School found negligent for historic abuses perpetrated by a volunteer on and off its premises School found negligent for historic abuses perpetrated by a volunteer on and off its premises

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School found negligent for historic abuses perpetrated by a volunteer on and off its premises

4 November 2021 | Public & Product Liability

Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.

Historic child sexual abuse perpetrated by a volunteer, and not employee, of the defendant (on and off the defendant’s premises). Defendant found not to be vicariously liable for the perpetrator’s conduct but found to have been negligent in failing to identify, prevent and stop the abuse both on and off its premises, and as such was entirely liable for the injury and subsequent losses caused.

In Issue

  • Whether a school could be found vicariously liable for the conduct of a volunteer; whether a school failed in its duty of care to an affected student; whether a school was liable for conduct that occurred outside of school grounds.

The background

PCB (plaintiff) was a student of Geelong College (defendant) from 1987 to 1992, where he completed years 7 to 12 (from the ages of 12 to 17). In 1988 the plaintiff started attending “House of Guilds” (Guilds), a complex on the defendant’s premises that was fitted out to facilitate woodwork, ceramics and other crafts for its students. It was also accessible outside school hours. While attending House of Guilds the plaintiff met Mr P (who was then in his 70s). Mr P (who died in 1999) was not employed or paid by the defendant, but was a volunteer and honorary member of Guilds. He attended Guilds regularly, where he would supervise students along with a paid staff member of the defendant. Mr P sexually abused the plaintiff between 1988 and 1990 at Guilds, in the plaintiff’s family home and in Mr P's vehicle and home. The plaintiff did not tell anyone of the abuse until 2007, at the encouragement of his wife, following a breakdown he suffered at work. The plaintiff held a number of positions at various companies between 2004 and 2019, when he was made redundant, and has not worked since.

At trial it was not in dispute that the plaintiff was sexually abused, or that he had suffered an injury as a result. The defendant however argued that it was not vicariously liable for Mr P’s conduct, that in view of the standard of care at the time it had not fallen short of its duty of care to the plaintiff, and to the extent that there was any liability found it should be limited to abuse that occurred on school grounds.

The decision at trial

The Court found that the although the defendant was not vicariously liable for the conduct of Mr P, as he was a volunteer, the defendant had breached its duty of care to the plaintiff. The Court found the defendant was negligent as there was evidence that the defendant should have been reasonably aware of the existence or potential of such abuses, as another student had complained about Mr P’s conduct prior to the plaintiff attending Guilds and nothing was done about that complaint. The Court found that while the abuse took place at various locations outside the school, it was a “continuum” of conduct (as described by expert evidence led by the plaintiff) and as such rejected submissions to apportion the liability elsewhere i.e. other than the defendant. In considering quantum, his Honour found that Part VB of the Wrongs Act 1958 was excluded from application in the matter and awarded a total of $2,632,319.25 in compensation.

Implications for you

This decision is authority that a school may be found liable for the abuse perpetrated by volunteers, whether that or not that abuse occurred inside or outside of school grounds.


 

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Tinashe Makamure

Tinashe Makamure

Senior Associate

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