Naliupis v Buletare
JUDGMENT OF THE COURT
Introduction
1. This appeal, which arises out of the sexually predatory behaviour of the First Respondent (Mr Buletare), has some history.
2. The appellant was until 12th June 2018 employed by the Second Respondent (the Council) as its Disability Officer, having commenced in that employment in May 2011. She alleged that on multiple occasions in 2015, 2016, and 2017 she had been subjected to sexual harassment, assaults and battery by Mr Buletare who was another employee of the Council. Mr Buletare had commenced employment with the Council in 2015 in the position of Provincial Planner for Sanma Province. During absences of the Council Secretary-General, Mr Buletare was appointed to act in that position. From 1 July 2017 he ceased to be employed by the Council and became employed by the Republic in the position of Acting Secretary-General of the Council. The Republic is the named Third Respondent. It will be necessary to return to its status in this appeal.
3. In February 2019, Mr Buletare was convicted on two counts of contravening s.98(a) of the Penal Code by engaging in indecent conduct in 2015 towards the appellant: Public Prosecutor v Buletare [2019] VUSC 18. Shortly after the verdict, Mr Buletare resigned from his employment with the Council.
4. Mr Buletare’s appeal against the convictions and the sentence imposed, failed: Buletare v Public Prosecutor [2019] VUCA 38. It was not suggested that there was any error by the Judge in referring to the criminal proceedings.
5. In September 2018, the appellant commenced proceedings against Mr Buletare and the Council claiming damages in respect of the “sexual harrasment” of Mr Buletare, employment entitlements and alleged slanders. At first instance, her claims wholly failed: Naliupis v Buletare [2021] VUSC 229. The claim for sexual harassment failed because of a finding that sexual harassment, as such, is not a known cause of action.
6. However, the appellant’s appeal succeeded in respect of that conduct comprising the claimed sexual harassment which amounted to assaults and battery: Naliupis v Buletare [2022] VUCA 2. The Court of Appeal dismissed the appellant’s appeals against the rejection of her claims for employment entitlements and damages for slander. It remitted for further consideration by the trial Judge the claim of sexual harassment in so far as it comprised the assaults and battery as well as the appellant’s claim that the Council was vicariously liable for the torts of Mr Buletare.
7. On the remittal, the Council joined the Republic as a third party, alleging that the Public Service Commission (the PSC), and not it, had been Mr Buletare’s employer at relevant times. It alleged that this meant that the Republic should be found liable to contribute to any amount for which the Council was found liable to the appellant.
8. Following the rehearing, the primary Judge awarded the appellant general damages of VT1,500,000 for the pain, suffering, emotional distress, and mental anguish resulting from Mr Buletare’s assaults and battery. The Judge declined to make awards in respect of the consequential losses alleged by the appellant, these being forms of economic loss. Finally, the Judge rejected the claim of vicarious liability, finding that neither the Council nor the Republic had placed Mr Buletare in such a position vis-ἁ-vis the appellant to make them vicariously liable for his conduct. That being so, the Judge did not need to determine the Council’s claim for contribution from the Republic: Naliupis v Buletare [2026] VUSC 19.
9. The appellant now appeals to this Court. She claims that the award of VT1,500,0000 for general damages was inadequate; that she should have been awarded damages for the various heads of consequential loss which she claimed; that the Council and the Republic should have been found vicariously liable in respect of Mr Buletare’s conduct; and that the Judge had erred in refusing to award her the costs of the first instance hearing on an indemnity basis.
10. Insofar as the appeal complains that the Judge should have found the Republic vicariously liable for Mr Buletare’s conduct, it is anomalous, as the appellant had not sought relief against the Republic at first instance. It was the Council which made the allegation against the Republic in its claim for contribution.
11. There is no appeal by the Council against the rejection of its claim for contribution.
Factual Circumstances
12. The appellant is a resident of Luganville in Santo. The appeal books did not disclose her age. From 2011 until 12th June 2018, she was employed by the Council as the Sanma Province Disability Officer. It is evident that the appellant enjoyed her work and derived considerable satisfaction from it.
13. From at least 2012, Mr Buletare was employed by the Council as the Sanma Provincial Council Planner. In that position, Mr Buletare did not have any supervisory authority over the appellant. However, on several occasions, not identified by dates in the evidence at trial, Mr Buletare acted in the position of Secretary-General of the Council during absences of the Secretary-General, Mr Daniel Loi. This did give him supervisory authority over the appellant.
