Lepore v State of New South Wales & Anor

LOWER COURT JURISDICTION : District Court LOWER COURT 4645/94 FILE NUMBER(S) : LOWER COURT Downs DCJ JUDICIAL OFFICER :

A: Dr A Morrison SC, Ms J Oakley COUNSEL : 1R: Mr P Menzies QC, Mr G Moore 2R: No Appearance A: Milicevic Solicitors SOLICITORS : 1R: I V Knight, Crown Solicitors 2R: Holt & Allen Solicitors CATCHWORDS : Negligence - non-delegable duty of care - school authority's duty of care towards school children - whether non-delegable duty of care covers intentional tortious conduct - sexual assaults by school teacher on children under his care - scope of non-delegable duty - Commonwealth of Australia v Introvigne (1982) 150 CLR 258. Ramsay v Larsen (1964) 111 CLR 16 Commonwealth of Australia v Introvigne (1982) 150 CLR 258 Kondis v State Transport Authority (1984) 154 CLR 672 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Scott v Davis [2000] 175 ALR 217; (2000) 74 ALJR 1410 Elliott v Bickerstaff (1999) 48 NSWLR 214 Richards v State of Victoria [1969] VR 136 El-Sheik v Australian Capital Territory Schools Authority (1999) 151 FLR 397 Australian Capital Territory Schools Authority v El-Sheik [2000] FCA 931 John James Memorial Hospital Ltd v Keys [1999] FCA 678 Geyer v Downs (1977) 138 CLR 91 Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) ATR 81-399 Bazley v Curry (1999) 174 DLR 4th 45 Jacobi v Boys' and Girls' Club of Vernon (1999) 174 DLR 4th 71 ST v North Yorkshire County Council [1999] 1 RLR 98 X v Amalgamated Television Services Pty Ltd (1987) 9 NSWLR 575 Wilsons & Clyde Co Ltd v English [1938] AC 57 CASES CITED: Leesh River Tea Co Ltd v British India Steam Navigation Co Ltd [1966] 1 Lloyd's Rep 450 Morris v C W Martin & Sons Ltd [1966] 1 QB 716 Davie v New Merton Board Mills Ltd [1959] AC 604 Perre v Apand Pty Ltd (1999) 198 CLR 180 Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 Lloyd v Grace Smith & Co [1912] AC 716 Poland v Parr [1927] 1 KB 236 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Aust Ltd (1931) 46 CLR 41 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000) 176 ALR 411 Ryan v Fildes [1938] 3 All ER 517 Tepko Pty Ltd v Water Board [2001] HCA 19 Cassidy v Ministry of Health [1951] 2 KB 343 Watson v Haines (1987) ATR 80-094 Carmarthenshire County Council v Lewis [1955] AC 549 Liverpool City Council v Irwin [1977] AC 239 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Rylands v Fletcher (1868) LR 3HL 330 Voli v Inglewood Shire Council (1963) 110 CLR 74 DECISION : Appeal allowed. See paragraph 65.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40353/99 DC 4645/94

The appellant sued in the District Court for damages stemming from acts of abuse by a teacher at a State primary school. He had been beaten on the bare bottom by a ruler, sometimes in the presence of other children. The incidents occurred in 1978 on school premises when the appellant was aged 7 or 8. The State of New South Wales was joined as first defendant and the former teacher as second defendant. The second defendant had pleaded guilty to common assault in 1978 and he chose to absent himself from the trial. The trial proceeded as to liability only. There was a verdict for the first defendant and a verdict for the plaintiff against the second defendant for damages to be assessed. It was found that there was no negligence on the part of departmental employees such as the headmistress or inspectors, none of whom had any reason to suspect the second defendant. With regard to the first defendant, the appellant's principal submission in the appeal was that the learned trial judge failed to address the issue of breach of the non-delegable duty of care. HELD (by Mason P and Davies AJA allowing the appeal):

1. At trial the appellant elected not to run the case on the basis of vicarious liability. He should not be permitted to renege on appeal.

Non-delegability means that a person cannot avoid liability by relying on a delegation, even to a competent delegate. Where the duty is one of care it is expressed as requiring the defendant to ensure that reasonable care is taken. Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Scott v Davis [2000] HCA 175 ALR 217 (referred). It is necessary to determine the scope of the duty by reference to the task undertaken by the defendant in relation to the plaintiff. Elliott v Bickerstaff (1999) 48 NSWLR 214 (referred).

The appellant's submission that there was no finding of sexual assault in this case is untenable.

Even though it is far from clear that the non-delegable duty argument was advanced at trial, the new point involves a pure question of law. If correct, no evidence could have been called to meet it. There is no injustice done to the State by allowing the point to be argued at the appeal by way of re-hearing.

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. There is no doubt that the State owed the appellant a non-delegable duty of care. There are no compelling policy reasons why the scope of this duty should not extend to protection from intentional as well as negligently inflicted wrongs inflicted on school premises by an employee having direct oversight over the pupil. Photo Production Ltd v Securicor Transport Ltd [1980] AC 827; Morris v CW Martin & Sons Ltd [1966] 1 QB 716; Lloyd v Grace, Smith & Co [1912] AC 716 (referred).

The concept of non-delegable duties extends to intentional torts, whether by employees or independent contractors. Introvigne; Australian Capital Schools Authority v El Sheik [2000] FCA 931 (referred).

Tortious injuries suffered by pupils at the hands of fellow-pupils distinguished.

The issue of non-delegable duty was not pleaded at trial. The trial judge did not find that the second respondent did anything more than strike the plaintiff (appellant) at least once on the bare bottom.

Had the appellant not abandoned his first cause of action, he might have succeeded against the first respondent even on the basis of the limited factual findings made. Ryan v Fildes [1938] 3 All ER 517 (referred).

The limited factual findings the trial judge made related to the first question he was required to consider - whether the second respondent assaulted the appellant. In considering the second issue before him - whether the first respondent breached a duty of care owed directly to the appellant - the trial judge relied on the behaviour of employees senior to the second respondent. Consequently, this was not a satisfactory approach to the (not pleaded) third cause of action regarding non-delegable duty of care.

The original trial should not have been split considering the substantial overlap between the evidence of the second respondent's conduct and the evidence of the damage which the appellant suffered. The decision should have been altered once it became clear that the trial judge could only conduct the first part of the trial. This case falls within a narrow category of cases in which it is just to allow an appeal to permit a party complaining of an injury to put a case in the second trial in a manner different from the way in which that party put the case at the first. Tepko v Water Board [2001] HCA 19 (referred).

It is questionable whether The Commonwealth of Australia v Introvigne (1982) 150 CLR 258 is to be regarded as having a clear ratio, well-supported by authority, or soundly based in legal policy and principle. Kondis v State Transport Authority (1984) 154 CLR672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, Scott v Davis (2000) 74 ALJR 1410 (discussed). Ramsay v Larsen (1964) 111 CLR 16, Carmarthenshire County Council v Lewis [1955] AC 549 (discussed). However, the number of favourable references to the observations of Mason J in High Court dicta suggests that the statement is probably beyond challenge, except in the High Court.

It was not explained why strict liability should be imposed on an employer for morally wrong batteries by employees in circumstances where the batteries are not only outside the employment but are wholly antithetical to and a very negation of the duties which the employment imposed, in circumstances where it has been found that the employer was in no respect negligent.

The fact-finding process at the first trial miscarried. The proceedings as between the appellant and the first respondent should be re-heard on both liability and damages. There is no prejudice to the appellant in ordering a new trial on all issues as against both the first and second respondent. ORDERS (by majority)

Appeal allowed. 2. Set aside verdict in favour of the first defendant and in lieu thereof order that the trial as to damages include the damages payable by the first defendant for negligence and by the second defendant for trespass. 3. First respondent to pay appellant's costs of appeal and of the proceedings to date in the District Court. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40353/99 DC 4645/94

JUDGMENT 1 MASON P: It sometimes happens that a court is faced with a specific new situation in which there is no direct authority. Yet one step back there are authoritative statements of principle and policy considerations that tug in opposite directions. I believe this to be such a case. The specific issue is whether the non-delegable duty of care owed to school pupils is breached by the intentional misconduct of an employee teacher where negligence of supervisors and system is negated. 2 The appellant sued in the District Court for damages stemming from acts of physical and sexual abuse by a teacher at a State primary school. The events occurred in 1978 on school premises when the appellant was a pupil at the school, then aged 7 or 8. The State of New South Wales was joined as first defendant and the former teacher as second defendant. 3 The amended Statement of Claim pleaded against the second defendant that: 5. During 1978, on repeated occasions, the second defendant assaulted and sexually and indecently assaulted the plaintiff.

Particulars of assaults 6. The second defendant on numerous occasions directed the plaintiff to go into a storeroom where he required the plaintiff to remove his clothing. He thereafter fondled the plaintiff including fondling him on the penis. On some occasions he brought other children into the room and undressed them and fondled them in the presence of the plaintiff. On one occasion he forced the plaintiff to fondle him on the outside of his clothing in the area of his penis.

