Lepore v New South Wales & Anor

(2001) 52 NSWLR 420; [2001] NSWCA 112

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort Law
2. › Non-delegable duty of care
3. › School authority's duty to pupils
4. › Whether non-delegable duty extends to intentional tortious conduct by employee teacher
5. › Physical and sexual abuse by teacher
6. › Commonwealth of Australia v Introvigne (1982) 150 CLR 258
1. Tort Law
2. › Non-delegable duty of care
3. › Scope of duty
4. › Whether duty covers intentional torts as well as negligent conduct
5. › Whether employee acting outside course of employment
1. Tort Law
2. › Non-delegable duty of care
3. › Concept and rationale
4. › Distinction from vicarious liability
5. › Strict liability character of non-delegable duty
1. Practice and Procedure
2. › Appeals
3. › New point of law raised on appeal
4. › Whether appellant permitted to raise non-delegable duty argument not clearly advanced at trial
5. › Whether new trial should be ordered

Quick Take

The majority held that a school authority's non-delegable duty of care to pupils extends to intentional wrongs (including physical and sexual abuse) committed by an employed teacher on school premises during school hours, even where the employer is found not negligent in supervision. The dissent questioned whether Introvigne provides a clear doctrinal foundation for this extension and would have required a new trial. The question of whether non-delegable duty extends to intentional torts by employees acting wholly outside the course of employment remained contested and was subsequently taken to the High Court.