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If your child is sexually abused by a teacher while in the care of a South Australian school, should the state government be held legally responsible? According to legal arguments offered to the High Court on behalf of Attorney- General Michael Atkinson, the answer is: Not unless sex assault is specifically mentioned in teachers' job description. In the next fortnight, the High Court will rule on whether or not it agrees with South Australia's logic - including dire warnings that schools face an insurance nightmare if the dice falls any other way. While South Australia's legal logic may come as a surprise to parents, the argument runs that as state governments don't encourage or ask teachers to abuse children in their care. it's not the state government's fault if it happens. At least, that's what former SA Solicitor-General Brad Selway, a recent appointee to the Federal Court, argued when he appeared before the High Court last year. After South Australia sought leave to intervene in hearings designed to determine whether state governments should pay compensation for sex abuse by teachers, Mr Selway argued the state should not be held liable. Rape, the QC argued, isn't listed as an official classroom activity. "There is no way that could be seen as part of the duties of the teacher," Mr Selway explained to the High Court. "We would say that mere requirement in law for students to attend school, or for their parents to send them, does not impose any duty of care upon the state or parliament." So there you have it. Don't think that the fact school attendance is required by law extends the state's liability. "We say it is a duty to prevent injury from negligence, it is not a duty to prevent injury from assault." Mr Selway said. The High Court has been asked to rule on whether an educational institution is "vicariously liable" to a pupil for intentional assaults upon the pupil by a teacher. The case centres on a compensation claim by a New South Wales man, Angelo Lepore, which is being heard alongside a second matter because it involves similar questions of liability. The second case is to determine the compensation claims of two victims of former Queensland MP and teacher Bill D'Arcy, a convicted pedophile. Convicted in 2000 of three counts or rape, and 15 charges of indecently dealing with boys and girls, D'Arcy raped one of the female students in front of her class. The Rann Government also points to dire warnings over spiralling insurance in its official submissions to the High Court. According to an affidavit submitted by SAICORP, SA's insurance and risk management experts, private schools may be forced to close if the price of insurance and compensation for victims becomes too high as a result. "In the event that this Honourable Court holds that school authorities are generally liable for sexual assaults committed by school teachers on school children, I expect the state of South Australia ... is likely to be exposed to an increase in claims," SAICORP general manager Brian Daniels warns in his affidavit. "SAICORP already is experiencing difficulties in obtaining appropriate and affordable reinsurance due to a world-wide shortage in the current market. "In particular, risks involving children appear to be unattractive to reinsurers. "In this market, an increase in the state's liability in relation to sexual assaults on children is likely to result in an increase in premiums from the reinsurers or, alternatively, may lead to exclusion of cover by reinsurers arising from the criminal acts of employees." Mr Daniels goes on to warn that in the worst case, reinsurance may be unavailable altogether. It will be interesting to hear the High Court's view of South Australia's legal logic. Adelaide Advertiser (2-2-2003) Samantha Maiden |
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