The High Court of Australia considers the extension of limitation periods in child sex abuse case – Prince Alfred College Incorporated v ADC [2016] HCA 37

Extensions of limitation periods will not be permitted under s 48(3) of the Limitation of Actions Act 1936 (SA) (Limitation Act) when the delay in commencing proceedings causes prejudice to the defendant.

In 1962 ADC was a pupil at Prince Alfred College in South Australia. He was a boarder at the school and was sexually abused on numerous occasions by a boarding housemaster.

As a result of the abuse ADC suffered from psychological injury which continued to intensify. By the 1980s ADC was suffering from anxiety and was drinking heavily. However, he was married, had children and ran successful businesses.

In 1996 ADC's son started attending Prince Alfred College. This triggered flashbacks and other problems. He was diagnosed as suffering from post-traumatic stress disorder. In 1997 ADC took legal advice and decided not to sue Prince Alfred College. It was agreed that Prince Alfred College would pay ADC's medical and legal fees and meet his son's school fees. In 1997 ADC commenced proceedings against the boarding housemaster. A compromise was reached and the boarding housemaster paid $15,000 to ADC.

Between 2002 and 2004 ADC's condition deteriorated and he was admitted to a psychiatric clinic. In 2005 he was advised that he would not work full-time again. He asked Prince Alfred College for $1 million and a refund of school fees, which Prince Alfred College refused.

ADC commenced proceedings in the Supreme Court of South Australia (the Supreme Court) against Prince Alfred College in December 2008 alleging that Prince Alfred College:

• Had breached a non-delegable duty of care
  
  
• Was negligent
  
  
• Was vicariously liable for the criminal acts of its employee, the boarding housemaster.
  
  

Section 48(3) of the Limitation Act provides a court with discretion to extend time to commence proceedings if in all circumstances it is just to do so.

In the Supreme Court, the primary judge, Vanstone J, dismissed ADC's claims. Her Honour found that ADC had failed to establish that Prince Alfred College was liable and refused an extension of time since the delay in commencement of proceedings was so great that Prince Alfred College would be prejudiced. Her Honour noted that several witnesses had died and ADC's original psychiatrist's records had been destroyed.

On the issue of liability Vanstone J found that:

• The non‑delegable duty of care which Prince Alfred College owed to ADC did not extend to a duty to protect him against the intentional criminal conduct of its employee, the boarding housemaster²
  
  
• On the evidence available, enquiries about the boarding housemaster would not have resulted in information indicating that he had a criminal record, which he did
  
  
• The systems in place at Prince Alfred College and level of supervision of housemasters were not so deficient as to amount to negligence
  
  
• The sexual abuse was "so far from being connected to [the boarding housemaster's] proper role that it could be neither seen as being an unauthorised mode of performing an authorised act, nor in pursuit of the employer's business, nor in any sense within the course of [the boarding housemaster's] employment".³ Her Honour stated that she was unable to make findings relevant to the question of vicarious liability because of the state of the evidence.
  
  

ADC appealed to the Full Court of the Supreme Court of South Australia (the Full Court).

All members of the Full Court (Kourakis CJ and Gray and Peek JJ) allowed ADC's appeal from the primary judge's decision as to liability (although for differing reasons) and held that Prince Alfred College was vicariously liable. The Full Court also held that an extension of the limitation period should have been granted.

Prince Alfred College appealed to the High Court of Australia (the High Court).

The High Court unanimously held that the primary judge was correct when she refused to grant an extension of time. The significant factor was that in 1997 ADC had decided against commencing proceedings. Further, it was no longer possible for there to be a fair trial on the merits of the case.

The High Court also held that in this case it had been inappropriate for the primary judge to determine the question of liability due to her finding that an extension of time should not be granted.

While this case turns on its own facts, it provides a useful guide to the approach which should be taken in South Australia to applications for extensions of limitation periods in cases concerning child abuse and psychiatric injuries.

As a consequence of the retrospective abolition periods in many jurisdictions in Australia,⁴ the High Court's decision has relevance in only a few Australian jurisdictions and its relevance may be short-lived. This decision may result in renewed pressure being brought upon all Australian jurisdictions to adopt the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse sooner rather than later.⁵

Unfortunately, the High Court did not make a determination on vicarious liability. It did however provide a useful overview of vicarious liability in Australia, as well as the United Kingdom and Canada, in its reasoning. The High Court's comments provide useful direction as to the requirements of a finding of vicarious liability for intentional torts on the basis of current Australian case law. It made it clear that in Australia the relevant approach is to consider any special role an employer assigns to its employee and the employee's position in relation to the victim, for example, does the apparent performance of the role provide the 'occasion' for the wrongful act? Relevant considerations concerning an employee's position include the level of authority, power, trust, control and, most significantly, whether the position allows the employee to achieve intimacy with his/her victim. The High Court stated that it may be sufficient for a finding of vicarious liability if the perpetrator of abuse does so when taking advantage of his/her position of employment. This suggests to us that if the High Court had considered the issue of vicariously liability in this case it is likely it would have found Prince Alfred College to be vicariously liable for the abuse committed by the boarding housemaster.

Although the High Court's comments on the relevant approach to vicarious liability do not create binding authority they are likely to be influential on future court decisions.