Court clarifies the parameters of vicarious liability in abuse claims
By Norman Lucas & Brigitte Challis• 04 November 2021 • 6 min read
[Warning: This article references instances of sexual abuse]
The Supreme Court of Victoria has recently handed down the decision of PCB v Geelong College  VSC 633 and in doing so, has clarified that to establish vicarious liability in abuse claims (and likely other claims), an employer/employee relationship is required. While the plaintiff succeeded in his negligence claim against Geelong College, he failed in his vicarious liability claim because the perpetrator of the abuse was not an employee of the College.
The case is important in the context of abuse claims, where perpetrators are sometimes not a direct employee of an institution but may be involved in, for example, extracurricular or recreational activities affiliated with the institution.
The plaintiff was a former student of Geelong College. In 1988, when he was in year 8, he attended the ‘House of Guilds’ after school. The House of Guilds was situated on the College campus and was a building in which woodwork, ceramics and other crafts could be undertaken. The House of Guilds was open after school hours to students of Geelong College, as well as students of other schools and community members upon payment of a membership fee. On many occasions between 1988 and 1990, the plaintiff was groomed and sexually abused by Bert Palframan, an honorary member of the House of Guilds who was in his early 70s at the time. The abuse occurred in the woodwork room at the House of Guilds, in Palframan’s car, at Palframan’s home and, on one occasion, at the plaintiff’s home.
The proceedings and the Court’s decision
The plaintiff’s claim against the College was framed in both negligence and vicarious liability. In claiming that the College was vicariously liable for the abuse, the plaintiff alleged that Palframan should be taken to have been an employee of the College by reason of the proximity and length of the relationship between Palframan and the College. The plaintiff argued that the law had been in a state of flux by reason of childhood abuse claims and that the reasoning in the case of Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 9 (whereby the perpetrator was an employed boarding housemaster) provided a framework for a finding of vicarious liability to be made, even where the relationship was not strictly an employment relationship.
The key passage in Prince Alfred College that the plaintiff relied on was the following (at ):
Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.
The College accepted that there were a number of links between it and Palframan, including his frequent attendance at the House of Guilds, his instruction and report writing for another student’s woodwork progress, his appearance in the school magazine and his supervision of students at the House of Guilds. The plaintiff and a number of witnesses gave evidence to the effect that they thought Palframan was a teacher at the College, while other witnesses gave evidence to the effect that they knew he was not a teacher. The Court did not accept that the College generally held Palframan out to be a teacher of the College to those attending the House of Guilds. The Court considered that it was more likely that Palframan infiltrated the operations of the House of Guilds for his own purposes so far as an outsider could. The Court did not accept that any of this meant that Palframan actually was or should be taken to be an employee of the College. Further, the Court observed that Palframan was never assigned a professional title, paid by the College, formally assigned or supervised by a superior from the College, nor did the College hold any personnel or ‘employment-style’ file for him.
Accordingly, the Court rejected the plaintiff’s argument that Prince Alfred College provided a framework for the Court to find that the College was vicariously liable for the abuse. The Court found that the presence of an employment relationship was a necessary step in the foundation for the Court’s reasoning in Prince Alfred College.
However, the Court found that the College was liable in negligence for the abuse. Although much of the abuse occurred outside of the College campus, the Court found that Palframan’s grooming of the plaintiff occurred on the College campus. Further, a former student gave evidence that he had complained about Palframan to the College warden and a teacher in 1988 and the Court found that the College failed to act on these complaints. Accordingly, the plaintiff was awarded approximately $2.6 million in damages, including $300,000 in general damages and a significant amount for past and future economic loss given the plaintiff’s previous high paying jobs.
What does the Court’s decision mean for future abuse claims?
The Court has clarified that an employment relationship is needed as a foundational requirement for vicarious liability to apply in abuse claims. The Court will then assess the nature of the employee’s role to determine whether there was a position of authority, power, trust, control and/or intimacy with the victim such that vicarious liability should be attributed to an employer. The Court’s decision effectively limits the class of abuse claims to which vicarious liability can apply to cases where there is a clear employer/employee relationship between the institution and the perpetrator. Accordingly, vicarious liability is likely to be unavailable in claims relating to foster carers or perpetrators involved in extracurricular or recreational activities affiliated with an institution but who are not otherwise employees.
The decision also confirms that a school’s duty of care may extend outside of school boundaries, particularly where grooming type interactions occur on school premises and where a school has knowledge of misconduct or complaints on a perpetrator.
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