The case of Erlich v Leifer concerned the direct and vicarious liability of a school for the criminal actions one of its teachers. This is a question of fact and degree. Courts will examine the entirety of the circumstances, including whether a school has appropriate accountability mechanisms and policies in place to monitor staff and protect students.
Hadassa Sara Erlich (‘the Plaintiff’) had attended the School for her entire schooling period and was also employed by the School for a period of 8 months in her first year out of school (2006). The Plaintiff claimed that she had been sexually abused by Mrs Malka Leifer on uncountable occasions in the final few years of her schooling period. The Plaintiff subsequently sought compensatory and exemplary damages for the severe psychiatric injures which she now suffered as a result of the abuse. As judgment had already been entered against Leifer, the occurrence of the abuse was not in dispute at trial. Instead, the trial focused on the proper appropriation of liability, and whether Leifer’s conduct could be attributed to the School.
Whilst the School admitted to owing the Plaintiff a non delegable duty of care, the School denied that they were directly liable for Leifer’s misconduct. The Plaintiff was successful in arguing that the School was directly liable, on the basis that Leifer’s role, function, conduct and scope of authority was such that she could be regarded as the ‘mind and will’ of the School. The evidence demonstrated that Leifer operated within the School without any meaningful oversight or governance. The court viewed that the combination of these circumstances created a situation where Leifer’s ‘power, control and authority’ within the School was ‘unrestrained and unrestricted’. As a result, because the acts of Leifer were viewed as the acts of the School itself, the School was found to be directly liable for the Plaintiff’s injuries.
Although the School was found to be directly liable for Leifer’s misconduct, the court went on to consider whether the School was also vicariously liable.
In determining whether such a connection existed in this case the court cited the comments of Gleeson CJ in Lepore when he stated that:
“…where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such conduct as occurring in the course of employment.”
In this case, it was held that Leifer’s preeminent position of power within the School and the community generally, created a teacher-student relationship that was ‘invested with a high degree of power and intimacy’, which was used by Leifer to perpetuate the abuse. Leifer’s sexual abuse therefore occurred during ‘the course of her employment’, and the School was held to be vicariously liable for the abuse.
The court ultimately found that the School was both directly and vicariously liable for Leifer’s misconduct and was ordered to pay the Plaintiff:
- $300,000.00 for Non-economic Loss;
- $551,780.00 for Past and Future Economic Loss; and
- $172,648 for Past and Future Medical Expenses.
The Plaintiff also sought exemplary damages against Leifer and the School. Such damages are not designed to compensate a Plaintiff, but are awarded to punish a defendant and to deter the defendant and others from similar conduct.
After Leifer’s misconduct was brought to the attention of the School’s board, they hastily terminated her employment and organised flights for Leifer and her family to leave the jurisdiction that same evening. It was acknowledged that the board’s behaviour was most likely motivated by a want to conceal Leifer’s misconduct from those outside the community. The actions of the board were described as ‘disgraceful’, demonstrating a total disregard for due process and Leifer’s victims. The court went on to award exemplary damages against the school of $100,000.00.
  VSC 499
  212 CLR 511 .