Date: Wed, 13 Oct 2004 11:36:04 +1000

From: Harold Luntz

Subject: Vicarious liability for intentional torts

This is just a quick response to Jason's questions - a full response would probably require an article-length reply. I certainly don't want to discourage other replies and hope the questions will stimulate some debate. I will make a number of points without listing them under (a) and (b) of Jason's questions.

1. Lepore is an unfortunate decision for at least two reasons. First, like all too many Australian High Court cases, the judges differed among themselves on almost every aspect of the case and gave very little guidance to other courts. Secondly, some of them dismissed Bazley and Lister too readily (despite some lesser disagreement there among the Lords) and took much too narrow a view of Deatons v Flew, particularly in failing to recognise social changes since then. May I commend to colleagues the criticism of the decision in J Wangmann, 'Liability for Institutional Child Sexual Assault: Where Does Lepore Leave Australia?' (2004) 28 MULR 169 (with which I personally had nothing to do)?

2. The role of the PC is presumably to apply the law of the jurisdiction from which the appeal came. As much as we may deplore it, there is no longer a single, unified common law. Australia has undoubtedly gone its own way. Only yesterday I saw Starks v RSM Security Pty Ltd [2004] NSWCA 351 (28 September 2004), in which the employer (but not the club) was held vicariously liable for an intentional assault by a bouncer. Only Australian cases were cited and no reference was made to Mattis v Pollock (trading as Flamingos Nightclub) [2003] EWCA Civ 887 (1 July 2003); [2003] 1 WLR 2158, Pet dismissed [2003] 1 WLR 2838, or any of the other cases we have been discussing. Instead, the Salmond-test was applied.

3. Vicarious liability is a form of strict liability and whatever justifications there are for it can't be made to fit within a theory of no liability without fault. It has proved satisfactory as a loss-distribution mechanism for well over a century and I don't want to see it chipped away at, particularly at a time when governments (and the people who elect them - you can probably tell I'm still smarting from Saturday's election) are becoming less compassionate.

4. Even if there are differences between children and fur coats and mortgages, holding that a school teacher - especially one at a one-teacher school - is acting within the scope of the authority when sexually abusing the children fits with Morris v Martin and Lloyd v Grace Smith, whereas those cases show that providing an opportunity to another employee (like the gardener example from Lister) is not within the scope.

I hope that will get people emailing, unlike my question on causation, which drew stony silence except for some off-list comments from one colleague.

Harold.

At 05:05 PM 12/10/2004 -0400, Jason Neyers wrote:

Dear Harold (and other ODG colleagues):

I would be interested in two things:

(a) why do you think that it was fortunate that the PC did not use Lepore. Personally, I find it rather disappointing. (As an aside, is the remit of the PC to apply the English common law or the common law, if it is the latter, then the Lepore omission is particularly troublesome since it indicates that there is a divergence in the common law of the English speaking peoples. For example, would the PC have ignored Lepore if it was a PC decision from Australia?).

(b) why do you agree that if a school entrusts the care of children to a teacher, who sexually abuses them, the school should be vicariously liable for the teacher's acts as opposed to the gardener?

I agree with Robert that the "new VL test" is useless and would add that moreover it is unjust since it cannot explain why a close connection should lead to VL.

With that said, I think that the decision can be supported on one of two grounds:

a) The AG is personally negligent for allowing officers, or this particular officer, to carry dangerous weapons home; or

b) that VL is justified since an inference that can be made from the sparse evidence is that this was an over-zealous performance of a policeman's 24 hr duties, which has traditionally lead to vicarious liability.

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