New South Wales v Lepore

Facts

Three consolidated appeals concerned sexual assaults committed by primary school teachers on students in their care in New South Wales and Queensland. The plaintiffs sued the respective State governments, arguing the States were vicariously liable for the teachers' intentional criminal acts, or alternatively that the States owed a non-delegable duty of care to the students that had been breached.

Issues

1. Whether a government authority (as employer) can be vicariously liable for the deliberate, criminal sexual assaults committed by an employee teacher upon students. 2. Whether the States owed a non-delegable duty of care to students to ensure their safety while at school, and if so, whether that duty extended to intentional wrongdoing by staff.

Holding

The High Court, by a divided bench, held that vicarious liability for an employee's intentional sexual assault requires a sufficiently close connection between the employment and the wrongful act, but the majority could not agree on a single formulation of that test. The appeals were allowed in part, with each plaintiff's claim remitted for further consideration in light of the various judgments.

Ratio decidendi

An employer may be vicariously liable for an employee's intentional wrongdoing, including sexual assault, where there is a sufficiently close connection between the role in which the employee was engaged and the tortious act; mere opportunity afforded by employment is insufficient to establish that connection. A non-delegable duty of care owed by a school authority to its students does not, without more, extend to rendering the authority liable for the deliberate criminal acts of a teacher that fall wholly outside the performance of the delegated duty of supervision and instruction.

Obiter dicta

Several justices commented, without deciding conclusively, that the 'Salmond test' of vicarious liability — asking whether the act was an unauthorised mode of doing an authorised act — may be inadequate to capture liability for intentional torts, and suggested that Canadian and English approaches focusing on 'enterprise risk' or 'material increase in risk' deserved serious consideration in future Australian cases.

Significance

New South Wales v Lepore remains the leading Australian authority on the outer boundaries of vicarious liability for intentional torts committed by employees in institutional settings, and it identifies the non-delegable duty of school authorities as a distinct but limited basis of liability that does not automatically encompass deliberate criminal wrongdoing by staff.

Key authorities

• Darling Island Stevedoring and Lighterage Co Ltd v Long Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36considered
• Commonwealth v Introvigne Commonwealth v Introvigne (1982) 150 CLR 258considered
• Kondis v State Transport Authority Kondis v State Transport Authority (1984) 154 CLR 672considered
• Bazley v Curry Bazley v Curry [1999] 2 SCR 534considered
• Jacobi v Griffiths Jacobi v Griffiths [1999] 2 SCR 570considered
• Lister v Hesley Hall Ltd Lister v Hesley Hall Ltd [2002] 1 AC 215considered
• Bugge v Brown Bugge v Brown (1919) 26 CLR 110cited