4 The allegation against the State was pleaded as follows: 10. Further or in the alternative, the plaintiff alleges that the aforesaid injuries and disabilities were occasioned by the negligence of the first defendant, its servant and/or agents. 11. Particulars of negligence (a) Failure to protect the children in the care and control of teachers at … Primary School. (b) Failure in its duty to the plaintiff in loco parentis. (c) Failure to adopt a proper system of supervision of the second defendant. (d) Failure to properly supervise the second defendant in the conduct of his duties as a teacher at the … Primary School. (e) Failure to take action from preventing the said assaults to occur at all.

5 These allegations were put in issue by the defendants. 6 Each defendant was separately represented in the court below. 7 About a fortnight before the trial it had been ordered on the plaintiff's application that the issue of liability be tried separately. One of the medical witnesses was unavailable. 8 On the morning of the trial (14 April 1999) counsel for the three parties appeared before Judge Garling. Senior counsel for the former teacher informed the judge that his instructions had been withdrawn and that the second defendant proposed to "play no formal part in the proceedings". Counsel for the other parties indicated that they had no objection to the second defendant leaving, whereupon he was excused. 9 Later that day the trial commenced before Judge Downs QC. The second defendant was called but he did not appear. Discussion with the judge confirmed that, as between the appellant and the State, the trial was to proceed on two issues only: did the State owe a duty of care and was it breached? (In fact duty of care was never disputed (see CB 6T, RB 13-14).) The trial would also address the former teacher's liability. All issues of damage and damages were to be deferred to a later trial, presumably before a different judge, because Judge Downs was shortly to retire from the Bench. 10 It was confirmed that the claim would proceed in accordance with the pleadings: ie against the former teacher for assault and against the State for negligence (CB 8J). The following brief exchange ensued (CB 8): MOORE: So it's only, it's purely only a claim of negligence against my client. HIS HONOUR: Yes. MOORE: So that your Honour doesn't have to get into the area of [ Deatons Pty Ltd v Flew (1949) 79 CLR 370] the case about the barmaid and the hotel and those sorts of things. HIS HONOUR: Yes. 11 The appellant then gave his evidence. He had been born in 1970. The second defendant was his second class teacher. There was a storeroom immediately behind the teacher's desk. Whenever the appellant misbehaved he was told to go into the storeroom. 12 The appellant gave evidence of incidents that occurred whenever he had been sent to the storeroom. He was told to strip and put his hands on his head. The teacher then touched him all over the body, including his private parts. On occasions another boy would be brought into the room and required to do the same thing, with the teacher telling the two boys to touch each other. This happened approximately 10 times. Sometimes the appellant was smacked on the bare bottom with a ruler. On one occasion a female pupil was present. The appellant was initially too scared to tell his mother, having been told by the teacher that no one would believe him. When he eventually told his mother, the police were promptly brought into the matter by his mother and uncle. 13 A police statement given by the appellant on 20 September 1978 was then admitted into evidence. It is generally consistent with the appellant's oral evidence, although it states that the only time that the teacher tickled the appellant on the "Dicky" was the previous day. The statement records the teacher as offering the pupil the choice between being tickled or getting the cane from the school headmistress. 14 Counsel representing the State did not challenge the material in the written statement. He confined himself to pointing out minor discrepancies between the oral evidence and the contemporaneous police statement. 15 The appellant then called two former fellow pupils who gave evidence and whose 1978 police statements were also tendered. The pattern of behaviour was generally the same. The pupil said to be misbehaving was sent to the storeroom, told to strip and then abused in like manner to the appellant, sometimes alone, sometimes in the presence of the appellant. As with the appellant, the abuse was linked by the teacher with real or asserted misbehaviour. The pupils were told not to tell anyone about what had happened in the storeroom. Their accounts only emerged in consequence of the appellant reporting the matter to his mother and uncle. As with the appellant, cross-examination did not dispute the truthfulness of the nearly contemporaneous statements given by the children to the police in September 1978. A police statement of a female pupil was also tendered later in the proceedings: she too was smacked on the bare bottom. 16 The appellant's mother and uncle corroborated the complaint and the visit to the police station. 17 The appellant then tendered documents from the Court of Petty Sessions proceedings in which the teacher was charged with four counts of common assault (one of them involving a female pupil). The teacher was then aged 22. There were pleas of guilty on 2 November 1978 which resulted in the following sentences being imposed: 1. Assault female: Convicted. Sentence deferred upon him entering recognizance to be of good behaviour for 2 years conditioned that he does not accept employment teaching children under sixth class. 2. Assault: Convicted. Fined $100. 3. Assault. Convicted. Fined $100. 4. Assault. Convicted. Fined $100.

18 In remarks on sentence, the Magistrate expressed bemusement as to the offences charged not being more serious than common assault. However, he observed that it had been desirable that young children of 7 should not be brought into court "to rehash matters of the past". (There is evidence that the teacher gave a statement to the police on the day when he was arrested in which he admitted smacking the children across the bare bottom with a ruler but denied touching them in any other way (CB 82).) The Magistrate also recorded that the teacher had acted in contravention of Departmental policy for disciplining children and that none of his conduct had been brought to the attention of the headmistress. 19 On 2 November 1978 the teacher entered into the recognizance stipulated by the Magistrate. He also resigned from the teaching service and his resignation was accepted that day. 20 Other documents from the Department of Education were tendered. 21 The addresses of counsel are not recorded in full. Counsel for the appellant referred his Honour to Ramsay v Larsen (1964) 111 CLR 16 and Commonwealth of Australia v Introvigne (1982) 150 CLR 258 (Introvigne). It is accepted that his Honour was asked to find breach of the State's non-delegable duty of care to its pupil. 22 Judgment was delivered the next day. The issues were set out and reference made to the oral and written evidence of the appellant and his fellow pupils. Discrepancies were noted. His Honour remarked that it was difficult to place much reliance upon any details of what the children alleged took place, bearing in mind their tender ages at the time and the lapse of more than 20 years. Nevertheless, it was undisputed that the teacher had struck each of the children upon their bare bottoms at least once over an unspecified time in about September 1978. He had pleaded guilty to such charges and had chosen to absent himself from the trial. 23 As regards the State's liability, the judge said this: There was not any dispute that the first defendant owed the duty to the plaintiff that a teacher owes to a pupil. The breach of duty alleged was that the first defendant failed to take reasonable care to protect the plaintiff from a reasonably foreseeable risk of injury in that it failed to adopt a system of supervision and it failed to adequately supervise the second defendant when he was carrying out his teaching duties. … There was tendered before me a report of G A Marshall … who was the first defendant's district inspector. It disclosed that although the second defendant had not had a lot of experience as a teacher, he found upon his inspection in June 1978 that the second defendant's work was of a high order, his discipline was excellent and he was a teacher of "above average potential". Although the principal of the primary school had little contact with the second defendant, it should be observed he worked under the immediate supervision of the infants head mistress Miss Corrigan. … I am satisfied that the second defendant assaulted the plaintiff … … It remains now for me to consider if the first defendant breached the duty it owed to the plaintiff. The evidence discloses that the second defendant in or about September 1978 firstly was a qualified teacher aged 23 years; secondly with between one and a half to two years experience as a primary school teacher; thirdly he worked under the direct supervision of the head mistress of … Infants School and the general supervision of the principal of its primary school; fourthly and that there were guidelines as to the nature of the supervision. As to this the inspector's report indicates that so far as the first defendant was aware the second defendant worked within those guidelines. The assaults alleged were deliberate and isolated acts of abuse which occurred in an enclosed room and which were inimical or totally foreign to the second defendant's duties as a teacher. Furthermore there was not any evidence before me: (1) over what period the various assaults took place; (2) the length of time that any one of the assaults might have lasted; (3) that any member of the staff at the school or of the department had any opportunity to witness the assaults; (4) that any member of the staff or of the department knew of the assaults; (5) that any member of the staff or of the department had any reason to believe that the second defendant might commit the assaults. For example there was not any evidence that any parent warned any member of the staff and the inspector, as I have already stated, found him to be a teacher with above average potential; (6) that the second defendant had a predisposition to commit such assaults; and finally (7) there is not any evidence as to what system of work or supervision might reasonably have been implemented so as avoid the isolated assaults which took place. Bearing in mind all of these matters together with the fact that the evidence of the isolated acts fell from the lips of children who were aged 7 or 8 years more than 20 years after the event, the only conclusion I can come to is that there is no evidence that the first defendant breached the duty that it owed to the plaintiff. That completes my judgment on the issues that were before me.

