Rich v State of Queensland; Samin v State of Queensland
[2001] QCA 295
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA) - Appeal Determined (HCA)
- Rich v State of Queensland; Samin v State of Queensland[2001] QCA 295
- Add to List
Rich v State of Queensland; Samin v State of Queensland[2001] QCA 295
Rich v State of Queensland; Samin v State of Queensland[2001] QCA 295
SUPREME COURT OF QUEENSLAND
CITATION: | Rich v State of Queensland & Ors; Samin v State of Queensland & Ors [2001] QCA 295 |
PARTIES: | SHEREE ANNE RICH (plaintiff/respondent) v STATE OF QUEENSLAND (first defendant/applicant) THE MINISTER FOR EDUCATION OF QUEENSLAND (second defendant/applicant) WILLIAM THEODORE D’ARCY (third defendant) VIVIAN CHRISTINA SAMIN (plaintiff/respondent) v STATE OF QUEENSLAND (first defendant/applicant) THE MINISTER FOR EDUCATION OF QUEENSLAND (second defendant/applicant) WILLIAM THEODORE D’ARCY (third defendant) |
FILE NO/S: | Appeal No 3699 of 2001 Appeal No 3700 of 2001 DC No 861 of 2001 DC No 864 of 2001 |
DIVISION: | Court of Appeal |
PROCEEDING: | Applications for leave s 118 DCA (civil) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 27 July 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 June 2001 |
JUDGES: | McPherson, Thomas and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made. |
ORDER: | In each of the proceedings no DC861 of 2001 and DC864 of 2001 in the District Court at Brisbane:
|
CATCHWORDS: | EDUCATION – SCHOOLS – NEGLIGENCE OF SCHOOL AUTHORITIES OR TEACHERS – GOVERNMENTS, THEIR INSTRUMENTALITIES OR OTHER RESPONSIBLE AUTHORITIES – where a teacher committed sexual and other assaults against students – whether the State of Queensland or the Minister for Education liable for such acts – where not vicariously liable - whether the non-delegable duty vested in a school authority amounts to an undertaking to ensure that no harm befalls students. TORTS – NEGLIGENCE – ESSENTIALS OF ACTIONS FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – SCHOOLS Crown Proceedings Act 1980 (Qld), s 8 Education Act 1964 (Qld) Antoniak v The Commonwealth (1962) 4 FLR 454, considered Archbishop of Perth v AA (1995) 18 ACSR 333, considered B v Curry (1999) 179 DLR (4th ed) 45, considered Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, considered Carmarthenshire County Council v Lewis [1955] AC 549, considered Commonwealth v Connell (1986) 5 NSWLR 218, considered Commonwealth v Introvigne (1982) 150 CLR 258, considered G T v Griffiths (1999) 174 DLR (4th ed) 71, considered Kondis v State Transport Authority (1984) 154 CLR 672, considered Lepore v New South Wales [2001] NSWCA 112, distinguished Lister v Hesley Hall Ltd [2001] 2 WLR 1311, distinguished Morris v C W Martin & Sons Ltd [1966] 1 QB 716, distinguished Moses v The Diocese of Colorado (1993) P 2d 310 (Colo 1993), considered Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, considered Stevens v Brodribb (1986) 160 CLR 16, considered Wilsons & Clyde Coal Co v English [1938] AC 57, considered |
COUNSEL: | P A Keane QC with P J Flanagan for the applicants D O J North SC with R C Morton for the respondents |
SOLICITORS: | Crown Law for the applicants Shannon Donaldson for the respondents |
- McPHERSON JA: These are two applications for leave to appeal against decisions in the District Court at Brisbane refusing the defendants’ applications to strike out statements of claim in separate proceedings no DC861 of 2001 and no DC864 of 2001 brought by each plaintiff in that Court. The applications were heard together in this Court and the parties consented to our determining the appeals in each case if we considered the matter at issue merited the granting of leave.
- Some 35 to 37 years ago the plaintiffs were girls aged between about 7 and 10 years old who were attending the State School at Yalleroi in Queensland’s mid-west. The school there was, as its name implies, a school maintained by the first defendant, which is the State of Queensland, or by the Minister for Education for Queensland, who is the second defendant, under powers conferred by The State Education Act of 1875, and later The Education Act of 1964 which replaced it. The Act of 1964 incorporated the office of the Minister for Education, which is no doubt why that corporation is sued as second defendant. Section 8 of the Crown Proceedings Act 1980 provides for claims like these to be made and enforced by proceedings against the Crown in right of the State, unless the claim is against a corporation, constituted under an Act but representing the Crown, which is probably why both of those defendants have been sued as a matter of caution.
- The third defendant is William D’Arcy, who is not a party to the applications before us and did not appear at this hearing. He was at all relevant times the only teacher at the Yalleroi State School, which was a “one-teacher” school. He was employed by the State or the incorporated Minister, or possibly both of them, and it is convenient here to refer to them together as the State. The allegation in para 4 of the statement of claim is that D’Arcy assaulted the plaintiffs. The particulars show that the assaults are alleged to have been sexual and in at least one instance amounted to a rape upon the plaintiff. As a result, each of the plaintiffs say they suffered injury and damage for which they claim damages including aggravated damages. There are some differences in detail in the personal complaints of the plaintiff in each action, but in substance the allegations are the same; and, for the purpose of considering the point of law involved, it is convenient to treat either one of them as exemplifying the facts alleged in both pleadings, and to speak simply as if there were only one plaintiff.