14. The Judge accepted the appellant’s evidence that on “several occasions” in each of 2015, 2016 and 2017, Mr Buletare had entered the appellant’s office, locked the door and had asked her for sex. When she refused, he moved to her desk and forced her to masturbate him with her hands until he ejaculated. While she was doing this, he would grope her breasts and touch her body.
15. The Judge accepted that the appellant had not consented to any of this conduct and had strived to avoid it occurring. The Judge also accepted that Mr Buletare’s conduct had, on each occasion that it had occurred, caused the appellant physical pain, that she had cried from the pain and from fear, and that she had been left physically shaken, tired, distressed (her heart and mind would not settle), and unable to concentrate on her work. In addition to these effects, the appellant had continuing feelings of humiliation, shame, guilt and worthlessness.
16. The sworn statements of the appellant did not go into great detail concerning the continuation of the effects but, in her statement of 13th December 2024, the appellant did depose that she continues to be deeply affected. She described being “physically, emotionally, and mentally affected” by Mr Buletare’s conduct and said that it had “changed me completely”. In view of the Judge’s general acceptance of the evidence of the appellant, it is appropriate to proceed on the basis that Mr Buletare’s conduct had continuing effects and continues to do so. Our impression however is that the appellant experienced the effects most acutely during the period when the assaults and battery were occurring and that in the ensuing years the effects have been less severe. The damages should be assessed on that basis.
17. The appellant’s evidence also indicated other significant effects on her psyche and functioning as a result of Mr Buletare’s conduct, including difficulties in her marital relationship and difficulties in her relationships with her children. The Judge did find that Mr Buletare could not be found liable for the assaults which the appellant’s own husband had inflicted on her. However, on our understanding, impairment of intimate relationships generally is not uncommon following conduct like that of Mr Buletare. That is especially so in this case given the appellant’s evidence that she had become “cold” inside.
18. We note that in the first trial, Mr Buletare had admitted committing acts of indecency on the appellant in 2015, (being the conduct for which he was found guilty in the criminal trial), but had denied the appellant’s claims of the conduct occurring in 2016 and 2017. However, on the retrial, Mr Buletare accepted his liability for all the conduct described by the appellant and his counsel did not cross-examine her. In these circumstances, the Judge’s finding that the appellant had proved her claims of assault and battery by Mr Buletare was inevitable.
19. There is a particular feature of the background circumstances which is important in the disposition of that part of this appeal which concerns vicarious liability. That is that Mr Buletare’s conduct was known to the Council. The Judge accepted the appellant’s evidence that in 2015 and 2016, she had told the then Secretary-General of the Council, Mr Daniel Loi, about Mr Buletare’s sexual abuse. Despite that, the Council did not take any action to stop the conduct at that time. When the abuse persisted in 2016, the appellant complained again and insisted that the Council take action. That resulted in a decision at the end of 2016 by the Council’s Divisional heads to relocate the appellant to the Disability Office, located about 100 meters from the Provincial Government building in which Mr Buletare also worked. However, the Council did not take any disciplinary action against Mr Buletare.
20. We note in passing that Mr Loi gave evidence in Mr Buletare’s criminal trial that the appellant had complained to him of Mr Buletare’s conduct on at least two occasions after March 2015. Because he had not wished to lose Mr Buletare (whom he regarded as a significant senior management resource), he had attempted to solve the problem by relocating the appellant, rather than taking disciplinary action against Mr Buletare. This had the consequence that Mr Buletare was never subjected to disciplinary action in respect of his conduct towards the appellant, at least during the period of her employment.
21. The appellant relocated to the Disability Centre at the beginning of 2017, but Mr Buletare entered that building surreptitiously and continued his abusive conduct. The Judge did not make a specific finding as to the number of occasions on which the abuse occurred in the first half of 2017 but it seems to have been several times.
22. With effect from 30 June 2017, Mr Buletare became employed by the PSC as Acting Secretary- General of the Council. Commencing at about the same time, the appellant successfully refused on many occasions Mr Buletare’s requests for sex and for masturbation.
23. On 20 November 2017, the Council suspended the appellant on half pay while a disciplinary investigation was undertaken. It was Mr Buletare who signed the letter notifying her of the suspension. The appellant felt, and continues to feel strongly, that the suspension was contrived by Mr Buletare as a form of revenge for her refusals of sex and masturbation. The Judge made no findings about that. It does seem pertinent however that the appellant was never provided with charges or allegations and that a disciplinary enquiry was never undertaken.
24. On 11th June 2018, Mr Buletare, still acting as Secretary-General, provided the appellant with a letter stating that the Council had resolved to reinstate her as a Disability Officer, and requesting her to return to her duties. Whether this was a response to a letter the appellant says she had sent on 24 May 2018 is not material for present purposes.
