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High Court of Australia Transcripts |
Office of the Registry
Sydney No S108 of 2002
B e t w e e n -
STATE OF NEW SOUTH WALES
Appellant
and
ANGELO LEPORE
First Respondent
TREVOR ALAN MICHELL
Second Respondent
Office of the Registry
Brisbane No B21 of 2002
B e t w e e n -
SHEREE ANNE RICH
Appellant
and
STATE OF QUEENSLAND
First Respondent
THE MINISTER FOR EDUCATION OF QUEENSLAND
Second Respondent
WILLIAM THEODORE D'ARCY
Third Respondent
Office of the Registry
Brisbane No B20 of 2002
B e t w e e n -
VIVIAN CHRISTINA SAMIN
Appellant
and
STATE OF QUEENSLAND
First Respondent
THE MINISTER FOR EDUCATION OF QUEENSLAND
Second Respondent
WILLIAM THEODORE D'ARCY
Third Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 5 SEPTEMBER 2002 AT 10.08 AM
(Continued from 4/9/02)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Solicitor.
MR SEXTON: If the Court pleases. Your Honours, I propose this morning to make some relatively brief submissions on the issue of non-delegable duties and then move on to the question of vicarious liability. In relation to the first of those issues, as your Honours appreciate from what we said yesterday, we say that the concept is simply inapplicable to the facts assumed as they are of this case.
McHUGH J: But why, Mr Sexton? The expression "non-delegable duties" is quite misleading; the true term is really that it is the discharge of the duty that is non-delegable, but it is always a question, if all duties are non-delegable in that sense, that you can discharge some duties by employing competent people to carry them out, but it is a question of determining what the duty is. Take the case of the employer. His duty is personal and non-delegable, but it is confined to for matters, it is a duty to provide a safe system of work, safe premises and equipment - safe premises and to employ competent fellow workers. If there is any failure to carry that duty out, no matter who he has delegated the performance of the duty to, he is liable.
On the other hand, if an employee, while performing an otherwise safe system of work injures an employee, vicarious liability may arise in the employer. But why is not the duty in this particular case on the Department to take reasonable care to supervise the child, the pupil, throughout the whole of the time while the child is in the care of the Department and if the child is injured or harmed as a result of a failure to exercise reasonable care by anybody, then that is a breach of the duty.
MR SEXTON: Your Honour, there are two answers to that. The first answer is that that is simply a form of strict liability.
McHUGH J: No, it is not a form of strict liability at all. It is that you have a duty to take reasonable care and if you say to a teacher, and the Department has to say to the teacher, "You discharge my duty for me" and in some way the teacher fails to take reasonable care, then the Department is liable. It is a breach of its personal duty. If, for example, the teacher does not control the pupils, so that they injure a fellow pupil, then it is a breach of the Department's duty, and it does not make any difference that the teacher himself does something deliberately that breaches it, just as in Morris' Case, the fact that the employee stole the furs or whatever it was he stole.
MR SEXTON: But in that example, your Honour, that is a case of direct liability because it is a failure to supervise.
McHUGH J: It is a failure to - - -?
MR SEXTON: The example that your Honour gives, if it is a failure to supervise the children that results in, for example, one child injuring another, that is a case of direct liability.
McHUGH J: Yes, but to talk about it being a strict liability is rather misleading. It is only a duty to take reasonable care but if the Department does nothing then it may be guilty of a breach of that duty. If it asks somebody to perform its duty, and that person does not exercise reasonable care in performing that duty, there is a breach.
MR SEXTON: But that is not true here, your Honour.
McHUGH J: Well, of course, it is. This person was given the duty of looking after these children. He failed to do it. What difference does it make that he may have negligently in giving discipline - assuming he was entitled to give it - hurt the child, or that he did it deliberately for his own sexual gratification.
MR SEXTON: Because it goes to the question of whether it is a breach of the Department's duty, your Honour. Can I answer it in this way. We say it is a question of identifying the services that are being provided to the plaintiff.
McHUGH J: I agree with that. That is absolutely fundamental.
MR SEXTON: Your Honour, to use the hospital cases as an example, it is a question of the provision of medical care and the hospital's duty to ensure that reasonable care is taken. It does not, of course, necessarily extend to the perhaps the whole of the medical care that the patient is getting in the hospital. The hospital might get in a specialist surgeon, for example, and have a relationship with that person. But what those cases suggest is that in some situations at least it is a duty on the part of the hospital to ensure that reasonable care is taken and in that sense the discharge of the duty cannot be delegated. In other words, if someone who comes into the hospital and engages in a negligent act or omission, that may result in liability on the hospital's part, but if it is put in that way, it cannot really be applied to this particular case. If one asks what was the service being provided to the plaintiff, I suppose it is, in a very broad sense, education. That does not only include, for example, teaching in the classroom. There may be recreational activities and so on. But the one thing that could not possibly, one would think, come under those particular headings is sexual abuse.
McHUGH J: It is nothing to do with sexual abuse. The employer does not have a duty to supervise the employee at every moment of his employment, but arguably the Department has a duty at every moment to supervise the child, whether the child is in the playground, in the classroom, or wherever he is, and if there is a breach of that duty that is enough. It is exactly the same it seems to me, with respect, to be identical with what Lord Diplock spoke about in the Securicor Case. There he was dealing with performance of a contractual duty but he said that it is irrelevant whether you get a servant, a subcontractor or an independent contractor to carry out or to discharge your duty, if the person fails to do it in the manner that it was supposed to be done, then the principal is liable.
MR SEXTON: Your Honour, in our submission, it is not possible to apply those contractual cases, of which Morris v Martin is one and Photo Production Ltd v Securicor Transport Ltd is another, to this type of situation for the reasons that all of the cases - - -
McHUGH J: But they are both cases of duty. I am afraid there must be something the matter with me. It just seems to me to be such a clear case of principle.
MR SEXTON: Your Honour, it really depends how that - - -
McHUGH J: It is a question of defining the duty.
MR SEXTON: Yes, your Honour. The way we define it in this case is in a way that excludes intentional and criminal conduct, simply that it does not fit into any of the authorities, we would say, in the cases relating to tortious liability where in all of those cases, after the duty has been isolated, there is a negligent act or omission that has to be identified.
McHUGH J: But Morris was a case of tort. Lord Denning said, did he not, in that case that the employer was liable both in tort and contract.
MR SEXTON: He did, your Honour, but it is a bailment case and, in our submission, it is not possible to transpose those comments to this kind of situation. I have to say that your Honour is quite right as to what was said in the case.
GAUDRON J: Why was Morris ever considered a tort case?
MR SEXTON: We do not think it is, your Honour.
KIRBY J: But if Justice McHugh's approach is the correct approach, it does expose your client to a great deal of risk, because every frolic of a teacher, every action which is antithetical to the teaching vocation, becomes a liability of the State in public schools.
On the other hand, it could be said these are a particular group of highly dependent and vulnerable people and this Court has said in Introvigne that there is a non-delegable duty, albeit in the context of the peculiar arrangements between the ACT and New South Wales which, as it were, tendered that question for resolution, but that because of their vulnerability and because of their dependence, this is just something you have to wear. In a way I think it is.
If that is the content of the duty, and the duty is non-delegable, then it is a form of strict liability, and maybe that is what the law says or should say for this vulnerable group of people because they are coming to your schools and they are then suffering as a consequence and somebody has to wear the consequence. Is that the school child or is it the State, which provides the school and the teacher?
MR SEXTON: Your Honour, one could make that judgment as a matter of legislative policy, of course, but in our submission it does not accord with any of the authorities which say that it is a duty to ensure that reasonable care is taken. The way that your Honour puts it and, with respect, the way that Justice McHugh puts it, there is not any breach of that duty. There is not any failure to take reasonable care. It is simply liability for an act that occurs, for example, on the school premises and no amount of supervision and no amount of action on the part of the school authority is going to affect that.
KIRBY J: It is not only on the school premises. On the school premises, in school hours by the school employee and, if you take the Queensland case, by a person who is the only person who is representing the State, who is the only teacher in the school, so that it is not just on the premises. You have to face up to the fact that it is more than that. Your agent, the teacher, is the perpetrator of the wrong.
Now, I am not saying I have reached any concluded view on this but I think that is the way in which the law of tort would deal with this, and the matter that concerns me is, is that comfortable with the principles that underpin the law of tort, which is compensation for those who have been wronged and, as it were, sanctioning behaviour so it will not become the general rule, will not be repeated.
MR SEXTON: We say, not, your Honour. I should say that we do not have a problem with Introvigne because, in that case, it is possible to identify the negligent acts and omissions. There were really two of them; the Chief Justice referred to them yesterday.
KIRBY J: The Chief Justice pronounced it Introvigne, and he has reason to remember.
MR SEXTON: Certainly, that is so, your Honour. From our point of view, there is no difficulty with that decision, because it can be easily explained as a failure to ensure that care was taken.
KIRBY J: The question that is posed is, if the principle that Justice McHugh has propounded becomes the rule, what can you do as an employer to prevent it? The only way you could prevent it would be by having constant supervision, constant interruption of classes, interrogation of pupils, and that would have its downside. So you have to ask, "Well, everybody is entitled to protect themselves from tortious liability, how would you do it?"
MR SEXTON: Your Honour, that is looking at the practical consequences. We say that a finding of liability here would be quite out of line with existing legal theory. But your Honour raises an important practical point, that, in a sense, there would be nothing to be gained by the Department, for example, by having even closer supervision in a situation where it does not matter what supervision there is, in terms of liability.
McHUGH J: But wherever you have a duty that cannot be discharged - its performance cannot be discharged by anybody else - then, if it is a continuing duty, in the sense of minute to minute, then you run into this problem, whatever the field of the law is. On one view, this is a particular field of law where there is a duty to supervise at all times and to take reasonable care. It is only a duty to take reasonable care; a teacher cannot be alongside everybody in the playground every moment of the day, but if the teacher is negligent in some way, well, you are liable. If the teacher does it deliberately, same result. Anyway, in this particular area, if once you accept that there is a duty to supervise at all relevant times, and to take reasonable care at all relevant times, then I do not think there is any real escape from vicarious liability. This personal duty will transcend it in every case.
HAYNE J: Do you accept that there is a duty to supervise at all times?
MR SEXTON: A duty by the Department, your Honour, to supervise the teachers.
HAYNE J: No, does the Department owe a duty to supervise pupils in government schools at all times?
MR SEXTON: Well, there is a duty in relation to, for example, what sort of injuries the pupils might do to one another. In other words, there is - - -
HAYNE J: No, there have been two very distinct propositions put to you, Mr Solicitor, and I want to know where you stand. First a proposition has been put that there is a duty to take reasonable care, that is the Department owes a duty to take reasonable care to supervise, and then a proposition is put that there is a duty to supervise at all times. The two are, at least it seems to me, arguably different. Do you say there is a difference?
MR SEXTON: Your Honour, the duty is to take reasonable care in the provision of education to the students in the schools. One element of that may be, obviously is, supervision of those students by the teachers. But, I mean, it is illustrated by this case that it is not a failure of supervision on the part of the teacher here.
HAYNE J: I am not asking you about supervision by the teachers, Mr Solicitor. I am asking you what is the content of the duty that the Department owes. Let us leave aside how it executes that duty, what steps it takes to do it. What is the legal duty, do you say, that the Department owes a pupil?
MR SEXTON: To ensure that reasonable care is taken in the provision of education by the Department's employees.
HAYNE J: It is a very large statement, Mr Solicitor, a duty to ensure that reasonable care is taken. If that is where you are nailing your colours, so be it.
GAUDRON J: Surely it must be such supervision as is reasonably practicable in the circumstances. That must be the duty so far as supervision is concerned, is it not?
HAYNE J: It would seem to me to be so, Mr Solicitor, and you seem to be repelling it with all the force you have. Now, if you want to - - -
MR SEXTON: No, I have said, your Honour, that that is an aspect of the general duty.
GAUDRON J: Yes, but is it a duty to exercise supervision at all times?
MR SEXTON: By the teachers in relation to the students?
GAUDRON J: Yes.
GLEESON CJ: Well, may it depend on what you mean by "supervision"? If you have 1,000 school pupils and three teachers wandering around the playground and some of the school children have gone to the toilet, supervision does not involve following them into the toilet, I presume. So the duty would normally be expressed as a duty to take reasonable care in and about their supervision, would it not?
MR SEXTON: Yes, your Honour.
GLEESON CJ: Which does not involve tailing them everywhere they go.
MR SEXTON: As I say, your Honour, as your Honour puts it, it is a question of the particular situation in the school at the time as to how that duty would be carried out and in relation to this case, this case does not fit within the question of supervision.
GLEESON CJ: But this puts you in a difficulty in relation to the case of Lister, does it not? Lister was decided by the House of Lords as a case of vicarious liability.
MR SEXTON: Yes, your Honour.
GLEESON CJ: Now what do you say about that approach to the problem as distinct from the answer that was given to the questions?
MR SEXTON: To look at it as a case of vicarious liability?
GLEESON CJ: It is the problem that arises in the present case - was the problem that arose in Lister a problem to be analysed in terms of vicarious responsibility?
MR SEXTON: Rather than non-delegable duties?
GLEESON CJ: Yes.
MR SEXTON: We think so, your Honour, yes.
GLEESON CJ: So your submission is that the House of Lords asked the right question and gave the wrong answer?
MR SEXTON: Yes, your Honour. I will come to Lister's Case obviously, but, yes, in our submission, the notion of the non-delegable duty is simply said in apposite to this fact situation. If one was going to approach it from the plaintiff's side by way of argument, we would say it is an argument for vicarious liability. We say that it does not come within those principles and I will go to those cases, but that seems to us to be the logical way of approaching it.
GAUDRON J: And, in this case you would say, the harm was caused, in any event I suppose, not by the failure to supervise the children, but by failure to supervise the teacher and you have to find it in your favour at first instance that there was no failure to exercise reasonable care in the supervision of the teacher.
MR SEXTON: Yes. Now, your Honours, if I can mention just a few more points about non-delegable duties before I go to vicarious liability, however. It is important, in our submission, to note the remarks in the cases that a non-delegable duty does not operate as an absolute guarantee against harm, which is, in our submission, what would be the result of the proposition that Justice McHugh was putting to me.
McHUGH J: Well, it is not. When I used the words "duty to supervise", I was using it as a shorthand term. I let the discussion run along. But obviously there cannot be an absolute duty to supervise; it is a duty, as Justice Gaudron said, to supervise so far as you reasonably can or so far as reasonable care, but it is the duty.
KIRBY J: What is the case that says most clearly that the mere fact that you find a non-delegable duty does not mean that the content of the duty is strict liability, that it is still a reasonable standard?
MR SEXTON: If one looks at the joint judgment - - -
KIRBY J: I think that there has been a bit of obfuscation of this. You have to categorise whether it is a non-delegable duty, but even then I think the law does not impose a strict liability. It even then says, "Find the content of the duty", and I would like to see where this Court, or some other final court, has said that.
MR SEXTON: Can I just give two answers to that, your Honour? In the joint judgment in Burnie Port Authority [1994] HCA 13; (1994) 179 CLR 520 at 550 - I am reading from the submissions, your Honour, so I am not sure at what point it is on the page, but the Court said that:
It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by -
looking at the facts of this case -
the employment of a qualified and ostensibly competent independent contractor.
It is the emphasis on the duty to take reasonable care in a category here that has been acknowledged as one where it is not possible that the discharge of the duty can be delegated.
CALLINAN J: I must say I have a lot of trouble in distinguishing between the duty to take reasonable care and a duty to ensure that reasonable care is taken. If you discharge the duty to take reasonable care, you ensure that reasonable care is taken. I do not see, at the moment, how it can - - -
KIRBY J: Unless the first applies to what you do yourself and the second applies to what your employees do, and that the distinction being drawn is where you can do it yourself then you exercise reasonable care; where you cannot you get somebody else to do it and in some cases getting someone else is not enough.
CALLINAN J: Then you have not discharged the duty of taking reasonable care.
MR SEXTON: There are, in our submission, some difficulties about the concept of what is called "non-delegable duties" in the cases. It is not necessary for our purposes to - - -
CALLINAN J: But once you introduce the word "reasonable", it seems to me that there is a real possibility of tension between it and the word "ensure", and a lot of things - a lot of insurance to ensure that something happens may go beyond doing what is reasonable.
MR SEXTON: In our submission, the authorities, your Honour, although they do have some of the logical problems that your Honour raises, but that at the heart of them there is the notion of reasonability, which is again, we say, something that is not applicable in this particular case.
Now, your Honours, the other passage to which I was going to refer your Honour Justice Kirby was a passage by Chief Justice Brennan in Northern Sandblasting (1997) 188 CLR 313 at - - -
KIRBY J: Is this part of the ratio of that decision which everybody is searching for?
MR SEXTON: No, I have an easy answer to that question, your Honour.
KIRBY J: Like a lost tribe, the ratio.
MR SEXTON: It is Chief Justice Brennan citing Lord Blackburn. That is at pages 330 to 331, citing Lord Blackburn in Hughes v Percival to make the point that this does not operate as a guarantee against harm to underline the, as we say - - -
GUMMOW J: What tort is Hughes v Percival dealing with?
MR SEXTON: It was about a dividing wall I think, your Honour.
GUMMOW J: Well, that is special action on the case.
MR SEXTON: Yes, of course, that is right. But it seems to be one of the categories in this area, but your Honour is quite right that, like some of the other cases, it does not fit easily into the tort regime.
McHUGH J: Mr Solicitor, can I read you a passage from Lord Diplock's speech in Securicor which admittedly was made in the context of contract but it always seemed to me to be equally applicable to a personal duty that was non-delegable, and what his Lordship says is:
Where what is promised to be done involves the doing of a physical act, performance of the promise necessitates procuring a natural person to do it; but the legal relationship between the promisor and the natural person by whom the act is done, whether it is that of master and servant, or principal and agent, or of parties to an independent sub-contract, is generally irrelevant. If that person fails to do it in the manner in which the promisor has promised to procure it to be done, as, for instance, with reasonable skill and care, the promisor has failed to fulfil his own primary obligation. This is to be distinguished from "vicarious liability" - a legal concept which does depend upon the existence of a particular legal relationship between the natural person by whom a tortious act was done and the person sought to be made vicariously liable for it.
Now, if there is a duty in negligence, why is that statement not equally applicable there?
MR SEXTON: I have to say, your Honour, in our submission, it is not possible to apply those contract-type cases, of which Morris v Martin is one and Securicor another, to this kind of situation. I think in Securicor the security contractor I think set fire to the factory.
McHUGH J: Yes.
MR SEXTON: There is not a problem, in our submission, with liability there. It is a contract-type liability and it does not matter in a sense what - it is not a "reasonable care" situation. It does not matter what the - - -
McHUGH J: Yes there was. That was the term that was in that case, that there was an obligation on Securicor to have the factory patrolled by natural persons who would exercise reasonable care and skill.
MR SEXTON: So, it was a contractual duty, and it was breached.
McHUGH J: Yes it was, but what is the difference in principle, if you cannot discharge your duty? In many cases where you have a duty of care you can discharge it by getting an independent contractor to perform it provided the person is reasonably competent to do the job. That was what a number of the Justices in Northern Sandblasting held, and I took the view that the duty could not delegated in that case, but if you rejected that view then the view of the other Justices, in my view, was absolutely right, that you could discharge your duty. But here you have a non-delegable duty.
MR SEXTON: But it depends where the duty is, your Honour.
McHUGH J: Exactly. That is the point.
MR SEXTON: And we say the duty here - we do not say that there was no duty owed, of course, to the students by the Department. We do say that it was not breached in this case.
McHUGH J: Take a 19th century schoolmaster who had his own school. Now, he has the duty to take reasonable care to supervise the pupils. If he had assaulted them there was a breach of the duty. What difference could it make if he also employs somebody else as a teacher to take care of a particular class, and that teacher fails in some way to exercise reasonable care and skill or, if you like, does something deliberately that harms a pupil. What difference can it make?
MR SEXTON: Because the second of those would fall outside. It would not be a breach of the duty, in our submission, your Honour. There is a form of categorisation here, but unless that is done there is simply no bounds to the liability and we say that cannot be right. Unless one takes a policy view and simply says that it does not matter what the school authority does.
KIRBY J: You would not want to take that view in the Court or at least you would have to pause very long and hard to do it because the cost implications, one would think, would say, "You are an insurer from quarter-to-nine until half past four every day, for every child, in every school in Australia" would be very considerable. The insurance cost - if you could get insurance - would be very considerable.
MR SEXTON: Well, of course, the government is, in a sense, its own insurer, your Honour, but it does run an operation in which these costs can be passed on, of course.
KIRBY J: That is why I keep coming back to the question of what is the purpose of the law of tort or the law of negligence, and its purpose, it seems to me, includes the proper ordering in society by the sanction that if you do not then you will be liable in your pocket. Quite apart from any criminal liability, you will have to pay, and therefore you have to ask yourself, "Well, how does that operate in a case like this to ensure that reasonable standards are secured?" In Romeo 1998] HCA 5; 192 CLR 431 at 475, I sought to draw the distinction between the question:
Is the duty of care established . . . If so, what is the measure or scope of that duty.
as a second and separate question. You seem to rely - you say the problem here is "breach". I do not think the problem is breach. The problem is not whether you there is a duty, you accept that, not whether something wrong - bad has happened. In a way that is established by the primary judge. The question is whether what has happened is a breach of the content of the duty and therefore we have to really get clear in our minds what is the content of the duty that is owed - and these were Justice Hayne's questions to you- and I really think we have to have your help on what you say is the content, and only the content, of the duty owed by a teaching authority to a pupil?
GLEESON CJ: Or to put it slightly differently, what does "care" mean in this context?
MR SEXTON: Well, your Honours, that is right, but the way in which the duty can be put tends, in those circumstances, to be rather general if it is the provision of education, the provision of care to the students in relation to their education. To some extent then, it is necessary to focus on the alleged breach and to ask whether that falls within the content of the duty.
