In one of the largest ever payouts in a child sex abuse case in Victoria, the Supreme Court of Victoria (Court) has ordered Adass Israel Girls’ School (School) to pay $1.1 million to a former student (‘HE’) for the sexual abuse she suffered during her time at the School.

Background

HE was sexually abused by the headmistress of the Jewish school, Ms Leifer, between 2003 and 2006. The School was a religious school. Its philosophies and policies were sourced in the traditions and values of Ultra Orthodox Judaism and the School maintains strict adherence to those philosophies. The Court found that the evidence demonstrated that Ms Leifer was the most powerful and preeminent figure within the girls’ campus of the School and the plaintiff viewed Ms Leifer as completely trustworthy.

Ms Leifer, who fled to Israel after several allegations were made against her by other female students at the school, was arrested in Israel in 2014 and is under house arrest while Australian authorities work to extradite her to Australia. As Ms Leifer was not in the country to face the charges, a civil judgment in default of her appearance was ordered against her.

The Court then had to determine the extent of the school’s liability for the offences of its headmistress.

Was the teacher employed by the school or the church?

A crucial issue for the Court was whether Ms Leifer was employed by the school or whether she was employed by the Adass Israel Congregation, therefore relieving the school of liability for her actions. We have previously written about the difficulty survivors of abuse can face in identifying a proper defendant to sue. This is because many faith-based institutions, such as churches, have complicated legal structures which makes it difficult to identify where liability lies.

In this case the School tried to argue that Ms Leifer was employed by the Congregation, not the School, meaning that the School could not be liable for Ms Leifer’s actions.

However that argument was undermined by the following evidence:

• the costs for Ms Leifer’s immigration from Israel were paid by the School;
• the School was the sponsor for Ms Leifer’s visa;
• it was a condition of Ms Leifer’s visa that she remain ‘employed by the School’;
• there was a contract of employment between Ms Leifer and the School;
• documents concerning Ms Leifer’s salary were headed ‘Admin – Adass Israel School’; and
• all correspondence relating to Ms Leifer’s employment were on the School’s letterhead.

Justice Rush found no evidence to demonstrate that the Congregation had any involvement in the employment of Ms Leifer except for being involved in initial inquiries as to the appropriateness of Ms Leifer as a candidate for headmistress. The school’s administration was run by Adass Israel School Inc and not the Congregation.

The combination of evidence presented to the Court substantiated HE’s argument that Ms Leifer’s authority at the School was such that she was the ‘mind and will’ of the School, meaning that the acts of Ms Leifer were the acts of the School and it was liable for her conduct.

Court criticised failed reporting avenues

The first report of the abuse was made by Ms Bromberg, a religious studies teacher at the school. She was first made aware of allegations in 2007 after receiving a phone call from a Melbourne psychologist who reported that one of her patients was a former student and had claimed inappropriate conduct had taken place between herself and Ms Leifer.

Ms Bromberg approached Ms Lefier about the information, not believing that she could be capable of the alleged acts, to which Ms Leifer replied that she had already had a ‘chat about this’ to the Congregation’s elders and it was ‘all good’.

Ms Bromberg did not follow up on the matter until after a phone call was made to the student who confirmed ‘clearly sexualised behaviour’ had taken place between her and Ms Leifer. Ms Bromberg then raised the issue with Ms Leifer again in lieu of any other reporting procedures or policies at the School. The matter was handled internally, with no involvement from the police, and the School paid for Ms Leifer to leave the country within a fortnight.

Unregistered teachers

The evidence heard by the Court also included evidence that Ms Leifer, and other teachers at the School, were not registered teachers with the Victorian Institute of Teaching (VIT).

This revelation is clearly troubling.

In its defence, the School submitted that Ms Leifer, who was headmistress and Head of Jewish Studies, Ms Spigelman the Head of General (Secular) Studies and Ms Bromberg, a ‘religious studies teacher’, were not in fact ‘teachers’ and therefore did not require registration. The School contended that the staff were primarily the administrators at the School for the Congregation and therefore not teachers for the purposes of registration. The Court disagreed.

School was directly and vicariously liable for headmistress’ conduct

The Court agreed that the sexual abuse was so intrinsically linked with Ms Leifer’s position as Headmistress that her conduct should be directly attributed to the school. This was further evidenced by the manner in which Ms Leifer controlled all aspects of the school without any form of appropriate oversight or governance. The Court was satisfied that she was, for the purposes of liability, the embodiment of the School and the final word on almost all administrative matters.

In addition to finding that the School was directly liable for Ms Leifer’s conduct, the Court also found that it was vicariously liable for the sexual abuse committed by its employee against HE. It was held that the School, and employers in general, “have a significant ability to deter the tortious conduct of their employees” and that the School was in the best position to afford the losses required to compensate the plaintiff and should be held liable for the cost of abuse.

School was not negligent

Despite finding that the School was directly and vicariously liable for the headmistress’ conduct, the Court rejected HE’s argument that the School itself was negligent in exercising the duty of care it owed towards HE. HE claimed that the School had:

• failed to properly vet Ms Leifer prior to employment;
• failled to properly supervise Ms Leifer when she held private sessions with students;
• failed to have any protocols or systems by which students could complain about misconduct;
• failed to take any steps to investigate the activities of Ms Leifer when it was known or suspected or ought to have been known or suspected by the School that Ms Leifer was spending an inappropriate amount of time alone with students;
• employed an unregistered teacher; and
• employed a teacher who had not reached the standards required by the Victorian Institute of Teaching Act 2001.

The Court dismissed the negligence claim on the basis that these allegations were either unable to be satisfied by the evidence provided, or were not relevant to the sexual abuse. For example, there was no evidence that the School had failed to properly vet Ms Leifer, or that a ‘proper vetting’ would have revealed a foreseeable risk of abuse.

School ordered to pay damages for harm suffered

Schools have a non-delegable duty to take reasonable care to prevent foreseeable injury to the students in their care and a failure in reasonable care by an employee will often render the school vicariously liable.

Therefore, in this case, as a result of being directly and vicariously liable for Ms Leifer’s conduct, the School was ordered to pay $1,024,428 in damages as compensation for the abuse suffered by HE. Interestingly, the Court also ordered the school to pay an extra $100,000 in exemplary damages aimed to punish the school and deter similar incidents in the future. These punitive damages were awarded to encourage the School to change their ways in respect to inadequate reporting procedures and unregistered teachers.

It is also interesting to note that the Court acknowledged that ‘it is clear that the School is in the best position to afford the losses required to compensate HE’. For many victims of abuse, it makes financial sense to commence proceedings against the school rather than the teacher who caused the abuse as the teacher may not be in a position to pay damages in the event that a claim succeeds.

The bottom line for schools

Unfortunately, often through no fault of a school, its employees may face civil or criminal charges as a result of their misconduct during their employment at the school.

Schools should be aware, as Justice Rush in this case emphasised, that a lack of knowledge of the misconduct is no defence to vicarious liability, and therefore schools need to remain vigilant and proactive in terms of removing risks to students and reducing the possibility of harm. This can be achieved through thorough and frequent performance reviews of staff and strict policies about maintaining a professional relationship between teachers and students.

This case also sends a warning to schools that the comparative ‘deep pockets’ of a school often means that the school will be brought into proceedings against individual staff members due to their better position to pay damages. Therefore schools should ensure that reporting procedures are detailed and demonstrate alternative avenues of reporting when the allegations involve senior members of the administration.