24 A verdict was entered in the State's favour. Costs were awarded against the appellant, but he was given a Bullock order against the former teacher. The matter was stood over for further hearing as to the damages payable by the former teacher. 25 In this appeal, by leave, the principal submission is that the learned trial judge failed to address the issue of breach of the non-delegable duty of care. 26 In light of the exchange at par 10 above, it is accepted that the case was not and is not put on the basis of vicarious liability for the acts of the former teacher. Nor is there any challenge to the findings absolving the Department of Education from negligence in supervision of the teacher. 27 However, it is submitted that the non-delegable duty means that the State is legally responsible for the wrongful acts of the teacher, whether they be characterised as intentional or negligent torts and regardless of any allegation that he was acting in the course of employment. The proposition is very simple: since the actual tortfeasor is an employed teacher, his own wrongdoing also constituted the breach of the State's non-delegable duty to the pupil even though the teacher may not have been acting in the course of employment. 28 The concept of a non-delegable duty of care has been discussed in a number of High Court decisions (see Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 and Scott v Davis [2000] 175 ALR 217, [2000] HCA 52 at [245]-[249], [307]-[308], [353]). Employers, hospitals and school authorities are the clearest categories of relationships giving rise to such a duty. 29 The expression "non-delegable duty" is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate. A non-delegable duty is said to be personal or direct, rather than vicarious, but even this difference is more semantic than substantial. (These two points are made by Professor J P Swanton, "Non-delegable Duties: Liability for the Negligence of Independent Contractors" (1991) 4 JCL 183, (1992) 5 JCL 26. I have been much assisted by this learned article. See also Jane Swanton, "Master's Liability for the Wilful Tortious Conduct of His Servant" (1985) 17 UWA Law Rev 1.) 30 To similar effect are the remarks of Giles JA (Handley JA and Stein JA agreeing) in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 236-8. His Honour said (at 238): Where the person owing the duty of care must ensure that the third party exercise reasonable care, and is liable if the third party does not do so, it can be seen why the non-delegable duty of care has been described as a disguised form of vicarious liability (J G Fleming, The Law of Torts , 9th ed (1998) Sydney, LBC at 434) and even as a logical fraud (G Williams, "Liability for Independent Contractors" (1956) Cam LJ 180 at 193). The person who owes the non-delegable duty of care may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person's duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else's failure to take care. The concept of non-delegable duty of care has nonetheless been recognised for over a century (see Pickard v Smith (1861) 10 CB (NS) 470; 142 ER 535; Dalton v Henry Angus & Co (1881) 6 App Cas 740), and is thoroughly established in the law including in the decisions of the High Court. Indeed, it extends to liability for the failure to take care of third parties who are not independent contractors, in the traditional sense: eg Commonwealth v Introvigne (1982) 150 CLR 258.

31 The history and rationale of the concept of a non-delegable duty are considered by Professor Swanton and in the High Court decisions to which reference has already been made. It is not easy to know when to apply the concept to a new legal relationship. Fortunately, it is clearly established that a school authority owes such a duty at least to a pupil involved in a school activity on school premises, at least in relation to the negligent infliction of injury (Introvigne). 32 Where the non-delegable duty is one of care (and most reported cases deal with this situation) the duty is expressed as requiring the defendant to ensure that reasonable care is taken (Kondis at 686, Burnie Port Authority at 550). The result is, as Gummow J expressed it in Scott (at [248]) that: … the characterisation of a duty as non-delegable involves, in effect, the imposition of strict liability upon the defendant who owes that duty.

33 In Kondis, Mason J (with whom Deane J and Dawson J agreed) said (at 686): The liability of a hospital arises out of its undertaking an obligation to treat its patient, an obligation which carries with it a duty to use reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the obligation on its behalf acts without due care: Gold v Essex County Council [1942] 2 KB 293. Accordingly, the duty is one the performance of which cannot be delegated, not even to a properly qualified doctor or surgeon under a contract for services: Cassidy v Ministry of Health [1951] 2 KB 343. Likewise with the school authority. It is under a duty to ensure that reasonable care is taken of pupils attending the school. It is the immaturity and inexperience of the children and their propensity for mischief that lie at the basis of the special responsibility which the law imposes on a school authority to take care for their safety: Introvigne (1982) 150 CLR at 271. The child's need for care and supervision is so essential that it is a necessary inference of fact from the acceptance of the child by the school authority, "that the school authority undertakes not only to employ proper staff but to give the child reasonable care", to use the words of Kitto J in Ramsay v Larsen (1964) 111 CLR at 28.

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.

51 In Morris v C W Martin & Sons Ltd [1966] 1 QB 716 the plaintiff sent a mink stole to a furrier to be cleaned. With the plaintiff's consent, the furrier delivered the fur to the defendant, a firm of well-known cleaners. It was stolen by one of the defendant's employees who had been entrusted with it to clean it. The defendant had not been careless in employing the thief because there had been no reason to doubt his honesty. The plaintiff's claim was dismissed in the lower court on the basis that the thief was not acting in the course of his employment. 52 The Court of Appeal allowed the appeal and gave judgment for the plaintiff. Diplock LJ and Salmon LJ decided the case on the basis that the defendant had entrusted the fur to the thief, making him "the servant through whom the defendants chose to discharge their duty [as bailees for reward] to take reasonable care of the plaintiff's fur" (per Salmon LJ at 740). On this reasoning, the thief was acting in the course of his employment, albeit that he acted dishonestly (Lloyd v Grace, Smith & Co [1912] AC 716). 53 Lord Denning MR proceeded down a different path, to the same conclusion. He treated the defendant, as bailee for reward, as subject to a non-delegable duty to safeguard the plaintiff's fur. In that situation it was unnecessary to determine whether the servant acted in the course of his employment. Importantly for present purposes, it also mattered not that the servant acted dishonestly rather than negligently. After reviewing several cases, Lord Denning said (at 728): From all these instances we may deduce the general proposition that when a principal has in his charge the goods or belongings of another in such circumstances that he is under a duty to take all reasonable precautions to protect them from theft or depredation, then if he entrusts that duty to a servant or agent, he is answerable for the manner in which that servant or agent carries out his duty. If the servant or agent is careless so that they are stolen by a stranger, the master is liable. So also if the servant or agent himself steals them or makes away with them.

54 This statement supports the proposition that there can be a non-delegable duty that is breached by the wilful and dishonest act of the person whom the defendant entrusted to perform its general obligation. And it illustrates that, in a proper case, a non-delegable duty will overcome the limitations of the course of employment test and lead to liability being visited upon an employer for the intentional and dishonest acts of a delinquent employee. 55 If Morris is good law in Australia and if the State of New South Wales is not liable in the present case, it must follow that the law imposes a higher responsibility on a bailee for looking after a fur coat than it does on a school authority for looking after a child (cf Bazley at 57-8). 56 Policy-based arguments can be advanced for and against the imposition of liability in cases such as the present. In many areas tort law recognises that a person who introduces a risk incurs a duty to those who may be injured. 57 Tort law also aims to improve safety by the deterrent effect of imposition of liability. However, deterrence has little work to do in the context of intentional wrongs that are not in any way part of the system of the defendant's enterprise or which are unconnected with serving the defendant's real or perceived interests (cf Poland v Parr [1927] 1 KB 236, Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Aust Ltd (1931) 46 CLR 41)). Nevertheless, imposition of liability may encourage greater protection of particularly vulnerable plaintiffs. Since Lloyd v Grace, Smith & Co intentional (even dishonest) wrongdoing has not in itself been sufficient to preclude vicarious liability in some situations. As Professor Swanton has pointed out ("Master's Liability for the Wilful Tortious Conduct of His Servant" (1985) 16 UWALR 1 at 29): [T]he argument against imposing liability on the master for wilful or even selfish wilful torts, based on unfairness to the master, loses force when it is remembered that all vicarious liability is strict in any event, that few employers bear the cost of accident losses personally … and that, although the master may be morally innocent, so too is the plaintiff, and thus the contest is between two equally innocent parties. (original emphasis)

58 There is no doubt that the State owed the appellant a non-delegable duty of care. That duty stemmed, in principle, from the entrustment of children into the virtually exclusive care of the educational authority in school hours and on school premises. In this context, I see no compelling policy reasons why the scope of that non-delegable duty should not extend to protecting the pupil from the intentional as well as negligent wrongs of the agents that the educational authority put in charge of the pupil. I recognise that reference to agency in this context is dangerous and potentially circular (cf Scott at [227]ff per Gummow J). But here the wrongdoer was the State's employee, he was put in control over young children, he was on school premises and he was able to use his actual authority to administer discipline as the pretext to secure the submission and (for a period) silence of his vulnerable victims. 59 In Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Rep ¶81-399 (Koffman) Mahony P said (at 63, 589): When a school accepts a pupil, it owes to him a duty of care, in the sense that it assumes obligations towards him. Those obligations involve that it do various things: one of them is to take appropriate care for his safety. It is the determination of what that obligation requires the school to do which is here in question. What that obligation, the obligation of the school to do things for the safety of the pupil, will require to be done will depend upon the circumstances. 60 Very recently, in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] 176 ALR 411; [2000] HCA 61 Gleeson CJ said (at [26]): Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil[10], or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions.

