legal relationship between them, e.g. employer/employee: Butterworths Encyclopaedic Australian Legal Dictionary at www.butterworthsonline.com

[4] Gleeson CJ at [39], Kirby J at [316].

[5] Lister v Hesley Hall Ltd [2002] 1 AC 215;

[6] Bazley v Curry [1999] 2 SCR 534 and Jacobi v Griffiths [1999] 2 SCR 570.

[7] Gummow and Hayne JJ at [240]-[242].

[8] A principal is responsible for the acts of her/his servant, agent or representative. The person is prevented (estopped) from denying or asserting, as the case may be, the existence of some fact: Butterworths Encyclopaedic Australian Legal Dictionary at www.butterworthsonline.com

[9] Callinan J at [342], [350].

[10] (2001) 52 NSWLR 420.

[11] (2001) 52 NSWLR 420 per Mason P and Davies AJA (Heydon JA contra) cited in Lepore [2003] HCA 4 at [4].

[12] (2001) Aust Torts Reports ¶ 81-626.

[13] Several justices commented on the unsatisfactory nature of the first trial, both in terms of the fact-finding processes and the severance of issues of liability from issues of damages. Hence the need for a new trial: Gleeson CJ at [4], Gummow and Hayne JJ at [187], Kirby J at [334].

[14] (1881) 6 App Cas 740.

[15] (1994) 179 CLR 520.

[16] The Commonwealth v Introvigne (1982) 150 CLR 258.

[17] [2003] HCA 4 at [38].

[18] [2003] HCA 4 at [34].

[19] [2003] HCA 4 at [31].

[20] [2003] HCA 4 at [32].

[21] [2003] HCA 4 at [39].

[22] Ibid.

[23] [2003] HCA 4 at [42].

[24] [2003] HCA 4 at [79].

[25] [2003] HCA 4 at [99].

[26] [2003] HCA 4 at [102] per Gaudron J citing Murphy J in The Commonwealth v Introvigne (1982) 150 CLR 258.

[27] [2003] HCA 4 at [103].

[28] [2003] HCA 4 at [108].

[29] [2003] HCA 4 at [127].

[30] Ibid.

[31] [2003] HCA 4 at [132].

[32] Ibid.

[33] A reference to the rule established by the High Court’s decision in The Commonwealth v Introvigne (1982) 150 CLR 258.

[34] [2003] HCA 4 at [166].

[35] [2003] HCA 4 at [136].

[36] [2003] HCA 4 at [162].

[37] [2003] HCA 4 at [223].

[38] [2003] HCA 4 at [214].

[39] [2003] HCA 4 at [242].

[40] [2003] HCA 4 at [240].

[41] [2003] HCA 4 at [241].

[42] [2003] HCA 4 at [242].

[43] [2003] HCA 4 at [270].

[44] [2003] HCA 4 at [295].

[45] Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

[46] [2003] HCA 4 at [303].

[47] [2003] HCA 4 at [303].

[48] [2003] HCA 4 at [305].

[49] [2002] 1 AC 215.

[50] [1999] 2 SCR 534.

[51] Bazley v Curry [1999] 2 SCR 534 cited in Lepore [2003] HCA 4 at [316] per Kirby J. As Kirby J notes this passage was cited with approval by the High Court in joint reasons in Hollis (2001) 207 CLR 21.

[52] [2003] HCA 4 at [309].

[53] [2003] HCA 4 at [332].

[54] [2003] HCA 4 at [342], [350].

[55] [2003] HCA 4 at [350].

[56] [2003] HCA 4 at [352].

[57] [2003] HCA 4 at [340].

[58] [2003] HCA 4 at [345].