State of New South Wales v Lepore and Another and related appeals

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron J,McHugh J,Gummow,Hayne JJ,Kirby J,Callinan J
• Judgment Date: 06 February 2003
• Neutral Citation: [2003] HCA 4,2003-0206 HCA A
• Court: High Court
• Docket Number: Matter No B20/2002 B20/2002 & B21/2002 S108/2002
• Date: 06 February 2003

[2003] HCA 4

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

Matter No B20/2002

Matter No B21/2002

B20/2002 & B21/2002 S108/2002

State of New South Wales

Appellant

and

Angelo Lepore & Anor

Respondents

Vivian Christina Samin

Appellant

and

State of Queensland & ORS

Respondents

Sheree Anne Rich

Appellant

and

And State of Queensland & ORS

Respondents

Representation:

M G Sexton SC, Solicitor-General for the State of New South Wales with C T Barry QC and N L Sharp for the appellant (instructed by Crown Solicitor for the State of New South Wales)

A S Morrison SC with J Oakley for the first respondent (instructed by Milicevic Solicitors)

No appearance for the second respondent

D O J North SC with R C Morton for the appellants (instructed by Shannon Donaldson Province Lawyers)

Interveners:

B M Selway QC, Solicitor-General for the State of South Australia with J G Masters intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

B M Selway QC, Solicitor-General for the State of South Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

New South Wales v Lepore

Negligence — Liability of school authority — Alleged sexual assault on pupil by teacher — Whether school authority in breach of non-delegable duty of care — Concept of non-delegable duty — Whether school authority vicariously liable — Test for imposition of vicarious liability.

Practice and procedure — Trial — Negligence — Trial of issues of liability and damage severed — Failure to make necessary findings of fact — Retrial.

Words and phrases — ‘non-delegable duty’, ‘vicarious liability’.

Samin v Queensland; Rich v Queensland

Negligence — Liability of school authority — Sexual assault on pupil by teacher — Whether school authority in breach of non-delegable duty of care — Concept of non-delegable duty — Whether school authority vicariously liable — Test for imposition of vicarious liability.

Words and phrases — ‘non-delegable duty’, ‘vicarious liability’.

ORDER

1. Appeal allowed in part.

2. Paragraph 2 of the order of the Court of Appeal of New South Wales made on 23 April 2001 set aside, and in its place, order that the judgment entered in the District Court on 16 April 1999 be wholly set aside and that there be a new trial.

3. Appellant to pay the costs of the appeal to this Court.

4. Costs of the new trial to abide its outcome.

1 Gleeson CJ. If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is ‘No, never’. In Australia, at least until recently, an answer ‘Yes, always’ would also have been surprising. More information would have been required.

2 One potentially important matter is fault on the part of the school authority. The legal responsibilities of such an authority include a duty to take reasonable care for the safety of pupils. There may be cases in which sexual abuse is related to a failure to take such care. A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil. The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal 1. Breach of that duty, and consequent harm, will result in liability for damages for negligence.

3 We are not presently concerned with such a case. Our concern is with the more difficult problem of liability in the absence of such fault. The presence of fault on the part of the school authority, causally related to the harm to the pupil, will result in liability. In what circumstances may there be liability notwithstanding the absence of fault? In other common law jurisdictions, that question would be understood as a question about vicarious liability. The assumed relationship between authority and teacher is that of employer and employee. A further assumption is that there has been no want of care on the part of the authority, either in appointing or supervising the teacher, or in any other relevant aspect of the arrangements made for the care of pupils. The teacher has been guilty of intentional criminal conduct that has caused harm to a pupil. An employer is vicariously responsible for the wrongful act of an employee in some circumstances, and not in others. Either the law imposes vicarious responsibility on the school authority, or it does not. Does that conclude the matter? It has been argued that there is another possible basis upon which the authority may be found liable, even though there has been no want of care on its part, and even though the law refuses to treat it as vicariously responsible for the tort of its employee. If it exists, this must be a form of liability even more strict than vicarious liability. It must be, or at least encompass the possibility of, liability for the intentional wrongdoing of an employee in circumstances where the ordinary principles of vicarious responsibility do not entitle a plaintiff to succeed. This, it is contended, is the

legal consequence of what has been called the non-delegability of a school authority's duty of care. The argument is that the authority's duty to take reasonable care for the safety of pupils, because it is non-delegable, may become a source of liability for any form of harm, accidental or intentional, inflicted upon a pupil by a teacher

4 Three appeals in cases involving sexual abuse of pupils by teachers were heard together by this Court. The first is from a decision of the Court of Appeal of New South Wales 2. Because of defects in the manner in which the case was decided at first instance, it was an unsatisfactory vehicle for the resolution of the issues involved. However, a majority of the Court of Appeal (Mason P and Davies AJA, Heydon JA contra) accepted in principle that the school authority (the New South Wales government) was liable on the basis of non-delegable duty. The extent of the liability was expressed by Mason P (with whom Davies AJA agreed) as follows 3:

‘In my view the State's obligations to school pupils on school premises and during school hours extend to ensuring that they are not injured physically at the hands of an employed teacher (whether acting negligently or intentionally).’

5 That is a proposition with wide implications. Because of the principle upon which it is said to rest, its significance extends beyond schools, and beyond activities involving the care of children. The ambit of duties that are regarded as non-delegable has never been defined, and the extent of potential tort liability involved is uncertain, but it is clearly substantial.

6 The other two appeals are from the Court of Appeal of Queensland, which heard the cases together, and which declined to follow the decision of the New South Wales Court of Appeal 4. There is thus a conflict of authority between intermediate courts of appeal in this country that requires resolution.

The plaintiffs' claims

7 In the first matter, the first respondent sued the appellant (the State of New South Wales) and the second respondent (the teacher) in the District Court of New South Wales. The events complained of occurred in 1978, when the first respondent, then aged seven, was attending a State primary school. He alleged

that he was assaulted by the second respondent. The assaults were said to have occurred in the context of supposed misbehaviour by the first respondent, and the imposition of corporal punishment for such misbehaviour. On a number of occasions, the first respondent, after being accused of misbehaviour, was sent to a storeroom, told to remove his clothing, smacked, and then touched indecently. On some occasions, other boys would be present, also ostensibly being punished

8 The behaviour of the second respondent was reported to the police. He was charged with a number of offences of common assault. He entered pleas of guilty. Sentence was deferred upon his entering into a recognizance to be of good behaviour. He was also fined $300. He resigned as a teacher.

9 The second respondent took no part in the proceedings in the District Court, or in the subsequent appeals. Judge Downs QC, who was about to retire, dealt separately with the issue of the liability of the State and the teacher, and deferred questions as to damages to be heard by another judge. He heard evidence, and then delivered a judgment which found that the second respondent had assaulted the first respondent. Regrettably, the judgment left unresolved the nature and extent of the assaults. The learned judge did not accept all the evidence of the first respondent, but it was not disputed that the second respondent had struck the first respondent on his bare bottom. This was found sufficient to justify a finding of assault, and it resulted in liability on the part of the second respondent.

10 As to the liability of the appellant, Judge Downs found that there was no failure on the part of the State to exercise proper care. He said:

‘It remains now for me to consider if the first defendant breached the duty it owed to the plaintiff. The evidence discloses that the second defendant in or about September 1978 firstly was a qualified teacher aged 23 years; secondly with between one and a half to two years experience as a primary school teacher; thirdly he worked under the direct supervision...