25. On the following day, 12 June 2018, the appellant submitted her resignation. She said that she had done so partly because of her dissatisfaction over the Council’s failure to protect her from Mr Buletare’s conduct but particularly because she did not wish to return to the toxic work environment created by that conduct.
26. Subsequently, the appellant was paid her outstanding employment entitlements including the balance of her pay during the period she had been suspended.
The Award for General Damages
27. In Ground 2 of the notice of appeal, the appellant contends that the award of VT1,500,000 for general damages (ie, her non-economic loss) was inadequate. Counsel emphasized the long period over which the sexual assaults and battery had occurred, the repetition in Mr Buletare’s conduct, the physical suffering of the appellant and her prolonged emotional and psychological suffering.
28. The Court received submissions on this ground from the appellant and from counsel for each of Mr Buletare and the Council.
Appellate Review of awards of damages
29. No counsel made submissions as to the principles to be applied by this Court when determining an appeal against an award of damages in cases like the present
30. However, we can draw assistance from authorities in Australia which have considered the proper approach. Those authorities establish that appellate courts do not interfere with an assessment of damages for personal injuries simply because it would have awarded a different figure had it tried the case at first instance. Unless an appellant can show that the primary judge acted on some error of principle or some misapprehension of the facts, appellate courts intervene only if satisfied that the judge made a wholly erroneous estimate of the damage suffered. See for example Precision Plastics Pty Ltd v Demir (1975) 6 ALR 311 at 317: Wilson v Peisley (1975) 7 ALR 571 at 585: Jobling v Isaacs [2016] NSWCA 299 at [10]-[13].
31. We consider it appropriate to adopt the same approach in the determination of the present appeal.
32. The submissions of the appellant’s counsel covered a wide range of matters but, as we understood them, did not, with one exception, contend that the Judge had erred in principle or had overlooked any relevant matter. Instead, the submission seemed to be that the award of general damages of VT1,500,000 was so low that the Court should regard this case as calling for its intervention. The exception just mentioned was the Judge’s exclusion from the evidence of a report of a psychiatrist on which the appellant had wished to rely. We address that complaint first.
The exclusion of the report from the Psychiatrist
33. The Judge ruled that a report from Dr J Obed, a psychiatrist, was inadmissible. The Judge did so upholding the objection of counsel for the Republic, as the appellant had simply annexed the report to her own sworn statement made on 13th December 2024 and had not obtained a sworn statement from Dr Obed.
34. Contrary to the appellant’s submission, there was no error in this ruling. It is for each party to put its evidence before the Court in proper form. The appellant should have filed a sworn statement from Dr Obed annexing and verifying his report or, alternatively, setting out the substantive content of the report in the sworn statement itself. Parties can no more put a medical report before the Court by annexing it to their own statement than they can by annexing an unsworn statement of any other witness.
35. We indicate however that we would expect objections of this kind, especially when made by the Republic as a model litigant, to be notified by the other party in advance of the hearing. This will give that party the opportunity before trial to obtain the evidence in proper form. It is undesirable for parties, in effect to be “ambushed” by objections of this kind at trial when it will usually be too late to remedy the situation.
36. We also add that we doubt that the appellant has suffered any significant prejudice by reason of Dr Obed’s report not being received. That is because the Judge accepted in full not only the appellant’s evidence concerning the conduct of Mr Buletare and the circumstances in which that conduct occurred, but her evidence about the effects on her of that conduct. That is to say, the Judge accepted that Mr Buletare’s conduct caused her to experience pain and fear, so much so that she was left physically shaken and emotionally distressed. The Judge also accepted that the appellant had experienced over a long period, feelings of shame, humiliation, guilt, worthlessness and inability to concentrate on her work. The Judge made a specific finding that the appellant had experienced these distressing effects not only during the incidents of assault and battery themselves, but continuing during the intervals between each assault and battery, [at 60]. The Judge could, and did, make these findings on the basis of the appellant’s evidence alone, without the evidence of the psychiatrist, and they were not challenged on the appeal.
37. For these reasons, we reject this complaint of the appellant.
Discussion
38. The purpose of an award of damages in cases like the present is to compensate claimants for the affronts to their person and to restore them, so far as a monetary award can do so, to the position they were in before the commission of the tort. This means that it is necessary for the assessment of the appellant’s damages to take account of:
(a) the circumstances of the assaults and battery, including their number, frequency and severity;
(b) the effects on the appellant during the assaults and battery themselves;
(c) the effects on the appellant in the intervals between each assault and battery and subsequently;
(d) the period or periods during which those effects have persisted and are likely to persist;
(e) any action taken by the Council or the Republic to mitigate those effects.
