Prince Alfred College Inc v ADC [2016] HCA 37: Limitation of Actions in Sexual Assault

Today the High Court unanimously allowed an appeal from the Full Court of the Supreme Court of South Australia in the case of Prince Alfred College Inc v ADC [2016] HCA 37.

Background to the Case

In 1962, the respondent was a 12 year old boarder at the Prince Alfred College ("the PAC").  He was sexually abused multiple times by a boarding house master, Bain, who was dismissed once the school learned of the abuse, and who had previously been convicted of gross indecency and suspected of abusing students at a previous school. The appellant contended that the school was vicariously liable for Bain’s abuse, and that it was negligent in failing to make proper and adequate inquiries into Bain’s suitability for employment.

The respondent suffered symptoms of psychological injury from the early 1980s onwards.  In 1997, he decided not to sue the PAC and accepted its offer to pay his medical and legal fees to date and his son’s school fees.  The respondent commenced civil proceedings against Bain, and reached a settlement in 1999.  The respondent's symptoms persisted and he sought further financial assistance from the PAC in 2004 and 2005, without success.  In 2005, his psychologist said that he would not work full-time again.

The South Australian Supreme Court

The respondent brought proceedings against the PAC in the Supreme Court of South Australia in December 2008.  He alleged that the PAC was liable in damages to him for breach of a non-delegable duty of care and breach of its duty of care, and that the PAC was vicariously liable for the wrongful acts of Bain.  Due to the passage of time, the respondent required an extension of time to bring proceedings.  Section 48(3) of the Limitations Act permits, if certain preconditions are met, a court to extend time at its discretion if the respondent shows that it was just in all the circumstances for it to do so.  This involves showing that the PAC would not be significantly prejudiced as a result of the exercise of the court’s discretion.  The primary judge dismissed the respondent's case regarding liability, and refused to grant an extension of time due to the prejudice suffered by the PAC by reason of the "extraordinary" delay in commencing proceedings.

South Australian Supreme Court Full Court Appeal

The Full Court overturned the trial judge’s decision to dismiss the action, holding that the School was vicariously liable for the abuse perpetrated by Bain because of the close connection between the abuse itself and the organisational structures that facilitated or supported Bain’s grooming and sexual assaults. In reaching this conclusion, each of the judges emphasised different factors, including his responsibilities for care of the boarders at night, his position of authority, trust and intimacy with boarders, and a lack of appropriate supervision by the school. However, a majority of the Full Court held (Gray J dissenting) that the negligence claim was not made out.

Appeal to the High Court

By grant of special leave, the PAC appealed to the High Court.  Unanimously, the Court held that the primary judge was correct not to have granted an extension of time.  The respondent's decision in 1997 not to commence proceedings was significant in this regard.  A majority of the High Court considered the correct approach to be taken to the question of the PAC's vicarious liability for the acts of Bain. In cases of this kind, attention must be given to any special role that the employer has assigned to the employee and relevant features in this regard include authority, power, trust, control and the ability to achieve intimacy with the victim.

However, the identification of the correct approach also showed that a determination could not be made as to the PAC's liability in this case, because the length of the delay and consequent deficiencies in the evidence placed the PAC in such a position that it could not properly defend the claims brought against it.  That was another reason why the extension of time could not be granted and it was also the reason why the primary judge should not have proceeded to determine liability.  The High Court allowed the appeal.

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Prince Alfred College Inc v ADC [2016] HCA 37 and summary judgment

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