- The crux of the plaintiff’s allegations is contained in paras 3 and 4 of the statement of claim. After setting out formal matters relating to the status and functions of the defendant and the plaintiff’s attendance at the school, the statement of claim makes the following two allegations:
“3.In the premises pleaded above, the First Defendant and/or the Second Defendant and/or the Third Defendant each owed to the Plaintiff a duty to ensure that reasonable care was taken of her whilst she was at the school.
- In breach of each of the Defendant’s duties between 20 October 1963 and 1 July 1965 the Third Defendant assaulted the Plaintiff.”
It then proceeds, as an addition to para 4, to give particulars of the assaults alleged; and then to allege that the plaintiff has suffered injury and loss (para 5), and also indignity and humiliation giving rise to a right to aggravated damages (para 6). Finally, damages are claimed against all defendants for “negligence and/or assault”.
- It is necessary to pause at this stage and take stock of what is and what is not being alleged by the plaintiff to sustain her claim. The third defendant D’Arcy will, if the allegations are proved against him and no questions of limitation are successfully raised, be liable in damages as the perpetrator of these wrongs against the plaintiff. In the technical language of the law, the claim against him is for damages for trespass to the person, or, as the pleading expresses it, assault. As against the State, the plaintiff claims damages for negligence or for D’Arcy’s assault on the plaintiff.
- Despite the use of the words negligence and assault, it is clear that no allegation is made that the State is vicariously liable for D’Arcy’s acts in its role as his employer at the times in question. So much was confirmed on appeal by Mr North SC for the plaintiffs. The assaults alleged to have been committed by D’Arcy were deliberate, and they were, under what were originally s 348 (rape) and s 350 (indecent assault), and are now ss 349 and 352 of the Criminal Code, criminal offences. Despite the very recent decision of the House of Lords in Lister v Hesley Hall Ltd [2001] 2 WLR 1311, it remains the law in Australia that an employer is generally not vicariously liable for an assault by an employee that is an independent personal act not connected with or incidental in any way to work the employee is expressly or impliedly authorised to perform. See Deatons Proprietary Limited v Flew (1949) 79 CLR 370, and the authorities referred to by Mahoney JA in Petrou v Hatzigeorgiou (1991) Aust Torts Reports 81-071, at 68, 563. Nothing can be clearer than that the assaults alleged to have been committed here were independent and personal acts of misconduct by D’Arcy. They were in no sense capable of being regarded as methods of conducting his teaching function, but were done in utter defiance and contradiction of it and of his duties as an employee of the State.
- In that respect, the present case may usefully be compared to Antoniak v The Commonwealth (1962) 4 FLR 454, in which Deatons v Flew was applied in holding the defendant employer not vicariously liable for the injuries sustained by one employee, who, out of motives of personal or ethnic hostility, was assaulted and beaten by another employee. In Antoniak v The Commonwealth, the defendant was also found to be not negligent in various specified particulars, including its failure to select reliable staff to work for it; its employment of an emotionally unstable person to work alongside the plaintiff; failing to take steps to protect the plaintiff following an earlier attack on him; and failing to carry out promises to ensure the plaintiff’s safety after earlier threats by that other employee that he would kill him. Allegations of that kind raise claims of personal negligence on the part of the employer which, if established, give rise to an original and not a vicarious liability in the employer. The master is liable, not because a servant has committed a wrong for which the master is responsible in law as the wrongdoer’s superior, but because the master has himself failed to fulfil his duty to take due care for the safety of the person injured. The liability is original and not derivative or vicarious.
- Reasoning from this premise, the House of Lords in Wilsons & Clyde Coal Co v English [1938] AC 57 held that the obligation of an employer to provide a safe system of work was a non-delegable duty, meaning by that it was a duty owed to employees that was not capable of being discharged by appointing others, even if they were apparently competent and reliable, to carry it out. The decision was in part a response to the doctrine of common employment; but, even after the doctrine was abolished by statute in Britain and Australia, the notion of a non-delegable duty owed to employees and others has remained part of the common law. It has been applied or perhaps extended to a variety of other relationships, which include, for example, the owner of a hall made available for public use as in Voli v Inglewood Shire Council (1963) 110 CLR 74, 95-97; hospitals in treating patients; and, what is more to the point here, school authorities conducting schools: Commonwealth v Introvigne (1982) 150 CLR 258. That it was, however, originally not conceived of as imposing a strict or an absolute duty on the employer can be seen from Lord Wright’s observation in Wilsons & Clyde Coal Co v English [1938] AC 57, 81, 84, that it involved “not a warranty but a duty to exercise (by himself and his servants and agents) all reasonable care”; and that the duty, which was personal to the employer, was “to take reasonable care for the safety of his workmen”.