The authority cited at footnote [10] is Koffman . 61 In my view the State's obligations to school pupils on school premises and during school hours extends to ensuring that they are not injured physically at the hands of an employed teacher (whether acting negligently or intentionally). 62 In the case of tortious injuries suffered by pupils at the hands of fellow-pupils the situation is different. Absent negligence in a system of supervision (El-Sheik) or liability based upon the physical safety of the playground, it does not appear just to impose liability upon the educational authority. Murphy J left open the possibility of liability in Introvigne (at 275), but no authority that I am aware of has taken the matter any further (see Lowe, "The Liability of Teachers and School Authorities for Injuries Suffered by Students" (1983) 13 UQLJ 28 esp at pp42-3). This situation is, in my view, distinguishable from the present case: the pupil who, without warning, intentionally strikes a fellow pupil can in no sense be regarded as part of the means whereby the educational authority has embarked upon the fulfilment of its role as educator or its non-delegable duty to ensure that its pupils do not suffer in consequence of tortious conduct. Like the tool manufacturer in Davis, the pupil is a stranger to the school-pupil relationship in a way that the tort-committing teacher is not. 63 In the context of the non-delegable duty of care, the non-absolute nature of the duty is emphasised by statements that the duty is to ensure that reasonable care and skill is exercised (Introvigne at 270, El-Sheik at 405). There must be tortious misconduct somewhere, even if the particular actor cannot be identified. Applying this reasoning to intentional conduct, it follows that the school authority is not liable unless, in cases such as the present, the teacher's conduct is tortious as well as harmful. This requirement is satisfied here. 64 On these principles, the respondent's liability was established incontrovertibly. Accordingly, the new trial should be limited to damages. 65 I propose the following orders:

Set aside verdict in favour of the first defendant and in lieu thereof order that the trial as to damages include the damages payable by the first defendant for negligence and by the second defendant for trespass.

First respondent to pay appellant's costs of appeal and of the proceedings to date in the District Court. 66 HEYDON JA: I disagree with the orders proposed by the President and concurred in by Davies AJA. 67 This case is important to the particular parties. But potentially it is of immense practical importance going far beyond their interests. If the appellant were to succeed in this Court on the basis on which he now wishes to succeed (whether in this appeal or in a later appeal in these proceedings), an unprecedented form of strict liability for the conduct of teachers and others having the charge of children would have been recognised. That in turn might suggest new forms of strict liability resting on employers for the intentional torts of employees. 68 Yet this case is both replete with procedural obscurity, and characterised by a peculiar narrowing of the issues. The case which the appellant pleaded left out the cause of action now relied on. It is obscure how much of the pleaded case was abandoned by the appellant, and why; and it is also obscure how much wider the case relied on by the appellant was than the pleaded case. The factual findings made by the trial judge were narrow, and it is not clear whether he meant to go further than he did.

The Amended Statement of Claim 69 The Amended Statement of Claim appears to plead only two causes of action against the first respondent. The first cause of action appears to be pleaded in paragraphs 2-5 and 7. Paragraphs 2-5 and 7 did not allege any duty, but did allege that the second respondent "assaulted and sexually indecently assaulted the" appellant, and that these assaults caused loss and damage. Since paragraph 3 alleged that the second respondent was employed by the first respondent, the cause of action appears to rest, as against the second respondent, on battery, and as against the first respondent, on vicarious liability for battery. 70 The second cause of action is pleaded in paragraph 10: "Further or in the alternative, the Plaintiff alleges that the aforesaid injuries and disabilities were occasioned by the negligence of the first defendant, its servant and/or agents."

This cause of action does not rest on the contention that the first respondent was vicariously liable for the acts of the second respondent, but on the contention that the first respondent was directly liable for its own negligence in failing to supervise the second respondent properly. 71 A third cause of action, also based on a duty owed by the first respondent directly to the appellant, propounded a strict duty on the first respondent to ensure that the plaintiff was treated with reasonable care. This third cause of action was certainly advanced in the course of the appeal. However, during the appeal, the appellant conceded that it could not be said that his "were the most elegantly drawn pleadings and it would have been desirable that the allegation of non-delegable duty be spelt out more clearly" (transcript page 6 lines 36-38). The truth is that the third cause of action was not pleaded. 72 If the pleadings were all that the trial judge had to go on, he could not be blamed for failing to deal with the third cause of action. However, it was arguably raised during the trial. 73 The appellant stressed in his arguments on the appeal how radically different this third cause of action was from the first and second. The first cause of action depended on proving a breach of the second respondent's duty to the appellant in the course of the second respondent's employment for which the first respondent was vicariously liable. The second cause of action depended on proving a breach of duty of care owed directly by the first respondent to the appellant. The third cause of action did not depend on proving a breach of the first respondent's duty to the appellant, or on proving a breach of a duty of care owed directly by the first respondent to the appellant, but only on establishing that the first respondent was under a duty to procure that care be extended to the appellant; if that duty were breached, the liability of the first respondent would be direct, not vicarious, and would exist as a matter of strict liability - that is, even though neither it nor any employee was in breach of a duty of care. The duty underlying the third cause of action was not a duty to take care, but an absolute duty to ensure that reasonable care was taken.

What Was Abandoned at the Trial and What Was Introduced? 74 Though the parties were speaking in shorthand, it seems from CAB 8J-P that the first cause of action pleaded against the first respondent was abandoned. When counsel for the first respondent said: "It's purely only a claim of negligence against my client", he was referring to the second cause of action, based on the first respondent's negligent supervision. During the appeal, the appellant accepted that at the trial he had not "run the case on vicarious liability" (transcript page 3 lines 29-30). 75 At the stage when the first cause of action was abandoned there was no elucidation of the fact that reliance was to be placed on the third cause of action, based on a so-called non-delegable duty of the type discussed in The Commonwealth of Australia v Introvigne (1982) 150 CLR 258. Indeed at CAB 7J the trial judge said that one of the issues was whether the first respondent owed a "duty of care" to the appellant. The duty relied on as part of the third cause of action is not, at least on some formulations of it, a duty of care. The duty now relied on made its first appearance, if at all, near the end of the trial. 76 The trial began on Wednesday 14 April 1999. Proceedings that day are recorded over 35 pages of transcript. On Thursday 15 April 1999 proceedings continued until the parties closed their cases. The trial judge indicated he would hear addresses at 2pm. Before the trial judge adjourned, counsel for the appellant handed to the trial judge copies of Ramsay v Larsen (1964) 111 CLR 16, The Commonwealth of Australia v Introvigne (1982) 150 CLR 258 and a copy of RP Balkin and JLR Davis, Law of Torts (2nd ed, 1996): it was said that the relevant pages of that work would be referred to later. This was done with a view to enabling the trial judge, if he had time to do so, to look at the materials before addresses began at 2pm. Unless more was said about these materials in final address than the transcript records, it must be questioned whether the trial judge focused his attention on the fact that the appellant was desiring him to adjudicate on the third cause of action.

The Factual Findings 77 The positive findings by the trial judge as to what the second respondent did to the appellant amount to no more than the following (Red 18D-I): "it is undisputed that the second defendant struck each of the children upon their bare bottoms at least once over an unspecified period in or about September 1978. After all later in 1978 he pleaded guilty to having assaulted each of them once and he chose to absent himself from court before me. Consequently I am satisfied that the second defendant assaulted the plaintiff …"

These findings did not go beyond what could be inferred from the second respondent's plea of guilty to assault (CAB 58N-P) and what the second respondent admitted to the police (CAB 80Q and 82Y). Everything else the trial judge said about what the second respondent did to the appellant constituted summaries of allegations (e.g. Red 14R-16V and 18W-19B) or critical observations about the evidence (e.g. Red 17H-18D). 78 Despite the prima facie strength of the evidence given by the plaintiff and of the other witnesses called by the plaintiff, the fact that it was not contradicted by the second respondent and the fact that the first respondent's cross-examination was limited to getting the witnesses to accept that what they told the police in 1978 was more likely to be correct than anything different they said in 1999, it was open to the trial judge to disbelieve the uncontradicted evidence. It was open to him to note self-contradictions by each witness and to note contradictions among the witnesses. His references to the youth of the children at the time of the alleged conduct and the lapse of more than twenty years were not irrational. 79 The trial judge could have limited his findings to findings that the second respondent struck the appellant on his bottom at least once, and rejected the rest of the appellant's evidence. He could have accepted much more of the appellant's evidence, while rejecting relatively small parts. Or he could have accepted a particular part of the appellant's evidence, for example, that which he did accept, and indicate an inability to make findings one way or the other on the balance. 80 The trial judge did not say which course he took. Of course, he may have felt it impossible to make any finding beyond that which he made. It could have been legitimate to arrive at such a conclusion, on the basis that the appellant did not discharge the burden of proof to any greater extent. Had such a conclusion been arrived at, the matter would have to be considered on the basis that the only findings in favour of the appellant were those in fact made. But the language of the trial judge leaves it unclear whether that was his conclusion. 81 An attempt to defend this state of affairs could be developed by reference to the abandonment of the first cause of action relied on, the trial judge's rejection of the second cause of action (which is a step not challenged by the appellant on the appeal: appellant's written submissions para 10), and the absence of the third cause of action from the Amended Statement of Claim. In that condition of things, it did not matter greatly from the first respondent's point of view whether the second respondent only struck the appellant on the bare bottom or did what the children alleged: the only pleaded and non-abandoned route by which the first respondent could be found liable was the second cause of action, and the trial judge made factual findings sufficient to acquit the first respondent of liability whatever the second respondent had done. 82 That line of reasoning is not in fact sufficient to justify what the trial judge did. Even though the pleaded case against the first respondent had either been abandoned or been found baseless, that left the case against the second respondent. A finding that the second respondent had assaulted the appellant in the manner found might lead to a much lower award of damages than that which would flow from more serious findings. The trial judge half acknowledged this when he said: "Consequently I am satisfied that the second defendant assaulted the plaintiff but it should be observed that I have not considered or made any findings on the issue of injury to the plaintiff thereby. That deals with the first question I was asked to consider" (Red 18I-L).

