34 In Richards v State of Victoria [1969] VR 136, the Full Court of the Supreme Court of Victoria said (at 138-9):
The reasons underlying the imposition of the duty would appear to be the need of a child of immature age for the protection against the conduct of others, or indeed of 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 schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury: vide Ramsay v Larsen, supra, per Kitto,…
35 In El-Sheik v Australian Capital Territory Schools Authority (1999) 151 FLR 397 at 403, Miles CJ described the duty as one:
… to ensure that reasonable care was taken with respect to the [pupil's] safety during the time that he was subject to the [school authority's] supervision.
Although the decision was reversed on appeal on a causation issue, Miles CJ's statement of principle was approved: see Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931.
36 In cases involving a non-delegable duty of care there is always an anterior question that is usually passed over because its answer is very clear on the facts. It is always necessary to determine the content or scope of the duty by reference to the task undertaken by the defendant with reference to the plaintiff. This matter is explained by Giles JA in Elliott at 240-245 in the context of medical services. See also John James Memorial Hospital Ltd v Keys [1999] FCA 678.
37 As regards a school authority, there will be times when it may be difficult to determine whether a pupil is within the umbrella of a non-delegable duty. For example, the pupil may be at school well outside ordinary hours (cf Geyer v Downs (1977) 138 CLR 91) or outside school premises (cf Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) ATR ¶81-399). But the present case involves none of these problems. This was a young pupil on school premises during school hours and under the direct control of his teacher.
38 To my knowledge, none of the cases involving a non-delegable duty of care involve treating an employee who is an intentional wrongdoer acting outside the course of employment as the person whose tortious conduct automatically establishes the liability of the employer qua fellow employee, patient or pupil.
39 In the present case, the appellant's submission neatly sidesteps issues of vicarious liability for sexual abuse over which other courts have agonised at length (see Bruce Feldthusen, "Vicarious Liability for Sexual Torts" in Mullany and Linden eds, Torts Tomorrow: A Tribute to John Fleming, LBC Information Services, 1998). That question has been addressed recently by the Supreme Court of Canada in Bazley v Curry (1999) 174 DLR 4th 45 and Jacobi v Boys' and Girls' Club of Vernon (1999) 174 DLR 4th 71 (the two cases are discussed in (2000) 116 LQR 21) and the English Court of Appeal (ST v North Yorkshire County Council [1999] 1 RLR 98).
40 Nevertheless, "novelty of argument is not a reason for judicial inaction where the law permits action and justice requires it" (per Kirby P in X v Amalgamated Television Services Pty Ltd (1987) 9 NSWLR 575 at 588). It is not the law that nothing should ever be done for the first time.
41 Pressed in argument with the suggestion that the proposition he was advancing may not apply to an intentional tort such as assault, senior counsel for the appellant submitted that it was not clear that there was such a finding in the present case. It was submitted that there was no finding of sexual assault (at least in the context of the State's possible liability) and that the case could be characterised as one involving excessive chastisement negligently inflicted by the teacher. In my view, this submission flies in the face of the judgment when it is read fairly and as a whole, especially in its reference to the 1978 criminal proceedings. The submission also entirely overlooks the pleadings. The hard legal problem cannot be sidestepped this way.
42 I am far from satisfied that the argument now sought to be run was advanced at trial. Reference in submissions at trial to the State's non-delegable duty of care was entirely consistent with the case that was addressed in the judgment. That case concerned negligent failure to supervise the teacher by unspecified superiors in the Department. Nevertheless, the new point involves a pure question of law. If it is correct, then I cannot see how any evidence might have been called to meet it. No injustice is done to the State to allow the point to be argued by way of rehearing on appeal, given that the State never contested that the teacher had committed at least some assaults on the appellant. If the appeal is upheld there would have to be a further hearing on damages (conjointly with such a hearing in relation to the former teacher's personal liability for the assaults). That would provide the venue to explore, if necessary, the number and nature of the physical and sexual assaults said to be causative of damage. The cause of action against the State requires proof of damage, but some damage was assumed for the purpose of the trial that took place.