39. Counsel referred the Court to several authorities in other jurisdictions concerning assessment of damages in the case of sexual assaults. We agree that some assistance in identifying the appropriate principles (as distinct from quantum) can be obtained from these authorities. At the same time, it is necessary to keep in mind that in some of the authorities, the assessments of damages for forms of sexual harassment are made under statutory regimes, rather than at common law. Moreover, the statutory regimes allow compensation for the sexual harassment generally, and not just for those aspects of the conduct constituting assault and battery. For example, the assessment in Richards v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, to which counsel for Mrs Naliupis referred extensively, involved an assessment made under the Australian Human Rights Commission Act 1986 (Cth). Likewise, Hall v A & A Sheiban Pty Ltd [1989] FCA 72 concerned sexual harassment in contravention of the Sex Discrimination Act 1984 (Cth).
40. The assessments for assault and battery, being assessments in tort, have much in common with assessments in damages for other torts, including negligence resulting in personal injury and defamation. To the extent that awards in other cases in Vanuatu give an indication of prevailing standards, resort to those cases is likely to be a more useful guide than those in other jurisdictions. Obviously, the more dated the previous decision, the less useful it will be as a guide to prevailing standards.
41. Counsel for the appellant referred to Tanarango v Seule [2019] VUSC 131 in which a single assault, comprising punches to the claimant’s head, neck and backside with sufficient force to cause her to fall to the floor resulting in some ongoing pain but no permanent harm resulted in an award of VT500,000 for general damages.
42. We have had regard to the decision of this Court in Telecom Vanuatu Limited v Tari [2018] VUCA 37 in which general damages of VT1,900,000 were awarded for the physical injuries resulting from a car accident. We have also reviewed the other authorities to which counsel referred but will not mention them specifically in these reasons.
43. Counsel for Mr Buletare emphasised that his client’s conduct did not include penile penetration of the appellant’s vagina, fellatio or cunnilingus and had caused little physical injury. This may be so, but the circumstance that his conduct may have been worse does not diminish the significance of his conduct nor the effects which it did in fact have on the appellant.
44. In many cases, the assessment of damages for personal injuries is difficult. This is one such case. There is no objective yardstick to which regard may be had. An intuitive assessment having regard to all relevant factors is required. Mr Buletare’s conduct continued over a long period of time. It is accordingly difficult to compare this case with one in which the injuries have been caused by a single incident. Further, the long period over which the appellant has suffered some psychological effects is important. The fact that the litigation has now continued over some seven years cannot have helped in settling those psychological effects.
45. Having regard all these matters, we are satisfied that the Judge’s assessment in this case is too low. We consider that the general damages awarded to the appellant should not have been less than VT3,000,000. The intervention of this Court is therefore warranted.
46. Accordingly, we will allow the appeal so as to increase the award of general damages to VT3 million.
The Claim for Lost Earnings
47. In its decision on the appeal in 2022, this Court dealt with the claim then made by the appellant for damages for unjustified dismissal. The Court noted that the appellant seemed to be making a claim of constructive dismissal of the kind contemplated by s.53 of the Employment Act. It rejected the claim on the basis that it had not been a pleaded claim of the appellant at first instance.
48. When the Court of Appeal allowed the appeal in respect of the primary Judge’s dismissal of the claim for sexual harassment and the claim that the Council was vicariously liable for Mr Buletare’s conduct, it remitted those matters, and those matters only, to the Judge for further hearing. In all other respects, the appellant’s claims (including the claim of alleged constructive dismissal) were dismissed. Accordingly, on the remittal, any claim of constructive dismissal was foreclosed by the Court of Appeal judgment.
49. On the remittal, the appellant maintained her claim that her resignation on 12 June 2018 had been caused by Mr Buletare’s conduct and the Council’s failure to protect her from it. She claimed therefore that her loss of salary after 12 June 2018 had been caused, in the material sense, by Mr Buletare’s torts so that she is entitled to damages on that account.
50. The Judge appears to have misunderstood how the appellant presented her claim because she dealt with the appellant’s claim for loss of salary as follows:
65. In Naliupis v Buletare [2022] VUCA 2, the Court of Appeal held that there was no unlawful termination of Mrs Naliupis’ employment with the Council. Her employment ceased following her resignation.
66. As I understand Mrs Naliupis’ case now, it is that she resigned due to the toxic environment that she was experiencing with Mr Buletare’s acts of assault and battery on her person and no disciplinary action taken against him by the Council.
