Civil Liability Amendment (Institutional Child Abuse) Bill 2017 [NSW]: Addressing liability for institutional child abuse

“(d) what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.”

“Irrespective of whether state and territory parliaments legislate to impose a non-delegable duty upon institutions, state and territory governments should introduce legislation to make institutions liable for institutional child sexual abuse by persons associated with the institution unless the institution proves it took reasonable steps to prevent the abuse. The ‘reverse onus’ should be imposed on all institutions, including those institutions in respect of which we do not recommend a non-delegable duty be imposed.”

“The civil liability of institutions for child abuse is important. Whilst the civil liability of the perpetrator is clear, that of the institution under the current law is considerably less clear. In practical terms that may well be of critical importance. If the perpetrator is dead or has no assets, the existence of a right to damages may at best be theoretical. The law has had difficulties in establishing clear and simple rules about when an institution is liable for the intentional criminal conduct of someone else. That other person may be an employee or a volunteer, which makes potential proceedings even more complex. The law presently is not clear. Page 54 of the report states:

The leading Australian case, New South Wales v Lepore … decided by the High Court in 2003, has left the law on vicarious liability and non-delegable duties in a somewhat uncertain state.

The royal commission report points out that Canada and the United Kingdom have had clearer and broader rules about liability in such circumstances. The report makes clear that it thinks the onus of proof in these types of cases should be reversed. Institutions should be liable for child sexual abuse unless the institution took reasonable steps to prevent abuse. This includes institutions "that administer foster care and kinship care, and community-based, not-for-profit or volunteer institutions that offer opportunities for children to engage in cultural, social and sporting activities". The basic principle should be that the same rule should apply to all institutions. The report also makes this point, which is perhaps an obvious one to lawyers but worth emphasising:

The steps that are reasonable for an institution to take will vary depending upon the nature of the institution. For example, more might be expected of a commercial institution than a community-based voluntary institution. Similarly, more might be expected of institutions in relation to their employees than their contractors.

The report also states:

We recognise that introducing a new duty and reversing the onus of proof may lead to increased insurance premiums for intuitions. However, legal duties are important for prescribing the standard that the community requires of institutions.

And that goes to the nub of it. While the bill is formally about the recovery of damages, it is actually about what we collectively expect of institutions and organisations. I think it a reasonable proposition to say that the community would expect an organisation to do all it reasonably can to prevent child abuse. If it does not do all it reasonably can, it should be held civilly liable. The law should be made consistent with this view. The royal commission noted in its consultation process many submissions argued for the clarification and expansion of circumstances in which institutions were liable for child sexual abuse.”

any of the following perpetrated against a person when the person is under 18 years of age:

(a) sexual abuse,

(b) physical abuse,

(c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or physical abuse).