GLEESON CJ: But one way of putting the case against you - which may be right or may be wrong - is to say the kind of care that the State Government owes in law to school pupils while they are at school is, (a), something that cannot be avoided or discharged by being entrusted to somebody else and, (b), is of such a nature that there is a breach of the duty to provide that sort of care if any person harms the child. Now, two possible sources of harm might be a teacher or another pupil.
MR SEXTON: Your Honour, but if the harm is of the kind that cannot be addressed by the taking of reasonable care, in our submission, there will not be a breach of the duty. Now, in some circumstances, even with harm caused by another pupil, that might be so.
GLEESON CJ: But if a child at school were harmed by another pupil, you would test a criticism of the standard of care with which the children were provided by reference to such questions as, "Was there adequate supervision? Were there rules? Was there proper discipline?" and so forth. Now, suppose that instead of being harmed by another child, the pupil is harmed by a teacher. Is there a different way in those circumstances of deciding whether the government has fallen down on its task?
MR SEXTON: It is a different kind of supervision, which is perhaps what Justice Hayne was referring to because, by definition, most supervision is by the teacher of the students, but there is a concept of the other teachers and the hierarchy in teaching.
GLEESON CJ: But unless you are in the area of vicarious liability, as the House of Lords says you are, when a child is harmed by a teacher, then a question arises as to whether harm from a teacher is to be judged by reference to a different standard than that that would apply in the case of harm from another pupil or harm from a stranger who comes in from outside with a machine gun, if you like.
MR SEXTON: Well, it would depend, your Honour. There might be circumstances in which there was evidence - it is not in this case - that, for example, there had been some form of warning or some signs by the teacher in question which could lead to an allegation of a failure to take account of those and to take action by the authorities. There could be in some cases evidence to that effect. But when it is an otherwise unforeshadowed act, in our submission, it makes it difficult to talk about any notion of reasonability. The same would be true of someone coming in from outside, again, assuming that it was not done in a way that gave any warning to the school authorities or allowed them to take any precautions.
GLEESON CJ: Suppose a child at school was abused by another pupil, physically or sexually, during school hours.
MR SEXTON: It may well be a failure of supervision on the part of the teachers, but not necessarily, we would say, not necessarily.
HAYNE J: But the focus of the inquiry is upon what the Department could or should have done to prevent it.
MR SEXTON: Well, your Honour, the way in which the Department would normally prevent that would be by the presence of the teachers.
GLEESON CJ: But if a child is abused by a teacher, and you analyse it in terms of vicarious responsibility, you are saying, for the purposes of the law, the Department abused the child.
McHUGH J: That is the point, is it not? Introvigne was a big step. Before Introvigne, on one view, you could not sue at all. There was an old case in 11 State Reports, if I have that right, in which you said you could not sue at all. Certainly, the view was that the Department discharged its duty by employing competent teachers. They were liable vicariously for the teachers' own negligence, and they were liable if they had employed an incompetent teacher, or, as you say, if they had been given notice of some failing in a particular teacher. But after Introvigne, the law took a different direction, and put you, it seems to me, in a very different situation.
MR SEXTON: Arguably, your Honour - the Chief Justice will know better than I - there was a problem about vicarious liability in Introvigne - - -
GLEESON CJ: Exactly. The Commonwealth did not employ the teachers.
MR SEXTON: That is right. Otherwise, one would have thought it would have been an argument about vicarious liability, because somebody did not padlock the flagpole and somebody did not supervise the students at that time.
GLEESON CJ: Introvigne began as an occupiers' liability case, the fault being that the flagpole was rotten. That was the allegation. They sued the Commonwealth as occupier, and they sued the architect who designed the flagpole. On the first morning of the hearing, they amended the statement of claim to allege negligence against the Commonwealth, and ran into the proposition that all the teachers at that school were employed by the New South Wales Department of Education. By the time the case got to this Court, the only live issue was negligence, and there were factual issues about that. Then, this Court dealt with the problem about the fact that the teachers were not employed by the Commonwealth Government, and were not under the control of the Commonwealth Government, by saying, "We do not analyse this in terms of vicarious liability; we analyse it in terms of non-delegable duty". That is why that case presents, I would have thought, a fairly substantial problem for you.
MR SEXTON: Well, except for this, your Honour. It was a case where the negligent acts were identified, and, in as much as they were attributed to employees, who probably were not identified in the proceedings, then it could be said that the educational authority had failed to ensure that reasonable care was taken. From our point of view, it seems to be quite distant from these proceedings.
McHUGH J: No, it is not, because, I mean, unless we go and overrule Introvigne, then each teacher stands in the place of the Department. For legal purposes, each teacher is the Department. It is discharging the Department's duty. So whatever the teacher does that would bring home responsibility to him will bring home responsibility to the Department. That is the problem with - - -
MR SEXTON: Well, that is really a species of vicarious liability, your Honour.
GLEESON CJ: Except that, in Introvigne, this was not a case of employer/employee vicarious liability, and respondeat superior does not sound like an expression you could use in relation to Introvigne, because the argument that was put and rejected in Introvigne was that the Commonwealth had no control over these teachers. The Commonwealth could not have sent an officer into the playground and said, "There are insufficient teachers supervising today. You should put more in", because the teachers there were not under the control of the Commonwealth.
McHUGH J: It is like prisons or detention camps. Arguably, the Commonwealth has a non-delegable duty in respect of refugees. If they bring in some independent contractors who harm the detainees, then they are liable. This is the problem about non-delegable duties and why courts ought to be reluctant to extend the liability.
MR SEXTON: We will come to that. Your Honour, in addition to saying that we do not think this is an apposite case for a non-delegable duty, we also say that in any event there are reasons why one would not extend liability to this case under that principle in any event.
KIRBY J: Is the question not whether the step has not already been taken in Introvigne? That is the issue we have to have your help.
MR SEXTON: Your Honour, it was quite a different situation in that case.
KIRBY J: In terms of facts the most important difference was the ACT/New South Wales complication which, in a sense, took the Court into that question, but in terms of the dicta of saying that in the circumstances there is a non-delegable duty which is discharged by whoever performs it then - - -
MR SEXTON: But in that case someone had failed to exercise care in two respects. One was supervision. The second was the padlocking.
KIRBY J: It seems a very hard case on the facts for the poor old teachers.
MR SEXTON: That may be so, your Honour, but in this case - - -
GLEESON CJ: Tell me about it.
MR SEXTON: The Chief Justice agrees with you but in this case - - -
KIRBY J: As the Chief Justice said, you cannot have teachers following students into toilets or into every mischief that children can get up to in the remote areas of the school grounds. The bigger the school the more remote will be the grounds.
MR SEXTON: But we do not say it is necessary to overrule that decision.
GUMMOW J: What does it stand for? Forget about the facts. What is the proposition of law?
MR SEXTON: In Introvigne, your Honour?
GUMMOW J: Yes.
MR SEXTON: That in that case that there was a failure by the Commonwealth to ensure that reasonable care was taken in two respects.
GUMMOW J: That is not a proposition of law really.
MR SEXTON: No.
GLEESON CJ: I would have thought Introvigne confronts you with an even bigger danger than Mr Keane and the Solicitor for South Australia. Why does it not logically follow from Introvigne that the State is liable for sexual abuse of children in private schools because they attend school under compulsion of State law? They are not compelled to attend State schools but they are compelled to attend some schools.
KIRBY J: You might have an indemnity from private schools.
HAYNE J: I doubt it. Why does it not extend to every case of physical or sexual abuse by a stranger, during school hours, on school premises? If it is not a proposition about vicarious responsibility but is a proposition about the duty owed by the State to the pupil to ensure that care is taken of the child, to ensure that reasonable supervision is exercised, why is there not a breach when the stranger comes onto the school grounds and abuses the child?
McHUGH J: That must be so unless the teacher has taken reasonable care to stop them - I mean, if you have somebody standing outside the yard and you have some warning and you do nothing about it - but suddenly if somebody just comes in out of the night and sneaks in and does something and races off, nothing that the teacher on the spot could have done - there is no breach by anybody, there has been no lack of reasonable care by the person who stands in the shoes of the Department, but otherwise, yes. It is like Carmarthenshire. It is like Downs, or whatever that case is in Victoria - not Downs, the case in Victoria where the other pupil threw the inkwell or whatever he threw.
MR SEXTON: In part, your Honour, that depends upon the way in which you define the content of the duty, but it is one of the reasons, those examples we have been given, why we say that there must be some limitations on the duty and that is done by looking at what is being provided and that it is not possible, we would say, to categorise the sexual abuse of a child as a failure by the educational authority to ensure that reasonable care is taken in the absence of some identifiable act of negligence which allowed that to happen.
McHUGH J: To pursue the Chief Justice's example, if the child goes into the toilet and there is somebody in there waiting for the child and the teacher who is discharging the Department's duty has no knowledge of it, then there is no lack of reasonable care. On the other hand, if somebody has been hanging around the toilets at a sporting oval and the teacher allows pupils to go to that toilet, then it is a different matter and they may well be liable.
MR SEXTON: But the way that your Honour puts it, if there is a distinction there, then it indicates that there are some limits.
McHUGH J: Well, of course there are limits. The limit is that the Department cannot discharge its duty and if it gets somebody to perform its duty, then the Department is liable for that person's lack of reasonable care. That is why I said earlier it seems to me that vicarious liability has no relevance in this field, in this particular area, once you define the Department as having a duty to take reasonable care to supervise the child throughout the child's time in the school ground and during school hours.
MR SEXTON: But in the case of the stranger from outside, I think on your Honour's proposition, that would not result in liability.
McHUGH J: No.
KIRBY J: Why can you not say that even if, contrary to your submission, this is a case that Justice McHugh is painting, that there is no want of the Department in discharging its personal duty to each and every child, it discharges it by having a competent teacher and, in this school, a headmistress and, by all accounts, the teacher was competent and the problem is not any want of any reasonable care on his part, it is that he stepped out of his duties and performed things entirely for his own purposes and that that had nothing to do with a want of reasonable care for which you should be held liable?
MR SEXTON: That is what we say, your Honour.
GLEESON CJ: I am far from clear in my own mind about the most satisfactory way to analyse a problem like this, at the moment, but let us go into the homeland of non-delegable duties, the employer/employee relationship. Suppose an employee pulls out a gun and shoots another employee in circumstances where there is no criticism that could properly be levelled at the employer about having appropriate supervision or discipline or engaging employees, is the employer liable?
MR SEXTON: Not in our submission, your Honour.
GLEESON CJ: And that presumably is because the four aspects of the content of the duty that Justice McHugh mentioned earlier are such that there is no breach of the duty in the circumstances that I have just mentioned. That tends to suggest, does it not, that if you then go to the school/pupil relationship and assume for the moment that it is to be analysed in terms of a non-delegable duty, the question is whether the content of the duty is such that the duty is broken when there is a criminal act perpetrated against the pupil in particular circumstances? Is that right?
MR SEXTON: Yes, your Honour.
GLEESON CJ: So, if an employer's duty is, for example, only to provide a safe system of work, and that is not breached if one of the other employees pulls out a gun and shoots an employee, what is the school's duty - duty to do what? This is what I had in mind earlier when I said it depends what you mean by "care".
MR SEXTON: In addition to providing education in that broad sense, it is to exercise care for the children, certainly while they are on the school premises - put aside some of the cases for a moment where people have been on the edge of those premises or have just left them and so on. But it is a care that can only be, in a sense, looked at in the individual situation, for example, where perhaps there is an interaction between the students or sometimes with - - -
GLEESON CJ: If you had a parental duty of care towards a child - and you might only have to think about this in moral terms rather than legal terms - but you would not say, would you, that the parent had failed to take proper care of her child if a babysitter pulled out a gun and killed the child?
MR SEXTON: Assuming no prior indications, that is so, your Honour.
GLEESON CJ: So, if it were the case, for example, that the non-delegable duty of an educational authority is to take reasonable steps to provide a safe environment in which children will learn and engage in recreation, then it is not necessarily a breach of that non-delegable duty, is it, if, without any fault on the part of the educational authority, somebody, whether it is a teacher or a pupil or a stranger, damages the child?
MR SEXTON: That is our submission, your Honour. What tends to obscure some of the legal principles, we would say here, is that it is the teacher, the person who normally would hopefully prevent these kinds of activities, that is the perpetrator of it. There would not be the same complication if it were someone who had come in from outside, but, of course, if the teacher shot one of the students, for example, without any indications of this kind of conduct in the past, it would raise the same question.
GLEESON CJ: But if you then said, "Well, now, if a teacher does something wrong and you analyse it in terms of vicarious liability", you then get into Lister and Deatons v Flew.
MR SEXTON: What we say in that instance, your Honour, is that the formulations for vicarious liability would, and always have, excluded this kind of conduct. Now, there may be conduct that is very close to the margin. There could not be much argument for example that excessive discipline, in the sense in which that sometimes occurred in the past in schools, that there could be vicarious liability for that. We would say that is quite different from some conduct that bears no relation to the role and to the function of the teacher but is completely outside that in the way that sexual abuse is, and some other forms of conduct might be as well.
KIRBY J: I am not sure how one should approach the issue of vicarious liability. Is not the principal way that if it is a case of a non-delegable duty, you do not get to vicarious liability, and as this Court in Introvigne, which you do not challenge, appears to have said that there is a non-delegable duty in respect of care for pupils in the school - - -
MR SEXTON: But there was in that case, your Honour, in relation to - - -
KIRBY J: Yes, but the Court does not just deal with a particular case. It has to have a principle it is applying. It is not just dealing with that particular issue. It has to be doing so in principle in a lawful way. Unless you are asking us to confine the holding in that case to the peculiar circumstances of the ACT and New South Wales, but on the face of things, the Court does not seem to have reasoned it that way.
MR SEXTON: We would say two things, your Honour. We have set this out in our written submissions and I will not perhaps go through it now, but firstly that arguably there is no ratio in Introvigne as a starting point and that, secondly, because the content of the duty in that case is not really spelt out in any event, it really has to be looked at in terms of its own facts. Now, having said that, of course we do not dispute that there is a duty to ensure that care is taken in relation to students in the schools, in the provision of their education. We do not, of course. But the question is how would that be breached in the present situation.
KIRBY J: There you jumped straight to breach. It just seems to me there is an intermediate step. There is a duty of care, which you do not contest, and the question then is what is the content of that duty relevant to this case.
MR SEXTON: That is right, your Honour.
KIRBY J: And then, having got the duty and the content of the duty and scope, has there been a breach of that duty of care so defined.
MR SEXTON: Your Honour, Introvigne is in many ways a case about failure to ensure safe premises. It does not easily translate to the facts of this case.
McHUGH J: I think that is what you have to say, that you have to say that there is no duty to take reasonable care to continually supervise the pupil, that the duty is to take reasonable care to provide safe premises, to provide a safe environment, to provide this or that. At the moment, to my mind, the critical issue is whether there is a duty to take reasonable care to continuously supervise the pupil while they are in school hours. If that is part of your duty, then at the moment I think you are in serious trouble.
MR SEXTON: It is not a failure of supervision here, your Honour.
McHUGH J: Yes, it is, because you have delegated the discharge of that duty or the performance of that duty to this teacher and he failed to carry it out, not because he allowed somebody else to injure the pupil, but because he himself injured the pupil.
KIRBY J: Query, whether he negligently failed to carry it out or whether - his failure is not a want of reasonable care, but some deliberate and personal act of his own.
MR SEXTON: As Justice Kirby says, that is one point, and the second point is that if it is a failure, as your Honour says, it is not one that could ever really be addressed.
GLEESON CJ: That is why your opponents were reluctant to argue the case as one of vicarious liability, no doubt. To use very old-fashioned language, if this were being argued as a case of vicarious liability, somebody might have said this is a classic example of a person being on a frolic of his own.
MR SEXTON: I mean, this is not a case of a teacher exercising an educational role or educational functions by definition.
McHUGH J: But there is that case of Justice Tucker's in 1938, Ryan v Fildes, in which the school was held vicariously liable for the excessive punishment of a teacher. Is my recollection right?
MR SEXTON: I think so, your Honour, yes.
McHUGH J: Why is this not an improper mode of punishing? I mean, on the facts as we know them, he tells the child to take off his pants, then slaps him on the naked buttocks.
MR SEXTON: Well, your Honour, if it were a case of excessive or improper punishment, then it would be a case of vicarious liability, but that is not the way the plaintiff puts the case.
McHUGH J: No.
GAUDRON J: Well, it occurred to me when re-reading the papers last night that precisely that issue may require the order that was made by Justice Heydon. It seems to have been an issue that simply was not developed by the trial judge.
MR SEXTON: Well, we do not have any quarrel with that, your Honour.
GAUDRON J: Yes, but you accept that it is a relevant issue as to whether it was in the course of administering punishment or - - -
MR SEXTON: It would be quite a different case, your Honour.
GAUDRON J: Yes. No, but it may still be a sexual assault case.
MR SEXTON: There may be two different cases.
McHUGH J: There may be an issue as to whether it was done solely for sexual gratification or if it was done for discipline plus sexual gratification.
KIRBY J: But you answered her Honour by saying, "We have no problem with that, that is Justice Heydon's approach which is that this whole trial went off the rails and has to be redone"; but do I understand that you do not ask for a verdict, you are not arguing before us that you are entitled to maintain the judgment that Judge Downs entered for you?
MR SEXTON: We would be content that the matter would go back to be decided according too the principles that have been set down by this Court.
McHUGH J: Are you content for it to go back with all this evidence of the other pupils? How did that get in in the magistrate's finding.
MR SEXTON: Well, I was not there at the trial, your Honour, and I am not sure how it would be run the second time.
GLEESON CJ: Now, how are you going in terms of time, Mr Solicitor?
MR SEXTON: Very badly, your Honour, but let me just try and address that problem. Can I just say on the question of the non-delegable duty, if I can try and conclude that by saying that assuming for the moment that that concept is identified and has some applicability to this case which is not our primary submission, there are four reasons, we would say, for not extending the principle to this case. The first is one of consequences which Justice Kirby has already alluded to; Justice Heydon refers to them at pages 140 and 141 of the appeal book, the consequences that would have for many other agencies and bodies.
The second is the concept of the element of reasonableness which runs, we would say, through the whole body of authorities on negligence and that would be effectively removed if the principle were extended to the facts of this case. We have already spoken about the fact that in any event the rationale of the so-called non-delegable duty is in the case it is not easy to identify. I think Justice Gummow, in Scott v Davis (2000) 204 CLR 333 at 417 suggested that the criteria set down in Kondis were historically descriptive but not normatively predictive. In our submission, we have made reference to the problems in that area.
Finally, two of the principles in this area of the law are considerations of deterrence and compensation. We would say that the first of those could not be assisted in this case by extending liability because of the facts, at least as they have been assumed - but just on the facts generally, there appeared to be no question in this case that there had been any warning or any indications of this kind of conduct, so that, in effect, it was not something that could be addressed by the school authority. On the compensation side, there is, of course, a regime with which your Honours are familiar in various jurisdictions and in New South Wales. It is the victims - it is now called the Victims Support and Rehabilitation Act 1996 , formerly the Victims Compensation Act 1995 which provides compensation for -I will not take your Honour to the provisions in detail but for what are described as acts of violence which include in the legislation - it specifically includes sexual abuse.
KIRBY J: But what is your answer to the parent who says - and this is really saying in the terms of a parent what Justice McHugh has been saying in terms of legal principle - "I trusted my child to you to be looked after in school. Instead this has happened, and you are responsible for the school. You were responsible for my child and you should have to pay because it is a wrong that has been done in your institution, under your control, in school hours, and therefore you are liable for negligence in not ensuring that this did not happen"?
MR SEXTON: Well, that comes back to the content of the duty, your Honour, because otherwise if it is put in that form - and one, as I say, could - - -
KIRBY J: You say if you can find negligence, if you can show want of care which you can be reasonably held to account, then you will be liable, but otherwise not?
MR SEXTON: That is right, your Honour, and of course in some areas there may be policy reasons for having strict liability but it can only be done, we would say, by legislation. Now, your Honours, can I move to -not for long - to vicarious liability about which there has already been some discussion. Can I take your Honours very briefly to Deatons v Flew (1949) 79 CLR 371. Your Honours will no doubt recall that the plaintiff lost an eye as a result of being hit by a beer glass thrown by the employee, and there is some sort of altercation about which the facts were not entirely clear. I will not take your Honours to all the judgments, but can I give as examples, although they are expressed in slightly different language, the judgments are quite consistent.
GUMMOW J: It is a pretty well-known case, but what do you want to get out of Deatons v Flew?
MR SEXTON: I can shorten that, your Honour. I will read three lines, your Honour - I appreciate that your Honours will be familiar with the case - from the judgment of Justice Dixon which is at page 381, right at the bottom of the page, at about point 9:
The truth is that it was an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it in the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.
GUMMOW J: Now, that is the passage repeated by Lord Millett in Lister?
MR SEXTON: Yes, that is so, your Honour, in which he distinguishes Deatons, although on the basis that she was not in charge of the bar, which perhaps is not the entire basis for Deatons, in our submission. Now, your Honours, can I briefly address the three decisions that perhaps most recently address the question of vicarious liability - Lister v Hesley Hall [2002] 1 AC 215 and the two Canadian cases, Bazley v Curry and Jacobi v Griffiths.
Lister was a case, which can be seen from the very start of Lord Steyn's judgment on page 220, paragraphs 2, 3 and 4, a residential establishment, a school for "children with emotional and behavioural difficulties" and the sexual abuse was carried out by the warden. In paragraph 4 of the judgment, Lord Steyn says:
He supervised the boys when they were not at school. His duties included making sure the boys went to bed at night, got up in the morning and got to and from school. He administered pocket money, organised weekend leave and evening activities, and supervised other staff -
in a sense, almost a parental-type role. As your Honours will be aware, the House of Lords found that there was vicarious liability in this case. In our submission, whether that finding be right or wrong, it is quite a different situation from this case before the Court where it was a day school and where the children were there for particular hours and the sexual abuse was carried out during that period.