The "first question" had earlier been identified as that raised by the second respondent's denial in the defence that he assaulted the appellant (Red 14J). 83 Had the appellant not abandoned his first cause of action, he might have succeeded against the first respondent even on the basis of the limited finding made. The limited finding was capable of being characterised as a form of punishment, which would make the first respondent liable even if it was excessive. In Ryan v Fildes [1938] 3 All ER 517 at 521 Tucker J said: "… prima facie , when a schoolteacher inflicts corporal punishment, he is doing something as a schoolteacher. He is not going outside his position or duties as schoolteacher, but he is acting within the scope of his employment as a teacher, and, if so, and if he inflicts greater corporal punishment than the facts require, or if he inflicts corporal punishment in circumstances where it is not permissible, then he renders his masters liable for the consequences of his act, just in the same way as any other servant, such as a bus-driver, who, if he drives his bus at a prohibited speed, or in a manner which he is forbidden to do, is none the less acting within the scope of his employment as a bus-driver, and thereby renders his employers liable."

However, since the first cause of action was abandoned, it is unnecessary to consider the application of that line of authority in this appeal. It would not be applicable if the facts found had corresponded more with the Amended Statement of Claim and the evidence than they did.

The Further Amended Notice of Appeal 84 In the Further Amended Notice of Appeal, the appellant requested an order that judgment for the first respondent in the court below be set aside (order 1), and in lieu of that judgment, "that there be a finding that the first respondent is liable for the assault by the second respondent of the appellant" (order 2). 85 The appellant made two complaints. 86 The first complaint of the appellant appears in Grounds 1-5 of the Further Amended Notice of Appeal. This relates to failures by the trial judge to find, or to consider requests for a finding, that the first respondent owed a so-called non-delegable duty to the appellant. These points are incontestable: the trial judge paid no attention to that subject. Whether he is to be criticised for this in view of the Amended Statement of Claim is another matter. 87 The second complaint of the appellant appears in Grounds 6 and 7. They were as follows: "6. His Honour erred in failing to make findings of fact regarding the assault so as to render useful the hearing on the issue of liability. 7. His Honour erred in failing to make findings as to the nature of the assault or assaults referred to in his judgment." 88 In the course of argument on the appeal, the appellant conceded at one stage that the only outcome of success for him on any basis would be a new trial because of the lack of factual findings (transcript page 4 lines 31-35). At a later stage he retreated (transcript pages 14 line 14-15 line 5), but the concession was the sounder position. 89 The limited findings made, and the numerous findings not made, relate to what the trial judge called the first question he was asked to consider - whether the second respondent assaulted the appellant. The trial judge perceived the second question he had to consider - whether the first respondent breached a duty of care it owed directly to the appellant - as turning on the behaviour of employees senior to the respondent. That perception, moulded by the terms in which the second cause of action was pleaded, may have been sound so far as the second cause of action is concerned. It is not sound when consideration of the unpleaded third cause of action arises, because the precise quality of the second respondent's acts could be important in assessing whether the duty of the first respondent was breached by their occurrence. 90 There is a close relationship between the second respondent's behaviour and the possible application of the duty alleged in the third cause of action. The worse the second respondent's behaviour, the better the appellant's case against him, but the less certain is the appellant's case against the first respondent. That is because the more the second respondent's acts diverged from that which he was authorised to do, the less closely do the circumstances resemble those in which a strict duty to procure that care be taken has been recognised in the authorities. 91 There was an element of contradiction in the appellant's submissions about the paucity of the trial judge's findings. Paragraph 6 of the appellant's written submissions says: "His Honour found the assaults 'were deliberate and isolated acts of abuse which occurred in an enclosed room and which were inimical or totally foreign to the second defendant's duties as a teacher' (R18S)."

The first respondent, too, submitted that that was a finding (Supplementary Submissions para 3). In fact the passage quoted was not a finding, and was prefaced by the words "The assaults alleged… ". However, the submission that the trial judge was "unspecific as to the number, nature and [types] of assault (appellant's written submissions paragraph 19) is correct. In the language of Ground 6, the facts found and not found by the trial judge have not rendered useful the hearing on the issue of liability. But this is not crucial unless the facts not found in relation to the second respondent bear on the prospects of success for the appellant in relation to the first respondent. In view of the abandonment of the first cause of action against the first respondent and the failure of the second, Grounds 6 and 7 do not matter unless the appellant succeeds on Grounds 1-5; but whether the appellant will ultimately succeed on the third cause of action referred to in Grounds 1-5 depends on the nature of the findings not made which are referred to in Grounds 6 and 7. 92 There are strong arguments for the view that the appellant should not be allowed to advance Grounds 1-5 in view of his failure to advance the corresponding case at trial in a manner which made an impact on the trial judge. 93 One argument is that if the appellant had wished to seek to make the first respondent liable on the ground that the second respondent's conduct placed the first respondent in breach of a strict duty to ensure that the appellant was not treated in that way, it should have pleaded the point. 94 Another argument is that once it became clear that the point was being raised even though it had not been pleaded, the appellant should have sought leave to amend, and the first respondent should have asked for a ruling that it not be considered without an amendment, and without an opportunity to put full argument. These things did not happen. Indeed, even on appeal, the first respondent did not oppose the appellant advancing the third cause of action: rather it submitted that the argument failed because the "duty is still a duty to take reasonable care" and the trial judge had found no breach of duty. 95 It would be harsh to prevent the appellant from having his case properly considered because of the conduct of his advisers, the first respondent's advisers and the trial judge. This is particularly so when this conduct occurred in a trial which ought never to have been allowed to proceed as it did. It ought never to have been allowed to proceed as it did because there was always going to be a substantial overlap between the evidence of the second respondent's conduct (which allegedly caused damage to the appellant) and the evidence of the damage which the appellant suffered (allegedly caused by the conduct allegedly perpetrated by the second respondent). The broken-backed nature of each hearing considered separately has been worsened by the trial judge's failure to make clear findings of fact, but was always likely, however clear his findings, given that he was not going to preside over the second hearing. The decision to split the hearing arose because one of the appellant's medical witnesses was unavailable. By consent it was ordered that the matter proceed in the first instance only on liability (Red 13L). When the matter came before the District Court List Judge on the date of hearing, 14 April 1999, he referred it to the trial judge. The trial judge had very little time in which to hear the case before his retirement (CAB 2Z-3B and 5R-V) and his revelation of that fact came as a complete surprise to the parties. In view of the impossibility of calling evidence on damage (which was an ingredient of liability), the trial judge resolved only to decide, as between the appellant and the first respondent, whether a duty of care was owed and whether it was breached. The parties, and in particular the appellant, had virtually no opportunity to consider their positions in the light of the revelation about the trial judge's circumstances. The appellant correctly stated during the argument of the appeal that the trial should never have been split, and would not have been split but for the special circumstances just described. Perhaps the original decision to split the trial was made with the best intentions, but once it was clear that the trial judge could not conduct both parts of the trial, only the first part, the decision should have been altered. A recent reminder that the splitting of trials is generally unsatisfactory is afforded by Tepko Pty Ltd v Water Board [2001] HCA 19 at [52] and [168]-[170]. At [168] this was said to be particularly so where "the factual matters relevant to one issue are relevant to others, and they all overlap". 96 The manner in which the case was conducted at trial must cause it to fall within a narrow category of cases in which it is just to allow an appeal so as to permit a party complaining of injury to put a case at a second trial in a manner different from the way in which that party put the case at the first. 97 The appellant had a possible cause of action which could have been put at trial. He apparently endeavoured to do so, though in an unconventional fashion which made no impact on the trial judge. In part because of the procedural unorthodoxy and confusion which enveloped the trial, the attempt to put the case failed. It is undesirable that this Court examine that case without the assistance of a proper factual determination and a further trial. If all the fault for not putting the case properly lay with the appellant, remission of the proceedings for a further trial might not be a satisfactory outcome. But the fault lies in part with the way the listing procedures of the District Court operated in the particular circumstances of the case: first it was ordered that liability be tried separately from damages; then the judge selected to try liability was found to be unable to hear the claim for damages, and narrowed the issues accordingly; then he failed to make sufficient findings of fact to make the first hearing of any utility from any point of view.

The Commonwealth of Australia v Introvigne Considered 98 The question of whether the duty of a school authority described in The Commonwealth of Australia v Introvigne and the cases which have discussed it is breached in the present type of circumstances is an important question. It is also, on the authorities, an open question. The answer is not automatically suggested by The Commonwealth of Australia v Introvigne, for four reasons. 99 First, it is not clear that a majority of the High Court has ever supported, by way of decision as distinct from dicta, the doctrines expounded by Mason J either in that case or in later cases.

(a) The Commonwealth of Australia v Introvigne was argued before five justices on 10 March 1981. One of them was Aickin J. He died on 18 June 1982. The reasons for judgment of the other four justices were published on 3 August 1982.

Gibbs CJ expressed "general agreement" with Mason J. Mason J said the duty on school authorities was not a duty to take reasonable care, but "a more stringent duty, a duty to ensure that reasonable care is taken" (at 271).