- The proposition that liability of school authorities in such cases is personal and original, and not derivative from the liability of an employee or agent, is illustrated by Carmarthenshire County Council v Lewis [1955] AC 549, where the teacher was acquitted of negligence but the school authority itself was held liable for injuries sustained by a four year old school boy, whose unexplained presence on the adjoining highway caused the death of a truck driver who swerved to avoid him. The boy had escaped from the school grounds through a gate which, as three of their Lordships found, the school authority should have ensured was either locked or made difficult for a child to open. That was the safety system that the school authority should, if it had taken reasonable steps to discharge its duty, have ensured was put in place at the school. It was not a function of the teacher but of the school authority to devise such a system.
- Speaking of that decision in Commonwealth v Introvigne (1982) 150 CLR 258, 269-270, Mason J said that it:
“… recognises that there is liability on the part of the school authority for its failure to take reasonable steps to prevent the escape of the child on to the highway. It proceeds on the footing that the duty is not discharged by merely appointing competent staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated.”
It must, however, be acknowledged that this and other passages in his Honour’s reasons are open to more than one interpretation. On one view (the first sentence), it looks to the conduct of the school authority, and asks whether there was a failure by the school authority itself to take reasonable steps to ensure the safety of the children. On another view (the last sentence), it looks at the result, and asks whether it was due to a failure by someone, usually the teaching staff to take reasonable steps to ensure the safety of the children; on that footing, the school authority is held liable without proof of personal or original fault on its part. The difference is between a liability, in the first case, for its failure to take reasonable steps to ensure safety, and, in the second, a liability imposed if reasonable steps to ensure safety have not been taken, whether by the school authority or someone else.
- Commentators have accepted that it is difficult to identify a single ratio in the judgments that were delivered in Commonwealth v Introvigne or in subsequent observations on later occasions in the High Court. Of the four Justices, Gibbs CJ said (at 260) he was “in general agreement” with the reasons Mason J had given and specifically with the conclusions reached. Murphy J spoke (at 274-275) of a duty “to take all reasonable steps to provide suitable and safe premises”; and “to take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and also “to take reasonable steps to see that the system is carried out”. That corresponds to the non-delegable duty of an employer, as also does the reference by Brennan J (at 280) to “the duty to take reasonable steps to protect the pupils from foreseeable risks of injury”. If there is a common ratio, I consider it is to be found in the first of the two possible interpretations of the passage from Sir Anthony Mason’s reasons that I have referred to, which, however, was not the view recently taken of the nature of the school authority’s liability in Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Reports 81-577, at 64, 131, in the reasons of Wilcox J on behalf of the Full Court. In that case, however, it was found on appeal that there had been on negligence on the part of the teaching staff for an assault by one pupil on another.
- The issue in Commonwealth v Introvigne was complicated by the fact that the school was in the Capital Territory and the Commonwealth had as long ago as 1912, arranged for the State of New South Wales to manage or conduct it. However, the High Court held that the Commonwealth was not relieved of its liability by the arrangement that the State would run the school on its behalf, but remained liable to the children for breach of the duty of care towards them even though they were not its employees. It took no steps to see that the school was properly managed, but simply left its management to the State. No difficulty of that kind arises in the present case. The State here does not dispute that, in the circumstances disclosed in the statement of claim in these proceedings, the State owed a duty of care to the pupils at Yalleroi State School. Mr Kean QC said on appeal that he wished to make it “very clear” that the State did owe such a duty.
- The decision in Commonwealth v Introvigne establishes plainly enough that the school authority’s primary or original duty is non-delegable. It does not follow that it imposes an obligation to ensure that no harm of any kind befalls children at a school through the act or omission of others or from any other cause or source. The duty, although non-delegable, does not entail towards school children, any more than it does to employees in the workplace, a form of absolute duty or liability to keep them safe from all kinds of harm at all times. It is not to be equated with a warranty, promise or an undertaking to indemnify or hold them harmless against injury. It goes no further than a duty by the State requiring it to take reasonable steps to prevent them from being harmed. It does not guarantee the safety of school children against injury from sources or events like mad dogs, venomous snakes, kidnappers, serial killers and rapists, and other dangerous hazards of life, unless it is shown that they ought in the circumstances to have been foreseen and guarded against by the State; or, in other words, that reasonable steps might and should have been taken by the State as the school authority to prevent danger from sources like those.
- The possibility that the third defendant D’Arcy was prone to engage in sexual assaults on young girls like the plaintiffs might in some circumstances conceivably have been discovered and guarded against by the State. If so, the plaintiffs do not so allege it, nor do they say what steps might have been taken to avert it. In letters dated 6 March 2001 from the Crown Solicitor to the plaintiffs’ solicitors, particulars were sought with a view to identifying the breach of duty of care alleged; for example, how the State failed in its non-delegable duty to prevent the third defendant’s criminal acts. No response was received from the plaintiffs’ solicitor. It is apparent that the plaintiffs have no particulars of any kind that they wish to or can supply. None was suggested in the course of the appeal. Without some such particulars, it is not possible to identify any respects in which the State acted in breach of its original or personal non-delegable duty to the plaintiffs or either of them.
