Vicarious Liability for Abuse of Students by Staff and Others
PCB attended the “House of Guilds” on the grounds of the senior campus of Geelong College while in grade 8 (in 1988). The House of Guilds was a wood working, ceramics and arts / crafts workshop that could be attended by College students after school. The House of Guilds was a space that could also be attended by students at nearby schools, and importantly for this matter, was considered by the College as a community space that, with a membership payment, could be accessed by members of the community with no formal affiliation with the school.
Mr Palframan was an honorary member of the House of Guilds. At the relevant time he was aged in his early 70s and would regularly attend the woodwork area between late 1988 to the mid-1990s. Several witnesses gave evidence that he did not seem to be working on his own projects while he was there.
It was not in dispute that PCB was sexually abused by Mr Palframan. It was argued that he was groomed at the House of Guilds, and that the abuse would regularly commence in the woodwork room and continue to Mr Palframan’s car and home. On one occasion, the abuse occurred in PCB’s own home. The abuse came to an end in mid-1990 when PCB was in year 10 and able to resist the abuse.
In PCB’s claim against the College in negligence, he argued that the College was vicariously liable for the assaults perpetrated by Mr Palframan. PCB’s lawyers pointed to the decision in Prince Alfred College v ADC, a leading High Court decision about vicarious liability. The key passage from that case was:
“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.”
It was submitted that on account of the “special role” that Mr Palframan was occupied in the House of Guilds, the College facilitated a relationship that had characteristics of the necessary “authority, power, trust, control and the ability to achieve intimacy” required for vicarious liability to be found, and that Mr Palframan should be taken to have been, in effect, an employee of the College on account of (among other things):
- Mr Palframan being acknowledged in the College magazine as helping run the House of Guilds;
- some report writing and instruction being given by Mr Palframan to students;
- Mr Palfrman’s description by various witnesses as being part of the ‘fabric’ of the House of Guilds;
- Mr Palframan’s relatively free interaction with both staff and students at the House of Guilds; and
- Mr Palframan being occasionally involved in supervising students at the House of Guilds.
The Victorian Supreme Court ultimately rejected the argument that the decision in Price Alfred College provided the contended framework and held the decision should be interpreted as requiring an employee and employer relationship as a necessary intermediate step for a finding of vicarious liability in abuse claims, and that any “special role” the perpetrator held needed to be assigned to them by their employer. This is important for education institutions in that a finding of vicarious liability is not likely to be made where the alleged perpetrator is involved in extracurricular or recreational activities with the school, but is not otherwise an employee. There remains, however, a grey area in the case of volunteers who are more formally inducted and engaged by a school.
Despite PCB losing the vicarious liability argument and despite much of the complained abuse having occurred outside of the College grounds, the Court still found the College liable in negligence for the abuse. The Court said that, because Mr Palframan’s grooming of PCB occurred on College grounds, it preceded the further abuse “off grounds”, that the latter abuse was no more than a consequence of the grooming abuse established (and continued in) the House of Guilds and was in essence a part of what became an established process in his offending. A key aspect in the Court’s decision was evidence given by a former student of complaints about Mr Palframan being given to a teacher and to the then warden of the House of Guilds. The Court determined that the College had been warned of the risks Mr Palframan posed to students through his association with the House of Guilds and that it failed to act appropriately in response to the complaints. This is clearly another reminder for schools to ensure they have clear practices for receiving and then investigating complaints, and of course notifying the relevant authorities.
Ultimately, the Court awarded PCB more than $2.6 million in damages for the abuse, the highest award at present by a court in an institutional abuse case in Australia.