67. However, the present matter is not a constructive dismissal case. It is not a case brought pursuant to s. 53 of the Employment Act [CAP. 160]. Given the findings made in the Judgment dated 17 September 2021 and the Court of Appeal’s judgment in Naliupis v Buletare [2022] VUCA 2, any claim for constructive dismissal is now res judicata hence cannot be raised by Mrs Naliupis.
68. In the circumstances, I reject the claim for VT11,718,000 alleged loss of employment benefits (until retirement age of 60 years) and decline to make the award sought.
51. Contrary to the Judge’s understanding reflected in these paragraphs, the appellant was not pursuing a claim for constructive dismissal. She was alleging that her own decision to resign, and therefore the loss of employment, had been caused by the tortious conduct so that the loss of earnings resulting from the resignation should be a compensable loss. Put slightly differently, the appellant was not pursuing an employment claim - only seeking a head of damages for the consequences of the tortious conduct.
52. The Judge’s misunderstanding of the way in which the appellant was now pursuing her claim meant that it was not necessary for her to make a finding of fact on the appellant’s claim that it was the tortious conduct which caused her resignation. One possibility is for that issue of fact to be remitted to the Judge for a finding. In our view, it is preferable for this Court to make that decision so as to bring this long running litigation to an end.
53. In making our own finding, we note that the Judge seems to have accepted the appellant as a generally reliable witness. We also think that the prospect for the appellant in June 2018 of returning to work at the Council with Mr Buletare in the position of Acting-Secretary General, and therefore in a position of superiority over her, must have been acutely abhorrent. That being so, the claim which the appellant makes as to the reasons for her resignation is inherently plausible and indeed likely. We also note that it was shortly after June 2018 (in August 2018) that the appellant reported Mr Buletare’s conduct to the Police. That report led to his convictions in February 2019. That seems consistent with the view that, by mid-2018, the appellant had reached a turning point in relation to Mr Buletare’s conduct.
54. We consider therefore that the Judge should have found that the appellant’s resignation was caused by Mr Buletare’s tortious conduct and have awarded the appellant damages for the loss of income resulting from that resignation.
55. What should be the award? Contrary to the appellant’s submissions, it cannot be for the balance of her working life, or to age 60 (although we note that there was no evidence at trial of the appellant’s age). Mr Buletare’s torts did not mean that he, or the Council in the event that it is found vicariously liable, should become, in effect, guarantors of the appellant continuing in employment to the end of her working life.
56. We consider that the appellant should be awarded damages for loss of income for the period which it could reasonably be anticipated it would take her to locate and establish herself in equivalent employment. Although, as we understand it, the appellant remained unemployed at the time of trial before the Judge we think that period should not exceed 12 months. That is because a tortfeasor is responsible only for those consequences of the tort which were reasonably foreseeable and not too remote and, in our view, 12 months is the limit of the period of unemployment which was reasonably foreseeable.
57. The appellant’s annual salary at the time of her resignation was VT540,984 and we allow that sum as lost salary. She should also receive an award equivalent to the amount which Council would have contributed on her behalf to the VNPF on the lost salary, ie, VT21,640. These two figures total VT562,623 and that is the amount we award for the appellant’s economic loss resulting from the loss of employment.
The Claimed Consequential Losses
58. In addition to the loss of salary, the appellant claimed other consequential losses. These comprised;
a. The amount of the repayments on an Agricultural loan which she had been unable to pay without her income from the Council;
b. VT360,000 for Banban land reimbursement;
c. VT3,857,410 for damage to her crops; and
d. VT14,090,000 for loss of cattle.
59. The primary Judge declined to make awards for these amounts, saying that “the present matter is not a constructive dismissal case”. In this respect the judge’s decision seems affected by the same misunderstanding to which we referred to earlier. However, and as we have already said in an assessment of damages following a tort, a claimant is entitled only to those losses which were reasonably foreseeable at the time of the commission of the tort and which were not too remote. Further, a claimant is not entitled to double compensation.
60. These principles mean in the present case that the appellant is not entitled to an award for loss of income and, in addition, to an award for the lost items or assets which may have been acquired with that income. That by itself is an indication that the appellant is not entitled to the forms of consequential losses which she had claimed. Further, and in any event, we doubt that it could be said that losses on her agricultural loan, Banban land reimbursement, damage to crops and loss of cattle occurring sometime after mid-2018 could reasonably have been foreseen in 2015, 2016, and 2017 as a consequence of Mr Buletare’s conduct.