- The reason why such particulars have not been furnished is evident from the plaintiffs’ submissions on appeal, which are founded on the second of the two views adopted by Mason J in Commonwealth v Introvigne. Mr North SC submitted that a defendant which, like the State here, owes a non-delegable duty, “is not strictly liable for any act. It is in effect strictly liable for a breach of the duty of care by the person to whom it delegates”. But even this does not altogether accord with the statement in the reasons of Mason J in Commonwealth v Introvigne (1982) 150 CLR 258, 273, that the Commonwealth “is therefore liable for the acts and omissions of its borrowed staff as it would have been for staff directly employed by it as teachers in schools established by it”. On the view I have taken of the ratio of that decision, the source of the State’s liability here, if any, is not the act or acts committed by the third defendant D’Arcy, but the State’s omission to take reasonable steps to foresee and prevent those acts from taking place. But even if it is correctly stated in the particular form suggested by Mr North, I do not consider it assists the plaintiffs in this case. A solicitor giving legal advice is under a duty to the client to take reasonable care in giving that advice. Being contractual, liability for breach of that duty is strict in the sense that it has its source in an express or implied undertaking to act without negligence. The function of preparing that advice cannot be discharged simply by delegating it to someone else, such as an apparently competent and reliable employee of the firm. Liability is nevertheless not absolute in the sense that it attaches simply upon proof that the advice later turns out to be incorrect, but only if, in giving it, the solicitor was negligent. As Callinan J said in Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209, 272, “whether a duty of care has been fulfilled cannot be decided just by looking at the outcome of the efforts of a professional person”.
- Stated at its highest, the liability of the State to children in state schools is, to my mind, somewhat similar. Its source is the State’s personal or original fault in itself failing to take reasonable steps to ensure that the children’s safety is safeguarded. It cannot escape liability by delegating that duty. But before the State can be held to liability for failing to perform its duty, it must be proved and, for that purpose, must be alleged to have acted in breach of its duty in some identifiable and identified respect. It is not enough for the plaintiffs to assert, as they do in para 3 of their statements of claim, that, because the State’s employee and teacher the third defendant D’Arcy assaulted the plaintiffs “at school”, the State acted in breach of its duty to ensure that reasonable care was not taken of them by the State. Without more, such an assertion fails to identify, allege and plead any matter of fact showing that the State omitted some precaution reasonably needed to ensure their safety. Given the plaintiffs’ failure or it may be their refusal to plead any such particular, the statement of claim is, in the language of the old procedure, demurrable and ought to be struck out.
- The plaintiffs, however, relied on appeal on the very recent decision of the Court of Appeal of New South Wales in Lepore v New South Wales [2001] NSWCA 112. The facts there were in many ways similar to these, although the actions of the teacher at the State primary school in that instance were considerably less serious. The teacher had beaten the plaintiff with a ruler on the bare bottom, on some occasions in the presence of other children and in circumstances in which his action apparently had sexual connotations. On appeal, the plaintiff’s principal submission was that the trial judge had failed to consider the issue of the State’s breach of its non-delegable duty to ensure that reasonable care was taken for the safety or well-being of the plaintiff. Mason P and Davies AJA allowed the plaintiff’s appeal. Heydon JA dissented. Application has, we were informed at the hearing of this appeal, been made for special leave to appeal to the High Court in that case.
- The difference of opinion in the Court of Appeal turned in part on the way in which the case was pleaded and presented at trial; but their Honours also considered the nature of the State’s liability for breach of the non-delegable duty to children in State schools. In the course of his reasons, with which Davies AJA agreed, Mason P referred (§29) to remarks by textwriters describing the non-delegable duty of care as “a disguised form of vicarious liability”. The person who owes the non-delegable duty, his Honour said:
“may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person’s duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else’s failure to take care.”
His Honour went on to suggest that a non-delegable duty had some of the hallmarks of contractual duty, in that the defendant on whom the non-delegable duty is imposed is treated as if he had:
“undertaken directly with the plaintiff to ensure that no harm befalls the plaintiff … as the consequence of wrongdoing. Viewed thus, there is no basis for distinguishing between negligently inflicted harm and intentionally inflicted.”
Like Heyden JA, I find it, with respect, difficult to identify either in authority or reason any proper conceptual basis for imposing this extensive form of liability on a school authority. Having regard to what I consider was decided in Commonwealth v Introvigne, the “undertaking”, if that is what it really is, is not “to ensure that no harm befalls the plaintiff”, but at most an undertaking that the State would take reasonable steps to ensure the safety of persons like the plaintiffs. That is consistent with the decision in Carmarthenshire County Council v Lewis [1955] AC 549, from which the liability is derived. What amount to reasonable steps necessarily involves investigation of the nature of the harm, the foreseeability and degree of the risk of its happening, and the measures reasonably available for preventing or averting it. If no reasonable steps by it are capable of being identified, there is no liability for breach of any such undertaking on the part of the State as school authority.