Murphy J opened by propounding a quite different doctrine, namely that the Commonwealth in providing schools was fixed with "non-delegable duties", one being to "take all reasonable care to provide suitable and safe premises" the other being to "take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out" (at 274-5). He then referred to authorities which support only a duty of reasonable care ( Wilsons & Clyde Coal Co Ltd v English [1938] AC 57) and others which support Mason J (hospital cases of the type of Cassidy v Ministry of Health [1951] 2 KB 343 at 363). Murphy J then referred tentatively to the possibility of a student injured by the negligence of another student recovering against a school independently of any breach of present duty by those running the school or any vicarious liability. It cannot be said that this reasoning clearly supports Mason J, and attempts to construe it in that fashion are not wholly convincing (e.g. Watson v Haines (1987) Aust Torts Rep 80-094 at 68,557-8 per Allen J. In a later case Murphy J appeared to differ from Mason J's formulation by speaking of an employer's "personal, non-delegable duty … to take all reasonable care to institute a safe system of work and to ensure that it is carried out …": Kondis v State Transport Authority (1984) 154 CLR 672 at 689. Again he cited Wilsons & Clyde Coal Co Ltd v English [1938] AC 57. That case propounded a duty on employers to take "due care in the provision of a reasonably safe system of working", while holding that it could not be discharged merely by the appointment of a competent person to carry it out: see at 65 per Lord Thankerton, 78 per Lord Wright, and 86-7 per Lord Maugham; Lord Atkin concurred at 62. In Kondis v State Transport Authority at 680-1 Mason J offered a reading of Lord Wright's speech conformable with his own approach in The Commonwealth of Australia v Introvigne , but that was not Murphy J's reading. Indeed Mason J himself in Kondis' case criticised the House of Lords in the following terms at 686-7: "The principal objection to the concept of personal duty is that it departs from the basic principles of liability and negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. The failure in Wilsons' Case to acknowledge this departure and to advance a convincing reason for fixing the employer with a more stringent duty made the reasoning in Wilsons' Case vulnerable to criticism".

This criticism is ironic in view of the fact that something similar has been hinted in relation Mason J's approach: Scott v Davis (2000) 74 ALJR 1410 at [249]. And the "failure … to acknowledge this departure" may actually be explained by the circumstance that the departure was not in truth made.

In The Commonwealth of Australia v Introvigne Brennan J, too, does not support Mason J. He spoke of a duty "to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen" (at 280). He said the case was "a case of a negligent omission by a school authority to take reasonable steps to protect a pupil" (at 280). As Allen J pointed out in Watson v Haines at 68,558, this is the language of a duty of care, not of a strict duty to ensure that reasonable care is taken.

(b) In Kondis v State Transport Authority (1984) 154 CLR 672 at 686 Mason J repeated his opinion in a case about the liability of an employer for a factory accident caused to an employee by an independent contractor engaged by the employer. Deane J agreed "with the judgment of Mason J". Dawson J agreed with Mason J's conclusion. Brennan J relied in part on the duty of an employer to use "reasonable care" to "establish and maintain a safe system of work" (at 691). So did Murphy J (at 689).

(c) In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, a case about the liability of a landowner for damage caused to property owned by a licensee of the land in consequence of the acts of an independent contractor engaged by the landowner, the joint judgment of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ at 550-1 referred to what Mason J said in Kondis v State Transport Authority about school authorities and pupils, though they described it not as a duty to ensure that reasonable care was taken but as a duty to take reasonable care which was non-delegable.

(d) In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, a case about the liability of a landlord for the negligence of an independent contractor to the child of an occupier, the statements of Mason J in Kondis v State Transport Authority were referred to in general terms at 332 (Brennan CJ), 345 (Dawson J), 350-2 (Toohey J), 361-2 (Gaudron J) and 368 (McHugh J).

(e) Non-delegable duties were briefly discussed in Scott v Davis (2000) 74 ALJR 1410 at [245]-[249], [307]-[308] and [352]-[353]. The facts of the case are remote from the present circumstances, and the application to them of non-delegable duties was not argued: see [5]. 100 Apart from The Commonwealth of Australia v Introvigne, where the court was apparently divided, in none of these cases was the liability of the school authority directly posed for decision, and all of them simply repeat or comment on earlier dicta. 101 A second reason why the answer to the present problem is not automatically suggested by The Commonwealth of Australia v Introvigne is that there is little support in prior authority for Mason J's doctrines. In The Commonwealth of Australia v Introvigne (1982) 150 CLR 258, Mason J referred to three lines of authority.

(a) At 271 he cited an observation of Kitto J in Ramsay v Larsen (1964) 111 CLR 16 at 28: "the school authority undertakes not only to employ proper staff but to give the child reasonable care". But as Brennan J pointed out at 280, that case concerned vicarious liability for negligence, not breach of the duty identified by Mason J. Further, the observation cited is ambiguous. The duty to give a child reasonable care could be an absolute duty to procure that all in contact with the child behave towards it with reasonable care. On the other hand, the duty to give a child reasonable care could be a duty to take reasonable care to procure that all in contact with the child behave towards it with reasonable care.

(b) At 269-270 Mason J referred to Carmarthenshire County Council v Lewis [1955] AC 549. That case concerned not the liability of a school authority to a pupil on the premises, but the liability of a school authority to a motorist, who had been injured by reason of the wandering of a pupil from the premises.

(c) At 270 Mason J drew an analogy with a yet more remote field, the liability of hospitals to patients. 102 The third reason why the answer to the present problem is not automatically suggested by The Commonwealth of Australia v Introvigne is this. Mason J said that the doctrines he expounded were necessary to deal with particular problems. Those problems are radically different from the problems created by persons who are responsible for the sort of conduct alleged against the second respondent. In The Commonwealth of Australia v Introvigne (1982) 150 CLR 258 at 271, when Mason J came to identify what reasons there were for imposing the type of liability he considered should be imposed, he described them as "strong" and identified them as resting on the "immaturity and inexperience of the pupils and their propensity for mischief." In short, pupils are prone to cause each other harm in various ways. These phenomena are not closely relevant to whether a duty should be imposed to prevent conduct of the type for which the second respondent was allegedly responsible. There are no general characteristics of teachers as a class which are likely to cause harm to pupils in a manner analogous to the ways in which the immaturity, inexperience and mischief of pupils are likely to cause harm to each other. 103 The fourth reason why the answer to the present problem is not automatically supplied by The Commonwealth of Australia v Introvigne is that though the High Court discussions on "non-delegable duties", including the duties of school authorities, have endeavoured to formulate an applicable general principle, the success of the enterprise has been questioned. In Kondis v State Transport Authority (1984) 154 CLR 672 at 687 Mason J said: "when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed …. [The] special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the personal property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."

In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551, these passages were cited with approval by the majority, who added: "Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person."

They cited The Commonwealth of Australia v Introvigne (1982) 150 CLR 258 at 271 for that proposition. 104 Gummow J discussed these passages in Scott v Davis (2000) 74 ALJR 1410 at [248] as follows: "[With] respect to any doctrine of 'non-delegability', there is a difficulty in identifying any principle which dictates an expansion of liability such that the defendant becomes, in effect, the insurer of some activity even when it is performed by another … [The approach of Mason J] requires some caution in its general application. It may explain the cases on 'non-delegability'; but many other cases not decided on that basis also may have answered the criteria stated by Mason J. How then does the court decide a fresh case where the preferred criteria are historically descriptive but not normatively predictive? Some caution is required because the characterisation of a duty as non-delegable involves, in effect, the imposition of strict liability upon the defendant who owes that duty". 105 It is thus at least questionable whether The Commonwealth of Australia v Introvigne is to be regarded as having a clear ratio, well-supported by authority, or soundly based in legal policy and principle. The many favourable references to the observations of Mason J in High Court dicta have been made in contexts remote from the specific issue calling for decision in each case. However, there have been so many favourable references as to make Mason J's statement of the duty probably beyond challenge except in the High Court. The question, however, is whether the content of the duty discussed by Mason J in The Commonwealth of Australia v Introvigne extends to the circumstances alleged in the Amended Statement of Claim. 106 There are three particular aspects of those circumstances to be remembered at the outset in assessing whether The Commonwealth of Australia v Introvigne might apply. First, while there is no evidence of the express terms of his contract of employment, with the possible exception of particular Handbooks tendered in evidence, a term forbidding the conduct alleged would unquestionably be implied. The court would have no difficulty in implying a term of the type recognised in Liverpool City Council v Irwin [1977] AC 239 as inherent in the nature of a contract to teach school children. And, if necessary, a term could be implied pursuant to the principles stated in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337. What the second respondent allegedly did, if it were established at a future trial, would have been a breach of duty meriting instant dismissal. Secondly, what the second respondent allegedly did could not be described as being even an unauthorised method of performing a duty of his employment. Thirdly, the trial judge found that there was no evidence that the first respondent failed to take reasonable care to protect the appellant from a reasonably foreseeable risk of injury, or failed to adopt a system of supervision, or failed adequately to supervise the second respondent while he was carrying out his teaching duties. No challenge is made to these findings. 107 It would be an unusual use of language to describe the deliberate causing of harm by a teacher to a pupil by sexual batteries in flagrant breaches of his contract of employment in circumstances where the employer did not fail in any duty to take reasonable care as a breach by the employer of "a duty to ensure that reasonable care was taken". That formulation of the test by Mason J focuses on the teacher's alleged conduct, and that conduct is not aptly characterised as a failure to take reasonable care. The appellant did not explain how it could be. 108 In Scott v Davis (2000) 74 ALJR 1410 at [248] Gummow J used more realistic language when he pointed out that Mason J's test places defendants in the position of an "insurer" and creates a strict liability upon them. If the test applies to the first respondent, and if it is expressed in that manner, the duty of the first respondent was not to procure that reasonable care was taken to prevent harm from being caused to the appellant, but to guarantee that no harm was caused. The appellant never explained why the law should take that form or have that result. 109 Senior counsel for the first respondent protested at the position adopted by the appellant in the following terms (transcript page 15 lines 26-41): "If my friend's argument is right then what it really does is convert the duty into warranty and that, with respect, can't be right. Look at it this way. If a nurse in a hospital decides that she'll carry out an ad hoc euthanasia on a patient with no knowledge by the hospital, then the hospital is liable. If [the second respondent] had decided that instead of assaulting these children he would have murdered them, again the employer would be liable. If my clerk decided that he'd shoot my receptionist, again a non-delegable duty applies, I'm liable for the deliberate acts of my clerk. That, with respect, can't be right. All of these cases have all been dealt with in the context of negligence, not in the context of a deliberate tort. If my friend's proposition is accepted then it extends, quite markedly, responsibility for [employers]."

