Date: Sun, 9 Feb 2003 17:28:03 +0800

From: James Edelman

Subject: Lister in Australia

The High Court of Australia last week in two cases heard together considered the Lister issue. The High Court held, by majority, that the State (the employer of teachers that sexually assaulted students) did not owe a non-delegable duty of care (the only pleading in the Samin and Rich cases) but sent one of the cases back for retrial (the Lepore case) to determine whether vicarious liability could be found. The judgments are lengthy but, of interest to the debate in this discussion group is the comment in the joint judgment of Gummow and Hayne JJ that:

It is apparent, then, that no single principle can be identified as underpinning the decision in Lister. The analyses of Lord Hobhouse and Lord Millett have strong echoes of non-delegable duties. By contrast, the majority of the House located the result in what were said to be orthodox principles of vicarious liability.

The full text and judgments are available at:

http://www.austlii.edu.au/au/cases/cth/high_ct/2003/4.html

Jamie Edelman

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