- Mason P also referred to the decision in Morris v C W Martin & Sons Ltd [1966] 1 QB 716, in which the defendant bailee of a fur coat was held liable to the plaintiff bailor for theft of the coat by a servant of an authorised sub-bailee to whom it had been delivered. Commenting on the decision of the English Court of Appeal in that case, Mason P said that, if Morris v C W Martin & Sons Ltd was good law in Australia, and if the State was not liable in Lepore v New South Wales, “it must follow that the law imposes a higher responsibility on a bailee for looking after a fur coat than it does on a school authority for looking after a child”. Quite possibly it does. Because children in so many ways obviously differ from fur coats, they attract a different set of legal norms. For one thing, they cannot be protected from injury by the simple expedient of locking them away in a safe place. That is not why they are sent to school. For another, the plaintiffs in this case were not stolen or kidnapped by (on this analogy) a servant of the State’s sub-bailor D’Arcy. It may perhaps be open to question whether what happened to them here necessarily amounted in law to an act of conversion. But, in any event, conversion is a wrong done to the bailor or other person entitled to immediate possession, who, by analogy with a chattel, would presumably be the plaintiff’s parents. The parents are not the ones who have brought this action for damages for the harm done to the plaintiffs.
- The decision in Morris v C W Martin was recognised as having some relevance in Lister v Hesley Hall Ltd [2001] 2 WLR 1311; but it was a case of vicarious liability, which professedly this is not. In my opinion, the analogy with Morris v C W Martin is very far from complete, as Mason P would certainly have recognised. In Fankhauser v Mark Dykes Pty Ltd [1960] VR 376, Sholl J, in speaking of a bailment of bags of frozen peas for safe keeping in the bailee’s refrigerated store, said that the onus was on the plaintiff bailor to prove both contract and breach consisting in a non-delivery or a redelivery in a damaged condition. Once the plaintiff proved such a breach, his Honour said [1960] VR 376, 377):
“… it was then for the defendant to prove that the loss of or damage to the goods was not due to any failure on his part to take due and proper precautions for their safe and proper custody. It would not be enough for him, if the goods were shown to have deteriorated while in his custody to suggest that that might have been due to inherent vice in the goods themselves, if he did not exclude, at any rate on the balance of probabilities, the hypothesis that it was due to his own breach of duty.”
In other words, a plaintiff bailor can, by thoughtful pleading, throw upon the defendant bailee the duty of showing that the spoiled condition of the goods bailed took place without default on his part. This is, in substance, what the plaintiffs have sought to do here. It is, however, not something that is authorised by or under the doctrine of non-delegable duty as it has generally been understood to be in cases for breach of an employer’s non-delegable duty. It much more closely resembles the kind of liability that was recognised in Francis v Cockrell (1870) LR 5 QB 184, 501, Watson v George (1953) 89 CLR 409 and Voli v Inglewood Shire Council (1963) 110 CLR 74, 92-93, of ensuring that premises are as safe for their purpose as reasonable skill and care can make them. But there is a wide gulf between the static condition of premises, which may be inspected to discover defects, and the detection of surreptitious criminal activities of a teacher towards his pupils at a one-teacher school. In my opinion, the plaintiffs in this action were, before they could succeed against the State, bound to allege, and at trial to prove, in what particular the State itself, and not merely D’Arcy, failed in its duty of taking reasonable steps to ensure the safety of the plaintiffs while they were attending the school. It is not enough simply to allege and prove that the plaintiffs were injured by the third defendant D’Arcy while they were “at the school”, even if that is taken to mean that they were then under his care and control at the school, and to leave it to the school authority to show that their injured condition took place without fault on its part or that of anyone else.
- It follows in my opinion that the statements of claim in their present form disclose no cause of action and should have been struck out. I would in each of the proceedings no DC861 of 2001 and no DC864 of 2001 in the District Court at Brisbane make orders as follows:
- That the first and second defendant have leave to appeal against the order made on 2 April 2001 dismissing the application.
- That the appeal be allowed with costs.
- That the statement of claim be struck out, with costs of and incidental to the application.
- That the plaintiff have leave to deliver a further statement of claim.
- THOMAS JA: The plaintiffs are suing the State of Queensland and its Minister for Education for damages for “negligence and/or assault”. Their claims are founded upon acts of sexual assault committed upon them by one D’Arcy when he was their school teacher more than 35 years ago. This is an appeal by the State against the refusal of a District Court judge (Botting DCJ) to strike out the statements of claim.
- It is important to note that there is no allegation of fault on the part of the State or the corporation that administers the education system. The only alleged fault is the personal fault of Mr D’Arcy by reason of his intentional criminal acts. In the context of the law of torts such claims are actionable as trespass to the person and more specifically as assault and battery. The tort of battery is committed by intentionally bringing about a harmful or offensive contact with another person’s body.
