Assessing vicarious liability & damages in abuse claims

In a historical sexual abuse claim, the State, in its capacity as a school authority, was found vicariously liable for a school’s Principal’s failure to act on a suspicion of impropriety between a teacher and student, resulting in aggravated damages being awarded against the State. A high award for loss of income was also made.

The background

The 41-year-old plaintiff was a student at Rose Bay High School (the School) from 1996 to December 1999. The alleged perpetrator, Mr P (P) was employed as a science teacher by the State of Tasmania.

The plaintiff alleged that P sexually abused her from mid-1998 (whilst 14 years old, in Grade 9) until August 1999 (the Abuse). In August 1999, the plaintiff claims that a senior teacher at the School (also involved in the pastoral case program) ‘confronted’ her about her abnormal contact with P, which distressed the plaintiff, causing her to run to the toilets to cry.

After the abuse was brought to the attention of the Principal by the plaintiff’s then-boyfriend (current Husband) in a meeting that occurred in February 2000, P was suspended and he resigned.

In issue

• The claim was brought against P and the State. Somewhat unusually, the plaintiff did not advance a claim against the State in negligence based on the non-delegable duty of care it owed its students as a school authority. Rather, the State was alleged to be vicariously liable for both P’s conduct and for the conduct of the Principal in failing to act on earlier concerns he had regarding P’s behaviour.

The $2.2m decision of Porter AJ

Was the State vicariously liable?

There was an evidentiary dispute regarding whether the Principal had disclosed to the plaintiff’s Husband, during the February 2000 meeting, that there had been prior concerns regarding P’s behaviour. The evidence of the plaintiff’s Husband was preferred to that of the Principal. Accordingly, it was held that the prior concerns of the Principal warranted further investigation, as there was a risk/reasonable suspicion of abuse to the plaintiff. Such investigation was also in line with the School’s relevant polices. The court found that in light of the prior concerns, a reasonable Principal would have ensured that P did not continue to teach the plaintiff. Accordingly, the State was found vicariously liable for the Principal’s negligence.

Aggravated damages

As a result of the vicarious liability finding, an award of aggravated damages of $15,000 was made against the State for a reckless indifference to the plaintiff’s welfare, as she was required to endure P as a teacher for 3 months.

Damages for economic loss ($1.7m)

A significant amount was awarded for damages in respect of economic loss.

Relevantly, the plaintiff’s evidence was accepted over that served by the State. Although there was a history of prior sexual abuse when the plaintiff was 5-6 years old, the evidence was that the plaintiff was an excellent student.

It was held that, but for the abuse:

• the plaintiff would have had a career in biomedicine;
• she would not have moved into a lower paying role, teaching science.

• the plaintiff’s decision to teach science stemmed from a desire to protect students, which was a direct result of the abuse; and
• the plaintiff’s decision to change career occurred soon after the abuse stopped, in a context where she was displaying psychiatric symptoms connected to the abuse.

The plaintiff was therefore awarded:

• $1 million for a loss of future earning capacity (this being a sum representing a high notional income until age 67 minus contingencies),
• $379,600 for past loss of earning capacity, and
• $165,550 for past and future loss of superannuation.

Interest was also added to these amounts.

Implications for you

1. Vicarious liability can be found for an employee’s negligent failure to act on a risk/suspicion of child abuse.
2. High awards can be granted for economic loss even where there is unrelated trauma.