61. For these reasons, the appeal against the Judge’s dismissal of the claims for consequential losses is refused.
Vicarious Liability
62. As already noted, the Judge found that neither the Council nor the Republic was vicariously liable for Mr Buletare’s tortious conduct. The appellant appeals against that finding in relation to both the Council and the Republic, but the principal focus of her submissions was on the Council.
63. The appeal in so far as it concerns the Republic can be disposed off quite shortly. We have already described it as anomalous because it was the Council, and not the appellant, who had raised this claim on the remittal. In any event, the PSC did not become Mr Buletare’s employer until 30 June 2017 and for that reason alone could not be vicariously liable for any of his conduct before that date. The appellant’s evidence did not establish that any of Mr Buletare’s conduct towards her had occurred after 30 June 2017. Indeed, her case was made on the basis that it was her refusal of Mr Buletare’s requests for sex and masturbation after he had been appointed Acting Secretary-General on 30 June 2017 which had prompted his act of revenge in having her suspended from the Council. Hence, there is no basis on which an award of vicarious liability could be made against the Republic.
The Judge’s Decision
64. When remitting the matter to the Judge in February 2022 for further consideration, this Court drew attention to the decision of the High Court of Australia in Prince Alfred College Inc v ADC [ 2016] HCA 37; 335 CLR 134 (PAC v ADC). It noted that the position with respect to the vicarious liability of a employer for the intentional criminal acts of its employees required “careful evaluation of the circumstances, in particular of the position in which the defendant has been placed by the employer in relation to the victim”. The Court referred in particular to [80]-[81] of the decision in PAC v ADC:
[80] In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability...
[81] Consequently in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employer takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.
(Citation omitted)
65. It is evident that the Judge sought to apply the reasoning in those passages. The Judge found, unsurprisingly, that sexual harassment had not been part of Mr Buletare’s duties, at [84]-[85]; that the evidence did not disclose that the Council had assigned to Mr Buletare any special role whose performance vis-ἁ-vis the appellant could be said to have given rise to the “occasion” for his wrongful act, and that the evidence did not indicate that Mr Buletare was the appellant’s supervisor so as to be in a position of authority and power over her, at [88]. The Judge concluded at [90]:
I am not satisfied on the evidence that the Council or the State placed Mr Buletare in a position vis-ἁ-vis Mrs Nauliupis that was of such authority, power, trust, control, ability to achieve intimacy with Mrs Naulipis, both of them being adults in public work place to the same extent as children who are sexually abused by an employee entrusted with their care such that Mr Buletare’s wrongful acts should be regarded as committed in the course or scope of employment.
66. Earlier, the judge addressed the significance of the appellant having reported Mr Buletare’s conduct to Mr Loi, the Secretary-General. The Judge considered that this could not be a basis for a finding of vicarious liability because the Council had taken an option (relocating the appellant) which the appellant had herself suggested. The Judge said at [83]:
I find, therefore, that in raising her complaint with Mr Loi about Mr Buletare’s sexual abuse, that Mrs Naliupis proposed 2 options. That is, that the Council take disciplinary action against Mr Buletare or move her office out of the Council’s main building to another building 100 metres away. The Council chose to implement the latter option. Accordingly, I find that it cannot be laid at the Council’s feet that it chose not to or refused to take disciplinary action against Mr Buletare. I therefore reject this as a basis on which to hold the Council vicariously liable for Mr Buletare ’s actions of assault and battery on Mrs Naliupis’ person.
Relevant Principles
67. Vicarious liability is recognised as a difficult area of the law but we are very much assisted by the decisions of the High Court of Australia in PAC v ADC and CCIC Investments Pty Ltd v Schokman [2023] HCA 21, 287 CLR 165.
68. PAC v ADC concerned the question of whether a school was vicariously liable for the sexual abuse of a 12 year old pupil in the boarding house by an employed house master. Although the Court discussed the relevant principles, it did not express a final conclusion as to the school’s liability because the plaintiff’s claim was well outside the 3 year limitation period for such proceedings and no extension of time could be allowed.
69. In Schokman, it was found that an island resort operator was not vicariously liable for the conduct of an employee urinating on another employee in the shared room provided by the resort for their accommodation. The reasoning in each case is extensive. It is helpful to identify some of the established principles and then to move to a unifying principle discussed in the majority judgment in Schokman.