- The State is not said to be vicariously liable for Mr D’Arcy’s acts. Vicarious liability was disclaimed by Mr North SC who represented the plaintiffs on this appeal. In my view the disclaimer was appropriate. Illegal acts committed by an employee which are wholly unauthorised and inimical to the purposes of the employment are regarded as falling outside the course of employment and no vicarious liability falls upon the employer in respect of such acts.[1] The acts here pleaded were the very antithesis of what Mr D’Arcy was employed to do. In terms of the test posed by Glass JA in Commonwealth of Australia v Connell[2] his acts were independent unauthorised acts outside the scope of his service.
- The submission made by Mr North is that the State breached a duty owed by it to all students at state schools namely a duty to ensure that reasonable care was taken of the plaintiff whilst she was at school. This, he submitted, was a duty to ensure that persons to whom the State delegated its responsibility did not tortiously harm those in their care. According to the submission the duty is an original duty owed by the State to all students at state schools. The duty is also said to be absolute, that is, that it does not depend upon any fault on the part of the State. Such a duty is said to be supported in certain statements of Mason J (as he then was) firstly in Commonwealth of Australia v Introvigne[3] and later in Kondis v State Transport Authority.[4]
- There is abundant authority that a State’s duty to students at its schools is non-delegable,[5] but in my view the authorities do not support the proposition that such a duty is absolute or that it does not depend upon proof of fault. It is true that some statements of Mason J in those cases, taken in isolation, arguably support such a proposition, but the suggestion does not survive closer examination. Perhaps the most favourable proposition for the plaintiffs, and that upon which their statements of claim are based, is Mason J’s statement in Kondis that the effect of a non-delegable duty is to substitute a personal duty of a more stringent character than the duty to take reasonable care; namely “a duty to ensure that reasonable care is taken”. Even that passage does not describe it as a duty to ensure that the reasonable care must invariably succeed in avoiding injury. Mr North’s submission can only succeed if one reads the above phrase as a guarantee that reasonable care is taken at all times by every servant or agent working at whatever level within the school system.
- In the light of the authorities both before and after Introvigne and Kondis I do not think that such an interpretation of Mason J’s statements is open. Indeed in Stevens v Brodribb[6] where an attempt was made to fix liability upon a principal for the acts of its independent contractor in relation to the performance of extra-hazardous acts, Mason J rejected the notion of vicarious liability.[7] The present submissions would have the effect of restoring it in the guise of strict liability of the employer whenever a servant or agent commits an actionable wrong. His Honour added “(The) traditional common law response to the creation of a special danger is not to impose strict liability but to insist of a higher standard of care in the performance of an existing duty”.[8] That seems inconsistent with any notion of strict liability. In the same case Wilson and Dawson JJ stated:
“The direction taken in this Court has also been away from strict liability for tortious behaviour. There is a preference for a view which is more in harmony with the ordinary principles governing liability for negligence, namely, that the extent of a duty of care will depend upon the magnitude of the risk involved and its degree of probability:”[9]
- This unwillingness to embrace notions of strict liability was emphatically demonstrated in 1994 in Burnie Port Authority v General Jones Pty Ltd.[10] All seven members of the High Court consigned the rule in Rylands v Fletcher[11] to absorption by the principles of negligence. Liability in instances formerly covered by such a rule is now determined by reference to a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another.
- There is little point in my discussing the cases further. I have the benefit of having read the reasons of McPherson JA and Williams JA and agree with their Honours’ analyses. With reference to the decision of Lepore v New South Wales,[12] I consider, with respect, that the law is correctly stated in the dissenting reasons of Heydon JA. I accept that the State’s duty of care to students at its schools is non-delegable. The term “non-delegable” is sometimes misunderstood. It does not mean that the State cannot delegate or employ agents to do the necessary work of running schools. It means only that the party who delegates the performance of a task is not permitted to say “I have washed my hands of the risk by engaging someone else to do it”. The correct general statement of the State’s duty at the relevant time in the present case is that it was under a non-delegable duty to exercise reasonable care to ensure the safety of students at its schools.
- To accede to Mr North’s submission would be to recognise that by a subtle process, unrecognised at the time, in school authority, hospital authority and certain other categories of cases, a new rule has been introduced that an employer is absolutely liable for the intentional and non-intentional torts of employees committed beyond the scope of their employment.
- The statements of claim do not disclose a cause of action against the defendants. I agree with the orders proposed by McPherson JA.
- WILLIAMS JA: The facts relevant to this application for leave to appeal are fully set out in the reasons for judgment of McPherson JA which I have had the advantage of reading. I agree entirely with the reasoning of his Honour and with the orders he proposes; however, because of the importance of the matter, I will articulate additional reasons of my own for arriving at that result.
- For convenience I will refer to the respondents to the present applications as the plaintiffs, and the present applicants as the defendants.
- Stripped of the padding, the contention on behalf of the plaintiffs can be stated as follows:
- the defendants owed a non-delegable duty of care to the plaintiffs who were pupils at a school operated by and controlled by the defendants;
- each of the plaintiffs was injured whilst at school;
- the defendants are therefore liable as primary tortfeasors with respect to the damage suffered by each of the plaintiffs.
That is said to be the consequence of the decision of the High Court in Commonwealth of Australia v Introvigne (1982) 150 CLR 258. I agree with, and will not repeat, the analysis of that case and comments made about it by McPherson JA.