HAYNE J: Sorry, why does that matter?
MR SEXTON: I am sorry, your Honour.
HAYNE J: Why do you base a distinction on boarding school versus day school?
MR SEXTON: I was about to say, your Honour, that in our submission that Lister extends the notion of vicarious liability beyond the traditional principles and beyond the principles in the authorities, but if one were to make a distinction, one is that it was a residential establishment in the same way that a boarding school is a residential establishment where - - -
HAYNE J: What is the principle that underpins the difference between day and boarding?
MR SEXTON: It is a different form of care.
GAUDRON J: Well, is it not really, at least in the context of vicarious liability, the different nature of the duty of a warden in charge of residential care and a teacher?
MR SEXTON: Yes, your Honour.
GAUDRON J: Well, it is the nature of the duties of the warden, is it not? That must be the critical - if there is a distinction, that must be it, the different range of duties, so that you can more closely locate it into, at least in the course of duties, if you cannot say that it was the actual duty itself.
MR SEXTON: I draw that distinction, but we should be, in a sense, candid about Lister because, in our submission, the notion that sexual abuse of a student can be somehow an unauthorised mode of carrying out the teacher's role seems to us a pretty difficult proposition.
GAUDRON J: Yes, and Lord Steyn puts it "in the course of employment", does he not, at paragraph 14? He states the principle in terms of "in the course of employment".
MR SEXTON: He puts it within the traditional test set out by Salmond. He quotes the test at one point on page 223 in paragraph 15, your Honour. He quotes the test and then says that ultimately that there is liability for acts that were:
so connected with acts which he has authorised, that they may rightly be regarded as modes - although improper modes - of doing them".
GLEESON CJ: There is an intermediate step between Deatons v Flew and these recent cases that I would have thought give rise to a problem for you and for the Solicitors for Queensland and South Australia and we had better have it out on the table. If you look at a case in which Justice McHugh appeared as counsel in the Privy Council in 1981 called, I think, Kooragang Investments v Richardson and Wrench. There it was pointed out that after, I think, the time when Deatons v Flew was decided, the fact that an employee did a wrongful act that was not for the benefit of his or her employer did not mean that the employer was not necessarily vicariously responsible for it, the example being given being an act of embezzlement by a solicitor's clerk for which the solicitor might be vicariously responsible. If you look at Deatons v Flew on the bottom of 381, Justice Dixon said that the act of the barmaid was:
done neither in furtherance of the master's interests nor under his express or implied authority.
I would have thought that some later cases might have suggested that the fact that it was not done in furtherance of the publican's interests was not necessarily conclusive.
MR SEXTON: I think that must be right, your Honour. For example, with the case of a teacher with excessive discipline, it presumably is not in furthering the interests of the school authority but, nevertheless, it could be a case of vicarious liability.
McHUGH J: Well, Lloyd v Grace, Smith explained it back in 1912.
MR SEXTON: But the question is whether an act of sexual abuse would fit within the test of, for example, being an improper means of carrying out what is otherwise the function of, for example, a teacher. In our submission, that is a pretty difficult proposition to - - -
KIRBY J: Well, Lady Justice Butler-Sloss said that she could not see that that could possibly be an unauthorised mode of carrying out an authorised act, but the House of Lords seems to have disagreed with that.
MR SEXTON: That is the distinction, your Honour.
KIRBY J: So you are saying that the House of Lords was wrong in this case of Lister and that we should prefer the view taken in the Court of Appeal of England?
MR SEXTON: Well, we certainly say that, your Honour - - -
KIRBY J: Do not be worried about it. We often disagree with the House of Lords.
MR SEXTON: No, I am not worried about it, but we do say that, in any event, it is a different situation in Lister. Still, we do say that it is very difficult to arrive at that conclusion.
KIRBY J: Well, it does seem to be out of line with Deatons v Flew. I mean, it is a different factual matrix, but it does seem - the same thing was said in Deatons v Flew. For example, I was looking at Justice McTiernan just saying that there is an implied authority for a barmaid to do certain things and this is not one of them. So that seems to be the way this Court has reasoned and this case comes along. Now, what was the essence that led the House of Lords to, as it were, steer away? Was it the particular vulnerability of the pupils? What led them to take this new course, which seems to be common with Canadian cases?
MR SEXTON: I will come to those in a moment, your Honour.
KIRBY J: There must be something that is working in these high courts that has led them to take this step away from old doctrine.
MR SEXTON: In our submission, Bazley v Curry - the first of the Canadian cases - and Lister, the basic element - of course, it is put forward as propositions of legal principle, but there is a strong policy element running through the judges, in terms of that otherwise there would be no compensation.
McHUGH J: No. Has not the difference come about in terms of the level of generality with which you describe what the employee is authorised to do? If you concentrate on the act itself, it is very difficult sometimes to say that it is an improper mode, but if you raise the abstraction slightly - say, it is the milkman doing his rounds, for example - - -
KIRBY J: Or the barmaid keeping order.
MR SEXTON: You can do it that way, your Honour, but take Lister - - -
McHUGH J: I think that is the explanation for part of the reasoning.
MR SEXTON: But if one takes Lister as an example, where it is possible to say that the warden was exercising parental-type care on a 24-hour - it was outside of school hours, but he had the charge for the rest of the day, it is possible to characterise it in that way, but we would still say that to then say that sexual abuse, a deliberate criminal act, is a way of carrying out that function, there is a logical problem about it.
McHUGH J: Well, what about Morris' Case? I mean, they just stole the fur.
MR SEXTON: Your Honour knows what I say about Morris and about Photo v Securicor. They cannot be really applied to this kind of situation. I know that is, on their face, what they said. So we have to say that about the House of Lords decision, despite the fact that it is a rather different factual situation. I am just very conscious of the time, your Honours. If I could just refer quickly to Bazley v Curry (1999) 174 DLR (4th) 45. This was a case where, again, it was residential care facilities for emotionally troubled children between the ages of 6 and 12, and one of the employees had engaged in sexual abuse of some of the children.
The majority judgment, it is a judgment of the court which is given by Justice McLoughlin. Your Honours, it is at paragraphs [41] and [42] that his Honour really - - -
GAUDRON J: Her Ladyship.
MR SEXTON: I am sorry, your Honour.
GAUDRON J: Her Ladyship.
McHUGH J: Her Ladyship. Yes, I noticed in one of the submissions they keep referring to "her" as "his".
MR SEXTON: Probably ours, your Honour. Her Honour analyses these questions of law and sets out a number of factors that might be taken into account. Your Honours will see those (a) to (e).
GLEESON CJ: Was there is any reference to non-delegable duties in either the Canadian case or in the House of Lords?
MR SEXTON: I do not think in the Canadian cases. I think it is Lord Hobhouse in Lister, your Honour, page 239 at paragraph 55. Lord Hobhouse talks about - I can only say it is in paragraph 55, there seems to be discussion of both vicarious liability and non-delegable duties -it is not entirely clear which is being relied on. I do not recall in the Canadian cases any discussion.
GUMMOW J: Outside the hospital cases and common employment, do they have in their modern decisions non-delegable duty doctrine?
MR SEXTON: I am note sure of the answer. I do not think so, your Honour, but I cannot be sure of that.
GUMMOW J: No, I thought not.
MR SEXTON: Well, perhaps in paragraph 41, your Honour will see there are a series of factors to be taken into account. The opportunity that the enterprise afforded the employee - that would normally be present one might think - - -
HAYNE J: Mr Solicitor, the key point about which the judgment revolves is [46] and consideration of whether there was a material increase in the risk of sexual assault. The focus is on creation or enhancement of risk, is it not?
MR SEXTON: If that is so, your Honour - yes, we would say in our situation that that would tend heavily against the issue of liability. I will just refer briefly, your Honours, to those factors in [41]. The opportunity, the extent to which the wrongful act may have furthered the employer's aims - we would think not present here. The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise - not present here we would say. The extent of power conferred on the employee in relation to the victim - would be present in a school situation. The vulnerability of the potential victims - that would be present in a school situation. In paragraph [42] her Honour says:
For example, an incidental or random attack by an employee that merely happens to take place on the employer's premises during working hours will scarcely justify holding the employer liable.
I think that is the example the Chief Justice gave before. A little further down:
What is required is a material increase in the risk as a consequence of the employer's enterprise and the duties he entrusted to the employee -
HAYNE J: Now, are considerations of risk, creation and enhancement of risk, relevant to inquiring whether vicarious responsibility should be imposed?
MR SEXTON: It is a relevant factor, your Honour, yes.
GAUDRON J: Why? I can see why it may give rise to a personal duty of supervision or bringing about or effecting a different sort of environment with shared responsibilities and so forth, but I do not see why it is necessarily relevant to vicarious liability.
MR SEXTON: It depends what is meant, your Honour, by "enhancement of risk". By definition, if one puts students in a school and there are teachers there, then I suppose that that must create some risks which are evidenced by this case but we would not describe them as being enhanced by that.
GAUDRON J: Look. A school enhances the risk of cross-infection of measles, mumps, whooping cough and all that sort of thing. What has that got to do with anything? Nothing, because there is no reasonable preventative measure. If there is the environment you create does give rise to an enhanced risk of a particular injury or the like, and there is something that you can do about it, then you are in a different field of discourse, and it is not a field known as vicarious liability.
HAYNE J: It seems to me that questions of risk are alien to a debate about vicarious responsibility. If the submissions are not forthcoming, they are not forthcoming, Mr Solicitor.
MR SEXTON: Your Honour, we do not put it on that basis.
HAYNE J: You are confronted by decisions in Canada and England. England says the Canadian decisions are luminous. It would be of assistance to me at least to know what the State of New South Wales says about the root principles that are given effect to in those decisions.
MR SEXTON: Your Honour, in relation to both Lister and Bazley - your Honour will be aware that Jacobi had a different result, but in relation to both Lister and Bazley we say that albeit in rather different factual situations that those two courts have come to a conclusion that cannot be justified on the normal basis of vicarious liability, as it has been reflected in this Court and in other Australian courts. That it is not, in those cases, conduct that can be an incident of the employment that has a relevant connection with the employment. We say that about both of those decisions.
Now, as your Honours will be aware, Jacobi, which follows Bazley immediately in the reports, which was a case of a recreational counsellor - there was a different conclusion. They, seemingly, on the difference between the extent of the care, which is perhaps another way but not phrased in this way by the Court, of saying of the content of the duty.
GLEESON CJ: You mean, if you employ somebody to tuck little children into bed you are more likely to be vicariously responsible for sexual misconduct of that person than if you employ them to run them around the oval.
MR SEXTON: That seems to be what is reflected in those two Canadian decisions. That, of course, to some extent confuses notions of content of duty with notions of connections with employment, which is not something that is addressed in those cases.
GLEESON CJ: Yes.
MR SEXTON: Your Honours, unless my learned friend of Queensland is going to be completely closed out - - -
GLEESON CJ: Thank you, Mr Solicitor.
MR SEXTON: - - -I think that I should stop at this stage, unless there is any specific questions.
CALLINAN J: Yes, there is. Before you sit down, I think it is right to say that Mr Keane embraces what Justice Heydon said in the Court of Appeal in relation to Introvigne. He distinguishes it and in the end says that in his opinion it does not have any ratio. Then he refers to subsequent dicta. Now, I understand Mr Keane to embrace that approach. Do you?
MR SEXTON: We do, your Honour.
CALLINAN J: Indeed, the conclusion of Justice Heydon, in relation to the application of Introvigne I think Mr Keane adopts that.
MR SEXTON: I think I said earlier, your Honour, that it is difficult to distil a ratio from the decision which is why it seems that it has to be looked at in terms of its own facts. While we do not, of course, dispute that there is in relation to school authorities a duty, but it is a question of analysing what the duty is.
CALLINAN J: I read Justice McPherson has also effectively adopted it.
MR SEXTON: Yes. If the Court pleases.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor for Queensland.
CALLINAN J: Mr Keane, am I right about your position on that?
MR KEANE: Yes, your Honour. Your Honours, can we, in what time is available to us, try to deal with three things. Firstly, the nature of the duty that is owed, the approach to analysis of the problem and the overseas cases.
In relation to the nature of the duty that is owed, our submission is that the duty which is owed by a school authority is a duty not to injure children by want of reasonable care for their safety. It is important, in our respectful submission, not to allow the use of the word "care" in this context to confuse the debate. The relevant duty is not a duty to ensure care or to ensure safety.
Your Honour the Chief Justice gave the example of the mother where the babysitter shoots the child. That is a particularly poignant example if we may say so with respect. It has implications both in relation to the nature of the duty and in relation to Introvigne. In relation to the nature of the duty in Carmarthenshire v Lewis [1955] AC, a decision of the House of Lords which Justice Mason, as his Honour then was, followed and applied in Introvigne, Lord Reid with his customary Scottish clarity identified the nature of the duty at page 566 by reference to the analogy with the mother, no doubt because one finds it difficult to imagine a more caring relationship between adult and child. His Lordship said at 566, halfway down:
There is no absolute duty; there is only a duty not to be negligent, and a mother is not negligent unless she fails to do something which a prudent or reasonable mother in her position would have been able to do and would have done.
Now, your Honours, Lord Reid's speech was referred to expressly by Justice Mason in Introvigne. The nature of the problem that confronted your Honour the Chief Justice in Introvigne can be seen at 150 CLR at page 264 at the top of the page:
It will be noted that Mr Gleeson's submissions assume that the case against the Commonwealth is one of vicarious liability arising out of a breach by the teaching staff of their duty of care.
In your innocence, your Honour thought that was the nature of the case:
This assumption is based on the manner in which the case was presented on behalf of the respondent and dealt with at first instance and in the Federal Court. However, as will appear, there is a case for saying that, quite apart from the issue of vicarious liability, the Commonwealth owed a duty of care similar in material respects to that owed by the teaching staff to the respondent.
If one goes to page 269, your Honours will see in the paragraph that commences at about point 4:
The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability.
There is then reference to Carmarthenshire, the point of Carmarthenshire being that the teacher with charge of the children was not negligent because she was doing her best. The point was that there should have been a system which prevented little children from getting out of the schoolyard onto the road.
KIRBY J: Just pause there. In the Court of Appeal of Queensland they appeared to have accepted that there was a non-delegable duty owed by the school authority to the - - -
MR KEANE: Yes, your Honour. A non-delegable duty is, if one pauses and thinks about the words, a duty that cannot be delegated. It has nothing to do with delegates. It is the duty of the school authority to provide systems and supervision. That duty is a duty of reasonable care. It is not a duty to ensure care is taken.
KIRBY J: I interrupted your analysis of Introvigne.
MR KEANE: I am sorry, your Honour. I was just going to take your Honours to page 271 to the conclusion in the last paragraph:
By establishing a school which was "maintained" on its behalf . . . pursuant to . . . the Ordinance . . . The nature and scope of that duty of care was co-extensive with the duty of care owed by any authority or body conducting a school to pupils attending the school. It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score.
So suggestions of vicarious liability are entirely and avowedly obiter and it is a case where the liability was a direct liability for a failure to provide proper systems.
KIRBY J: But what is suggested to us now is that the way the Chief Justice as counsel analysed the case was, in fact, the correct way, that in the light of the English and the Canadian decisions to which you will come at the third stage of your argument, that the case really went off the rails on this non-delegable point and it should have been looked at and analysed in terms of vicarious liability.
MR KEANE: Your Honour, in so far as it stands as authority, it seems to us that it stands as authority on that limited footing.
KIRBY J: But may be limited to the very peculiar factual arrangements of New South Wales and that was why, to solve the problem of that arrangement, non-delegable duties had to be even mentioned, in a sense.
MR KEANE: And to the absence of a proper supervisory regime which, independently of what the teachers did or did not do when they were there, would have prevented the injury. Your Honours, we have said that the relevant duty is a duty not to be negligent; that is to say, a duty not to injure by a failure to do what a reasonable school authority could and should do. We have said one needs to be careful of this sliding use of the word "care" which is being used, understandably, in this context.
The other thing we should say, before we come to the Canadian cases in relation to this notion of risk is that when one talks about risk as being somehow relevant to vicarious liability rather than to the identification of a risk in respect of which reasonable care must be taken, it is, in our respectful submission and with the greatest respect, preposterous to suggest in the case of school authorities, establishing schools under State legislation making education compulsory, that compliance by Executive Governments with those obligations could in any sensible sense be taken to be increasing the risk of injury to children. It is impossible to do an assessment of how that risk might be increased or enhanced when one bears in mind the alternative, your Honour. What is the alternative, that they run round the streets?
GAUDRON J: No, I am just thinking - - -
HAYNE J: They do anyway.
GAUDRON J: Again, it is not necessarily about non-delegable and/or vicarious liability, but I think you are dealing with one-teacher schools.
MR KEANE: And, your Honour, we are, and can we say - - -
GAUDRON J: Perhaps the risks in one-teacher schools are appreciably greater than in the ordinary school where you have a multitude of teachers, and there may be - again, it is not a vicarious issue as I see it, and not a non-delegable issue as I see it, so much as a direct duty to ensure very rigorous supervision in one-teacher schools.
MR KEANE: Your Honour, one can understand the point your Honour makes. Can we say this about it?
GAUDRON J: That is not the case put against you.
MR KEANE: That is a pretty good thing to say about that, your Honour. The second thing we would say about it though if it were put against us is this, that one would expect to find allegations that there was something negligent in establishing one-teacher schools. That involves an identification of the alternatives.
GAUDRON J: Yes, but I am talking about supervision of them.
MR KEANE: Your Honour, if the alternative is, in this risk calculus that seems to be suggested as a function that courts can perform as part of the judicial function which, in our respectful submission, is an extraordinary proposition, but if one is to do this risk calculus and take it away from the Parliament, one is then required to look at this balance between not having schools in small country areas - - -
GAUDRON J: No, I was not talking about not having schools. I was talking about supervision in relation to one-teacher schools.
MR KEANE: Your Honour, and in relation to that then what is the level of supervision that is appropriate? That would require one to work out what means are available to fund inspectors and so forth. That is a large task. In our case no one invites the Court to undertake that task for the no doubt very good reason that the prospects of satisfactorily doing it, even now, would be something beyond the Court. The idea of doing it in situations that existed 40 years ago is, as we say, with respect, preposterous. Can we take your Honours up, in terms of your Honour's - - -
GAUDRON J: And maybe it was always a case for the employment of females rather than men. That is a simple case to make, but it is not the case put against you.
CALLINAN J: Is that not the sort of exercise that Brodie contemplates courts doing; working out - - -
MR KEANE: Bazley, your Honour?
CALLINAN J: No, Brodie.
KIRBY J: Brodie, the case about liability for highway authorities; I think his Honour is still considering that recent decision.
MR KEANE: Quite and one can understand why his Honour would be considering it. In our respectful submission, here we are talking about risk, the creation of an enhancement of risk to children of sexual abuse by obeying the statutory command that there be compulsory education. That is a remarkable proposition, your Honour.
KIRBY J: Well it seems to be a proposition that has seeds of support for it in the United Kingdom and in Canada.
MR KEANE: Not at all, with respect; not the ghost of a suggestion that there is any support for the proposition that compulsory education or, indeed, ordinary schools attract the risk of this form of vicarious liability. Your Honours will have noted that in Jacobi v Griffiths the view taken in Bazley v Curry was reversed - - -
CALLINAN J: So soon?
MR KEANE: So soon, and on a difference that was concerned with the different relationship or the different functions performed by the relevant employee. In Jacobi v Griffiths it was a recreational club as opposed to a foundation, where the children were cared for in intimate situations - not just putting them to bed; bathing and so forth - and what the court did in Bazley v Curry (1999) 174 DLR (4th) 45 at paragraphs [42], [43], [44] and [46] refer, in very close detail, to the very specific functions which the relevant employee was entrusted in that case. It included quite - - -
KIRBY J: It seems to introduce a very unstable principle into the law that you would have to decide whether, in a particular factual situation of the relationship in employment, you attach liability and in others very similarly you do not.
MR KEANE: And, your Honour, that is exemplified by the different result in Jacobi v Griffiths, immediately following it.
HAYNE J: But the principle which Justice McLachlin applies, good or bad, is a principle which, in this field, would direct particular attention, in her Ladyship's view, to the relationship "of power or dependency". See the last sentence of paragraph [46].
MR KEANE: Yes, your Honour, quite.
HAYNE J: Which seems to take all schools - - -
MR KEANE: All hospitals - - -
HAYNE J: Residential establishments into its field.
MR KEANE: But, interestingly, in Jacobi v Griffiths - and I will not take your Honours to the passage there, but simply the passage in the judgment of Justice Williams, which is in the appeal book, at page 42 at paragraph [46], the majority:
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".
It is on that footing that we come back to your Honour Justice Kirby's question to us and we say, with respect, that these are distinctly not cases about ordinary schools, that we are, a fortiori, Jacobi v Griffiths and the other thing - - -
HAYNE J: Why, when Jacobi v Griffiths was a voluntary organisation?
MR KEANE: It was.
HAYNE J: Voluntary attendance, no sense of power or dependency which exists in school.
MR KEANE: The arrangements that they put in place were, as your Honour says, voluntary. They were not a relationship of power and dependency which was the consequence of legislation.
HAYNE J: But it seems to me that the attack you must make on it is the more deep-rooted attack of whether risk is relevant to an assessment of whether vicarious responsibility is to be imposed.
MR KEANE: Your Honour, we say that, albeit with reference to this case, by saying how is it sensibly said that one can undertake a comparison of the risks of putting children in schools with the alternative.
HAYNE J: But that is not the comparison that her Ladyship was requiring, was it?
MR KEANE: No. Well, her Ladyship was doing an exercise which looks at someone who voluntarily, as part of an enterprise which is established, albeit not for profit but nevertheless voluntarily, which requires intimate contact in private between adult and child, encouraged by the employer who chooses to operate that enterprise.
