Harold
Luntz wrote:
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.
