Recent cases have examined the circumstances in which employers might be held liable for intentional criminal conduct by their employees.
The cases dealt with sexual assaults on school students by their teachers during school hours on school premises.
They raised two questions. Can a school authority be held directly liable for its employees’ intentional criminal misconduct by way of its non-delegable duty of care? And might the school authority be liable under the principles of vicarious liability?
Non-delegable duty consists of taking reasonable care to avoid a foreseeable risk of injury and was not seen as creating a strict liability extending to the intentional criminal conduct of an employee. Holding a school authority directly liable for an injury either accidentally or intentionally inflicted on a pupil by a teacher was seen as too wide an application of the doctrine.
Where an employer under a non-delegable duty delegates a task to an employee, and that employee fails to perform the task with reasonable care, the employer is held directly liable because he or she has failed to ensure that reasonable care is taken. This is as far as non-delegable duty of care goes. The duty is not to “ensure” that no school student is physically injured at the hands of a teacher. Rather, it is “to take reasonable care to ensure that the pupil is so supervised that he or she does not suffer harm”.
An employer may be vicariously liable for the intentional criminal conduct of employees if there is a sufficiently close connection between the criminal conduct of what the employee was engaged to do. Such vicarious liability could similarly be imposed upon independent contractors.
An intentionally wrongful act can be within the course of employment if there is a sufficiently close connection between the employment and the conduct, and where the activities of the employer led to a material risk of such conduct occurring.
In one of the cases, the conduct allegedly included spanking students on their bare bottoms. It was said, “The deliberate sexual assault on a pupil is not some unintended by-product of performance of the teacher’s task, no matter whether that task requires some intimate contact with the child or not. It is a predatory abuse of the teacher’s authority in deliberate breach of a core element of the contract of employment…. The teacher has no actual or apparent authority to do any of the acts that constitute the wrong”.
This article is re-printed with the permission of the Law Society of New South Wales.
For more information and advice concerning Employment Law, contact the experienced team at Rockliffs Lawyers today.