HAYNE J: But risk was taken by her Ladyship to account in pursuit of general notions or general policies of deterrence to find reflection in tort, her Ladyship being of the view that if the risk is increased and you impose vicarious responsibility on a school, organisation, whatever it is, they will set about minimising the risk. Now, that is the argument. What is wrong with it?
MR KEANE: That is an argument which is an argument to be decided on the floor of the Parliament, your Honour, because one is talking about adjusting views about what is desirable, what is the best way to spend the money, what are the risks we are prepared to take and impose on the community.
KIRBY J: I think that is not a complete answer to his Honour because the law of negligence is there, it is in principles, and often when courts say, "Well, you have a duty and you haven't discharged it", that has quite significant cost implications. This would just be another case. The parties, except for the argument on vicarious liability, are not really suggesting some entirely new doctrine. They are just suggesting the application of established doctrine.
MR KEANE: Your Honour, we notice in our learned friend's submissions, in our case, in paragraph 13, that it is said this is merely an incremental clarification. But, your Honours, with respect, as Justice Thomas points out, if this is the result of Introvigne, then it is a very radical change to the law because it means, by this understanding of duty which our learned friends propound, that if a party who owes such a duty finds itself in a situation where someone to whom it is owed suffers injury, then there is liability, notwithstanding the exercise of all reasonable care on its part. That applies to schools, to hospitals, and ultimately of course to employers. That is a remarkable expansion of the law; not one which, in our respectful submission, is based upon the development of principle.
The other thing we did wish to say to your Honour Justice Kirby in respect of the security of Bazley v Curry as an approach, or as the stability of the analysis, apart from the oddity of the different result in the next case, is that in Lister itself Lord Hobhouse did not think that the decision in Bazley was as luminous and illuminating as Lord Steyn did. Lord Hobhouse actually comments that it does seem to be a rather difficult approach to apply in that it does not really reveal a clear coherent statement of principle as opposed to a selection of policies.
CALLINAN J: Which, I think, Lord Steyn expressly said were not influential in his speech and he expressly declined to adopt them, I think.
MR KEANE: Yes. Your Honours, where we wanted to come back to in relation to what your Honour Justice Gaudron was putting to us about the nature of the case is something we wished to say in respect of approach to the analysis in this case. Our submission is that one approaches the analysis by commencing with plaintiff and defendant - pretty basic, pretty simple, but relatively uncontroversial, we would have thought, as place to start. If your Honours go the statement of claim in Ms Samin's case which is at page 16 of the record, your Honours will see the case that is pleaded in paragraphs 2 to 5 - - -
KIRBY J: There is no difficulty in the naming of the plaintiffs in these cases?
MR KEANE: No, your Honour.
KIRBY J: Where are you taking us?
MR KEANE: Your Honour, to paragraphs 2 to 5 and, in particular, can we ask your Honours to note paragraph 3:
In the premises pleaded above, the . . . Defendant's each owed to the Plaintiff a duty to ensure that reasonable care was taken of her whilst she was at the school.
McHUGH J: That is taken straight from Justice Mason's judgment at page 264 in Introvigne.
MR KEANE: And, in our respectful submission, involves a confusion as to what his Honour is to be taken to have meant: the notion of ensuring reasonable care being taken, being as a matter of strict legal understanding, a misstatement of what the duty is. The duty is not to act negligently.
McHUGH J: In Ramsay v Larsen, Justice Kitto said that the school authority undertakes not only to employee proper staff but to give the child reasonable care.
MR KEANE: Yes. Your Honour, can we come back to that in just a moment because I am actually over my time and I will come back to what your Honour says. Can we draw your Honours' attention to the allegation of breach.
In breach of the Defendant's duties between 20 October 1963 and 1 July 1965 the Third Defendant assaulted the Plaintiff.
And if your Honours look at the particulars of the assaults, your Honours will be, unlike the earlier case, in no doubt as to the nature of these assaults and there is an element, with respect, of the bizarre about them. We do not say that that makes them incredible, we distinctly do not suggest that, but your Honour will see that they include for example things that happened in the classroom as well as in the library and the sewing room, that amount to rape. What your Honours will see is that there is no allegation - and to come back to your Honour Justice McHugh, your Honour will see there is no allegation of a want on our part of supervision. There is simply an allegation that the children or the child was subjected to these very serious assaults and, ipso facto, it is said there is a liability on the basis that if they have been assaulted then it is undeniable they have not been cared for and in our respectful submission - - -
HAYNE J: If we are going to look at the pleading, there is an unparticularised allegation of breach. There is the difficulty, is it not?
MR KEANE: In breach.
HAYNE J: What do we really get out of the pleading in the end, Mr Solicitor?
MR KEANE: This, your Honour. We can start with analysing liabilities as between plaintiffs and defendants and, in our respectful submission, one starts by identifying plaintiffs and defendants and the liabilities that one may have to the other and, in our respectful submission, it is important in that regard to appreciate that, as your Honour Justices Hayne and Gaudron said yesterday, it is important to bear in mind the distinction between liability for the wrongs of another and the wrongful conduct of the defendant.
In our capacity, in the State's capacity as a defendant, its wrongful conduct is, in terms of negligence, a failure to do, and there is a gap. In terms of the liability of the State for the assaults by the third respondent, that question is a question of the State's liability for the wrongful act of the teacher.
In our respectful submission, that liability could only be a liability that is vicarious. In that regard, to come back to your Honour Justice McHugh and with in mind something your Honour Justice Kirby also said earlier, that when one looks at Deatons v Flew, for example, one sees in the judgment of Sir John Latham at page 379, I think, the point that your Honour Justice Kirby was making earlier, put very succinctly in that by reference to earlier authority in Bugge v Brown this kind of conduct renders the employee - this is halfway down 379:
In doing what she did the barmaid was, as Isaacs J said in Bugge v. Brown, acting so "as to be in effect a stranger in relation to (her) employer with respect to the act (she) has committed, so that the act is in law the unauthorized act of a stranger."
In addition, can we refer your Honours, and particularly your Honour Justice McHugh - - -
KIRBY J: But in some cases, to take, for example, a fellow employee doing some acts to another employee, the law has said it is a non-delegable duty, the employer owes the duty and if the employee does it to another employee, because of that relationship liability will attach. Now, what is the difference in the case of a school where a parent says to the law, "This is also a special relationship, and the liability attaches to this relationship".
MR KEANE: Your Honour, the law says the same thing that it said in the employment context in Antoniak v The Commonwealth, which is discussed by Justice McPherson at page 30 of the appeal book in paragraph [7]. In that case:
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 -
there was no vicarious liability because of the Deatons v Flew principle and your Honour will see that there was also a case mounted of this non-delegable duty type which was also dismissed, and your Honour will see that dealt with in the last five lines and two lines over the page on page 31.
In regard to this notion that one goes beyond the scope of one's employment, can we also take your Honours to what your Honour Justice McHugh cited as to the rationale for the liability of the employer for an employee's act in Scott v Davis 204 CLR 357 where your Honour cited, as stating the rationale for the vicarious liability of an employer for an employee's acts, as follows. Your Honour cited the classic passage from Justice Willes:
A person who puts another in his place to do a class of acts in his absence, necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held answerable for the wrong of the person so entrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment.
Now, your Honours, in our respectful submission, this notion which is reflected in Deatons v Flew, page 381, and the passage to which our learned friend from New South Wales took your Honours, what is abundantly clear from the passage at 381 in Deatons v Flew is that this notion of the course of employment is not about temporal or spatial connections and it is not about looking at temporal or spatial connections and saying, "How strong a connection is that?" It is nothing so impressionistic. It is much clearer. The focus is functional, not temporal or spatial. There has never been a case where simple spatial and temporal connections with the place of employment has been held to be sufficient. It is functional. It relates to the tasks assigned to the employee and it does require, as your Honour Justice McHugh said Lord Diplock said, in a succession of cases, really, "identification of the job assigned to the employee". What is the job assigned to the employee here? It is to teach, and it may be said, incidentally to that, to maintain discipline.
With the greatest respect, it is preposterous to suggest that it is in any way incidental to the tasks assigned to the teacher that the teacher might do these things that are alleged here, and it is quite different, in our respectful submission, from the kind of case one has in Morris v Martin. Indeed, in that regard, it is significant, we think, that in Lister at paragraphs 19 and 56 in the speeches in the House of Lords, the point is emphasised that in Morris v Martin the case was that the mink stole was given to the employee to keep. The very task that was assigned to the employee was to keep the mink stole.
As their Lordships said in Lister, the manner in which the employee kept the stole was wrongful, but keeping it was his assigned task. It is difficult to imagine - - -
GLEESON CJ: I think there is an ambiguity about the word "keep", is not there? It does not mean "not give it back".
MR KEANE: Your Honour, that is the other aspect of the case, too, of course, because it was a case of bailment and the obligation was to return it.
GLEESON CJ: If I entrust money to my solicitor and the solicitor puts his clerk in charge of looking after the money, and the clerk embezzles it, is the solicitor vicariously liable?
MR KEANE: Yes, your Honour, because the keeping of the money is the very task you have entrusted to him - you have assigned - and you trust him to keep it and if he fails that is a vicarious liability situation.
GLEESON CJ: Well, now if I entrust my money to a solicitor, and the solicitor's clerk embezzles it, there is vicarious liability, but if I entrust my child to a school and the schoolteacher molests the child, there is no vicarious liability?
MR KEANE: Yes, your Honour.
GLEESON CJ: What is the different?
MR KEANE: The difference is that in the first case, the employee is being assigned the task of minding the money.
GAUDRON J: No. Is not the real difference that the liability of the solicitor is personal and not vicarious? It was the solicitor's duty to keep the money safe and to return it - - -
MR KEANE: And to return it, and that is his contractual obligation, and that is the contractual obligation that applied in Martin v Morris as well, your Honour.
GLEESON CJ: You mean that is the difference between a promise, or a fiduciary obligation, but a promise, "I promise you that your goods will be kept safely and a duty to take reasonable care for the safety of the goods"?
MR KEANE: Well, your Honour, we would quibble a little with the second proposition. The duty is to take reasonable care not to harm you.
KIRBY J: That may distinguish the liability of the State for public schools from the position of independent and parochial schools because there there are contractual arrangements.
MR KEANE: There may be, your Honour, but it would depend upon - - -
KIRBY J: Here you have just got to get it into the duty - - -
MR KEANE: - - - it would depend upon the term of the contract and if the contract were silent, we would have thought, with respect, the obligation would be the obligation which, as Lord Reid said, is a duty not to act negligently. It may be that by contract one might assume a higher duty, but if one is looking simply at the case where there is education at schools where people are required by the legislature to send their children, the duty of those obeying the statutory command is not to injure the children by want of reasonable care for them.
KIRBY J: You remember that the old entrance as of contractual right had higher entitlements than entrance in other - - -
MR KEANE: Your Honour, that is precisely the point that Justice McPherson makes by reference to cases like Watson v George and he makes the point that those cases which express an obligation to make premises - which are, of course, static - as safe as reasonable care can make them is not the obligation of a school authority. His Honour deals with that and makes that point at page 35 of the appeal book in paragraph 20 at lines 50 to 55, your Honour.
KIRBY J: As long as we are not being guilty of giving the usual focus of the common law to property over human beings.
MR KEANE: Your Honour, it is not a question of focusing on property and preferring it over human beings, and there are suggestions in the judgment of the President in Lepore's Case that if his view is not right, then that must be so. But, with the greatest respect, that is to fail to recognise that when one is dealing with human beings, the task is so much different. It is not a matter of the static condition of the premises, it is not a matter of looking after human beings in respect of the static condition of premises. Most importantly, in the case of vicarious liability, it is always possible that human beings may, as a matter of caprice, commit crimes which are quite alien to the tasks assigned to them, even though in terms of time and location, it may afford them the opportunity to do what they do. Your Honour Justice Kirby said to our learned friend, "What would the State say to parents of these children?" Well, it would not be a satisfactory answer, but the State would say the same thing, one imagines, that as a matter of law that the publican would have said to the plaintiff in Deatons v Fle, "What happened to you was something that occurred because my employee did something quite alien to her functions and it was a crime and a crime which should be punished and in respect of which you have your rights against that person; but I did not wrong you."
KIRBY J: I am just a little surprised at the decision - I have not read it - in Antoniak. It is not a decision of this Court.
MR KEANE: No, it is a Federal Court decision.
KIRBY J: Perhaps my mind is contaminated or affected by the development of workers' compensation statutory entitlements or by, undoubtedly, if you are assaulted by a fellow employee at work, you are entitled to compensation if seen to arise out of your employment or in the course of your employment. But, query, whether Antoniak or Deatons v Flew would be held the same way today. I am not at all so sure. The common law marches with statute and - - -
MR KEANE: Your Honour, the common law does, but it marches by decisions in cases and, as we apprehend it, no one - and I say this mindful that my time is distinctly up - we say this, that no one has suggested that Deatons v Flew should be reconsidered.
KIRBY J: It is more a question how it would be applied in a modern employment environment.
MR KEANE: Your Honour, the passage at 381 plainly focuses on the functional aspect of the tasks assigned. One is required to identify the task which is assigned, but when one identifies it, one then says, "Is this conduct an incident of that?" and, in our respectful submission, in this case, the answer is, as the Court of Appeal in Queensland said, abundantly clear.
Your Honours, the only other thing we wish to say is we have given your Honours the Queensland Victim of Crimes Compensation Act. We give it to your Honours simply because parliaments have recognised that there is a problem in terms of compensating victims of crime. It is a general problem; it is not a problem of school authorities any more than it is of hospitals or of employers. It is a general problem and it is a problem properly left to the legislature, in our respectful submission.
GUMMOW J: Now what do you say, Mr Keane - just forget about time for a minute - about the Canadian decisions and about Lister?
MR KEANE: Your Honour, we say firstly that the notion on which Bazley v Curry seems to stand, which is that one can identify relevantly for the purposes of vicarious liability the touchstone of vicarious liability in this notion of creation and enhancement of risk, that is a basis which, in our respectful submission, has no support in principle, which does not even reflect the performance of a judicial function, in our respectful submission, and is certainly not applicable in the context of education at schools where education is compulsory.
We also say that Bazley v Curry is readily distinguishable, as is proved by the decision in Jacobi v Griffiths, and we also say that neither Bazley v Curry, Jacobi v Griffiths and Lister v Hesley Hall, none of them suggest in terms that schools are liable, and your Honour Justice Hayne raised this question with our learned friend. Lord Millett actually refers to boarding schools as being one of the institutions that might fall within the decision in that case. We think that interesting, because it does not include ordinary schools and we think that the reason for that probably is the greater intimacy entrusted to a master who puts children to bed at night, perhaps individually.
KIRBY J: That seems a very flimsy basis.
MR KEANE: And, your Honour, to the extent that it does not commend itself to your Honours as a basis for distinction, we refer to it as a basis for saying it does not seem like a particularly sound rule.
KIRBY J: Yes, I understand that, but it does mean that we reach a position where the highest courts of England and Canada and State courts in the United States have said that because these forms of assaults in school environments are now a significant risk, that liability will be attached by the common law and the High Court of Australia says no.
MR KEANE: Well, your Honour, the first thing is - - -
KIRBY J: I do not want you to go over it all again. I know what you are saying, but that is the bottom line; that is where we end up.
MR KEANE: Well, with respect no, it is not, because, firstly, as Justice Williams points out, that is not the situation in the United States. At page 41 of the appeal book paragraph [43] his Honour refers to the decision of the Supreme Court of Colorado in Moses v The Diocese of Colorado, where:
the church was not precariously liable for the conduct of the priest.
And the second thing is, your Honour, fine point it may be, but none of those cases, none of the two cases which uphold liability, Bazley v Curry and Lister, are cases of ordinary schools, they are certainly not cases of compulsory eduction, and, of course, Jacobi v Griffiths - and one ought not forget this, with the greatest respect - is actually the other way. In answer to your Honour's concern, we would submit, with respect, that we are, a fortiori, Jacobi v Griffiths.
GLEESON CJ: Is there any Canadian textbook that summarises the current state of the law in Canada on this subject?
MR KEANE: Your Honours, there is not, so far as we know, a textbook. There are some articles. We can provide the Court with copies of those.
GUMMOW J: It is a bit too recent to have got into the textbooks, I think.
MR KEANE: 1999, yes, that is probably right, your Honour.
GUMMOW J: That is the problem.
KIRBY J: But if there are articles, I think we should get them.
MR KEANE: We will provide those to the Court.
GLEESON CJ: Thank you.
MR KEANE: They are, I am told, short summary articles rather than - - -
GUMMOW J: And what about Lister? Has there been any comment on Lister in the United Kingdom yet?
MR KEANE: I think there has been some comment on it.
GUMMOW J: It is March 2001, I think.
MR KEANE: There has been some comment on it, your Honour, and we will provide your Honours with that as well.
GUMMOW J: I have an idea there has been. What do you say about this?
MR KEANE: We say that firstly in the interests of principle, it does not seem to us that it purports to do other than identify the tasks that are assigned to the teacher and then to say that the teacher doing what he did or the housemaster doing what he did, the warden, was doing what was assigned to him. So that it is distinguishable on that footing, particularly because of the intimate contact which was assigned to him as part of his task. It is quite different from the case of a teacher at a school where that occurs in a classroom.
GUMMOW J: In common law cases it seems to me people are always distinguishing them on the facts. That is because the basic principle tends to elusive. What is the basic principle that is being applied in this case?
MR KEANE: Your Honour, it is very difficult to identify the basic principle in Lister because there are disparate strands in the reasoning - Lord Hobhouse, for example.
KIRBY J: Yes, but the basic principle must be in certain circumstances a school will be liable for the conduct of a master to a pupil - fill in the circumstances.
GLEESON CJ: There is not a shadow of doubt, is there, that the State of Queensland is vicariously responsible for the tortious conduct of Mr D'Arcy in certain circumstances?
MR KEANE: Quite.
GLEESON CJ: The question that we have to decide is whether it is vicariously responsible for this kind of tortious conduct.
MR KEANE: Yes.
GLEESON CJ: Like Justice Kirby, I am very concerned about the way the jurisprudence in this country might stand in relation to that of Canada and the United Kingdom, but in that respect I would be very interested to know what is regarded in Canada as being the current state of the law in Canada, bearing in mind the differing results in Bazley and Jacobi.
MR KEANE: In relation to that, we will get your Honours such commentary.
GUMMOW J: And bearing in mind their absence of non-delegable duty cases, at least in this sort of field, if that is the case.
MR KEANE: I think it is, your Honour.
GUMMOW J: What about Lister itself? Was there no direct liability asserted at any stage?
MR KEANE: It is difficult to see precisely what Lord Hobhouse - - -
GUMMOW J: I know that, yes, but beyond that.
MR KEANE: Beyond that there is discussion of it at paragraph 84 in Lord Millett's speech where his Lordship said:
I would hold the school vicariously liable for the warden's intentional assaults, not (as was suggested in argument) for his failure to perform his duty to take care of the boys. That is an artificial approach based on the misreading of Morris v C S Martin & Sons Ltd. The cleaners were vicariously liable for their employee's conversion of the fur, not for his negligence in failing to look after it. Similarly in the Photo Production Ltd v Securicor Transport Ltd the security firm was vicariously liable for the patrolman's arson, not for negligence. The law is mature enough to hold an employer vicariously liable for deliberate criminal wrongdoing on the part of an employee without indulging in sophistry of this kind.
That seems to be a reference to the notion that there is a direct liability for some failure to discharge or to ensure care. We note that his Lordship refers to it as sophistry and we have given your Honours in our submissions reference to the trenchant criticism of this by Justice Heydon which we would urge as - - -
GUMMOW J: I thought the previous tendency in more recent times had been to be careful about expanding vicarious liability.
MR KEANE: Strict liability, yes, your Honour.
GUMMOW J: For that reason. Whether that is mature or immature seems to me a rhetorical flourish.
MR KEANE: And, in our submission, your Honour, the distinct current of authority in the Australian jurisprudence in this Court in Brodribb and Burnie v General Jones has been to eschew strict liability in favour of the view that the law of torts proceeds by reference to fault.
GUMMOW J: And in Scott v Davis too.
MR KEANE: And in Scott v Davis, but the law of tort proceeds by reference to fault as a matter of principle.
GLEESON CJ: Yes.
MR KEANE: Those our submissions, your Honours.
GLEESON CJ: We propose to sit until 1.00 pm. Yes, Mr Solicitor.
MR SELWAY: If it please the Court, we have four short points to put. The first of them is it is our submission that the non-delegable duty of care is a duty of care in negligence. We refer particularly to paragraph 5 of our written submissions. We say it is a duty to prevent injury from negligence, it is not a duty to prevent injury from assault or from, for example, defamation.
Could we give your Honours a reference to a case that is not on any of the lists, Sullivan v Moody [2001] HCA 59; (2002) 183 ALR 404, particularly at 416, paragraph [53], where the court made the point that negligence, though it has a capacity to overrun everything else, should not do so and in particular defamation should be kept separate. And so we would say that if a teacher defamed a student, that would not be a breach of the non-delegable duty of care by itself. It may be that the school had failed to put proper systems in place, or whatever - - -
GLEESON CJ: Again, it comes back to this word "care". We have to face up here to the question of responsibility for intentional torts, which also happened to be a crime, but normally you would not describe the conduct of a teacher who takes out a gun and shoots a pupil in the leg as being a want of care.
MR SELWAY: No, your Honour. We would say that the point is made clearer if you see the duty as a duty not to be negligent, rather than simply using the words "one of care". Negligence leads to its own question but it identifies, we say, what the line of inquiry is. The line of inquiry is, is there negligence in both these cases? No negligence is alleged or shown. The issue is about assaults.
The second issue is the effect of compulsory education. We ask the Court to consider the law, for example, in relation to compulsory seatbelts. We would say that the enactment of such a law cannot itself create a duty of care in the Parliament or the State. That is because the enactment of a law, in strict constitutional theory, cannot itself be unlawful.
GUMMOW J: It has been said that there is no duty in law-making.
