Appeal against a dismissal of a claim for damages for personal injury. The appellant was enrolled as a boarder in the boarding house of the respondent school in 1962, when aged 12 years. The appellant was sexually assaulted on at least 20 occasions over eight months in 1962 by a boarding house master, Bain, who was later convicted for indecent assault in relation to his abuse of the appellant and other former boarders.
Prior to being employed by the respondent, Bain had been convicted for gross indecency and he was suspected to have engaged in indecent behaviour towards students at another school that had employed him. The appellant contended that the respondent was negligent in failing to make proper and adequate enquiries about Bain’s suitability before employing him as a teacher or appointing him to a position in the boarding house. There was little evidence as to what, if any, enquiries about Bain’s suitability were undertaken by the respondent prior to employing him as a teacher or appointing him to a position in the boarding house, or what could have been discovered had proper enquiries been undertaken.
Bain lived in the boarding house and the evidence established that he was the only housemaster regularly “rostered” to supervise the junior boarders during their bedtime routine, which included nightly showers. He told serial stories to the juniors in their dormitory after “lights out”, and did so while sitting on the appellant’s bed. It was in this context that Bain began to sexually abuse the appellant. Bain groomed the appellant, which allowed for sexual abuse to occur in Bain’s private room.
The evidence of a former headmaster of the respondent established that the school ran on a system of trust, that there was an affinity between boarders and their housemasters and that there were commonly longer-term relationships between housemasters and parents. There was no evidence of direct supervision by the respondent of Bain when he was carrying out his duties.
Upon learning of the abuse, the respondent dismissed Bain. An assembly was held at which the boarders were informed of Bain’s dismissal and instructed not to discuss the matter. Counselling by the chaplain and matron was offered to boys who required it. The respondent apparently did not at that time report the matter to police or preserve relevant records. The appellant tried to repress the abuse in accordance with the respondent’s instruction. The abuse inflicted on the appellant by Bain caused the appellant to develop a post-traumatic stress disorder, which in turn resulted in alcoholism, a breakdown in family and professional relationships, an inability to work and self-harming. Symptoms of a post-traumatic stress disorder were apparent from at least the early 1980s. The initial prognosis for the appellant was positive; he was expected to recover. In the 1990s, in that context, the appellant received financial assistance from the respondent and reached a settlement with Bain. The respondent did not at that time undertake an investigation of what took place in the 1960s or preserve relevant records. A significant body of evidence has been lost since that time. In 2007, the appellant received medical advice that he would likely never recover from his post-traumatic stress disorder.
In 2008, the appellant commenced proceedings against the respondent. In 2015, the trial Judge found the respondent was neither vicariously liable for Bain’s abuse of the appellant, nor directly negligent, and, in any event, her Honour would have declined to extend the time for the appellant to bring proceedings.
Whether the respondent was negligent toward the appellant by failing to make proper and adequate enquiries about Bain’s suitability before employing him as a teacher or appointing him as a boarding house master. Whether the respondent was negligent toward the appellant by failing to properly supervise Bain. Whether the respondent was negligent toward the appellant by failing to provide adequate assistance to or support for the appellant following Bain’s abuse. Whether the respondent is vicariously liable for Bain’s conduct. Whether the time for the appellant to bring proceedings should be extended.
Held per the Court (allowing the appeal):
1. The respondent is vicariously liable for damage suffered by the appellant as a consequence of Bain’s sexual abuse.
2. The time for the appellant to bring proceedings should be extended.
3. Matter remitted for an assessment of damages.
Per Kourakis CJ:
4. Bain’s employment duties as a housemaster included responsibility for the residential care of the boarders, allowing discretion as to the best way to settle the boarders at night. The sexual touching which occurred whilst Bain sat on the appellant’s bed took place in the ostensible discharge of his responsibility for the care of the boarders at night. There was a close connection between Bain’s employment duties and the offending that occurred on the appellant’s bed.
Per Gray J:
5. Bain’s role included supervising and settling the boys at night, providing him with constant access and the opportunity to groom and molest them. The respondent put Bain in a position of authority, trust and intimacy in relation to young boys. The abuse occurred when he was on duty and at times when he was interacting with the boys ostensibly in the course of performing a pastoral care or supervisory function. He was not the subject of appropriate supervision by the school, and the school created and enhanced the risk that Bain could abuse boarders.
Per Peek J:
6. Bain had at least ostensible authority to supervise and discipline the junior boarders, which included supervising showering and bedtime preparations and telling stories. Whether, and to what degree, the master-boarder relationship is “intimate” will be a further cumulative factor to be considered, but not a condition precedent to vicarious liability. Bain was able to develop a close and familiar relationship with the appellant under the cloak or guise of the ordinary legitimate relationships the boarding house positively fostered. The respondent’s enterprise model of trust rather than supervision materially increased the risk of sexual assault that eventuated. The very powerful combination of intimacy, power and subservience rendered the appellant particularly vulnerable to sexual exploitation. Bain’s grooming of the appellant, under cover of his at least ostensible authority, took place within, and was made possible by, a disciplinary power structure that was an inseparable part of the functioning of the business of running the boarding house.
Per Kourakis CJ (Peek J agreeing):
7. The causes of action alleging that the respondent was negligent in employing Bain, in failing to adequately supervise the boarding house and its housemasters, and in its inadequate response to the abuse, are not established.
Per Gray J:
8. It was open to the trial Judge to find that evidence was insufficient to find that the respondent breached its duty to take care of the appellant by failing to make proper and adequate enquiries prior to hiring Bain as a teacher.
9. The respondent breached its duty to take care of the appellant by failing to undertake proper and adequate enquiries before appointing Bain to the position of boarding house master.
10. The respondent breached its duty to take care of the appellant by failing to properly supervise Bain while he was on duty in the boarding house.
11. The respondent breached its duty to take care of the appellant by failing to provide adequate assistance to and support for him immediately following Bain’s abuse.
Per Kourakis CJ and Peek J:
12. Liability for intentional criminal wrongdoing of an employee is appropriately dealt with through vicarious liability, not non-delegable duty.
Per Gray J:
13. The question of the respondent’s liability for Bain’s intentional criminal wrongdoing is better dealt with on the basis of vicarious liability, rather than non-delegable duty.
A, DC v Prince Alfred College Incorporated  SASC 12; Fox v Percy  HCA 22; (2003) 214 CLR 118; New South Wales v Lepore (2003) 212 CLR 511; Bazley v Curry 1999 Can LII 692 (SCC);  2 SCR 534; Ffrench v Sestili  SASC 241; (2007) 98 SASR 28; Finlay v Silcon Industrial Pty Ltd (2003) 229 LSJS 14; Erlich v Leifer & Anor  VSC 499; Morris v C W Martin & Sons Ltd  1 QB 716; Maga v Archbishop of Birmingham  EWCA Civ 256;  1 WLR 1441; Jacobi v Griffiths  2 SCR 570; Lister v Hesley Hall Ltd 1 AC 215; Dubai Aluminium Co Ltd v Salaam  UKHL 48;  2 AC 366; Sweeney v Boylan Nominees Pty Ltd  HCA 19; (2006) 226 CLR 161; Sola Optical Australia Pty Ltd v Mills  HCA 57; (1987) 163 CLR 628; South Australia v Lampard-Trevorrow SASC 56; (2010) 106 SASR 331; Deatons Pty Ltd v Flew  HCA 60; (1949) 79 CLR 370, considered.
David Cormack – Brisbane Barrister & Mediator
NB: High Court appeal upheld dismissing the claim: