The Facts of the Case
The plaintiff (Lepore) sued the State of New South Wales (the first defendant) and the teacher (the second defendant) in the District Court of New South Wales. The plaintiff was sexually assaulted in 1978 when he was seven years old and attending a public primary school. Lepore alleged that the teacher sexually assaulted him. The plaintiff claimed that the assaults were related to supposed misbehaviours and the subsequent corporal punishment. On several occasions, the teacher would send Lepore to a storeroom, order him to remove cloths, spanked and then touched him inappropriately. Occasionally, other boys would also witness and experience such punishment (New South Wales v Lepore [2003] HCA 4; 212 CLR 511).
- The Plaintiff (Lepore) sued against sexual harassment by the State schoolteacher.
- Lepore sued for damages against the state based on vicarious liability.
The Relevant Law Relating to the Case
The case is based on the employment contract and the law of negligence (Sappideen, Vines, Grant, & Watson, 2009). Employers must understand the possibility that a Court may consider the concept of non-delegable duty and vicarious liability, and that a fault on the part of the employer could result in consequences (Luntz, 2001).
The Legal Arguments Raised By the Parties in Case
The plaintiff argued that there was a fault or negligence on the part of the school authority. The plaintiff considered sexual assault as liability of school authority because of the alleged assault by the state schoolteacher.
The Court of Appeal sought to establish whether school authority had breached non-delegable duty of care. This resulted in an argument about the concept of non-delegable duty. It also probed whether the school authority was vicariously liable for sexual assault claims against the teacher. Hence, the Court of Appeal sought to establish the imposition of vicarious liability.
The practice and procedure of the case focused on trial of negligence, matters of liability and damage suffered by the plaintiff.
It is imperative to note that the District Court of New South Wales did not establish facts of the case. Consequently, the Court of Appeal allowed the appeal or retrial in part. The initial ruling led critics to express concerns that the judicial system did not offer protection to children against assaults or showed a “general lack of appreciation of the context and nature of sexual assault in schools” (Thompson, 2012, p. 168).
Vicarious liability
Gleeson CJ argued as follows:
The defendant was not vicariously accountable by simply providing an enabling environment for the employee to be negligent. The case should consider the extent of physical violence, seriousness of the criminal act and nature of the crime. In this case, the Court must establish the extent of personal, independent act of the doer or provisions within the employment contract. Extreme, unwarranted violence towards the victim might indicate purely personal cruelty as noted in the case of Deatons Pty Ltd v Flew.
It is imperative to understand the extent and nature of employee’s responsibilities. For instance, some situations may indicate that teachers have certain responsibilities to ensure safety and protection of pupils. In this case, any form of sexual abuse is considered as satisfactorily related to their roles and thus vicarious liability will rise in for employers (the State of New South Wales).
Conversely, teacher could be vicariously liable if the act was closely linked to responsibilities.
The case could have been different if the behaviour and conduct of the teacher were established as significantly different and peculiar from cases considered as punishment and it could not be accurately determined in any way other than simply as a sexually predatory act. Then, based on such conducts, Lepore (the plaintiff) would not have any claims with regard to the concept of vicarious liability against the employer.
In this case, the teacher acted beyond his responsibilities of protecting the pupil. Hence, sexual abuse was an outrageous act.
There was no evidence to suggest that the teacher’s duties and responsibilities involved such kinds of relationships and acts with their pupils and therefore, it could not be concluded that such acts were within the employment course (Luntz & Hambly, 2002).
The case of New South Wales v Lepore [2003] was heard alongside other two cases, namely Samin v Queensland; Rich v Queensland. In these two cases, the State of Queensland could be held vicariously liable if the plaintiffs could prove that the teacher’s duties and responsibilities were closely linked to his behaviours in the course of his employment. Powers and responsibilities of the teacher must be determined and if he exploited such opportunities to satisfy his sexual urge on pupils.
Overall, vicarious liability for criminal act could arise if there was sufficient connection with certain responsibilities of the employer.
Gummow & Hayne JJ argued as follows:
It is imperative to understand the course of employment and the role of the employee against what he was employed to do. It was also necessary to determine the beneficiary on such acts of the teacher. Nevertheless, the investigation must not divert from basic issues (Kneebone, 1998).
The judge claimed that the concept of vicarious liability could only apply if the teacher’s criminal conduct was meant to promote or perform the duty for the employer or by any chance it seemed to be performed to fulfil such roles or under the employer’s knowledge and authority.
First, employer may be held vicariously liable if the criminal act was done to pursue the intended interests of the employer or expected performance of the requirements of the employment contract. Second, the concept of vicarious liability is applicable when the criminal act is performed strictly in the pursuit of the employer’s interest. In addition, it may also be considered when the alleged offender is doing so within his or her authority, which the employer recognises.
If the employer is considered vicariously liable for the alleged intentional tort of an employee, then compensation for damages against the employer should consider two important elements. First, it is imperative to establish that the alleged criminal act was performed in the pursuit of the employer’s interests or done as defined by the terms of employment in the performance contract. Second, the employee acted in pursuit of the employer’s interests or fulfilled his duties based on the authority as recognised by the employer.
In the case of Lepore, the intentional sexual assault was not an intended by-product of employment performance within the teacher’s roles and responsibilities. The performance of the teacher’s role did not need any form of intimate touch between the pupil and the teacher. It was a predatory act. The teacher exploited the opportunity, abused his authority deliberately, and breached the contract terms of performance. Any teacher that sexually assaults a learner does not portray any slightest impression of acting properly as expected.
The criminal act of the teacher was not performed in the expected pursuit of the employer’s interests or fulfilment of the employment performance contract on behalf of the state that offered education and protection to pupils. The sexual assault did not favour the state role in the provision of education whatsoever. One must recognise that the teacher abused his authority against the pupil and the sexual assault was not committed to execute responsibilities related to his authority.
Overall, the teacher had no authority to assault the plaintiff sexually. Therefore, the act of the teacher was not in any way meant to fulfil any responsibilities within the teacher’s authority.
Callinan J argued that the employer had no vicarious liability because the “intentional criminal conduct was not within the scope of the teacher’s responsibilities” (Pennington, n.d).
Non-delegable duty
The case of Lepore was also considered with regard to non-delegable duties.
Gleeson CJ argued as follow:
A non-delegable duty implies 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” (New South Wales v Lepore [2003] HCA 4; 212 CLR 511).
A non-delegable duty brings about the issue of special duty that an individual who is responsible must exercise care, control or supervision over a given property or person and placed in a position of authority to assume certain responsibilities (Kondis v State Transport Authority). Hence, a person who is considered responsible must ensure due care (Vines, 2004).
A non-delegable duty merely strives to ensure safety of workers and does not keep them free from any harm. It offers a reasonable care. In addition, there are significant variations between duties to ensure reasonable care and an obligation to prevent any form of harm from taking place (Vines, 2003).
Intentional criminal conduct is a completely different issue. A non-delegable duty does not cover intentional, criminal acts. Therefore, it cannot prevent it. In addition, there are possibilities that deliberate and criminal action, which involves assaulting another person, goes beyond failing to take care of an individual. Therefore, intentional acts of criminal lead to an element of legal relevance that goes beyond merely failing to care for a person.
Overall, the suggestion that the school authority is “liable for any form of assault on the pupil by the teacher because of its authority to ensure duty of care is too broad” (Swarbrick, 2014). In this regard, the non-delegable duty demands too much from the school authority and therefore not applicable.
Summary of the Judgement of the Case
The fundamental issues are whether the school had any non-delegable duty or was vicariously liable for sexual assault committed by the teacher as an employee of a public school.
The High Court of Australia judges agreed that, “a school authority did not owe an absolute non-delegable duty of care to a student sexually abused by a teacher” (Pennington, n.d). However, the Court did not determine the case on vicarious liability due to lack of sufficient facts and evidence.
Vines points out that in Australia when assaults take place negligently in school during school hours, the case of Commonwealth v Introvigne had clearly expressed that the institution is responsible based on the non-delegable duty (Vines, 2003). However, the Court was always divided whether to apply “vicarious liability or a non-delegable duty when assaults took place because of intentional acts of a teacher while the employer (school authority) was not at fault” (Vines, 2004). The decision to apply vicarious liability or a non-delegable duty is not clear. In the case of Lepore, the High Court had to review and consider both vicarious liability and a non-delegable duty (Vines, 2009). They concluded that the school was not liable based on non-delegable duty while on vicarious liability, the Court had to determine whether there was a close enough link between the act and the employment (Vines, 2003). Consequently, the issue was remitted to the District Court for determination and therefore no verdict was reached (Vines, 2003).
The Role, Purpose and Scope of the Relevant Court or Tribunal
First, the Courts had to interpret the law of employment contract, negligence and labour relations. Second, the Courts had to review evidence to determine whether concepts of vicarious liability and non-delegable duty were applicable. Third, the Courts had to review the remitted case for further evidence.
Based on the interpretation of the law with reference to the case of New South Wales v Lepore [2003], school authorities and other actors who face charges on vicarious liability and non-delegable may now be assured that intentional criminal acts by teachers are not part of their duties or responsibilities (Swarbrick, 2014). It is imperative however to point out that the Courts did not establish sufficient evidence in the ground of vicarious liability. There were insufficient details, which the Court required to make the connection.
Overall, the case of Lepore did not set any standards and it was not clear whether public school authorities would be held vicariously liable for teachers’ intentional criminal conducts and negligence (Vines, 2000). Each case will have to rely on its unique evidence.
References
Kneebone, S. (1998). Tort Liability for Public Authorities. North Ryde, N.S.W: Law Book Company.
Luntz, H. (2001). Torts Turnaround Downunder. Oxford University Commonwealth Law Journal, 95, 5.
Luntz, H., & Hambly, D. (2002). Torts: Cases and Commentary (5 th ed.). Chatswood, N.S.W: LexisNexis Butterworths. New South Wales v Lepore HCA 4; 212 CLR 511.
Pennington, S. (n.d). Non-delegable duty not an absolute for criminal acts: New South Wales v Lepore; Samin v Queensland. Web.
Sappideen, C., Vines, P., Grant, H., & Watson, P. (2009). Torts: Commentary and Materials (10th ed.). Sydney: Thomson Reuters.
Swarbrick, D. (2014). New South Wales -v- Lepore. Web.
Thompson, K. (2012). Vicarious Liability, Non-delegable Duty and Child Sexual Abuse: Is There Another Solution for Sexual Abuse Plaintiffs in Australia After the MAGA Decision in the UK? The Western Australian Jurist, 3, 167-212.
Vines, P. (2000). The Needle in the Haystack: Principle in the Duty of Care in Negligence. University of New South Wales Law Journal, 23(2), 35-57.
Vines, P. (2003). New South Wales v Lepore; Samin v Queensland; Rich v Queensland – Schools’ Responsibility for Teachers’ Sexual Assault: Non-Delegable Duty and Vicarious Liability. Melbourne University Law Review, 27, 612-627.
Vines, P. (2004). Agent Responsibility and Vicarious Liability: commentary on Peter Cane- Responsibility in Law and Morality. Australian Journal of Legal Philosophy, 29, 179-184.
Vines, P. (2009). Law and Justice in Australia: foundations of the legal system (2nd ed.). Melbourne: Oxford University Press.