Senior Counsel for the appellant did not, when an opportunity arose to do so in his address in reply, explain why these examples were distinguishable; if so, on what basis in legal principle they were distinguishable; and if they were not distinguishable, why they did not invalidate the appellant's contentions. 110 The intentional causing of physical injuries by batteries is tortious because to commit a battery is morally wrong. To impose strict liability on an employer for morally wrong batteries by employees in circumstances where the batteries are not only outside the employment but are wholly antithetical to and a very negation of the duties which the employment imposed, in circumstances where it has been found that the employer was in no respect negligent, calls for some explanation. This the appellant has not provided. Nor is any explanation to be found in any of the authorities to which the appellant referred. 111 The question in issue is whether the duty appealed to extends to preventing teachers from deliberately causing harm to pupils by sexual batteries in flagrant breaches of their contracts of employment. The question in issue is not illuminated by the fact that the relevant duty does extend to preventing pupils negligently causing harm to each other. Nor is the question in issue illuminated by the fact that the duty extends to preventing pupils injuring passing drivers by wandering onto adjoining roads. Nor is the question in issue illuminated by the fact that the authorities have found a relevant analogy with the duty owed by a hospital to its patient in relation to negligent errors in medical treatment. Nor is the question in issue illuminated by the fact that Mason J in The Commonwealth of Australia v Introvigne at 271 found an analogy with the "special duty" of occupiers to take particular precautions for the safety of others: in 1982 that field was remote from the issues in this case, and it is a field which has since 1982 seen a retreat from the former law, based on stricter forms of liability, to a general duty of care (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479). Nor is the question in issue illuminated by Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551: the majority appealed to a relationship of "proximity", an idea which later High Court cases have not found to be a helpful analytical tool; and the majority decided to abolish the rule in Rylands v Fletcher (1868) LR 3HL 330, with its strict liability for dangerous substances and activities, and substitute for it duties to take reasonable care. 112 The fact-finding process at the first trial of these proceedings has miscarried. It is far from certain that the facts which ought to have been found correspond with the Amended Statement of Claim, but at the very least there is a real chance that at a second trial they may. The question of what findings ought to have been made turns on matters relating to the credit of witnesses whom this Court has not seen, and this Court cannot make those findings. For this reason and other reasons given earlier, there ought to be a new trial. When the court which hears the new trial, and perhaps courts sitting on appeal from that court, come to decide whether a person in the position of the present appellant is owed strict duties by education authorities to prevent the type of harm here allegedly suffered, it is important that they do so in circumstances where the precise facts are clearly established and where the contending parties put distinct submissions on the law applicable to those facts. None of these things have happened.

Outcome 113 The proceedings as between the appellant and the first respondent should be re-heard on both liability and damages. 114 What should be done in relation to the proceedings as they stand between the appellant and the second respondent? The second respondent did not seek, by evidence or argument, to resist the trial judge's findings that he assaulted the appellant, and did not appeal in relation to them. In consequence, unless this Court makes some other order, at present the appellant is able to proceed to prove his damages against the second respondent. If that state of affairs stands, he will be able to seek to prove a case against the first respondent based on the second respondent's conduct which may result in factual findings approximating the allegations in the Amended Statement of Claim, for which he will be able to seek to recover damages at a high level. But as against the second respondent he will be limited, in the recovery of damages, to the use as a platform of only the very narrow findings made at the first trial. This is likely to produce a lower level of damages. Yet as against each respondent they should be the same damages, for they are recovered for the same loss, caused by the same conduct of the second respondent. This is a wholly unsatisfactory position. It is quite unworkable for witnesses and the court at the second trial. To permit it to continue is an affront to justice. To avoid that effect, the appellant must be deprived of the "advantage" he presently has of being able to rely on the existing findings. If there were any prejudice to the appellant in ordering a new trial on all issues as against both the first respondent and the second respondent, it would be necessary to list the matter for further argument despite the ill-effects on a second trial of preserving the status quo. However, the present findings are of no real advantage to the appellant. The appellant in this appeal rightly made an attack on them a central part of his argument. He has thus elected against them.

The Majority Opinions 115 The President has proposed, and Davies AJA has agreed, that the appeal should be disposed of, in effect: (a) by finding that the first respondent was in breach of a strict duty to procure that care was taken, and

(b) by permitting the appellant to proceed with the proof of damages against the first respondent (simultaneously with proving them against the second respondent on the strength of the existing findings). 116 If the appellant were permitted to succeed on liability in relation to the third cause of action in this Court, it would be in defiance of the fact that the trial judge has failed to make full findings on a factual issue which is vital to the question of liability, namely the issue of what the second respondent actually did; and in defiance of the fact that this Court cannot make those findings. 117 If the matter is returned to the District Court only for a hearing on damages, that court will be placed in a very difficult position. It is to be expected that the plaintiff will repeat his evidence for the purpose of enabling the next judge to assess damages. If the District Court accepts the totality of it, its conclusions will be different from those of the trial judge: the legitimacy of that course is questionable, since while the present findings stand they create an issue estoppel at least as between the appellant and the second respondent, and it would be bizarre if the District Court could, in the same proceedings, arrive at different findings in relation to the first respondent when the first respondent's liability depends on precisely what the second respondent did. If the District Court limits its acceptance of the plaintiff's evidence to what the trial judge found, it may have grave difficulty in concluding that anything like the damage which the plaintiff claims has occurred has in fact occurred. The truth is that the factual issue of what was done to the plaintiff from the point of view of liability and the factual issue of what was done to the plaintiff from the point of view of damages are so closely related that no separate trial should ever have been ordered, and to continue that course when the further complication of the trial judge's factual findings has ensued is even more unsatisfactory. 118 The President supports the orders which he has proposed on the ground that though he is not satisfied that the third cause of action was advanced at trial, it turns on a pure question of law, and no evidence might have been called to meet it. Whether counsel for the first respondent might have called evidence to meet the point is not a question to which a confident answer can be proffered if, ex hypothesi, one is not satisfied that it was advanced, for in that event one cannot be satisfied that counsel for the first respondent was conscious of the point, and one cannot be satisfied whether he might not have attempted to call evidence to meet it. Further, it is unsatisfactory to decide questions of law, however pure they seem, in the absence of some procedure akin to demurrer (pursuant to which pleaded facts are assumed to be correct for the purposes of argument), or a statement of agreed facts. Here the facts, as perceived by the trial judge, were obscure, and he was not clear about why he did not make more findings than he did. A point of law as important as the present one should not be decided by this Court where there are allegations which are pleaded but denied, a body of evidence which, though prima facie strong in its central points, is partly conflicting, a general scepticism experienced by the trial judge, and a limited number of facts actually found, particularly when the evidence was not viewed through the prism of the question of law in issue. 119 Davies AJA agrees with the orders proposed by the President on the ground that "the facts of this case are so clear" that the legal representatives of the first respondent should have admitted that liability. In view of the circumstance that the trial judge has found scarcely any facts and viewed most of the evidence with apparent scepticism, it cannot be said that the facts are clear when they turn on the credibility of witnesses, faint though the challenge to their credibility was. 120 Davies AJA propounds the view that the acts of the second respondent resulted in a failure on the part of the first respondent "to take care for the safety and well-being of the students". That is inconsistent with the fact that the appellant failed in allegations of that kind against the first respondent so far as he formulated and pressed them in relation to supervision, and has not challenged the trial judge's recognition of that failure. Further, the mere fact that an employee does something damaging does not, without more analysis of the relationship between the employee's act and the employer's behaviour, demonstrate a failure on the part of the employer to take care. 121 Davies AJA also says that the wrongful acts of the second respondent "were performed in the course of carrying out one of the duties he was employed to do". That can only be so if one knows what the acts were, and that is something which the trial judge in large measure made no findings about. If, as the majority suggest, the real factual position corresponded more with the allegations in the Amended Statement of Claim and the evidence called than with the trial judge's limited findings, the second respondent's conduct would not be aptly described as being in the performance of his duties. Rather it would be aptly described in the manner employed in ST v North Yorkshire CC [1999] IRLR 98. Butler-Sloss LJ said at 101 that the acts of the teacher in that case were the negation of his duty. Chadwick LJ at 102 said that each indecent assault "must be regarded as an independent act of self-indulgence or self-gratification". 122 Davies AJA said that despite the unsatisfactoriness of the trial judge's decision to split the trial it is "undesirable that this Court should treat the proceedings as achieving nought." The view that the proceedings have achieved "nought" to date is not an isolated one: it is evidently shared by the appellant and his legal advisers, for senior counsel submitted to this Court on his behalf (transcript page 5 lines 34-49): "It's a tragedy in a way that the case went off in this way. What happened it seems is that his Honour was on the verge of retirement, retirement as an acting judge and one of the necessary witnesses on damages perfectly properly required for cross-examination, a medical practitioner, wasn't available and rather than lose his Honour and the last few days for which he was sitting, it was determined to split the trial on liability. That could still [have] been of some value had his Honour made findings of fact which would have enabled medical evidence then subsequently to be called and some further evidence from the plaintiff but having not made findings of fact as to what the nature of the assault was, the whole exercise was utterly useless and all the evidence, every last bit of it would have to be given again on a retrial."