43 Discussion about non-delegable duties of care is usually accompanied by the statement that the duty will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor (eg Burnie Port Authority at 550). However, the concept extends to negligence by employees, because it may be invoked where the fault is, or might be, that of an employee whether or not acting in the course of employment. Many of the hospital cases are in this category, because there is uncertainty whether the personal fault lay with an employee (eg a nurse) or an independent contractor (eg a visiting specialist surgeon).
44 In the past, one reason why the concept was invoked in the employment context was to side-step the doctrine of common employment (Wilsons & Clyde Co Ltd v English [1938] AC 57, Kondis at 680-1). Another was to avoid the necessity of establishing that a negligent employee was acting in the course of employment (Atiyah "Vicarious Liability in the Law of Torts" 1967, p339 citing Leesh River Tea Co Ltd v British India Steam Navigation Co Ltd [1966] 1 Lloyd's Rep 450 (revd on other grounds on appeal: [1967] 2 QB 250). See also Morris v C W Martin & Sons Ltd [1966] 1 QB 716).) This explains why in the present case the trial judge was told that he could happily ignore the difficulties of applying the principles discussed in Deatons Pty Ltd v Flew.
45 The class of plaintiffs entitled to the benefit of a non-delegable duty of care is restricted to those falling within the protected relationship. It is therefore possible to conceive of a situation where an employee acting outside the course of employment harms two persons, one a fellow employee and the other a stranger. The fellow employee will succeed by invoking the employer's non-delegable duty. The stranger will fail if unable to establish some alternative basis of direct liability against the employer, eg occupier's liability.
46 There will be situations where the Court will need to determine the precise area covered by a non-delegable duty of care even for a recognised category, eg hospital-patient. Thus, in Davie v New Merton Board Mills Ltd [1959] AC 604 the duty was not breached where the only negligence was that of the manufacturer of a defective tool which the employer had bought and supplied for the use of the employee. The manufacturer was not someone to whom the employer had delegated the performance of some part of its duty, but was relevantly a "stranger" (Kondis at 683 per Mason J).
47 In par 37 I cited areas near and beyond the margins of the scope of the school's duty to pupils. However, these complications may be ignored in the present case. There could be no doubting that a school authority's duty to take reasonable care to ensure the safety of a pupil extends to protecting the pupil from physical and/or sexual abuse, at least where due care would have avoided it. This was the case fought at trial, but unfortunately the appellant failed to establish want of due care by any superior in the Department of Education or at the particular school that contributed to the assaults perpetrated by the second defendant.
48 But what about responsibility for the intentional wrongdoing of the teacher himself? This is the point raised on appeal. Whether or not the trial judge was asked to address such a case, there is no reason why this Court should not do so in an appeal by way of rehearing where the relevant duty is undisputed and the facts relevant to breach clearly established.
49 Almost by definition, tort law requires a plaintiff to show a reason why the burden of his or her loss or injury should be transferred to the defendant's shoulders. As the word implies, tort is essentially fault-based (Perre v Apand Pty Ltd (1999) 198 CLR 180 at 230 per McHugh J). Nevertheless, the attribution of vicarious liability or a non-delegable duty of care are situations where legal responsibility is fixed upon an "innocent" party by reason of some antecedent relationship with the victim and some capacity to control the conduct of the individual wrongdoer.
50 If this is the conceptual basis that gives rise to what in effect is a strict liability upon the defendant that owes such duty, then the duty has some of the hallmarks of one lying in contract. The defendant upon whom a "direct" or "personal" non-delegable duty is imposed is treated as if it had undertaken directly with the plaintiff to ensure that no harm befalls the plaintiff (within the sphere of protection undertaken) as the consequence of wrongdoing. Viewed thus, there is no basis for distinguishing between negligently inflicted harm and intentionally inflicted harm. A contractual promisor cannot excuse default by saying that it was due to deliberate conduct of third persons, whether or not they are subject in some way to the promisor's control. As Lord Diplock put it in Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848:
Where what is promised will be done involves the doing of a physical act, performance of the promise necessitates procuring a natural person to do it; but the legal relationship between the promisor and the natural person by whom the act is done, whether it is that of master and servant, or principal and agent, or of parties to an independent subcontract, is generally irrelevant. If that person fails to do it in the manner in which the promisor has promised to procure it to be done, as, for instance, with reasonable skill and care, the promisor has failed to fulfil his own primary obligation.