- For present purposes it is important to note that in that case it was held that the Commonwealth was in breach of the non-delegable duty it owed because it failed to provide adequate supervision of the pupils in the period preceding the commencement of instruction and in failing to ensure that the halyard was padlocked to the pole. In other words one could identify how and why the Commonwealth was in breach of the duty it owed to pupils at that school.
- Introvigne therefore does not support the proposition that a pupil can recover merely because some injury was sustained whilst at school; to succeed, it must be proved how and why the non-delegable duty of care imposed on the responsible school authority was breached.
- Much has been said in recent years in the High Court about non-delegable duty of care. The development of the law in that regard over recent years is encapsulated in a passage from the judgment of McHugh J in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 367-8:
"Thus, a hospital has a duty to exercise reasonable care in the treatment of a patient and cannot delegate the duty to other persons such as doctors or nurses (Collins v Hertfordshire County Council [1947] KB 598; Cassidy v Ministry of Health [1951] 2 KB 343; Row v Minister of Health [1954] 2 QB 66; Samios v Repatriation Commission (1960) WAR 219; Toronto General Hospital v Matthews [1972] SCR 435; Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553), an employer cannot delegate the duty of care which it owes to an employee (Wilsons and Clyde Coal Co v English [1938] AC 57; Kondis v State Transport Authority (1984) 154 CLR 672; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; McDermid v Nash Dredging Ltd [1987] AC 906), and those who conduct a school cannot delegate the duty of care that they owe to the pupils (Commonwealth v Introvigne (1982) 150 CLR 258 at 271). This Court has also held that the occupier of a public hall is liable to invitees for the negligence of an architect who has failed to design a safe platform for the hall (Voli v Inglewood Shire Council (1963) 110 CLR 74). Recently in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, the court held that the owner of land who allows a dangerous substance to be brought onto the land or allows a dangerous activity to be performed on the land is under a duty to ensure that reasonable care is taken to guard persons from the danger and cannot delegate the discharge of that duty to others. In all these cases, therefore, the courts have held that the duty that the defendant owed to the plaintiff was a non-delegable, a personal duty which could not be discharged by hiring a skilled person to perform it.
In Kondis v State Transport Authority (at 687), Mason J explained the basis of the decisions such as these as follows:
'In these situations 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'.
The explanation of the non-delegable duty cases given by Mason J in Kondis was approved by a majority of this Court in Burnie Port Authority (at 550-552). Moreover, as Mason J pointed out in Kondis (at 686), the effect of the doctrine of non-delegable, personal duty is that it substitutes 'for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken'."
That passage demonstrates that there is no special principle applying to the pupil-school authority relationship; Introvigne is but another illustration of a situation where a non-delegable duty of care exists.
- But further, each of the cases referred to in the passage quoted from the reasoning of McHugh J indicates that the existence of a non-delegable duty does not mean that the party on whom that duty is imposed guarantees or warrants that no harm will befall the person to whom the duty is owed and that the party owing the duty will be liable for any damage suffered by the person to whom the duty is owed without proof of anything more.
- Even where the duty is "to ensure that reasonable care is taken" it is still incumbent on the plaintiff to allege and prove that reasonable care was not taken. That will normally involve alleging that in the circumstances known to the party on whom the duty was imposed that some step should have been taken which was not taken. Ordinarily it would be incumbent on the injured person to allege the failure to take that step in the pleading and to prove at trial that such a step should have been taken and was not. It would also, of course, be necessary for the plaintiff in any such action to prove that the damage was caused by the omission to take that step. The mere fact that a non-delegable duty is owed does not mean that the party owing that duty is subject to no-fault liability.
- Neither side referred the Court to authorities in Canada and the United States of America where there have been a number of cases where damages for sexual assault were sought against an institution employing the perpetrator of the assault as a teacher or carer of the victim. Two cases in the Supreme Court of Canada and one in the Supreme Court of Colorado illustrate the approach in those countries.
- B v Curry (1999) 179 DLR (4th ed) 45 was concerned with a Foundation which ran a residential care facility for emotionally troubled children. The victim, whilst a resident of the facility, was repeatedly sexually assaulted and abused by Curry, an employee of the Foundation. It was held that the Foundation was vicariously liable for the acts of Curry, primarily because the Foundation set out to create a quasi-parental relationship between its employees and the children in its care with all of the authority and intimacy of such a relationship; that materially increased the risk of harm and the conduct in question was therefore sufficiently linked to the employment to give rise to vicarious liability.
- G T v Griffiths (1999) 174 DLR (4th ed) 71 concerned a Club providing recreational activities and outings for children using mainly volunteer staff. Two children were sexually assaulted by an employee in the employee's home. The decisions in Curry and Griffiths were handed down consecutively by the Supreme Court of Canada. In the latter case the victim failed to establish that the Club was vicariously liable for the conduct because the intentional tort was not significantly linked to the employment on the facts of that case.