By "retrial" there he meant the further trial on outstanding issues. Senior counsel for the appellant also submitted (transcript page 10 lines 2-10): "[Whilst] your Honours can in a formal sense deal with the law in relation to the non-delegable duty of care, the reality is that all of the evidence will have to be taken again, whether it be on assessment of damages or on a full retrial, simply because his Honour did not make the necessary findings of fact to ensure that a trial purely on damages could proceed. Now the plaintiff would have had to give evidence again in any event but the other witnesses wouldn't necessarily have had to come back."

He made the same point at transcript page 13 lines 9-19. If, for the reasons correctly summarised by senior counsel, the "whole exercise was wholly useless", it is preferable that it be abandoned, completely restarted, and done properly.

Orders 123 The appellant in effect requested liberty to revive the first cause of action against the first respondent in any second trial despite its abandonment at the first trial. I would favour that liberty. It is not impossible, depending on the facts eventually found, that the result may be more favourable to the appellant on that basis than on any other. 124 One remaining issue is whether the findings of the trial judge on the second cause of action against the first respondent which were favourable to the first respondent should be set aside. Since the appellant did not challenge them on appeal I do not see why they should be set aside. 125 Another issue is what should be done about the costs of the first trial. The trial judge ordered that the appellant pay the first respondent's costs, but indemnified the appellant by a Bullock order against the second respondent. That may not be just if the appellant succeeds in the second trial. It seems better to leave the costs of the first trial to be disposed of by the judge at the second trial. 126 I would favour the following orders.

2. Order that the finding of the trial judge that the second respondent assaulted the appellant be set aside.

3. Order that there be a new trial on all issues except those raised by paragraphs 10-11 of the Amended Statement of Claim and the corresponding parts of the Defences.

Note that the appellant is at liberty to amend the Amended Statement of Claim to allege the duty which he has contended arises from The C ommonwealth of Australia v Introvigne (1982) 150 CLR 258.

Note that the appellant is at liberty otherwise to maintain the allegations in paragraphs 1-9 of the Amended Statement of Claim despite his abandonment of them at the first trial as against the first respondent.

Order that the first respondent pay the appellant's costs of the appeal.

Order that the order as to costs made by the trial judge be set aside and that the costs of the first trial be in the discretion of the judge who hears the second trial. 127 DAVIES AJA: I have had the advantage of reading the reasons for judgment of the President and of Heydon JA. I agree with the views expressed by the President but, having regard to the importance of the issues, I would add some observations of my own. 128 I agree with the President that the first respondent, the State of New South Wales, owed a non-delegable duty of care to the appellant, who was then a young student at a State primary school (see Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313, Richards v State of Victoria [1969] VR 136, Trustees of the Roman Catholic Church of the Diocese of Bathurst v Koffman (1996) ATR 81-399). When such a duty exists, the ordinary rule that a principal has no liability for the tortious acts of a competent, independent contractor does not apply. In Northern Sandblasting, Brennan CJ, at p 330, expressed the point in this way:- "However, if the defendant is under a personal duty of care owed to the plaintiff and engages an independent contractor to discharge it, a negligent failure by the independent contractor to discharge the duty leaves the defendant liable for its breach. The defendant's liability is not a vicarious liability for the independent contractor's negligence but liability for the defendant's failure to discharge his own duty (cf Voli v Inglewood Shire Council (1963) 110 CLR 74 at 95). The duty in such a case is often called a 'non-delegable duty'." 129 I agree with the President that, although responsibility for such a breach is said to be personal rather than vicarious, in many cases the distinction may be more a matter of terminology than of substance. When a personal duty of care exists, the liability of the principal may be extensive. In his Commentaries on the Law of Agency, at 452 of the Seventh Edition, Story explained:- "In the next place, as to the liability of the principal, to third persons, for the misfeasances, negligences, and torts of his agent. It is a general doctrine of law, that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit, for the acts or misdeeds of his agent, unless, indeed, he has authorized or co-operated in those acts or misdeeds; yet, he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances, or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them." 130 These words of Story have often been cited, including by Lord Macnaghten, with whom Lord Loreburn and Lord Atkinson agreed, in Lloyd v Grace Smith & Co [1912] AC 716 at 737. In that case, a principal, who had a duty of care to a client, was held responsible when the principal's employee or agent, in the course of his employment, acted intentionally and fraudulently to the harm of the client. 131 Under the law of torts, in a case where there is a non-delegable duty of care, the principal is responsible for acts and omissions of an agent which result in a failure on the part of the principal to take reasonable care for the safety and well-being of the person to whom the duty of care is owed. I agree with the President that it matters not that the act or omission on the part of the agent may have been an intentional and unauthorised act of the agent, provided that it resulted in a failure on the part of the principal to fulfil its duty. 132 The issue whether an act or omission of an agent resulted in a breach of the principal's duty of care is not the same as the issue whether the act or omission occurred in the course of the agency. A principal's duty is governed by the relationship between the principal and the person to whom the duty is owed. However, the factors to which regard is had may be similar. 133 In the present case, the teacher, who was employed to teach and to maintain discipline, adopted the practice of disciplining his students by, inter alia, sending children who had misbehaved to a storeroom near the adjoining classroom. In that storeroom, the students were required to strip. When stripped, they were smacked and sometimes touched by the teacher. In carrying out this practice, the teacher exercised his authority as teacher and his authority to discipline for misbehaviour. The actions which he took were performed in the course of carrying out one of the duties he was employed to do, notwithstanding that the mode of performance was highly inappropriate, indeed forbidden by his superiors. 134 The State of New South Wales, which employed the teacher and which had a non-delegable duty of care to the students, was responsible for these acts of its teacher (see Ramsay v Larsen (1964) 111 CLR 16, The Commonwealth of Australia v Introvigno (1982) 150 CLR 258). The State of New South Wales was liable because, notwithstanding that the acts of the teacher may have constituted an intentional wrong, their performance resulted in a failure on the part of the State of New South Wales to take care for the safety and well-being of the students to whom it had a non-delegable duty of care. 135 I need not discuss ST v North Yorkshire County Council [1999] 1 RLR 98. In that case, the Court did not accept that the school authority, the North Yorkshire County Council, had a non-delegable duty of care towards the student who was sexually assaulted. See particularly the judgment of Lord Justice Chadwick at p 102. 136 Although the issue of non-delegable duty of care was put to the trial Judge so faintly that his Honour did not appreciate that it was being raised and did not deal with it, nevertheless, the point at all times stood out as the primary issue on which liability of the State of New South Wales would depend. There is at least a moral duty which lies upon the legal representatives of the Crown, Government departments and authorities to inform a court of the law which governs the issues raised by the facts. It is not for the Crown, Government departments or authorities to take advantage of a failure on behalf of a claimant to understand the applicable law. If the Rule of Law is to have any significance, the Crown and its emanations must ensure that the law is given effect. In my opinion, the facts of this case are so clear that the applicable law should be applied. 137 I agree with the President that no matter has been put forward by counsel for the first respondent which suggests that the first respondent could have had any answer to the claim based upon breach of non-delegable duty of care. I agree with the President that no purpose would be served by remitting the matter for rehearing and that, as the legal result is clear, the decision below should be set aside. 138 I agree with Heydon JA that it was undesirable that the proceedings be split as between liability and damages and that, because no evidence has yet been adduced as to the manner in which it is alleged compensable harm flowed, the findings of fact made by the trial Judge may have only limited value. More detail of the events which gave rise to the alleged harm may have been given. 139 Yet, the parties consented to the split trial, evidence was given and findings were made. It is, in my opinion, undesirable that this Court should treat the proceedings as achieving nought. I agree with the orders proposed by the President which appear to me to be appropriate in the circumstances. **********

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