MR SELWAY: Exactly, your Honour.
GUMMOW J: For example, in making delegated laws.
MR SELWAY: Yes, indeed, your Honour. Nor by itself would such a law create a duty of care unless in terms it did so by creating, for example, a relevant relationship. So we would say that the mere requirement in law for students to attend school, or for their parents to send them, does not impose any duty of care upon the State or the Parliament. It may be that by the operation of schools a relevant relationship is created and so, we would say, the State is not liable merely by having created and passed and enacted laws for compulsory education in relation to the operation of private schools who are operating within that context.
The third point we wish to make relates to the policy supporting vicarious liability. We tried to deal with that in particular at paragraph 15 of our written submissions. In that regard, could I take your Honours to the judgment of her Ladyship Justice McLachlin in Bazley v Curry (1999) 174 DLR (4th) 45 in particular at paragraph [29] on page 59. There her Honour refers to Fleming and says:
In his view, two fundamental concerns underlie the imposition of vicarious liability: (1) provision of a just and practical remedy for the harm; and (2) deterrence of future harm. While different formulations of the policy interests at stake may be made . . . I believe that these two ideas usefully embrace the main policy considerations that have been advanced.
We say that, properly understood, her Honour proceeds from that point to the analysis of risk as a basis of vicarious liability, and then to her conclusion that the test is whether there is a sufficient connection with the conduct authorised by the employer as to justify the imposition of liability, and it is plain from her Honour's conclusion that a geographical, spatial or temporary connection will be sufficient. Your Honours, we say that the two fundamental concerns identified by her Honour are not sufficient to explain the law of vicarious liability, even in terms of Fleming - - -
GUMMOW J: Well, Lord Millett said more or less the same thing, did he not?
MR SELWAY: Yes, your Honour.
GUMMOW J: At paragraph 65 of Lister he says:
It is best understood as a loss-distribution device - - -
MR SELWAY: Yes.
KIRBY J: But that fits in with provision of compensation which ordinary people cannot give, but which superiors can and deterrents, because then the organisation can organise itself to try and prevent recurrence.
MR SELWAY: Your Honour, perhaps I should say, we do not disagree that both of those are elements in the policy factors supporting vicarious liability. Clearly they are. What we say is that to see them as being the only two, or even the principal two, is to misunderstand vicarious liability and, for example, if one saw loss distribution as being the relevant reason, there would be no particular reason why, for example, the bank should not be liable for all torts. Clearly there is something else operating beyond loss distribution. There is a reason why employers have been picked and others have not.
KIRBY J: Obviously, it is loss distribution and provision of compensation in the circumstances.
MR SELWAY: In the circumstance where, for reasons which are unexplained, if you look at it in simply those two reasons, the law considers it fair to impose the liability on an employer and not on someone else. The deterrence of future harm - - -
GAUDRON J: When you say "and not on someone else", I mean the loss distribution operates because usually the tortfeasor has not got a long pocket.
MR SELWAY: Yes.
GAUDRON J: But there is a legal principle underlying it all really, is there not, if not explicit, exposed by the notion of "in the course of his duties"? It is the agency, the principal and agent, master and servant. If you cannot actually control, and ostensible authority, those notions are underlying it, are they not?
MR SELWAY: Yes, your Honour. That is the point we make in 15.3 of our submissions.
GLEESON CJ: Once you get into the policy issues of loss distribution and so forth, difficulties arise. Not all employers are rich.
MR SELWAY: No, your Honour.
GLEESON CJ: Not all employers have deep pockets.
MR SELWAY: Yes.
GLEESON CJ: There are some employers who are in a very modest way of business or are in very modest financial circumstances.
MR SELWAY: And if that were the only reason, with respect, the analysis would have to be much more detailed than the common law goes into. One would need to analyse where the risk actually ended up, who actually bore it. It may be the employee that bears it. It may be the bank that bears it. It is a simplistic analysis but, nevertheless, we do not deny that it forms part of the rationale for why vicarious liability is developed.
Could I, perhaps, just give your Honours a reference, given that her Honour referred to Fleming, to pages 427 to 428 of Fleming where the author discusses the issue of more direct concern here of illegal acts and deliberate acts, and it is obvious that her Honour has not included that in her Honour's analysis.
KIRBY J: It is not like you, Professor Selway, to fall into calling her "her Honour". It is her Ladyship.
MR SELWAY: I apologise, your Honour. Your Honours, we say that at least one of the elements of the policy is that the employee be acting in furtherance of the employer's business, whether described at an abstract level, whether described as a representative or whatever.
HAYNE J: But is that rooted in the notion that either the employer benefits or the employer can do something about it, or some combination of those?
MR SELWAY: There is within the concept certainly something to do with control, that seems to be an important issue in determining whether vicarious liability should apply in a particular case or not. We have heard that in 15(2). Here we are referring more particularly not necessarily to benefit but to the nature of the relationship. Benefit is an aspect of that relationship; whether the employer has held out the employee as a representative to do the particular act is another aspect of it. It can be - - -
GUMMOW J: That was very significant in Hollis v Vabu.
MR SELWAY: Yes, your Honour.
KIRBY J: But can you get down to these details, either the category is accepted or not? The Chief Justice says, and it is absolutely correct, some employers have not got a long pocket, but the law does not allow itself to say, "Well, some employers will have vicarious liability, some will not". It lays down a general principle, does it not?
MR SELWAY: It does, your Honour. We are not doubting the broad acts approach, we are not doubting that there are policy issues considered in a very broad policy basis that are balanced on a very broad basis. That appears to be what is happening. The difficulty - - -
GLEESON CJ: But can you draw a line - if you are going to make employers vicariously responsible for intentional tortious or criminal conduct on the part of their employees, how do you distinguish between different kinds of intentional torts or different kinds of crimes?
MR SELWAY: Your Honour, we do not suggest there is a bright line. What we suggest is it is a matter of degree and judgment that the nature of the employment, the motive of the employee, the perceived moral turpitude of the act will all be relevant.
GLEESON CJ: But if you are going to say school authorities that employ people with a propensity to commit sexual crimes will be made responsible, what do you say about publicans who employ aggressive barmaids?
MR SELWAY: We would say the first step, your Honour, that one must distinguish here the case of direct liability in your own account. If a publican employed an aggressive barmaid and that could be proved, it may well be that the publican would be liable directly. The question for vicarious liability is whether, notwithstanding the fact that the publican had no way of knowing and was not negligent in employing the barmaid, should still be liable for the barmaid.
It is in that sense that there is no fault apart from the relationship, which has enabled the law to say, in effect, that even though the employer has no fault it should bear the liability. In the absence of fault, one is left with a judgment to make as best one can where we can point to various factors such as the nature of the employment, the nature of the act, and one might well distinguish a case of excessive discipline where the excessive discipline appeared to have something to do with a personal matter between the person imposing it and the student as against a situation where it had nothing to do with the personality and appeared to be entirely related to the school situation.
KIRBY J: As Justice Gummow points out, the common law loves to have distinctions on facts but there is a very fine line between excessive punishment and punishment that involves taking down the pants and that might in a non-sexual situation, be regarded as another step on excessive punishment.
MR SELWAY: Yes.
KIRBY J: Humiliation for example.
MR SELWAY: Yes.
KIRBY J: Where does one say you cross the magic line that takes you outside vicarious liability?
MR SELWAY: Can we say this, your Honour: we have, in the Queensland case, allegations of rape - appears clear cases of rape, where it is was said that was clearly on the other side of the line. There is no way that could be seen as part of the duties of the teacher or as being associated with the duty of the teacher. The problem with the New South Wales case is working out just what it is that is suggested to have happened, when there are no clear findings of fact. In that case the taking down of a student's pants and hitting the student to humiliate the student might well be seen as excessive punishment, and thus to fall within the broad abstract description of the duties of the teacher. On the other hand, to take the student down for the reasons - - -
HAYNE J: The fondling of the genitals would not be.
MR SELWAY: Would not be. We would say that the Court is going to be involved in those decisions on the odd cases when they arise, and it is going to be necessary to determine what the motive of the teacher was, what the purpose of the discipline was, how closely related it was to the education. We say that is a necessary part of the task. But what we say that her Ladyship did in the case of Bazley was that she did not take into account that policy factor at all of the relationship, if you like the employment relationship. Because of that, the decision is fundamentally flawed, as proven by its reversal in a case heard and argued on the same day, with judgment delivered on the same day.
HAYNE J: Does your argument come to this on this branch, Mr Solicitor, that deep pocket is obviously something that has a lot to do with vicarious responsibility, apart from that there are four factors, at least, that are in play: control, deterrents, representation holding out that sort of thing; and benefit, benefit to the person who is to be held vicariously responsible? Now, you seem to seek to put deterrents aside and say control likewise may be put aside absent direct responsibility and focus more on representation and benefit, do you, or am I mischaracterising the - - -
MR SELWAY: I may have put my position too strongly, your Honour. We say deterrents has to be considered as the other side of control and it is hard to see how anybody can be sensibly deterred if they do not have a capacity to control.
HAYNE J: For my own part, it seems to me those have a major role to play in determining direct duties.
MR SELWAY: Yes.
HAYNE J: At the moment I do not see the particular function they play in relation to vicarious responsibility.
MR SELWAY: All I can say to your Honour is we have done the process, if you like, of going through the recent cases of the Court and in 15.2 we have identified a number of cases where it seemed to us that deterrents and its control were seen by members of the Court as being relevant to the question of vicarious liability. We do not try to argue that it is not relevant, though we do say that normally, if they are important, they would normally be expressed in terms of direct liability, not vicarious liability, but they obviously have some part to play because judges of this Court have referred to them.
Your Honours, the final matter we wish to refer to is whether this is an appropriate case to review the whole law of vicarious liability. We are aware that your Honours Justice Kirby and Justice McHugh have in recent cases referred to the need, or perhaps the perceived advantage, of a wholesale review, but we would say that the correct identification of the policy factors for vicarious liability would itself be part of such a review and, as part of a continuing process, would assist in the development of the law of vicarious liability in this Court.
Beyond that we say that the information before the Court probably does not enable it to undertake a more substantial review at the moment. For example, assuming that one of the policy factors is risk transfer, it is obvious that the cost of such a transfer has changed or risen considerably in recent times, if only because of the apparently increased costs of insurance.
The short term cause of that would seem to be a fall in equity markets but the long-term cause may have more to do with the developments of the law of torts over the last 20 years or so. The Court has little or no information upon which it could make judgments of those matters and, consequently, we would say, that some care needs to be taken in looking at, if you like, a broadening of risk transferred - transfer of more risks to someone with broad pockets, when the reality is that the insurance market may not be there to support. Your Honours, we cannot take the matter any further than that except to say that the position may be clearer in the future than it currently is. If it please the Court.
GLEESON CJ: Thank you, Mr Selway. Yes, Mr Morrison.
MR MORRISON: Thank you, your Honour. Your Honours, might we commence by trying to clarify one matter which was raised yesterday and that was the unusual nature of the orders made in the Court of Appeal. The answer, we think, lies in what was said at pages 17 to 19 of the appeal book, and I just take your Honours there very briefly. At page 17 counsel for the plaintiff raised the problem that damages could not be dealt with before his Honour and said that since damages were a necessary ingredient of a finding of negligence that was a problem in terms of separating the issue of liability.
There is some further discussion of that on the next page, and counsel for the appellant agrees with that and agrees with the proposition that if breach of duty is separated that should not pose a problem.
On page 19, we then find the final determination as to what is to be decided. That appears at line 15. His Honour says:
Very good, yes well the trial of this matter will proceed on the two issues only. Did the first defendant owe a duty of care to the plaintiff and if so, was it breached. Well the record's clear now.
That meant that the issue of damages was not to be determined and there should not have been a finding of liability in favour of the plaintiff, even if the plaintiff had established a breach of duty because evidence on damage had not been determined.
KIRBY J: Yes, but as Justice Hayne pointed out earlier at the beginning of the case, it is difficult to deal with a negligence case where damage is part of the cause of action without getting into damage and this was, in fact, what happened. You did get into damage.
MR MORRISON: Indeed, and there is no question but that the trial miscarried in the sense that whatever was done had to be wholly redone on another occasion. The fact that both parties and the trial judge all agreed with that course, and that the course, as the Court of Appeal recognised, and as we conceded in the Court of Appeal, was an unwise course, nonetheless does not take away from the fact that that was what was done.
KIRBY J: Does that include the verdict against the second respondent?
MR MORRISON: No, because the reason that should stand was because it appears that there is no challenge on the part of the second respondent to the issue of damage.
KIRBY J: We have a letter saying the only reasons there is no challenge is that he has no funds.
MR MORRISON: That was not the evidence on the day when the matter came on for hearing. His Honour made inquiries of the list judge. The second respondent had appeared before the list judge represented by senior counsel and made a decision not to attend or defend the allegations.
KIRBY J: Maybe that is because senior counsel put his hand out for the money.
MR MORRISON: I cannot answer that, your Honour, but nonetheless he was represented, a decision was made and the trial proceeded on the basis that he did not wish to be heard on the allegations, knowing that the allegations were allegations of sexual assault.
McHUGH J: But, Mr Morrison, I would have thought it was very much in your interests to get the finding against the second respondent set aside, because if the true theory of vicarious liability is that the master is liable for the servant's tort, then you are liable only for that tort - I am sorry, the other side is liable only for that tort, which seems to have consisted - one assault, and we do not know what the consequences of it were. I do not see how you could try a case like this without starting again.
MR MORRISON: Your Honour, we are not at odds with the notion that the matter has to be retried from the beginning, in a real sense.
KIRBY J: Well, how could you leave an undefined judgment hanging? Justice McHugh is obviously correct.
MR MORRISON: Except that it was not defended. That is the only reason that it can be left in that state. Can we just say this about - - -
CALLINAN J: Just one moment, Mr Morrison. There must have been some non-minimal damage, if breach of duty were made out. There may not have been a great deal of damage, but it must have been beyond the non-minimal, surely.
MR MORRISON: With respect, no. One can imagine all sorts of cases in which there is a breach of duty, but no damage, and therefore no negligence.
CALLINAN J: No, I mean, in this case. In this case, the allegation was the unlawful - leaving out any question of sexual implication - the unlawful administration of a punishment, or an excessive punishment. That seems to have been the finding. Now, there must have been some pain and suffering associated with that.
MR MORRISON: Your Honour, those issues were not entered into, in the sense that evidence as to pain and suffering was not adduced - - -
CALLINAN J: Well, that is a matter of the extent or degree of it, but if you get smacked hard, it is painful.
MR MORRISON: I take your Honour's point. Can we just simply say that the way in which the matter was left was that evidence as to damage was to be dealt with separately and that the consequence was that the trial judge found the bare minimum he had to find, namely at least one assault.
McHUGH J: But that is the whole point, that it was an action for assault, which does not require proof of damage. It is an action in trespass. Your other action is an action in trespass in the case. One of the remarkable things about Deatons v Flew is that there was a single count in which the barmaid was sued in assault and yet the employer was sued in case. The pleadings were just completely wrong, as Mr Lusher, who appeared for the plaintiff, once acknowledged. But here there was no need to prove damage. Once assault was proved, the action was there.
MR MORRISON: Nonetheless, your Honour, and accepting what your Honour says, that was not the basis upon which the trial proceeded.
McHUGH J: I know that, but a finding that the plaintiff was assaulted by the defendant does not carry with it any legal implication that any damage was caused to the plaintiff.
MR MORRISON: I understand what your Honour says.
McHUGH J: All you have to show is a direct application of force.
MR MORRISON: The way in which the matter was dealt with was by apparently inviting the trial judge simply to find that there had been an assault. He found that. Since neither the State of New South Wales nor the second respondent disputed that, and indeed the State of New South Wales never suggested that there had not been a sexual assault - and it should be borne in mind there was no objection to the statements of the witnesses, contemporary statements, no cross-examination of the pupils who were called, other than to suggest to them that they had a better recollection when they made those statements a few days after these events than they did 20 years later.
KIRBY J: Yes, but we all know why that is, counsel can only act on instructions and they had no knowledge of what went on, that is indeed their complaint, but the person who had an interest to do it withdrew because he says he does not have the funds and therefore there was no contra dicta.
MR MORRISON: Your Honours, at the end of the day, these matters have to be tried again. The President recognised that and said at page 130, line 45 and again at 139, line 64, that all issues, including the sexual issues, would be subject to the further hearing but we suspect it is because the issue of damage and therefore the finding of negligence was kept to one side and because the trial judge did not reject the issues of sexual misconduct, he merely found the least he needed to find to deal with the matter before him, namely, breach of duty.
KIRBY J: I am in a state of confusion now because the appellant's notice of appeal in your case at page 181 asks for the restoration of the verdict in favour of the appellant at trial and yet Mr Solicitor for New South Wales seemed to say that he was content with the matter to go back. I assume that is what the position now is. So there is furious agreement between you. I has to go back.
MR MORRISON: Except, I suppose, there is a disagreement as to the effect of that because we have always been of the view that the issue of damages and the factual issues would have to be determined. We are certainly though of the view that there was no estoppel arising from those findings because the issue of damage was not determined and he did not reject the allegations of sexual misconduct made by the witnesses. Therefore, he expressed some doubts about some conflicts in them but he made no finding.
For example, when it is said in the submissions on behalf of the appellant at 4.2 that the trial judge found"
the assaults were deliberate and isolated acts of abuse which occurred in an closed room and which were inimicable or totally foreign to the teacher's duties as a teacher.
We would adopt what Justice Heydon said about that, at 149, line 45, namely, those words were preceded by the words "The assaults alleged". They were not findings. There were no useful factual findings. Indeed, and with the greatest of respect, on the application for special leave, we said one of the difficulties about this matter being granted special leave was the fact that there was no factual matrix upon which the matter could be determined. However, having - - -
GUMMOW J: I am not sure that there is any live controversy left between you as to what should now be done pursuant to these orders made by the Court of Appeal at 178?
MR MORRISON: Providing the orders are as proposed by the President, and we are not restricted in terms of the evidence we adduce or the findings to be made, no, but as I understood my learned friend's submission, he would wish to argue - an argument, I might add, not put in the Court of Appeal - that we would be restricted now from alleging sexual abuse. We do not understand that to have been the position.
GUMMOW J: He wants to get rid - naturally enough - of what to the State appears this rather dangerous precedent in terms of what the majority of the Court of Appeal decided on this topic we have been debating. If he gets rid of that, as I understand it, he is happy to stake his stand at a new trial on all issues. I may be wrong about that, but we have to know, otherwise we are beating the air.
MR MORRISON: Yes.
GLEESON CJ: We will adjourn now until 2.15 pm.
AT 1.04 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Yes, Mr Morrison. Just so that we can be clear as to the point of departure between you and your opponent, following your success in the Court of Appeal, when the matter goes back to the District Court, you argue it ought to be dealt with on the basis supported by the majority reasoning.
MR MORRISON: Yes.
GLEESON CJ: That is to say that whether, because of what has been called non-delegable duty or vicarious liability, the State Government will be responsible for sexual abuse, if you can establish it?
MR MORRISON: Yes.
McHUGH J: What about the case of vicarious liability; are you going to run that as well?
MR MORRISON: Yes, your Honour.
GAUDRON J: Now, what this issue: if one comes to the conclusion that there is a real issue as to the assault being involved in the disciplinary thing, but there is no vicarious liability for criminal acts, per se, that are not in some way connected, you would agree there must be a whole new trial, would you not?
MR MORRISON: Yes.
GUMMOW J: How does the order at 178 permit all this to happen?
MR MORRISON: The order at 178 is that proposed at 139 and the words immediately above it identify what the President was intending by that order, an order with which Justice Davies concurred. He said at 139, line 23:
On these principles the respondent's liability was established incontrovertibly. Accordingly, the new trial should be limited to damages.
That was what was proposed and that is the point of departure.
GLEESON CJ: Where did he make a finding that there was at least some damage?
MR MORRISON: He does not do so in express terms, but seems to assume that some damage has occurred, notwithstanding that it seems clear that the trial judge was not directly addressing that issue. But it is worthy of note that the President, at 130 at line 45, said that:
If the appeal is upheld there would have to be a further hearing on damages (conjointly with such a hearing in relation to the former teacher's personal liability for the assaults). That would provide the venue to explore, if necessary, the number and nature of the physical and sexual assault said to be causative of damage. The cause of action against the State requires proof of damage, but some damage was assumed for the purpose of the trial that took place.
I am not entirely sure that that accords with what was agreed before the trial judge originally, but that is what his Honour has said.
GLEESON CJ: It looks as though the President either understood or inferred that Judge Downs was proceeding on the basis that it was common ground that there was, at least, some degree of damage.
MR MORRISON: And that can be read into what Judge Downs said, even though that was not necessary to the issues which he had to decide. So it may be that what he said about that is only dicta, but, nonetheless, that seems to have flowed through to what the President then assumed for the purposes of making the orders.
CALLINAN J: Was there any claim for exemplary damages?
MR MORRISON: There is no claim for exemplary damages forming part of this action.
GLEESON CJ: Now, presumably, if this matter had never come here and it went back to the District Court, you would, amongst other things, be relying on Lister.
MR MORRISON: Absolutely, and would, of course, have been relying upon the sexual nature of the assaults which was the case that was really being run.
GLEESON CJ: Could I ask you this question, Mr Morrison? Suppose at a State school during school hours a male teacher sexually assaults, not a pupil, but another teacher, is the State liable for that?
MR MORRISON: We would say on the basis of Bazley and Lister, probably no. I say "probably" because there are some circumstances in which the employer might have had a duty to prevent such an assault, but the mere fact that it occurs on premises by an employee during the hours of work does not, on the test posed in the Supreme Court of Canada and adopted by the House of Lords, establish liability of itself.
May I come back to that issue because that is critical to our argument and it is the area in respect of which we differ from the assertion that essentially it is all or nothing; strict liability for everything or no liability at all. We say that is simply not what the House of Lords and the Supreme Court of Canada were doing.
