The High Court of Australia in a
recent decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 looked at the vexed issue of vicarious
liability for institutions arising out of sexual abuse.
The majority of the High Court
found that a criminal offence such as sexual abuse by an employee does not
prevent the possibility that the institution will be liable vicariously.
The High Court determined that the
relevant test to be considered is whether in this case the role of the housemaster
placed him in a position of power and intimacy with a boarder, that gave the
housemaster the occasion for the wrongful acts, and that because the housemaster
took advantage of his role as housemaster, the abuse could be regarded as
having been committed in the course or scope of his employment.
Because much of the evidence to determine the
actual role of the housemaster as assigned by the school has been lost, the
school could not have a fair trial on the issue of liability.
The school was also prejudiced
because the claimant conveyed the impression that he was not bringing
proceedings and subsequently changed his mind.
Furthermore the claimant had
brought actions against the direct wrongdoer and had resolved such actions.
Accordingly, it is clear that cases
involving sexual abuse and the liability of an institution for the acts of its
employees will be determined upon a careful consideration of the precise role
of the employee and whether or not such a role gives the occasion for the
wrongful act.
An examination of the role will
include looking at the authority, power, trust, control and the ability
provided by the employer to achieve intimacy with a victim.