- The Supreme Court of Colorado sitting in Banc in Moses v The Diocese of Colorado (1993) P 2d 310 (Colo 1993), was concerned with an action brought by a woman against the Diocese of an Episcopalian Church for damages for sexual assault by a priest who was her counsellor. Ultimately that court held that the evidence supported the claims of negligent hiring and supervision against the Bishop and the Diocese and the victim was entitled to recover with respect thereto, but the church was not vicariously liable for the conduct of the priest.
- Each of those cases dealt primarily with the vicarious liability of the institution. But in each of the cases it was recognised that the institution could be directly liable in negligence for any of the following failures on its part.
- negligent hiring;
- negligent training;
- negligent supervision;
- failure to terminate employment;
- failure to provide counselling;
- failure to investigate allegations;
- failure to report abuse.
That list is by no means exhaustive, but it indicates the type of conduct recognised in those decisions as giving rise to primary liability in the institution. Except insofar as some of the judgments refer to vicarious liability on the part of the institution as no-fault liability, there is nothing in the reasoning in those decisions (including the dissenting judgments) which would afford support to the argument of the plaintiffs now being considered by this Court.
- Because the plaintiffs here have expressly shunned reliance on vicarious liability it is not necessary to consider the reasoning in those North American cases with respect to liability on that basis. It seems clear from those decisions that though the expression "duty to ensure that reasonable care is taken" was not used, a somewhat higher test than a "duty to take reasonable care" was called for in the situations under consideration. For example, the judgment of the Court in Moses said at 328:
"The requisite degree of care increases, and may require expanded inquiry into the employee's background, when the employer expects the employee to have frequent contact with the public or when the nature of the employment fosters close contact and a special relationship between particular persons and the employee . . . employers who expect their employees to have frequent or close contact with others are required to go beyond the job application and perform an independent inquiry into the background of the candidate . . . If, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation. The duty is increased in this case because the Diocese placed Father Robinson in a position that required not only frequent contact with others, but induced reliance and trust through the counselling process".
- In Griffiths at 92 the Supreme Court of Canada quoted with approval a statement by a single judge in an earlier Canadian case:
"If school boards are to become insurers for all of the actions of their employees then that is a policy choice that must be made by Members of the Legislative Assembly".
That was said immediately after discussing a series of cases where janitors employed in a school environment had committed sexual assaults on school children; in most such cases the school authority was not vicariously liable.
- I would also refer in passing to the observations of Kirby P in Archbishop of Perth v AA (1995) 18 ACSR 333 at 337. The plaintiffs (over 200 persons) claimed they had been sexually assaulted whilst in the care of various Christian Brothers institutions in Western Australia. The action was initially constituted against a variety of defendants including the Archbishop of Perth. The critical issue for the New South Wales Court of Appeal was whether or not the Archbishop of Perth was a corporation sole at common law; it was held he was not. But at 337, Kirby P said that if the plaintiffs could designate an appropriate corporation to sue they could sue for failing to respond as proper care required or in failing to respond resolutely to the reports and complaints of sexual and other abuse which it was alleged the hierarchy ignored. The relevance, if any, of the passage is that his Honour did not suggest that there might be liability without proof of some such negligence on the part of the corporation.
- The only decision which lends any support to the argument on behalf of the plaintiffs here is the decision of the New South Wales Court of Appeal in Lepore v New South Wales [2001] NSWCA 112. With respect to the majority therein, all that I can say is that I agree with the dissenting judgment of Heydon JA therein, and with the observations made on that case by McPherson JA here. In my respectful view Lepore is out of step with authority and ought not to be followed by this Court.
- If the plaintiffs argument here was to be upheld then a school authority would become strictly liable, virtually it would be an insurer, for any and all injury sustained by a child whilst at school, howsoever caused. I agree with the majority of the Supreme Court of Canada in saying that if school authorities are to become insurers for all of the actions of their employees then that is a policy decision that must be made by the appropriate legislature.
- I agree with the orders proposed by McPherson JA.
Footnotes
[1] Howard v State of Queensland [2000] QCA 223 [para 15]; Deatons Pty Ltd v Flew (1949) 79 CLR 370; Carpenters’ Investment Trading Co Ltd v Commonwealth of Australia (1952) 69 WN (NSW) 175; Auckland Workingmen’s Club and Mechanics Institute v Rennie [1976] 1 NZLR 278; Lackersteen v Jones (1988) 92 FLR 6; General Engineering Services v Kingston Corporation [1989] 1 WLR 69; Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts R (1993) 81-246 at pp 62,543 and 62,551.
[2] (1986) 5 NSWLR 218, 221
[3] (1982) 150 CLR 258, 269-270.
[4] (1984) 154 CLR 672, 687.
[5] See the authorities canvassed by McHugh J in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 367.
[6] (1986) 160 CLR 16.
[7] Ibid at 29.
[8] Ibid at 30.
[9] Ibid pp 42, 43.
[10] (1994) 179 CLR 520; cf Scott v Davis (2000) 74 ALJR, 1410 at 1457 per Gummow J.
[11] (1868) LR 3HL 330.
[12] [2001] NSWCA 112.