As we see it, the real issue that has to be determined here, whether we are dealing with the non-delegable duty or with vicarious liability, is what the content of the duty is. Our starting point is that the appellant concedes it owed to our client a non-delegable duty of care. We would say that non-delegable duties and the categories of them are well established. No one here has asked the Court to change the law or to overturn the law on non-delegable duties. It is the appellant that comes here seeking to give that non-delegable duty no content, because what is asserted as the non-delegable duty is no different from the ordinary duty of care which would be owed in any event. So that the term would become ultimately meaningless.
KIRBY J: I am not sure that that is right. The appellant wants to lay emphasis upon the fact that the tort for which you are suing is negligence and that you cannot get too far away from having to prove a want of care. That is what is the content of the duty. Just because there is a non-delegable duty does not mean that everything that happens is compensable.
MR MORRISON: That is so, your Honour, although what is really being alleged here is a trespass to the person, I suppose. It is an intentional tort rather than negligence, but the principle remains the same. We would say that when one looks at the purpose of non-delegable duty we go back to what this Court said in Burnie Port Authority v General Jones Pty Ltd 179 CLR at 551, where it was said:
the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.
We say that is significant both in terms of the test for when there should be a non-delegable duty and in terms of measuring the extent of the duty. The question that is then posed is whether the teacher's intentional and criminal act can fall within the scope of employment.
It is interesting, we would say, that Lord Millett in Lister said, at 796G, that the appellant's proposition that an intentional and criminal act cannot fall within the scope of employment is heresy.
GUMMOW J: It is reported in [2002] 1 AC.
MR MORRISON: Thank you, your Honour. I should give the paragraph number.
GUMMOW J: What paragraph number are you reading from?
MR MORRISON: The paragraph I am referring to is paragraph 72. What his Lordship said was this:
The heresy -
the heresy that you cannot be liable as an employer for your employee's intentional and criminal act -
was not exposed until Lloyd v Grace -
that was in 1912 -
and despite this has proved remarkably resilient. It took another 50 years until Morris v C. W. Martin & Sons Ltd -
that was in 1966--
for it to be recognised that Cheshire's Case was no longer good law; and regrettable traces of it appear in Trotman . . . If the employer is to be absolved - - -
GUMMOW J: What has Morris to do with it, really? That is the case about the fur, is not it?
MR MORRISON: Morris was the fur; Lloyd's Case was the managing clerk of the firm of solicitors.
GUMMOW J: We know about Lloyd's Case.
GAUDRON J: But both those cases were of a personal and direct duty, were they not, really, on a proper analysis?
MR MORRISON: Could I come back to answer that question because, if I may, I will turn back to those cases in a moment, your Honour. Just to finish the quotation before turning to the authorities, his Lordship said:
If the employer is to be absolved from liability in that case (or this) it cannot be because the acts complained of were "independent acts of self-indulgence or self-gratification".
That was the view taken by all but one member of the House of Lords in Lister.
Turning back to answer your Honour's proposition a moment ago, can I just take your Honours very briefly through that line of authority which starts in 1912 and the first of those cases was Lloyd (Pauper) v Grace, Smith & Co [1912] UKHL 1; [1912] AC 716, a decision of the House of Lords and that was a case where the principals in a firm of solicitors were held liable for fraud of their managing clerk upon a client without negligence on their part. True it is that it can be said that it is a personal duty to them but we would say how does that differ from the obligations imposed by a non-delegable duty?
GLEESON CJ: There is an interesting comment by Lord Millett on that in paragraph 73 at line F.
it was accepted -
in argument that -
the firm would not have been liable if the clerk had stolen the contents of his client's handbag.
MR MORRISON: Yes.
GLEESON CJ:
for the clerk would merely have being taking advantage of an opportunity which his employment gave him.
MR MORRISON: Yes, and that is the line which causes the House of Lords to say that Deatons v Flew is not necessarily wrongly decided and to say that Jacobi, in the Supreme Court of Canada, can remain consistent with the principles espoused in Bazley. Again, can I come back to that in a moment because I need to come to those matters?
The next case in the line of authority is Morris v C.W. Martin & Sons 2 All ER 725, a Court of Appeal decision. There, the plaintiff took her mink stole to a furrier for cleaning and, with her permission, it was passed on to a cleaning firm, where one of the employees stole it.
McHUGH J: Mr Morrison, Morris is reported in the authorised reports. It is in [1966] 1 QB 716.
MR MORRISON: Thank you, your Honour. I apologise for that. The only point I wish to make from that is that, again, the fact that it was intentional and criminal did not prevent recovery. If we then turn to a case of personal injury - because those are cases dealing with property - Williams v A & W Hemphill Ltd - - -
GUMMOW J: They are contract cases, are they not?
GAUDRON J: Are they not really, in essence, contract cases?
MR MORRISON: Well, they do not appear to have been treated as limited in that way.
GAUDRON J: I know they do not, and certainly there was no doubt that the clerk was the solicitor's agent. I would have thought if you give money to a solicitor, or title deeds, albeit that you are giving it to the solicitor through his or her agent, you had a contract with the solicitor and perhaps you were the beneficiary of a trust from the solicitor.
MR MORRISON: Morris does not appear to have been decided on the basis purely of contract and it does not seem to have been treated by the House of Lords subsequently as limited in that way.
GAUDRON J: No, I know it does not, but they seem to me to be fairly flimsy bases on which to erect a principle of vicarious liability for criminal acts.
MR MORRISON: Could I turn to other authorities, which are not dependent upon property. In Williams v A & W Hemphill Ltd [1966] SC(HL) 31 - it is a House of Lords decision coming from Scotland. That was the case in which a driver transporting passengers and property for his employer was requested by his passengers to deviate substantially from his route. He did so; he had an accident, through his negligence, and the issue was whether the employer was vicariously liable for the passenger's injury. It was held that the employer was.
GAUDRON J: Again, for the driver's negligence.
MR MORRISON: Yes, but for the driver's negligence as a servant of the employer, even though he was doing something which was directly contrary to what he had been instructed.
GAUDRON J: He was driving the bus.
MR MORRISON: Yes.
McHUGH J: I am not sure what is the point you are arguing here. Are you dealing with the non-delegable duty?
MR MORRISON: Relevantly, your Honour, we would say that non-delegable duty and vicarious liability merge with each other in our particular case because we are dealing with what is done by an employee. That may not always be so, but in this particular case we say there is no - - -
McHUGH J: Not only may it not always be so, it is never so. They are two different duties. Vicarious liability: the master is liable for the servant's tort.
MR MORRISON: Yes.
McHUGH J: In the case of a personal non-delegable duty, the master is liable for his own tort.
MR MORRISON: Yes, we take on board what your Honour says, but the consequence, ultimately, we would say, is the same, namely that the appellant is liable for the tort including a criminal and intentional tort of the employee.
McHUGH J: Well, that may be.
MR MORRISON: Whether it be vicarious or non-delegable.
McHUGH J: But conceptually they are two different things. It is illustrated in Morris itself because Lord Justice Diplock and Lord Justice Salmond treated the case as a true vicarious liability case. On the other hand, Lord Denning decided the case on the basis that the master had delegated his duty, to protect the goods from theft, to the servant and that the master was liable personally because the delegate had breached the master's duty. So that case throws up an important distinction between the two things.
KIRBY J: I suppose you are entitled to say your opponent had challenged the contention that the non-delegable duty, when you define its content, covers you in this case and that, if that is so, then you seek to bring home the liability via the doctrine of vicarious liability of the general principles of negligence against the employer.
MR MORRISON: We would certainly adopt that, your Honour, yes.
KIRBY J: Can I say when I looked at your pleading, you said it was an action for assault, but it was only an action for assault against the second defendant. That is page 3. The claim against the State was in the alternative for negligence of the first defendant.
MR MORRISON: There was also a pleading by way of servant or agent and the Court of Appeal deals with that. But having said that, as we conceded at the Court of Appeal, the pleadings were less than elegant, but it was not determined in the Court of Appeal on the issue of pleadings. The issue was whether or not there could be - - -
KIRBY J: No, but I am wondering whether I have to be considering a claim against the State in assault, and when you look at the pleading it does not say that. It says against the second defendant for assault, but against the first defendant, the State, occasioned by negligence and you give particulars of the negligence, pages 3 and 4. Unfortunately, by the time these things get here we have to have a degree of precision about them.
MR MORRISON: That is so, your Honour. Paragraph 10 is probably the closest it comes to that, your Honour:
Further or in the alternative, the Plaintiff alleges that the aforesaid injuries and disabilities were occasioned by the negligence of the first defendant, its servant and/or agents.
GLEESON CJ: But you are not proposing - - -
KIRBY J: But the cause of action, the tort, is negligence.
MR MORRISON: Yet again it used the term "negligence".
GLEESON CJ: Even if you go back and replead, you are not intending to allege, are you, that the State of New South Wales, by its servant or agent, assaulted your client.
MR MORRISON: We would certainly wish to allege that the State of New South Wales is liable for the tortious assault - - -
GLEESON CJ: I understand that.
MR MORRISON: - - -but that is not quite the same thing.
GLEESON CJ: Exactly.
MR MORRISON: Just to finish that analysis, Rose v Plenty (1976), again Court of Appeal, was the milkman who was prohibited from having anyone ride on the milk cart, but allowed a 13-year-old boy, contrary to his express instructions to assist, through his negligence the boy suffered injury and sued his employer and the employer was held liable by the Court of Appeal.
If I step back a little to one older case, which might be of assistance, and that is Central Motors Glasgow Limited v Cessnock Garage and Motor Company [1925] SC 796, and that is the Court of Sessions in Scotland. That was the case, your Honours, where a case was entrusted to a garage overnight. A watchman unlawfully took the car, drove it and had an accident, and the question was whether the employer should be held liable for that intentional and criminal act and the Court of Sessions held that it should. Again, the case did not turn upon obligations in contract. What is interesting is that - - -
GAUDRON J: Why not? Well, certainly there was a bailment.
MR MORRISON: I wonder whether there was an exclusion clause rather like the one in Photo Production Ltd v Securicor Transport Ltd - - -
GUMMOW J: And in Morris.
MR MORRISON: - - -which your Honours will recall prevented recovery. What I want to draw attention to was the words of Lord Cullen in that case, with whose opinion the Lord President Lord Clyde agreed. These were the words which were cited with approval in Lister by Lord Clyde. They appear in the judgment at page 802.
The question is not to be answered merely by applying the test whether the act in itself is one which the servant was employed or ordered or forbidden to do. The employer has to shoulder responsibility on a wider basis; and he may, and often does, become responsible to third parties for acts which he has expressly or impliedly forbidden the servant to do . . . It remains necessary to the master's responsibility that the servant's act be one done within the sphere of his service or the scope of his employment, but it may have this character although it consists in doing something which is the very opposite of what the servant has been intended or ordered to do, and which he does for his own private ends. An honest master does not employ or authorise his servant to commit crimes of dishonesty towards third parties; but nevertheless he may incur liability for a crime of dishonesty committed by the servant if it was committed by him within the field of activities which the employment assigned to him, and that although the crime was committed by the servant solely in pursuance of his own private advantage.
We would say that sounds remarkably like the close connection test which the Supreme Court of Canada adopted and which ultimately was adopted by all but one member of the House of Lords.
GUMMOW J: That just is based on Salmond, is it not?
MR MORRISON: Yes.
McHUGH J: Yes, Salmond wrote that in the first edition a long while ago.
MR MORRISON: Yes. But we would say in relation to that, first of all - - -
GUMMOW J: The question then is, what is so connected with, what is the content of that, and what is the phrase "may rightly be regarded as modes, although improper, of carrying out authorised acts"?
MR MORRISON: The answer that the Supreme Court of Canada produced is that found in Bazley at pages 64 and 65 of her Lordship's judgment. Perhaps it is a convenient moment to turn to that, because how then do you distinguish between those matters for which the employer is to be found liable and those for which he is not?
McHUGH J: On one view it is captured in the old statement that it was the servant on a frolic of his own or, as Salmond used to say, the master was exempt only when the servant was exclusively on his own business.
MR MORRISON: What the House of Lords and Supreme Court of Canada said was that that is not always an adequate distinction. Can I come back to address that in a moment. But what her Lordship giving the judgment of the court said at 64, commencing at paragraph [41] is this:
Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee's unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles:
(1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of "scope of employment" and "mode of conduct".
KIRBY J: It sounds like Caparo, fair, reasonable and just to impose liability. Caparo may yet ride again.
HAYNE J: It does in paragraph (2), does it not:
whether the wrongful act is sufficiently related - - -
MR MORRISON: Indeed.
HAYNE J: One wonders what the content of that is.
MR MORRISON: The reason for that is because, otherwise, you get into the sort of semantics which were engaged in in Trotman to try and - - -
HAYNE J: True it is we have substituted one semantic formula for another. What is the content of sufficiency of relationship?
MR MORRISON: Her Lordship goes on to that. May I come to that in a moment. So what we are saying, then, is that if we look at paragraph (3) at the foot of the page:
In determining the sufficiency of the connection between the employer's creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant facts may include, but are not limited to, the following:
(a) the opportunity that the enterprise afforded the employee to abuse his or her power - - -
GLEESON CJ: Pausing there. If there had not been such an opportunity, no case would have arisen.
MR MORRISON: That is so.
GLEESON CJ: So by hypothesis there was an opportunity afforded the employee to abuse his or her position or power.
MR MORRISON: Yes, but as I apprehend what her Lordship is saying, it is the degree of opportunity. When one employee pulls out a weapon unexpectedly and shoots another, in one sense being on the premises provides the opportunity, but I do not understand that to be what her Honour is referring to. So it is a question of degree.
(b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee);
That does not apply to either of the cases here as we see it.
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise;
Now, there is the degree of intimacy when you are dealing with 7 and 8 year olds and you have sole charge of them and you are able to take them to a place where they are not under observation from any other adult, in this case a storeroom off the classroom, and when you have sole power and control over those children for long periods of time.
(d) the extent of power conferred on the employee in relation to the victim;
The same very much applies, particularly in a context where children and their parents have no legal choice but to submit the children to the authority and power of the teacher. And:
(e) the vulnerability of potential victims to wrongful exercise of the employee's power.
GLEESON CJ: Now, applying those tests to the example I gave you earlier, that is to a sexual assault by a male teacher of a female teacher, what would you come up with?
MR MORRISON: That would fall outside the scope of employment for this reason, that there would be insufficient connection - absent any other factors, absent any special knowledge on the part of the employer, absent any history of such conduct - that would otherwise fall on the other side of the line much as Jacobi did in the Supreme Court of Canada. Jacobi was a decision where the same principles were applied by the same court as in Bazley v Curry but a bare majority of the court reached the conclusion that it, in their words, "fell on the other side of the line". That is the distinction. Your Honours will recall - - -
GUMMOW J: What is the line? That is the problem.
MR MORRISON: It is never going to be - - -
GUMMOW J: Other than a line fixed case by case by throwing up various factors in the air.
MR MORRISON: Your Honour, it will have to be fixed on a case-by-case basis, adopting the House of Lords' approach in Lister.
KIRBY J: You might say, just as Donoghue v Stevenson posed a very general test that we are still trying to work out exactly what it means and no one can quite be sure about how you do it, but it just has to be dealt with case by case.
MR MORRISON: And we would add to that that the test for scope of employment is in itself, on the traditional approach, so inexact as to create plenty of litigation and plenty of difficulty in its understanding.
McHUGH J: Well, it may but at least "mode" is a descriptive term, sufficiently related as a value judgment.
HAYNE J: With no standard identified.
MR MORRISON: What her Lordship goes on to say - and it does not totally answer what your Honour says but it gives some indication of the way in which you would approach that task:
Applying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer's enterprise) -
So it has to be something more than merely happening to be on the employer's premises during working hours.
HAYNE J: But there is a radical point which will not be confronted. The hypothesis for the considerations that her Ladyship is there engaging in is that the employer has not failed to observe a duty owed to the victim to take reasonable care. That must be the hypothesis. If it were not, the employer would be liable directly.
Now if that is the hypothesis, what is the significance of examining risk? What relevance has that to what is otherwise a fault-based system? It seems to flirt with notions of fault without embracing them, and it is - at least at the moment it seems to me - to be simply an asserted conclusion that strict liability shall be imposed because the occupation concerned is risky. Now, if that is the basis, let us confront it. Let us see whether that is a sufficient basis, but let us not dance around the subject.
MR MORRISON: Your Honour, we would squarely meet that by saying that ultimately it is a question of loss distribution.
GLEESON CJ: But it does sound very much like, does not it, the old-fashioned idea of strict liability for an inherently dangerous animal or machine or activity?
MR MORRISON: Yes, but limited.
HAYNE J: School mastering is dangerous and the employer of the schoolteacher shall be liable.
MR MORRISON: And there is some, I should say, support for that approach in what her Lordship then went on to say:
It must be possible to say that the employer significantly increased the risk of harm by putting the employee in his or her position and requiring him to perform the assigned tasks. The policy considerations that justify imposition of vicarious liability for an employee's sexual misconduct are unlikely to be satisfied by incidental considerations of time and place.
So when, for example, the appellant enthusiastically in its written submissions adopts what was said by Justice McPherson in the Queensland case in paragraph 13, namely that if our case is upheld, the end result will be that school authorities are liable for attacks by mad dogs, venomous snakes, serial rapists and kidnappers, just is not right. Justice McPherson's proposition, from the starting point, was clearly wrong. A non-delegable duty is not a duty to ensure that no harm of any kind befalls a pupil. It is a duty to ensure that no harm befalls a pupil through the fault of either the education authority or its servant or agent, and we would say, applying the Lister test or the Bazley test, and only if there is a sufficient connection with the employment.
GAUDRON J: There are two things to say about that. One, you are identifying the duty of the education authority which seems to me to have nothing to do with vicarious liability which I was understanding you to be speaking about. But the second proposition is this: you left out of account in that formulation, which was otherwise conventional, the word "foreseeable". So you move into strict liability, really. Once you leave out foreseeable you are taking a step towards strict liability. Why do you leave out foreseeable?
MR MORRISON: Because I use the word fault which incorporates foreseeability. There could be no fault without foreseeability. I said, your Honour, with respect, it is a duty to ensure no harm caused through the fault.
GAUDRON J: I know you did but once you got through the fault of its agent or servant, there is no foreseeability on the part of the education authority.
MR MORRISON: And that comes back to the issue as to whether or not one attributes to the education authority the acts of the servant or agent and that becomes ultimately a decision which is a policy decision based upon lost distribution. Who is better placed to bear the loss?
GAUDRON J: There may be others who take a different view but I would not like you to leave this Court thinking that I, for one, think the law of torts is based in policy considerations rather than general principles.
CALLINAN J: Or, indeed, lost distribution. Do not think that I accept that proposition.
KIRBY J: Do not think that I do not believe that there are policy decisions behind these questions of principle.
MR MORRISON: Your Honours, the words "lost distribution" were used both in the Supreme Court of Canada and the House of Lords.
GUMMOW J: I know, that is why her Honour is saying to you what she said. You do not want necessarily to be contaminated by association.
MR MORRISON: What they said was that that is simply facing up squarely to the fact that you are, in fact, making a policy decision and you are not to disguise that behind semantics.
GUMMOW J: They do not really face up to it, because they say policy and then they just jump. What it is that formulates the policy is never really articulated.
KIRBY J: The alternative is to have words like "vulnerable" or "proximate" or "foreseeable" and call them legal principle when really they are simply disguising very important policy choices. At least the Canadians are trying to face up to the policy choices. However, that is just my view.
MR MORRISON: Yes. We use the term "intellectual honesty" in our written submissions and we would respectfully submit that was what the House of Lords was facing up to in trying to get rid of the semantic distinctions in Trotman. You will recall that in Trotman in the Court of Appeal - - -
KIRBY J: The trouble is when you get into the policy, courts do not always have all the information as the Chief Justice was saying earlier. These cases throw it up. We do not have any information about how many of these cases there are in public schools; what the average cost of a verdict is; what the consequence would be if you fixed the limit at school hours or after school hours; or employees or other categories. I mean, there is a whole range of very tricky economic considerations. What is the consequence of imposing inspection on teachers? People coming in, interrogating the school children, all of these are very important policy questions but I do not know that we are competent to deal with them.
MR MORRISON: Can I try an answer some of those questions but the first point I wish to make was in relation to Trotman. Trotman, we would say, was the case where the Court of Appeal did not face up to the real issues. For example, one of the debates which was taking place in that case was whether or not the deputy headmaster who had sexually abused the disabled pupil while on holidays and while sharing a bedroom with him was going to cause liability on the part of the employer because he had failed as part of his duties to report his own sexual abuse. That was a device which was used as a means of trying to evade the difficulty of what was seen as the then test for vicarious liability.
GAUDRON J: Mr Morrison, it is all very well to talk about intellectual honesty and facing up to the issues. Let us face up to this. It is not unusual, and never has been unusual, for persons with the ultimate responsibility of care for the disabled and the young to set up procedures whereby the young or disabled person is not left alone with an adult male, or perhaps an adult female, who might take advantage of the situation - not unusual in the least. For example, when I was at boarding school the dormitory was always attended by two adults, never by one. Now, what you are dealing with in these cases, it seems to me, is a situation in which there really has been a failure to ensure adequate supervision. It is a breach by the person ultimately responsible of a personal duty of care. If you wish to add "non-delegable", so be it.
But to jump from that to vicarious liability and say you are dealing with it in an intellectually honest fashion seems to me to be misstating what is going on and seems to me to be overlooking the fundamental principles of the law of negligence. Now, I have said it. Unfortunately for you, you lost a case on supervision. That is what it seems to me those cases simply do not face up to.
HAYNE J: And if you cannot get up a case based in fault in that way, why should you be able to via the back door?
