‘School entitled to 90% indemnity from teacher’

Tuesday October 7, 2014

The below article from 18 September 2014 has been provided by Emma Chapman, Principal, McInnes Wilson Lawyers.

It is well established that the law imposes a legal non-delegable duty on teachers and schools to take care of the safety and wellbeing of pupils in their care.   

Chief Justice Winneke in Richards v State of Victoria (1969) VR 136 said,

“In general, a school master owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. It is not, of course, a duty of insurance against harm but a duty to take reasonable care to avoid harm being suffered … The reason underlying the imposition of the duty would appear to be need of the child of immature age for the protection against the conduct of others, or indeed himself, which may cause him injury coupled with the fact that, during school hours, the child is beyond the control and protection of his parent and is placed under the control of the school master who is in the position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury”.

A number of cases have established that in some circumstances a school’s duty will extend beyond the school ground and/or beyond school hours. The recent case of JK v State of New South Wales [2014] NSWSC 1084 considered this issue as well as whether the teacher should indemnify the State of New South Wales and to what extent.

By way of background the Plaintiff (referred to as “JK” in the judgment) claims she suffered psychiatric injuries as a result of sexual assaults committed by a teacher at the school (referred to as “QR” in the judgment).

In the primary proceedings the Plaintiff sued the State of New South Wales (First Defendant), the Principal (Second Defendant) and Deputy Principal (Third Defendant). The State of New South Wales filed a cross claim against the teacher.

The sexual assaults occurred between 2002 and 2004. On 8 June 2006 QR was arrested. He was charged with one count of aggravated indecent assault that occurred on school premises and within school hours and fourteen charges where offences occurred off school premises and outside school hours. QR pleaded guilty and he was released from prison in 2013.

In October 2012 a consent judgment was entered and the State of New South Wales paid JK the sum of $525,000 inclusive of costs.

The current case relates to the cross claim for indemnity or contribution made by the State of New South Wales against QR.

The case required determination of three issues. The first was whether the settlement was reasonable, the second whether QR should indemnity the State of New South Wales and finally whether there should be a contribution by QR to the State of New South Wales and if so to what percentage.

In relation to the question of whether the settlement was reasonable the Court took into account the medical evidence of the Plaintiff’s psychiatric injuries and her age when the sexual assaults occurred. It was the Court’s view that the sum that included costs incurred in prosecuting these proceedings was a reasonable one.

In relation to the second question of whether QR should indemnify the State of New South Wales the State argued that QR’s conduct was criminal conduct that was in breach of his contract and conditions of employment and that there was serious and wilful misconduct that was deliberately concealed.

The State of New South Wales successfully contended that the liability of a school authority and its non-delegable duty of care to pupils did not extend to intentional criminal conduct against a pupil by a teacher employed by the authority. It was found that the State did not owe JK a non-delegable of care for the acts of QR however the position as to whether the school was vicariously liable for the criminal conduct of QR was not so clear.

The State of New South Wales argued that whether or not they were vicariously liable for QR’s actions required a consideration of the relationship and connection between the offending acts performed and the nature and scope of QR’s employment. The State of New South Wales contended that QR’s conduct did not occur in the course of and did not arise out of its employment of QR.

QR was self-represented in these proceedings. He argued that in September 2003 the other teachers became aware that JK “had a crush on him”. QR said he was approached by a counsellor at the school and was told that JK’s friends reported “the crush” and QR was not to have contact with JK but nevertheless at the start of 2004 JK was placed in a computer studies class that was taught by QR.

In addition QR stated that the head teacher of the faculty bullied and intimidated him which caused him to lose confidence in being a teacher and QR’s view is that the abuse from the head teacher resulted in QR developing a major depressive illness that affected his judgment at the time of his offences.

The Court took into account QR’s submissions but considered that most were without merit and self-serving. The Court considered QR knew he was engaging in criminal conduct and that such conduct was in breach of his contract of employment and that his misconduct falls within the category of serious and wilful.

The Court found that while the school may have been aware of the crush that JK had on QR that is an entirely different situation from the school being made aware of sexual assaults taking place off school premises and outside school hours.

The Court found without all the facts and circumstances having being a considered at trial, it is difficult to determine whether or not the State of New South Wales would have been found to been vicariously liable for the acts of QR. QR may have argued that after the school authority became aware of the “crush” that JK had on QR they were obliged to closely monitor the interaction between both QR and JK during school hours and not place JK in a class where QR was her teacher. QR may have also argued that the school authority bears some responsibility for the sexual assault that occurred at school.

Harrison As J stated,

“It seems unlikely that the Court would have been satisfied that there was a sufficient connection between QR’s employment and QR’s wrongful acts. I accept that it was more likely that the Court would have been found that the school authority was not aware that QR was involved in the sexual assaults committed upon JK which took place off school premises and outside school hours and was not vicariously liable for QR’s behaviour.”

In these circumstances the Court ordered QR to indemnify the State of New South Wales.

Considering the issue of contribution the State argued that based on QR’s conduct no culpability should be

attributed to the State and it was just and equitable that the entirety of any finding of negligence that would have been found against the State should be 100% attributable to QR.

The Court was of the view that nearly all of the fault can be attributed to the actions of QR and considered it just and equitable that QR pay 90% of the judgment sum.

The Court ordered that:

  1. QR is to pay the State of New South Wales $472,500.
  2. QR is to pay interest on the sum of $472,500 from the date of judgment.
  3. QR is to pay the State of New South Wales costs of the Application as agreed or assessed.

Of course whether the teacher had the capacity or assets to pay this judgment is unknown but the case certainly sends a message that not only will the State of New South Wales not tolerate or condone this type of criminal, serious and willful misconduct by teachers it employs but they will actively pursue these teachers and ensure there is an ongoing financial impact for their actions.

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