70. The well-known principles include;
a) Vicarious liability is imposed to make one person liable for the tortious conduct of another. The employment relationship is a common circumstance in which vicarious liability may be found;
b) Vicarious liability is imposed despite the employer not itself being at fault but it is not a form of absolute liability; PAC v ADC [39]-[40];
c) It is an essential requirement for the imposition of vicarious liability on an employer that the employee’s act was committed in the course or scope of the employment; PAC v ADC at [40]-[41]; Schokman at [12], [14];
d) The question of whether a tortious or other wrongful act was committed in the course or scope of employment depends on the circumstances of the particular case; Schokman at [15];
e) For an employer to be liable, something more is required than that the employment merely created an oopportunity for the wrongful act to take place; PAC v ADC at [52], [55], [80]; Schokman at [32];
f) The absence of authority by the employer for the employee to perform the wrongful act is not decisive. An unauthorised intentional act may be committed in the course or scope of employment: Schokman at [16];
g) Likewise, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability: Lloyd v Grace Smith & Co [1912] UKHL 1, (1912) AC 716; PAC v ADC at [80]. However, acts done when employees are on a “frolic” of their own, ie, acts completely unconnected with the employment do not attract liability; Schokman at [16]. Acts of this kind are sometimes characterised as the “unauthorised acts of a stranger” – see Bugge v Brown (1919) 26 CLR 110 at 118.
h) The role given to the employee and the nature of the employee’s responsibilities may justify the conclusion that the employment not only provided an opportunity but was also the occasion for the commission of the wrongful act; PAC v ADC. The majority in PAC v ADC at [81] gave by way of an example of such a situation a case in which the employee, in the commission of a criminal act, used or took advantage of the position in which the employer placed the employee vis-a-vis the victim;
i) In considering the role assigned to the employee and whether it gave the “occasion” for the wrongful act, regard maybe act to particular features such as the authority, power, trust, control and ability to achieve intimacy with the victim which the position in which the wrong-doer was placed gave that wrong-doer.
71. In Schokman, the majority (Kiefel CJ, Gageler, Gordon and Jagot JJ) emphasised the desirability of regard being had to decided cases in determining whether particular conduct was, or was not, in the course or scope of the employee’s employment. They suggested that a unifying theme, and therefore a useful enquiry, is whether the tortious act in question had a sufficiently strong connection with the employment and what was entailed in it, so that it could have been said to have been done in the course of employment, at [20]. The majority then went on to review the authorities which they considered were explicable by reference to the sufficiency or insufficiency of the connection between the tortious act and the employment.
72. That is an approach which we find helpful in the present case. Putting to one side for the moment, the appellant’s report to Mr Loi of Mr Buletare’s conduct, and the omission of the Council to take protective action, we think that there may have been much to be said for the view that Mr Buletare’s conduct was not sufficiently connected with his employment to make the Council vicariously liable for that conduct. Except for the periods when he was acting as Secretary-General in Mr Loi’s absence, it was not part of his role as Planner to have any interaction with the applicant at all. His sexual abuse of her appears to be an opportunistic taking advantage of a vulnerable victim. The workplace provided the opportunity for that to occur but no more.
73. However, the remarkable feature of this case is that the appellant did complain to her superior, Mr Loi, who was the Secretary-General about Mr Buletare’s conduct. She reported that conduct more than once. It seems that the first report was made very soon after the conduct commenced.
74. The Council, as the appellant’s employer, was subject to both common law and statutory duties of care in relation to the appellant - see s.2 of the Health and Safety at Work Act, 2006. Ensuring freedom from sexual harassment is one aspect of ensuring, so far as reasonably practical, the health, safety and welfare of employees at work (s.2(1)). So also is the provision of a safe working environment (s.2(2)(e)).
75. One would expect that a responsible employer receiving a report of sexual harassment of one of its employees would act promptly to investigate that complaint and take firm preventative action. In the appellant’s case the Council did neither. It chose preference for its own interest, by not risking the loss of a perceived valuable employee, Mr Buletare. Not only did the Council not take firm and immediate disciplinary action against Mr Buletare, it entrusted him with acting as Secretary-General during Mr Loi’s absences.
76. It is true, as counsel for the Council submitted, that the appellant did not bring a claim of breach of the employer’s duty of care, as she might have, see AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2. Nor has she applied now to amend her claim to raise such a claim. However, in the circumstances of this case, the Council’s knowledge of Mr Buletare’s conduct and its inaction is also relevant to the claim of vicarious liability. It can be said that the Council inaction, while not expressly authorising Mr Buletare’s conduct, was a form of tolerance or condonation of that conduct. Its forbearance from action must have emboldened Mr Buletare to continue the conduct when he had the inclination and the opportunity. In that way, the Council’s conduct towards the appellant (the breach of the duty of care) was also conduct placing Mr Buletare in a position vis-à-vis the appellant in which he could continue his abusive conduct.