MR MORRISON: For this reason, amongst others. If one looks as between two innocent parties in relation to the particular incident, one has to ask which of those parties - the seven or eight year-old child, or the education authority - has the power to affect the way in which the supervision is carried out? Which of those parties has the power, not perhaps to prevent that particular incident - because there was no negligence in that particular incident - but to reduce the incidence of such events occurring?
GAUDRON J: Yes, but why is that not personal, direct duty and breach and not simply vicarious liability? The notion of vicarious liability is predicated on absence of fault by the person to whom responsibility is ultimately sheeted home. Now, all that you have said in answer to Justice Hayne predicates some fault which would bring you to direct personal liability and not vicarious liability.
MR MORRISON: What was done both in Canada and in England was to take as a starting point that there was no fault on the part of the education authority. Now, if that is the case, then where is the justification for liability on the part of that authority in the absence of fault? Now, the proposition your Honour has advanced suggests that there should have been more supervision. That was not what was found, or the basis for any of those decisions.
GAUDRON J: What I am suggesting is that it is not entirely helpful to suggest that there is intellectual honesty in an analysis that proceeds without an assertion of no fault, but specifies indicia of fault and to suggest in your outline of argument and in your argument here today that if the Court finds against you, the members of the Court will be guilty of intellectual dishonesty. That was the implication I took from your submission.
MR MORRISON: I would certainly apologise if that was the suggestion that your Honour drew from that. Your Honour, what we are trying to suggest is that if you start by saying what is the scope of employment and you ask the question, "Is sexual abuse of a pupil by a teacher something which falls within the scope of employment as being something which is authorised or incidental to that teacher's duties?", you get one answer.
If, however, you ask a different question, namely, "Is the care of that child part of that teacher's duties?", then you get an entirely different answer, and it was the difficulty with the questions that were asked in the Court of Appeal in Trotman that so troubled the House of Lords as to say, as they did, that they did not think the Court of Appeal had approached the matter properly and in the way that I have suggested, and that was what I was referring to.
It was the House of Lords attack upon what was said in the Court of Appeal in Trotman that I was referring to, because the difficulty really comes down to what question you ask, and if you ask one question, you get one answer; you ask another question, you get a totally different answer and that was what so troubled the House of Lords as to adopt a close connection approach and we would say that is the approach which would commend itself to this Court for a number of reasons, firstly because it gives some meaning and some content to the non-delegable duty which is established law and which is not under challenge here. Secondly, because it is consistent with the approach taken in two major common law jurisdictions at the highest level, and on a virtually unanimous basis.
GAUDRON J: But if you assert a non-delegable duty, and if we deal with that - I do not know whether your case is primarily non-delegable or vicarious - but you do accept that there must be foreseeability in the non-delegable duty situation, do you.
MR MORRISON: The question is foreseeability by whom.
GAUDRON J: By the person whose duty is said to have been breached. If you are talking about a non-delegable duty in this case, you are talking about the duty on the part of the education authority.
MR MORRISON: If the duty of the education authority is to care for the pupil and the education authority delegates that to a teacher and the teacher breaches that duty, then the foreseeability is that of any person in the position of the teacher.
GAUDRON J: That goes back. You assert a duty of strict liability really. You assert a duty which involves no foreseeability. It is like dangerous substances in the old days, dangerous animals and the like.
MR MORRISON: There is a category of strict liability involved and that is - - -
GAUDRON J: Yes, and we have to equate schoolteachers or perhaps only male schoolteachers, do we, with dangerous animals and dangerous substances? I mean, this is where your argument takes you and I think you must face up to it because there was a policy consideration in equating schoolteachers with dangerous animals, like you will not get many schoolteachers.
MR MORRISON: I am not sure that we have adopted that description of your Honour's but can we say that the question of a close connection test ultimately is a question of degree but no more so than any other test which tries to give content to the duty imposed upon an employer in respect of the employee's failure, whether it be intentional or negligent.
GAUDRON J: Unless you can succeed on a strict liability aspect of non-delegable duty, you have to put that on vicarious liability, which you rest ultimately on policy considerations, do you?
MR MORRISON: Ultimately, one has to look at which of the parties can best deal with the risk. May not have been able to prevent the particular event but by its policies can reduce the incidence.
KIRBY J: That is a "no lose" rule for you because that will always be big bucks. That will be the employer, the State, the school, the Catholic school system, they will always be better able. But there is a step in between and I keep coming back to this: you have to show fault of some kind. Now, unless it be the fault of the employee himself, what is the fault that you are trying to bring home to big bucks?
MR MORRISON: We say it is the fault of the employee that we are trying to bring home and we say that that does not necessarily mean that we are suggesting that everything that a teacher does gives rise to liability on the part of the eduction authority. Can I illustrate that in this way - - -
GLEESON CJ: Do not assume that I assume that all people who run kindergartens have big bucks.
HAYNE J: Or that all organisations that run schools - there are some schools where one verdict would send them out pronto.
MR MORRISON: We do not suggest that, but if one is looking at a seven or eight-year-old child who is required to attend that institution day after day and to go back before that same teacher again and the educational institution which in this case, in our case at least, is the same organisation which enforces the requirement for the child to attend that school, then there should be no issue but that one is in a much better position than the other to judge and deal with that risk. Now, that does not mean that the risk can be totally obviated but certainly the education authority is, as a matter of general principle, going to be in a better position. Now, that said, it is not always going to be the case that the risk can be avoided or that the educational institution will have the funds, but as a general principle, they are going to be in a lot better position than a seven or eight-year-old child.
GLEESON CJ: Why do you say "educational institution"? Just "educator" will do, will it not, or "guardian" - like a kindergarten, run by a couple in a city suburb or a country town.
MR MORRISON: And there are very strict guidelines which they are required to follow and they have to be registered and they are required to have numbers of staff - - -
GLEESON CJ: Exactly, and they are liable if they are personally at fault.
MR MORRISON: Yes.
GLEESON CJ: And I do not have a moment's problem with making them liable if they are personally at fault.
MR MORRISON: The difficulty comes when you are dealing with schools where the requirements are a good deal less rigid because certainly in schools the chance of having a single teacher on their own with pupils for prolonged periods of time is going to be much more common. It is going to be very unusual, one would think though, that such a teacher will have the opportunity to take a child or more than one child away and deal with that child or children as they wished in a closed room off the classroom, as is in this case.
GLEESON CJ: Mr Morrison, is it fair to say that the position in Canada at the moment and in the UK at the moment is that if you ask the question, "Is a school or an educational authority liable if a teacher sexually abuses a pupil?" the answer to that question is, "It depends on the circumstances".
MR MORRISON: Yes, and can I add to that that the circumstances which are relevant will include whether it is on school premises during school hours, the degree of intimacy involved in the relationship, for example having a class teacher who has sole control of a class as in a primary school might be very different from a teacher who only has one period a day and is dealing with older children and, for example as in Jacobi you will recall there that the assaults with one minor exception occurred on outings or at the children's home and that the employee, in general, and with that one minor exception, conducted those assaults not in the employer's time or on the employer premises.
Now, it is not that the location is critical, but it is a relevant factor. That fact that in our case the child was, in the terms of Burnie Port Authority, "vulnerable", "needing special protection" in the way that this Court approved those words in Northern Sandblastingm, we would say that that is the difference essentially between the decision in Jacobi, which fell on the other side of the line and the institution was held not liable, and our case where the child is vulnerable, submitted to the total authority of a teacher for long periods of time, and where the child is of an age to be particularly vulnerable. We say those are relevant considerations. One can imagine other cases which fall on the other side of the line.
KIRBY J: Certainly the position of the Court of Appeal of New South Wales appears, in principle, closer to the Canadian and English authority than does the Court of Appeal of Queensland.
MR MORRISON: That is so.
KIRBY J: The Court of Appeal of Queensland seems to take a view that in no circumstances is the State going to be liable for sexual assaults by a teacher.
MR MORRISON: Perhaps even for criminal activity of any kind, despite the long history of cases in which criminal activities have fallen within the scope of employment.
KIRBY J: Justice Binnie in Jacobi makes the point at the very opening of his reasons, and the Chief Justice makes the point at the opening of hers, that the principle in Bazley is accepted and it is just a matter of applying it.
MR MORRISON: Yes. What is interesting in the way the Court of Appeal approached it in New South Wales is that - - -
GUMMOW J: They go further, do they not? Paragraph 61 in the President's judgment, there is a proposition in very absolute and wide terms.
MR MORRISON: Yes, but that is not where he left it, your Honour. Can I give your Honour the references to that. What his Honour then said at page 132 line 30 - - -
GUMMOW J: Paragraph? I was reading from 61, which is near the end.
MR MORRISON: Yes. Page 132 towards the end of paragraph 46.
GUMMOW J: Well, you said his Honour took it further than he did at 61.
MR MORRISON: Yes.
GUMMOW J: I asked you where and you say somewhere earlier. That does not seem rational.
KIRBY J: Paragraph 61 is when his Honour is summing up and it is suggested to you that that is, as it were, stating the principle to which he has come and that is said to be too wide.
GUMMOW J: No, I did not say it was too wide; I said it was wider than the Canadian decisions.
MR MORRISON: Yes. What his Honour had earlier said at page 130, that it is not a duty to ensure that no harm of any kind befalls a pupil, for example, a duty does not apply to a stranger, and he said at 138, immediately following the passage that your Honour referred to, in paragraph 62:
In the case of tortious injuries suffered by pupils at the hands of fellow pupils the situation is different.
And that must necessarily follow. Absent some special knowledge of the situation so that you should intervene, as in some of the cases - Downs was referred to earlier; that Victorian decision of the throwing, I think, of the dart in the classroom. Absent that sort of special knowledge, the liability does not extend to the acts of third parties.
GLEESON CJ: Mr Morrison, the very way that is expressed at 61 highlights, from one point of view, the artificiality of this, does it not? You will find assertions in cases that the law does not oblige people to do the impossible. How could the State of New South Wales possibly ensure that no schoolchild is ever injured physically at the hands of an employed teacher?
MR MORRISON: But the answer is that that is qualified by what follows.
GUMMOW J: No, it is not.
GAUDRON J: It is talking about different things altogether.
GLEESON CJ: Now, maybe you can produce the same result in law in terms of the entitlement to compensation by saying the State of New South Wales will be vicariously liable if harm is inflicted by a teacher on a pupil; that is a different proposition.
MR MORRISON: Yes, I understand.
GLEESON CJ: But the way it is put in paragraph 76 is that the State is under an obligation that I would have thought is manifestly impossible of fulfilment.
MR MORRISON: And we do not submit that your Honours would or should go as far as that proposition. We say the duty is a duty to ensure that no harm befalls a pupil through the fault of the authority itself or its servant or agent. That is not the same thing as what his Honour was saying in that particular paragraph.
GAUDRON J: No, it is wider.
MR MORRISON: We simply say that - - -
GAUDRON J: It is wider, what you say, much wider because this might mean the person who is employed to - you say it could extend to the gardener in a boarding school, the person who is in charge of ensuring that the boilers are stoked up so that there is hot water for them and the like. It may even extend to the person who runs the canteen.
MR MORRISON: Your Honour, I was going to, as I had earlier, qualify what I had said with one additional factor and that was this, that there has to be that relationship between the employment and the act which meets the close connection test and so as to justify liability.
GAUDRON J: Let us assume that in a school teachers are regularly rostered to supervise the running of a tuckshop and a schoolchild eats something with salmonella in it. The teacher has in fact bought the ingredients - it is the domestic science teacher, let us assume - and he has brought the ingredients, cooked them up and made them available at tuckshop.
MR MORRISON: In that situation, your Honour, if the teacher was instructed to undertake that activity - and your Honour would understand that that is not an activity which is, as I understand it, in any of the systems undertaken by teachers, but if it were, and the teacher was instructed to do that and purchase the ingredients and there was fault on the part of the teacher, then there would be liability. But your Honour's proposition seems to suggest there was no fault on the part of the teacher, in which case the pupil would not recover.
GAUDRON J: No, what I am suggesting is, no fault on the part of the school. You see, the words that you have repeated - well, actually the words of the President in the Court of Appeal are "at the hands of". You see that just cannot be right in law, "at the hands of". That is to what I was directing my question and then your further assertion of a wider principle.
MR MORRISON: Yes. Your Honour "at the hands of" is not a submission we made but we said "through the fault of". Could I just deal with two other propositions that were put a little earlier. Supposing the gardener injures a pupil and does so intentionally and it is a one-off - - -
GAUDRON J: And it is a contract gardener perhaps?
MR MORRISON: Whether it be an employed gardener or a contract gardener, it probably matters not for this purpose. If it is a one-off criminal act with no warning, then that gardener's duties would seem not to meet the test posed either in Lister or in Bazley so as to justify the imposition of liability on the part of the educational institution. The gardener is not given the opportunities by the institution to abuse power; there is no intimacy in the relationship; there is no special vulnerability to the gardener over and above someone attacking that pupil when walking down the street.
GAUDRON J: So the schoolteacher is inherently more dangerous than the gardener.
MR MORRISON: The schoolteacher who is given absolute power over the pupils for long periods of time when they are young, yes.
GLEESON CJ: If the proposition in paragraph 61 is right, then vicarious liability has no role to play in the case of schools and schoolteachers. You would never get near vicarious liability.
MR MORRISON: As we would understand it, his Honour was just not addressing vicarious liability in that - - -
GLEESON CJ: But there is no role for vicarious liability if the State's obligation is to ensure that children are not injured physically at the hands of a teacher, whether that be negligent, whether the act of the teacher be negligent or intentional. Why would anybody need to invoke the concept of vicarious responsibility?
MR MORRISON: That may be so, but is that not a consequence of exactly what Justice Mason said in Introvigne and - - -
McHUGH J: It may depend upon whether or not the whole content of the duty that exists between the school authority and the teacher is non-delegable, for example, it may be that in so far as there is a duty to provide safe premises, that it is not a non-delegable duty whereas the duty of supervising a child is. Introvigne would seem to suggest that the whole content of the duty is non-delegable. That may or may not be right, but in the illustration that has been given about the gardening, it may be arguable that there is no such non-delegable duty in respect of the gardens and that they be kept in a particular State.
MR MORRISON: Indeed, and if I can turn for a moment back to vicarious liability, we would say that again applying the same approach in terms of trying to determine the content of the duty owed, Deatons v Flew could remain justified and remain the law as the House of Lords recognised. They said that the fact that it was an intentional and criminal act was not what stopped it being the responsibility of the employer, rather the fact that it was an isolated act of passion unrelated to her duties.
That was what caused it, but in addition to that, if the Canadian Supreme Court's test is applied, then, although the opportunity is provided, some of the other criteria laid down are not met. For example, the exercise of power by a barmaid is necessarily very limited. There is no particular intimacy involved in the relationship in a public bar, so that we would say that Deatons v Flew can stand, even using the tests applied by the House of Lords and by the Canadian Supreme Court and that is consistent with what was actually said in Deatons v Flew (1949) 79 CLR 380, because, if one turns for a moment to that decision - - -
KIRBY J: What is the point you are making now, what is your submission?
MR MORRISON: The point that I make is that in Justice Dixon's words:
the assault was as unexplained as it was unprovoked and might have proceeded from private spite on the part of the barmaid -
What his Honour was there saying was the plaintiff's case was rejected leaving no explanation for why the assault had taken place, and that ultimately was why there was no basis for finding the employer liable. As his Honour went on to say:
So far as the plaintiff's case went to show, nothing occurred which would in any way relate her action to the duties of her office or explain it by reference to anything incidental to what she was employed to do.
If I recall correctly, the barmaid alleged that she had been abused and, to a degree, assaulted before she responded excessively but the plaintiff alleged that there was no provocation whatsoever. The problem his Honour was recognising was that on the plaintiff's own case there was no basis for connecting the act of spite with the employment. We say there is no difficulty in allowing that to stand as a proposition.
Your Honours, I am aware of the time, I just wish to make a couple more points very briefly. First of all we would simply say in relation to the notice of contention in regard to vicarious liability that, as appears to be conceded by the appellant, there is no reason not to consider all issues before this Court. Secondly, we rely upon our written submissions. Finally, if we are wrong, then what ought to happen is what was proposed by Justice Heydon in the Court below, that the trial had miscarried and that it ought to go back on all issues for retrial at first instance.
KIRBY J: What is the principle of Justice Heydon? I feel that what he has referred to is correct, but has this Court said that if you feel so uncomfortable about the whole way the whole thing was done it can be retried?
MR MORRISON: I think what his Honour was referring to was - - -
KIRBY J: He said it is one of those exceptional cases but he does not say what the principle is or where it originates.
MR MORRISON: I think the submission which was put to his Honour and which gave rise to that proposition was a submission that there had been inadequate reasons by his Honour for whatever his Honour had decided.
KIRBY J: He does not found it on reasons. He just says it is one of those exceptional cases where it is so unsatisfactory it has to start again.
MR MORRISON: Yes. I appreciate that his Honour did not spell out why he says it is unsatisfactory though I think he is, to that extent, ad idem with the other members of the court in saying that the initial trial was unsatisfactory, not least because it should never have been split because in practical terms all the evidence had to be called again, in any event. It was an exercise in futility. I think that is what stands behind what his Honour has said. So, that the trial had, to that extent, miscarried, but we would submit that that is certainly wrong. Thank you, your Honour.
GLEESON CJ: Thank you, Mr Morrison. Yes, Mr North.
MR NORTH: Your Honours, before I begin those solicitors instructing me did some researches over the lunch break. I can give the Court some references to two notes concerning the Canadian authorities. One is found in volume 116 of the Law Quarterly Review at page 21. It is a case note, not a full article, by Peter Cane from the Australian National University, "Vicarious Liability for Sexual Abuse". Another in what appears to be the Tort Law Review in March 2000, "From Precedent to Prevention: Vicarious Liability for Sexual Abuse", page 27, an article by Nathalie Des Rosiers, an associate professor at the University of Western Ontario. They concern the Canadian authorities. They are not long articles or in any way could one suggest that they are the final word about the learned article you might write about vicarious liability.
KIRBY J: Professor Feldthusen has written something that is in the book in tribute to John Fleming but that was written in 1998 so presumably it was dealing with the earlier stages of the Canadian litigation.
MR NORTH: One can only assume that, your Honour.
McHUGH J: Yes, it does. I have read it. It deals with quite a number of cases though. The Canadians have had some considerable experience in this field before Bazley's Case.
KIRBY J: I think it has bankrupted the Anglican Church in Canada.
MR NORTH: I would only be going on gossip or rumour, your Honour, and I do not know that.
CALLINAN J: Mr North, do your submissions mean this, that the non-delegable duty for which you contend would involve the person who were owed that duty in liability for everything except, perhaps, an act of God?
MR NORTH: No, your Honour.
CALLINAN J: What is excepted? What sorts of events giving rise to injury would - - -
MR NORTH: We have to face up to, we concede, what Justice Gaudron has been raising, that we have to sheet home a personal duty, and we say there is a personal duty as acknowledged in some of the cases I will come to. Your Honour - - -
CALLINAN J: What personal duty did you plead here?
MR NORTH: We pleaded the duty in terms of the words of Introvigne, Kondis and Burnie Port Authority and the other cases, a duty to ensure that care is taken. Your Honours, that is found in paragraph 3 of the statement of claim. They are almost identical apart from the particulars, but at page 16 of the record your Honours will find one.
GAUDRON J: If you plead it that way, it seems to me that you come to what was said by the Solicitor-General for South Australia. It is a duty to ensure that the delegate is not negligent and there is no suggestion of negligence by Mr D'Arcy.
MR NORTH: That is where we would depart from what the Solicitor for South Australia said.
GAUDRON J: But the words, "a duty to ensure that care is taken".
MR NORTH: Rape is ipso facto not taking care. We have to face up to that and that is our case.
McHUGH J: You have to face up to this, have you not? If it is a non-delegable duty and the authority has entrusted that duty to D'Arcy, then the authority is answerable for the manner in which D'Arcy carries out the duty.
MR NORTH: Yes, your Honour, and that is our case.
McHUGH J: That is a general proposition that if an authority entrusts its non-delegable duty to a servant, an agent or an independent contractor, then the authority is answerable for the manner in which the servant, agent or independent contractor carries out the duty.
CALLINAN J: That really means in practice, does it not, you are answerable for any preventable act or omission whatsoever causing harm by the person to whom the duty has been entrusted.
MR NORTH: Yes, and in this case it is a tortious act and a criminal act. Providing it is the act of the person to whom the duty has been entrusted, the teacher, the carer here, the liability of the school institution as being acknowledged in cases in this Court as personal, it is sheeted home to the school authority.
GAUDRON J: It is strict liability.
MR NORTH: It is, as Justice Gummow noted in Scott v Davis. As to why the categories of case where non-delegable duty are not expanded readily or easily, there is a species of strict liability here and you have to be careful to restrict them. One of the areas were the courts have been assiduous to recognise it and preserve it is the precious obligation of the community to protect infants.
GAUDRON J: Now, this will be different in the hospital situation?
MR NORTH: It may be, and we do not contend that the content of the non-delegable duty hospital patient will necessarily be activated by a criminal act by a nurse or a doctor or a porter or something like that.
KIRBY J: You want to win this particular case, but the pressure on you is not the same as the issue we have to address. You see the whole tendency of this Court in recent years has been to get away from those categories. I am thinking of the liability of entrance on property, Papantonakis and so on, and yet you are now talking of a particular category, teacher/pupil. That seems to run against the trend which is to search for a principle rather than to search for a category.
MR NORTH: Your Honour, indeed we have noticed in, I think the submissions from the learned Solicitor for South Australia, but it may have been - yes, from South Australia - that that argument effectively has been raised against us. I think relying upon for example Northern Territory v Mengel when the Beaudesert Case - that is referred to specifically in one of the sets of outline.
Can we put it this way. The search for overarching, unifying principles that are consistently applied and are capable of consistent and uniform application in all fact situations may well be laudable but it will flounder from time to time, in particular narrow and confined circumstances because of the justice of the case. I do not want to be thought to be saying for all the policy reasons that the courts in Canada and England are talking about. It is not a policy thing. It comes down to, "Is this a just result?", and that there be such a narrow exception of strict liability.
