A former boarding student of a private boys school in Adelaide is suing the school for negligence in relation to its hiring of a teacher who allegedly sexually assaulted students over 50 years ago. As reported by ABC News, the former student is suing the school and alleging it breached its duty of care by hiring a former boarding master without doing proper background checks. The case, which is currently being heard by Justice Vanstone in the South Australia Supreme Court, involves a former teacher who was convicted for sexually abusing boys and jailed in 2007 and 2009.
The former student's barrister opened the trial and ABC News reports that he argued that:
According to the barrister, 'boarders were told to keep what happened within the boarding house'.
As schools are well aware, a school owes a non-delegable duty of care to its students. This requires protection from reasonably foreseeable harm against which preventative measures can be taken.
According to the barrister, the school breached the duty of care it owed to the student because it:
ABC News quotes the barrister as saying 'If proper inquiries had been made, [the teacher] would not have - under any conceivable circumstances - been responsible for or allowed to come into the boarding house and take care of young teenage boys like the plaintiff'.
In the school's defence, its barrister said that:
Each State and Territory has legislation which sets out the limitations period of various causes of action. In South Australia, the limitation period prevents proceedings being commenced in that State if they are not commenced within three years after the cause of action could be taken. However, the Court has the discretion to extend the time within which proceedings are brought in certain circumstances.
According to the Advertiser, which also reports on the case, the ex-student had been a successful businessman. A delayed post-traumatic stress disorder was triggered after his son started attending the school.
Although the details have not been reported on, the timing of the discovery of the mental condition (which became known only recently) may have affected the right to bring this case, as it has in many other cases.
Limitation periods, their lack of uniformity in Australian jurisdictions, and the bar they represent to victims of child abuse seeking redress through civil proceedings, is an issue which has been the focus of the Royal Commission into Institutional Responses to Child Sexual Abuse. Many submissions put before the Royal Commission argue that legislation imposing time limits on civil claims for injuries caused by child sexual abuse should be abolished (see for example the submission by the Queensland University of Technology). It remains to be seen whether the Royal Commission, extended until 2017, will make such a recommendation.
The case, before the Supreme Court of South Australia, continues.