The latest from the High Court: December 2016

TORT

Limitation of actions – vicarious liability

In Prince Alfred College Incorporated v ADC [2016] HCA 37 (5 October 2016) the respondent had been abused by a housemaster at Prince Alfred College (PAC) in 1962. The respondent brought proceedings in tort, for breach of non-delegable duty of care; negligence and breach of duty of care; and vicarious liability. The respondent also required an extension of time. The trial judge held that an extension should not be granted, but also decided questions of liability.

The Court of Appeal granted the extension of time and found that the PAC was vicariously liable. The High Court held that the extension of time should not have been granted as a trial would not be fair to PAC. Significant witnesses had died and evidence had been destroyed. The Court also took into account that the respondent reneged on a deal made earlier between PAC and the respondent to lay the dispute to rest. Although the Court said that the trial judge should not have considered liability, it did comment on some claims to clarify the state of the law. In relation to non-delegable duty, the Court reaffirmed its decision in New South Wales v Lepore (2003) 212 CLR 511.

The Court also held that it is possible for vicarious liability to arise in relation to a wrongful act that is a criminal offence. But it is not sufficient only for employment to provide an opportunity for commission of a wrongful act. Any special role the employer has assigned to the employee, and the position of the employee and the victim are relevant. Particular features of authority, power, trust, control and an ability to achieve intimacy should be considered. In this case, it was not possible to reach a conclusion about those matters because of the lack of evidence before the Court. French CJ, Kiefel, Bell, Keane and Nettle JJ jointly; Gageler and Gordon JJ concurring separately. Appeal from the Full Court of the Supreme Court (SA) allowed.