77. We respectfully disagree with the Judge that the Council cannot be criticised because it adopted one of the options suggested by the appellant for dealing with the situation. The Council was in control of Mr Buletare and the workplace generally. It could (and should) have acted much more decisively. The suggestion by the appellant as to a course of action (relocation of herself to another office) does not alter the circumstance that, by tacitly tolerating Mr Buletare’s conduct, the Council thereby engaged in a form of conduct enabling the continuation of the abusive conduct.
78. This is an unusual case but the features we have just identified warrant a conclusion that Mr Buletare’s conduct was in the course of his employment. The tacit, even if unintended, tolerance of his conduct by the Council means that the tortious conduct should not be regarded as so remote from his employment as to be outside and unconnected with the employment. Mr Buletare did more than take advantage of an opportunity which the employment afforded him: he took advantage of the tacit condonation and tolerance of his conduct by the Council.
79. In the circumstances, we consider that the Council should be found vicariously liable for Mr Buletare’s torts. We allow this part of the appeal.
Indemnity Costs
80. When entering Judgment, the Judge ordered that Mr Buletare to pay the appellant’s costs (as well as those of the Council and the Republic), on a “standard basis” as agreed or taxed.
81. By Ground 4 in her notice of appeal, the appellant contends that the Judge should have awarded her indemnity costs against both Mr Buletare and the Council.
82. We say immediately that this Court does not readily interfere with judgments of primary judges concerning costs. Such decisions are discretionary and the Court exercises the usual appellate restraint before interfering with them. Moreover, this Court recognises the considerable advantage which judges at first instance have over it when assessing appropriate costs orders. They are the persons with the detailed familiarity with the manner in which the parties have conducted themselves in the litigation This means that it is necessary for the appellant to establish one or other of the well-known grounds on which an appellate Court will interfere with a discretionary decision of a primary judge.
83. Another difficulty for the appellant is that, so far as we can see, she did not make any application to the Judge for an award of costs on an indemnity basis. The Judge can hardly be held to have erred on a matter which was not even argued before her.
84. Further, and in any event, the principal matter on which the appellant relies in support of the claim for indemnity costs is the alleged non-compliance by the Council and the Republic with six pre-trial orders. Even if established, that non-compliance not a basis on which the Court would order indemnity costs in favour of the appellant for the whole action. Further still, there is no evidence that the appellant made a claim for costs, let alone indemnity costs, in respect of the interlocutory orders for which there is said to have been non-compliance.
85. We accept that the prolonged nature of the litigation must have been frustrating for the appellant but that is not a basis for an award for indemnity costs. Ground 4 fails.
Interest and Costs
86. Before making the orders for the disposition of the appeal, it is appropriate to address the question of interest.
87. We have held that the appellant is entitled to general damages of VT3 million and to damages for economic loss of VT 562,624. Using an interest rate of 5%, and allowing for some rounding off, the appellant should also be paid VT1,230,000 by way of interest on past losses.
88. As to costs, the inappropriateness of the Republic’s involvement in the appeal should have been recognised by the parties earlier. As it happens however the Republic had only a minor involvement in the appeal. We think justice will be done if the Republic bears its own costs of the appeal and has its costs at first instance paid by the Council.
Conclusion
89. In summary, the appellant is entitled to damages against Mr Buletare and the Council as follows:
General Damages for non-economic losses VT3,000,000
Economic losses VT562,623
Interest on past losses VT1,230,000
Total VT4,770,984
90. For the reasons set out above, we make the following orders:
a) The appeal in so far as it concerns the third respondent is dismissed.
b) The appeal in so far as it concerns the first respondent (Mr Buletare) and the second respondent (the Sanma Provincial Council) is allowed and the orders made by the Judge, including the costs orders, are set aside.
c) In their place, judgment is entered for the appellant against each of the First and Second Respondents, jointly and severally, in the sum of VT4,770,984, inclusive of interest to date.
d) The First and Second Respondents are to pay interest at the rate of 5% per annum on any unpaid portion of the judgment sum.
e) The Republic is to bear its own costs on the appeal.
f) The First and Second Respondents are, jointly and severally, to pay the appellant’s costs of and incidental to this appeal and in respect of the remittal to the Supreme Court following this Court’s order on 22 February 2022. Those costs are to be paid on a standard basis.
g) The Council is to pay the Republic’s costs on the remittal to the primary Judge on a standard basis.
h) In all other aspects the appeal is dismissed.
i) The matter is remitted to the Primary Judge for the purposes of an enforcement conference or conferences.
DATED at Port Vila this 15th day of May 2026
BY THE COURT
Hon. Chief Justice, Vincent Lunabek