New South Wales v Lepore

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Citation: Hollis v Vabu Pty Ltd (2003) 212 CLR 511

This information can be found in the Textbook: Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 623-32 [15.100] or here

Contents

Background facts

  • The Plaintiff [Lepore] was the victim of sexual harassment by a public school teacher [Tortfeasor].
  • The Plaintiff seeks to recover damages from the Defendant [The State] because of vicarious liability.
  • Tried at the same time with two other cases of sexual assault in Queensland.

Legal issues

Judgment

Vicarious liability

Gleeson CJ:

  • A defendant will not be vicariously liable merely for creating an opportunity for the employer to be negligent.
  • "Where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment. A security guard at business premises who removes a person with unnecessary force may be acting in the course of employment. On the other hand, as Jordan CJ pointed out in Deatons Pty Ltd v Flew, extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of purely personal vindictiveness."[1]
  • An examination of the nature of the employee's responsibilities is also necessary: "there are some circumstances in which teachers, or persons associated with school children, have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers."[2]
  • If the conduct wasn't so far away from the responsibilities, say, excessive chastisement, the Defendant would be vicariously liable.
  • "If, on the other hand, some or all of the conduct of the teacher was found to be so different from anything that could be regarded as punishment that it could not properly be seen as other than merely sexually predatory behaviour, then, in relation to such conduct, the plaintiff would have no case based on vicarious liability."[3]
  • In this case, the act of sexual abuse is simply too far from the responsibilities of the teacher to impose liability (because the teacher didn't serve an intimate and 'protector' role)
    • "There appears to have been nothing about the duties or responsibilities of the teacher that involved him in a relationship with his pupils of such a kind as would justify a conclusion that such activity was in the course of his employment."[4]
  • In the other two cases - "in order to make the State of Queensland vicariously liable for the teacher's sexual assaults, it would be necessary for the plaintiffs to show that his responsibilities to female pupils of the age of the plaintiffs at the time, placed him in a position of such power and intimacy that his conduct towards them could fairly be regarded as so closely connected with his responsibilities as to be in the course of his employment. That would involve making findings both as to his powers and responsibilities, and as to the nature of his conduct. It would not be enough that his position provided him with the opportunity to gratify his sexual desires, and that he took advantage of that opportunity."[5]
  • In conclusion, there will be vicarious liability for criminal conduct if there was a close enough connection with the particular responsibilities of the employer.

Gummow & Hayne JJ:

  • "It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment. Sometimes light may be shed on that central question by looking at a subsidiary question of who stood to benefit from the employee's conduct. But that inquiry must not be permitted to divert attention from the more basic question we have identified."[6]
  • In the case of criminal conduct, vicarious liability will be imposed if the conduct was done with an intention to 'further the interests of' or 'perform the duty for' the employer/business, or if it at least appeared to be done for that purpose or under the employer's authority.
    • "First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having."[7]
    • Alternate quote: "when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer's interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having."[8]
  • In this case, "The deliberate sexual assault on a pupil is not some unintended by-product of performance of the teacher's task, no matter whether that task requires some intimate contact with the child or not. It is a predatory abuse of the teacher's authority in deliberate breach of a core element of the contract of employment. Unlike the dishonest clerk in Lloyd, or the dishonest employee in Morris, the teacher has no actual or apparent authority to do any of the things that constitute the wrong. In Lloyd, the clerk had, and was held out as having, authority to act in conveying the property which Emily Lloyd had and which he took to his own use; in Morris, the employee had authority to receive the garment that he stole. When a teacher sexually assaults a pupil, the teacher has not the slightest semblance of proper authority to touch the pupil in that way."[9]
  • "The wrongful acts of the teacher in these cases were not done in the intended pursuit of the interests of the State in conducting the particular school or the education system more generally. They were not done in intended performance of the contract of employment. Nor were they done in the ostensible pursuit of the interests of the State in conducting the school or the education system. Though the acts were, no doubt, done in abuse of the teacher's authority over the appellants, they were not done in the apparent execution of any authority he had. He had no authority to assault the appellants. What was done was not in the guise of any conduct in which a teacher might be thought to be authorised to engage."[10]

Callinan J:

  • There is no vicarious liability because intentional criminal misconduct is outside the scope of a teacher's duties.

Non-delegable duties

Gleeson CJ:

  • A non-delegable duty means that "the person subject to the duty has a responsibility either to perform the duty, or to see it performed, and cannot discharge that responsibility by entrusting its performance to another."[11]
  • Quoting Kondis v State Transport Authority[12]. "the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."
  • However, even a non-delegable duty is not a duty to "keep workers free from all harm",[13] but merely take/ensure reasonable care.
    • "A responsibility to take reasonable care for the safety of another, or a responsibility to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm."[14]
  • Intentional/criminal conduct is a bit of a different matter. A non-delegable duty does not extend to a duty to prevent intentional or criminal wrongdoing.
    • "Furthermore, although deliberately and criminally inflicting injury on another person involves a failure to take care of that person, it involves more."[15]
    • "Intentional wrongdoing, especially intentional criminality, introduces a factor of legal relevance beyond a mere failure to take care."[16]
  • "The proposition that, because a school authority's duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad, and the responsibility with which it fixes school authorities is too demanding."[17]

References

  1. (2003) 212 CLR 511, 544
  2. (2003) 212 CLR 511, 544
  3. (2003) 212 CLR 511, 547
  4. (2003) 212 CLR 511, 547
  5. (2003) 212 CLR 511, 548
  6. (2003) 212 CLR 511, 592
  7. (2003) 212 CLR 511, 591-2
  8. (2003) 212 CLR 511, 594
  9. (2003) 212 CLR 511, 594
  10. (2003) 212 CLR 511, 594-5
  11. (2003) 212 CLR 511, 528
  12. (1984) 154 CLR 672, 687
  13. (2003) 212 CLR 511, 529
  14. (2003) 212 CLR 511, 531
  15. (2003) 212 CLR 511, 531-2
  16. (2003) 212 CLR 511, 532
  17. (2003) 212 CLR 511, 533
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