The Supreme Court of South Australia  recently ruled that a school in SA was not liable for historical sexual abuse committed by one of its employees. The decision turned on two points.

First, that in employing the abuser (whom we shall call K), the school (which we shall refer to as the School) was found not to be negligent notwithstanding the fact that the School, at the time of the offence (1960s), did not conduct a police background check on K.

Second, that an employer is not liable for criminal acts committed by an employee, which are outside the employee's scope of employment.

This case provides a useful lesson in the application of the legal principles of a school's duty of care to its students. The historical facts discussed contrast starkly with modern day practices and thus highlight the ever increasing standard in the duty of care obligations of a school.

Background to the case

The plaintiff, whom we shall call Mr Rundle, was enrolled as a boarder at the School. In 1962, K was appointed as housemaster of the boarding house.

Mr Rundle, at the ages of 12 and 13, was sexually abused by K over a period of months. Mr Rundle is now 65.

In 2007 K was convicted of two counts of indecent assault upon Mr Rundle, as well as two other School students.

The abuse involved grave breaches of trust by K, as well as criminal acts. K, as housemaster, had access to the boys' bedrooms after hours. He groomed Mr Rundle. Mr Rundle was interfered with by K on several occasions, both at the School and outside of the school grounds.

Mr Rundle disclosed the abuse to a fellow boarder, who in turn told the school chaplain. K was dismissed. K approached Mr Rundle one or two days later and told him as much.

A formal assembly was called. At the assembly, the chaplain announced that K had been dismissed, and told the boarders that the issue was not to be talked about, and that it should be kept within the school. The school chaplain offered his own assistance to Mr Rundle, but did not arrange any counselling.

These events had an immense impact on Mr Rundle, who was then only 12 years old. These events would affect Mr Rundle for the rest of his life. He felt humiliated. He thought that all the boarders knew of his abuse, and gossiped about his activities with K. Later, during a session with a psychologist, he would admit to feeling guilty and angry because, as the Judge described, 'no one previously had told him that the abuse was not his fault'.

Mr Rundle was a boy who was full of potential, being awarded the prize for most respected boarder in his final year. Although Mr Rundle had successes in his life, he could not shake the effects of the abuse. Over the course of his life, he would be affected by the need to seek constant psychological help. He developed drinking problems and was admitted to care in institutions several times.

The legal proceedings

In 1996 Mr Rundle's son enrolled at the School.  Mr Rundle first consulted a solicitor about a claim against K in 1997. That litigation was a civil claim, and ultimately settled when K agreed to pay Mr Rundle $15,000. He had at this point not decided to sue the School as he considered that the School had done the right thing by dismissing K. Nevertheless, he went to see senior management at the School with his legal representatives, seeking acceptance about what had happened and some financial assistance. The School paid his medical and legal fees up until 1997, and also meet his son's school fees for the next three years, which were about $10,000 per year.

Later, after suffering more effects of the abuse, Mr Rundle sought more financial assistance from the School. In one letter, he asked for $1,000,000 and a refund of his school fees, but this claim was not met.

Events in 2003 led to the removal of the statutory immunity for certain criminal offences, and this lead to K being charged. Mr Rundle gave evidence at K's trial. K plead guilty and was convicted of two counts of indecent assault. He was sentenced to two years and five months imprisonment. At this point, Mr Rundle learned that K was convicted in 1954 of gross indecency, before he was employed at the School.

Although it was not determinative of the issues in this trial, the Court found that Mr Rundle's suffering was caused by K's abuse. It also found that the psychological issues and symptoms claimed by Mr Rundle were proved. However, the Court found because these issues developed earlier than when alleged by Mr Rundle, the current claim was barred under the statute of limitations.

Was the School negligent?

The legal principles that the case dealt with are well-known, and were repeated in the judgment.

In summary, although a school owes a non-delegable duty of care to its students, that duty does not extend to cases where there is criminal conduct by an employee, where the employer is not at fault.

Mr Rundle alleged that this duty was breached when the School employed K, when it should not have. The Court heard evidence that in the 1960s, there was no process by which a member of the public could apply to police for a criminal record check. There was also evidence that, in the 1960s, it was not the practice of private schools to obtain such criminal records. In the circumstances of the case, the Court found that the School did not breach its duty of care by employing K because of these facts.

It was also alleged that the School was negligent in failing to properly supervise K and by failing to properly deal with the abuse, and its impact on Mr Rundle, once it was discovered. The Court again found that in the circumstances, there was no breach by the School of its duty of care, and that the supervisory practices at the time were reasonable and that the School responded appropriately once the abuse was discovered - according to the standards which prevailed in 1962.

Lessons from this case study

For schools, the lessons from this case fall into two categories.

First, this case speaks to the potential liability of a well-established school for sexual abuse which may have occurred in the past on its premises and involving its staff. There was, in this case, a long history of correspondence between the School and Mr Rundle. It is clear that there were various attempts to compensate Mr Rundle, and various attempts to settle the matter. Mr Rundle had already settled litigation with K.

Such schools, faced with the possibility of claims about historical sex abuse, may find it necessary to mitigate against this risk by setting aside resources to help defend claims and/or provide redress to victims. Even if a school is successful in defending allegations, it will still be out of pocket due to legal fees.

Second, this case helps illustrate the boundaries of a school's duty of care. The legal principles in this case were uncontroversial, and should be familiar to all principals, teachers and staff.

Although in this case it was noted that the criminal behaviour of the employee meant that the school was not liable, this will not always be the case. In another case (State of New South Wales v Lepore (2003) 212 CLR 511), Chief Justice Gleeson said that historically, sexual abuse was regarded as falling well outside the scope of employment, therefore meaning that an employer would not be liable for an employee's actions. But he went on to say that 'yet such conduct might take different forms.  An opportunistic act of serious and random violence might be different, in terms of its connection with employment, from improper touching by a person whose duties involve intimate contact with another.' The upshot of these statements is that it is possible for an employer to be liable for the conduct of an employee, even in cases where criminal acts are committed.

Finally, the Court noted that 'it has only been in recent times that independent schools have developed a comprehensive policy for managing allegations of sexual abuse within the school environment'. It is important to remember that this case was being decided on events, and the law as it was in 1962. A school's standard of care today is undoubtedly higher, especially in the context of the ability to conduct background tests and the industry practice of applicant screening.

And if jurisdictions such as NSW succeed in introducing legislation to repeal limitation periods in child sexual abuse claims, schools may be increasingly exposed to the consequences of what took place in the past.