However, in schools and hospitals (and for others in a "protected relationship") the concept of vicarious liability is taken further. Hospitals and school authorities owe a duty of care to third parties such as patients and students that cannot be delegated. What this means is that they cannot avoid liability by delegating their duty of care to their staff. They cannot claim no responsibility for the acts or omissions of their staff.

It is irrelevant whether the act or omission by these employees was intentional, unauthorised or negligent and whether these employees were acting in the course of employment.

By a majority of 2-1 the NSW Supreme Court, Court of Appeal has recently confirmed a school's responsibility in negligence where a student's injuries have been caused by the deliberate wrongful acts of one of its teachers. (Lepore v NSW & Anor [2001] NSWCA 112).

The teacher's wrongdoing involved a practice of disciplining by sending children who had misbehaved to a storeroom where he committed multiple sexual assaults. He gave them a choice between being tickled or getting the cane from the school headmistress. He beat their bare bottoms with a ruler, sometimes in the presence of other children.

The court held that responsibility attached to the school notwithstanding that there was no evidence that the school knew, or had reason to suspect, that the teacher was involved in wrongdoing of a type that was flagrantly in breach of his contract of employment.

This decision does not mean that a school is automatically liable for any injuries sustained by a student at school. Liability for injuries sustained in the playground or by the actions of other students will be decided by the usual tests applied in negligence cases.

However, this decision does mean that schools are effectively responsible for injury to students caused by any staff misconduct, and it might also be argued that a similar reasoning could be applied to employer/employee relationships generally.