KIRBY J: Yes, but if you are relying on them they argue it in the principle of vicarious liability.
MR NORTH: They do.
KIRBY J: As I read it, they have not argued it on non-delegable duty. Are you abandoning vicarious liability or do you keep it in reserve if you do not get up on non-delegable duty?
CALLINAN J: You did not plead vicarious liability, did you?
MR NORTH: In the Court of Appeal I was asked whether I was advancing any case on vicarious liability. I said that I was not.
KIRBY J: But you have been sitting here and you have heard how it has been developing.
MR NORTH: And on the application for special leave I was taxed by your Honour the Chief Justice about this. It is a matter that I have had to think about. The position of my clients has to be that if the case we have set up in the pleading cannot be sustained, we have to resort to a re-plead if we can find a case, in light of the reasons that are given ultimately in these two appeals.
GLEESON CJ: And you have indicated that if you were to re-plead you would want to rely on vicarious liability.
MR NORTH: Yes.
GLEESON CJ: Some people achieve vicarious liability and some people have it thrust upon them.
MR NORTH: Yes, your Honour. Ironically, it has occurred to me when I have finally come to think about it carefully, or more carefully than I did below, that probably all the material facts to give rise to vicarious liability, of the nature that has been talked about in this Court these last two days, have been pleaded.
McHUGH J: I am not sure - - -
MR NORTH: Assuming we do not re-plead a case based upon knowledge or what ought to have been knowledge or known bad practice, suppose we were to plead that these actions gave rise to a vicarious responsibility, the actions are pleaded, the relationship is pleaded, the circumstances of the school are pleaded and perhaps all that may or may not have to be put in would be the words alternatively, "You are vicariously - - -
McHUGH J: I am not sure about that. The closest you get are in your particulars. I think you would have to plead quite a few more facts to - - -
HAYNE J: Does this not really draw attention to the fact that it being a pleading summons, the Court of Appeal having given you leave to re-plead, is not the problem capable of solution were you to exhibit in this Court a draft of the proposed re-pleading?
MR NORTH: Can I respond in this way? We have not pleaded a case that of direct fault against the State education institution or its servants or agents at the time other than Mr D'Arcy by selecting Mr D'Arcy..... supervising all that. It is highly unlikely that a "system case" of that nature can be put up in a practical sense because we have yet to receive leave to proceed out of time.
McHUGH J: That is not the case you are being asked about? That is the case of personal - - -
MR NORTH: Yes, that is right, your Honour.
McHUGH J: You are being asked about a vicarious liability.
GLEESON CJ: Why should not we treat this as though there has been a demurrer ore tennis to your statement of claim?
MR NORTH: Yes, your Honour.
GLEESON CJ: And the question arises as to whether you can possibly amend it - - -
MR NORTH: To save it?
GLEESON CJ: To save it?
MR NORTH: Yes, your Honour.
GLEESON CJ: Now, why should not we give you seven days from today's date to show us the amendments you would wish to make to your statement of claim that would save it? That would give us something concrete to deal with.
CALLINAN J: Do your written submissions cover everything you want to say about vicarious liability, though?
MR NORTH: Yes, in essence, because - and I was not proposing to say too much more about that today - relying upon what we have said and what has been advanced by our learned friends in the Lepor - - -
GAUDRON J: Could I ask you one question? What, if any difference is there, either in theory or effect between the strict liability case you would mount or have mounted and the vicarious liability case that Mr Morrison was putting?
MR NORTH: The vicarious liability case, if we were really to happen to have the benefit of the law - it was an example where counsel was hoping to have his cake and eat it too - woud have - - -
HAYNE J: That is what I am paid for.
KIRBY J: It is not unusual to have things put to us in the alternative here.
MR NORTH: Yes, I know, your Honour. I was coy about coming to Court with a pleading because I said that I wanted to reserve that position to replead in the event that we lost our point and then to fall back on a replead where vicarious liability succeeded in Lepore.
KIRBY J: It could have significance for the awful subject of costs?
MR NORTH: It does, and potentially unfortunate significance.
McHUGH J: But the difference between the two cases is this, is it not, that on Lord Denning's view in Morris and on some academic writings, on Atiyah's writings and on Professor Swanton's writing, you can succeed on the non-delegable duty even though the servant is outside the course of his employment. Whereas in the vicarious liability case you have to prove that he was acting within the course of his - - -
MR NORTH: Yes, your Honour. I really only have a few short points to make because a lot has been said already.
GLEESON CJ: Well, do not rush away from this question. Why should we not give you seven days from today's date to show us - to file with the Registry the form of the amended statement of claim on which you would propose to rely?
MR NORTH: I will do that, your Honour.
GLEESON CJ: And you can express it in the alternative, as you please.
MR NORTH: It will be, your Honour, and can I be so bold as to say that it is virtually handwritten already, because we have been mulling over it. Your Honour, we put the case that the better analysis and the better principle in the light of the principles established by this Court consistently, since Introvigne but perhaps even since Ramsey v Larsen, is that whatever this non-delegable duty of care means in the different categories, when you come to the school and pupil and when you come to fault by the teacher who has the responsibility for care, the school authority is liable for those actions - those tortious actions - in the nature that we plead it.
We say so because the non-delegable duty of care is said to be a personal duty. Can we just remind the Court that this was expressly observed in Kondis 154 CLR 685 at the foot of the page in the judgment of Justice Mason, the bottom paragraph:
Outside the realm of master and servant and the cases discussed in the preceding paragraph the concept of a personal duty has been applied to the -
And then he refers:
to the common law duty of care owed by a hospital to its patient.
The last line on the page:
school authority to its pupils: Ramsay v Larsen; Commonwealth v Introvigne.
A "personal duty" on the school authority. Your Honours, over the page he repeats in terms reminiscent of his judgment in Introvigne, in the first full paragraph:
Likewise with the school authority. It is under a duty to ensure that reasonable care is taken of pupils - - -
GLEESON CJ: Now, pause there. That is a very different thing from a duty to ensure that no harm comes to pupils.
MR NORTH: I have to then say that the content of "reasonable care" is not satisfied when the teacher conducts himself here. It arises because of the immaturity and inexperience and, as has been observed in Introvigne in the passages that we have set out, the vulnerability. Justice Mason goes on to refer to the judgment of Justice Kitto in Ramsay v Larsen:
"that the school authority undertakes not only to employ proper staff but to give the child reasonable care" -
At the foot of the page:
it departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken.
KIRBY J: Well, if the authority in Queensland picks up the personal liability for the teacher's activity by the standard of giving the child reasonable care, what is it that the school authority could have taken to prevent Mr D'Arcy's conduct, given that he is in a one-teacher school? The answer cannot be to make every one-teacher school two teachers, because that would have very significant cost implications. The question of how many children in a class is one option, and having two teachers in one-teacher schools is another and they are matters that are left in our constitutional arrangements to the government and the Parliament.
MR NORTH: With respect, what your Honour is driving me to by your Honour's question is the concession that we have to find a fault in choice or a fault in supervision or a fault in system by the school authority to succeed. In other words, we have to find the sort of fault that your Honour Justice Gaudron has been driving at, as I understood it.
GAUDRON J: Well, I have been driving at it in a different context, I think, to say there was a big jump to vicarious liability without considering personal liability.
MR NORTH: Yes, your Honour. Can I just also take the Court to - - -
HAYNE J: Just before you depart from Kondis, can I retain you at Kondis a moment.
MR NORTH: Yes, your Honour.
HAYNE J: His Honour's statement, "ensure that reasonable care is taken of pupils attending the school", is that the same as or different from a proposition, "ensure that no want of reasonable care by a teacher causes damage"?
McHUGH J: I think his Honour did mean that, and if you look at his discussion of the hospital cases and he cites Gold as authority and Gold has always been understood in that sense. If the doctor performs the operation negligently, the hospital is liable.
HAYNE J: But if that is so, does his Honour's proposition stand for the breadth of proposition which you would have us adopt?
MR NORTH: I have always understood that in Introvigne, Kondis and in the authorities that have been picked up since then, this Court was doing something quite novel, quite important and doing it deliberately, but being very careful about it for the reasons referred to by your Honour Justice Gummow in Scott v Davis and this was understood by, we would submit, Justices Wilson and Dawson in Stevens v Brodribb at page 44 where they made this observation - Stevens v Brodribb was a circumstance where the Court rejected the notion of non-delegable duty in the circumstances of the relationship there, but at page 44 at the bottom of the long paragraph, the last sentence, referring to Kondis and to the non-delegable duty cases:
In such cases at least it would seem that liability for the acts or omissions of a contractor -
in our case we would say "teacher" -
is personal rather than vicarious, but that aspect of the matter is not beyond debate: see -
and there is reference to Professor Atiyah. We would submit that the obligation of the school authority is a personal obligation. Now, in the 19th century schools, Dr North's Preparatory School or whatever, if Dr North had interfered with a child, Dr North would have been liable. It is plain that the State education authority can only operate through servants or agents, but the principle of sheeting home liability to the State education authority for its servants or agents who have this particular responsibility of care is, in effect, strict when it offends the obligation of care.
KIRBY J: But the one schoolteacher in the 19th century would be liable for assault and battery.
MR NORTH: Certainly.
KIRBY J: The question is how do you visit this on a huge enterprise of State education for every teacher, for every wilful, deliberate act outside the scope of their employment?
McHUGH J: You have to say the Court has done it.
MR NORTH: The Court has done it, and the best summary of it all - I have referred your Honours to some of the cases and the best summary was when five Judges of this Court summarised the principle at some length in Burnie Port Authority at pages 500 to 551, and that is the heart of our case and that was the heart of our pleading.
HAYNE J: There is an ambiguity, is there not, in the proposition "reasonable care is taken of pupils"? Is it focusing attention upon the action of the school or the teacher, or is it focusing upon the result, the result for the child?
MR NORTH: It is focusing on both, your Honour, on both the - - -
HAYNE J: But if it is focusing on the former, the reasonableness of the action of the school and of the teacher, we have not left the discipline of negligence, have we? If we are focusing on the result to the child that something untoward has happened to the child, we seem to have left the discipline of negligence into some other realm.
MR NORTH: Now that I understand your Honour's question better, the primary focus will always be on the result for the child, should always be.
HAYNE J: Do you accept that the statement of his Honour is ambiguous? Perhaps the premise for what I am putting to you is open to challenge.
GAUDRON J: I had always understood the focus to be on an act of negligence, so that the duty there discussed is equivalent to the duty identified by the Solicitor-General for South Australia as a duty to ensure that your servants, agents, contractors are not negligent.
HAYNE J: Just so, and you seek to flip it to say, no, it is results oriented, has the child been harmed? If so, QED.
MR NORTH: The ambiguity or the difficulty, I think, arises because I think I am correct in saying this is the first time this Court in these cases for the first time at the intermediate level since the development of the doctrine of the non-delegable duty care, that an assault case has come up that was, in our case, clearly criminal and found to be by the jury. The particulars as pleaded in this case have been lifted from the particulars that accompanied the indictment upon which he was convicted.
GAUDRON J: But there is another element to what you are putting, is there not? If you locate it all in the law of negligence - and certainly Burnie Port Authority was doing that and was specifically discarding strict liability as a test - what you are talking about at the very least is foreseeable risk of injury. You write that out. You talk about a personal duty, but I wrote down your words earlier, "a duty to ensure that care is taken", and I have written in parentheses with a question mark, "to avoid a foreseeable risk of harm", and that is what you write out, whereas in essence that was critical to Burnie. There would have been no need to locate it in negligence if you were having a duty to ensure that care was taken. You would have just gone the straight Rylands v Fletcher road.
MR NORTH: The best answer I think I can give to your Honour is that the non-delegable duty would usually be discussed in the context of the arguable commission of a tort of negligence, that is, some failure in foresight or an action. The imperial march of negligence has not abolished the tort of assault, it is still very much alive. We submit that there is no reason in principle why this special duty that is owed to the vulnerable children should not be sheeted home when there is an assault by the delegatee - I use the word "delegatee", the teacher, the carer - because, as I said earlier - - -
GAUDRON J: If the assault is foreseeable, you may well be right. If the assault is foreseeable.
HAYNE J: If it is, you are into personal duty territory probably.
GAUDRON J: We are still talking about personal - you are accepting that your non-delegable duty is a personal duty, are you not?
MR NORTH: Yes.
GAUDRON J: As Justice McHugh explained, there are different considerations in "vicarious".
GLEESON CJ: And if you are right, we are way ahead of Canada and the United Kingdom in the protection that the law gives to pupils.
MR NORTH: This Court was when Introvigne was decided, your Honour, yes, and approved of consistently and never doubted, and not said to be wrong.
GLEESON CJ: How, according to your approach to non-delegable duty, would Jacobi be decided in this country?
MR NORTH: Jacobi the same result, in our submission, because all that happened in Jacobi was that the relationship of carer/victim was incidentally an opportunity to start the insinuation process. The relevant acts and the relevant conduct occurred well out of hours, well off the campus and in circumstances where it could not be said that there was the function of caring undertaken. Likewise your Honour's example yesterday afternoon of the teaching raping the pupil at the pictures on Saturday night. That would not be an example if the teacher was caring, unless it was a school outing as it were, an official - - -
GLEESON CJ: On your principle, or on the proposition stated by Justice Mason in paragraph 61 of his reasons for judgment, we in Australia would not be agonising about the difference between boarding schools and day schools or about tucking disabled people into bed at night. We have a straight case of rape here.
MR NORTH: Yes, your Honour.
GLEESON CJ: And we do not trouble about all the policy considerations and principles of loss distribution that go into recognition of vicarious liability. We simply say, on your theory, the State of Queensland had a duty to protect your client. It asked Mr D'Arcy to be her protector, and far from protecting her, he violated her, full stop.
MR NORTH: Yes, that is the case we plead. It is surprising because of the nature of the tort he committed. If the tort had been, rather than these particular acts, that he had been taking them on a school excursion and driven the car negligently, there would be just no problem.
McHUGH J: Yes, but you do not have to sue in trespass for the direct application of force. You can still sue in negligence. There is a decision in this Court, I think it is Williams v Milotin - it is in I think 97 CLR - which recognises the interchangeable nature of the two causes of action.
GLEESON CJ: We had a case from South Australia a few years ago, a driving case, in relation to that. I forget the name at the moment.
McHUGH J: It was Gray, was it not?
GLEESON CJ: Gray v Motor Transport - - -
CALLINAN J: It was about exemplary damages.
McHUGH J: That was about exemplary damages and there is an unreported decision in the New South Wales Court of Appeal in 1972, Timmins v Oliver, in which it was held that where somebody was run down by a motor boat while swimming in a river that you are entitled to sue in trespass. You did not have to sue in negligence, even though if the same thing had happened on the highway, you would have to sue in negligence, but the Court of Appeal held that the highway exception was not to apply to a river. There is cases referred to in Trindade and Cane. He says it is surprising it has not been reported or has not been referred - - -
MR NORTH: It would seem that the doctrine or that these categories of a non-delegable duty of care - and the content of the duty of care will vary from the Burnie Port to the school to the hospital to the employer's system of work - and there has been enough discussion about that, I am not going to repeat what has been said - but they have been developed because there is an undertaking of care and supervision, in this case of infants, that creates a personal liability and it is a personal undertaking by the school authority of care and supervision of infants who are immature and vulnerable and that is why there is a particular responsibility. The particular responsibility comes down to that if the person to whom you entrust the exercise of that obligation lets you down, unfortunately, you are responsible for it.
It is stark, but we cannot escape that on our pleading, but it is a narrow application and we reject any suggestion that comes from the learned Solicitors' submissions in writing, but this is the start of some strict liability that is going to overtake the tort of negligence.
GAUDRON J: But it must be. For example, take the disabled in homes. There cannot be any difference. Take the mentally ill - - -
MR NORTH: But in what circumstance, your Honour?
GAUDRON J: In hospital, in a clinic; it cannot be any different. Take the aged in old people's homes. It cannot be any different. Take orphans in an orphanage. I do not know if they have such things. It cannot be any different. Take foster children in foster care. It cannot be any different. Now, there may be other cases, but at least those - and it cannot be any different for private educational institutions.
MR NORTH: Those other categories are compelling by way of analogy, but this Court has not established a non-delegable duty of care in those circumstances.
GAUDRON J: We have in relation to hospitals.
MR NORTH: Yes.
GAUDRON J: Gaolers.
MR NORTH: Yes, and it is - - -
GAUDRON J: Exactly. The criterion for it, as is said in Burnie Port, is the vulnerability on the one hand and control on the other. It has to extend to gaols, I think. It simply is not true to say that it is isolated or can be isolated to educational institutions in my view, I am sorry, unless you can tell me why in principle it would not apply to the aged, the mentally ill, the infirm, the disabled; indeed, anyone who is institutionalised or placed under the control of an adult.
MR NORTH: Because we do not have any facts before us as to the circumstances in which the aged or the infirm are being treated, who is in charge, the regime that applies there, whether there is a contract - - -
GAUDRON J: Why would it be different? I do not wish to invite the Solicitor-General for the Commonwealth here, but Justice Gummow reminds me, why would it be any different for children in immigration detention? Why would it be different for the controllers of those detention centres?
McHUGH J: That is what I put earlier. I mean, that is the consequence of it, that if you bring in these independent contractors to look after them, the Commonwealth is liable for their reasonably foreseeable acts on their part.
GAUDRON J: I do not think it is limited to "reasonably foreseeable".
McHUGH J: No.
MR NORTH: We do not submit that the doctrine goes any further. We are dealing with children, not circumstances of adults, and we are dealing with a defined category where this Court has repeatedly set it up and endorsed it as having an operation. It does not necessarily, in principle or for reasons of justice, have to follow in all the categories that your Honour said. Why I cannot answer because I have not turned my mind to all of them, I am afraid.
Your Honours, can I just make some very brief observations about vicarious liability, mainly by way of rebuttal to some of the points that were made by the learned Solicitors. The learned Solicitor-General for South Australia submitted that Bazley was overruled by Jacobi. That is plainly not the case. Judgment was given in both cases on the same day by the same members of the same court, the same judges, and it is certainly not the way the House of Lords understood it, as we can see from the discussion in Lister.
KIRBY J: Justice Binnie who gives the reasons of the majority says he expressly is applying the principle he takes from Bazley.
MR NORTH: Two things were said about these Canadian cases by our learned friend, the Solicitor for Queensland. He said that the teacher's duty was to teach and to maintain discipline and he confined it there. We simply observe that he conveniently omitted to refer to any obligation to care or to protect from harm.
Secondly, he submitted that the Bazley doctrine rests upon doctrines of creation and enhancement of risk, which is a doctrine that has not been approved by any court of high authority in this country. We simply remind your Honours of the reasons in Vabu[2001] HCA 44; , 75 ALJR 1356 at 1365, the pedal cyclist's case, where the majority of this Court specifically referred to Bazley v Curry at paragraphs [41] and [42] and there was a specific endorsement for the purposes of that class of case of the doctrine of enterprise risk that was created and put into the public by the defendant in that case.
We submit that there is endorsement to that extent of Bazley v Curry specifically by this Court, which adds force to the observations and the contentions that have been put at a greater length in the written outline and orally by our learned friend in Lepore.
There is a housekeeping matter apart from the pleading that I have to draft and deliver. In our notice of appeal we neglected to ask for an order that if we succeed the appeal be allowed with costs. We merely asked for an order that the order of the Court of Appeal be set aside with costs. For the record, we ask for that, in the event that we succeed in our appeal?
Can we also, in the event that we are unsuccessful, say something about costs, that would ordinarily automatically flow against us on a pleading case for coming to this Court and failing. All we want to say is that the appellants were undoubtedly dealt with by Mr D'Arcy 40 years ago as pleaded, and we understand from correspondence we received from the Crown Solicitor for Queensland in the event that this matter goes further and there is further litigation, there will be no contest as to the truth of the allegations of his actions. We have no rights to criminal compensation - - -
CALLINAN J: There is a section in the Queensland Evidence Act that makes a conviction proof of the fact, does not it?
MR NORTH: Yes. There are two things can we say about that? Having named in the indictment our clients as two of the prosecutrixes and called as witnesses and the jury having believed them, the Crown has acted quite properly in saying that. But, in so far as we have proceedings against Mr D'Arcy we have lost our application for an extension of time under the Limitations Act because the conviction is not binding against him, vis-à-vis us, and on discretionary grounds, because of delay, we have been denied leave to extend time.
Our clients have no rights to criminal compensation. The statutory remedies for criminal compensation, the most recent version of which the learned Solicitor placed before the Court, are not prospective and there were no rights in the statute law of Queensland at the time these actions occurred. I concede that it is an ad misericordia submission but they are the facts. Unless I can be of any further assistance to the Court.
GLEESON CJ: Thank you, Mr North. Mr Solicitor, how long do you expect to be in reply?
MR SEXTON: About two minutes, your Honour.
GLEESON CJ: You, Mr Solicitor?
MR.....: I did not think.....
GLEESON CJ: Thank you.
MR SEXTON: I do not wish to add to the previous submissions, your Honours. Can I just say these two things. In relation to the orders about which there was some discussion earlier, our preferred position is still that there would be a verdict for the appellant who was the first defendant in the proceedings below, which is what we have said in our notice of appeal. But, depending on the findings of the Court and on the views of the Court in relation to those findings, it may be that the Court wishes to send the matter back for a trial. If that were so, we do not contest the fact that it would be a trial on all the issues.
The second point is that Justice Gummow asked if there were any comments on the Lister Case. I have not done a search, your Honours, but there is one article. It is not probably especially helpful, it is basically descriptive, but it is by Rosalind Coe, it is at (2001) NLJ 1154 for three pages, that is 3 August 2001.
Unless there are any other matters, your Honours, those are our submissions.
GLEESON CJ: Yes, thank you, Mr Solicitor. We will reserve our decision in these matters.
AT 4.21 PM THE MATTER WAS ADJOURNED
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