Justice for survivors of institutional child abuse: how the NSW vicarious liability amendments shape up
21st Nov 2019
In his Second Reading Speech to the Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2018 (NSW), the NSW Attorney General Mark Speakman said the bill ‘enacts three significant reforms that remove legal barriers identified by the Royal Commission and that provide clear pathways to justice for survivors of child abuse in institutional settings’.
- impose a statutory duty on organisations that exercise care, supervision or authority over children to prevent child abuse perpetrated by individuals associated with the organisation (Civil Liability Act 2002 (NSW), Pt 1B, Div 2);
- codify the common law approach to vicarious liability of organisations for child abuse perpetrated by employees and extends this vicarious liability to include child abuse perpetrated by non-employees whose relationship with the organisation is akin to employment (Pt 1B, Div 3); and
- enable survivors to identify a proper defendant to sue – to deal with what is commonly known as the ‘Ellis defence’: Trustees of the Roman Catholic Church for the Diocese of Sydney and Pell v John Ellis  NSWCA 117; special leave to appeal to the High Court refused  HCA 697 (Pt 1B, Div 4).
According to the Attorney General, the proper defendant reform applies prospectively and retrospectively, which was important because ‘it means that no matter when the abuse occurred survivors will now be able to sue a proper defendant with sufficient assets to satisfy a claim’.
Three elements of Ellis defence:
- The Catholic Church was not a legal entity and although at common law a suit could be brought against an unincorporated association, the Church’s membership is too uncertain to permit a court to grant leave to do this.
- The assets of the Catholic Church are held by trustees, who do not operate its activities and accordingly, cannot be sued.
- Catholic priests were said not to be strictly employees and accordingly, there was no vicarious liability.
What do the reforms deliver?
The new s6F reverses the onus of proof in negligence, so that the organisation must establish that it took reasonable precautions to prevent the abuse, as recommended by the Commonwealth Royal Commission. However, all the organisation has to do is to call some evidence asserting that it took reasonable care for the effective evidentiary onus to be shifted back to the alleged victim. Given that the alleged victim is usually resource poor and the organisation usually resource-rich, the organisation’s ability to drive a hard bargain or stretch the plaintiff’s resources to breaking point is self-evident and the reform is accordingly, of little value. It applies, of course, only to actions in negligence.
In any event, the change is only prospective and does nothing for current survivors of child abuse.
In the future, claims in negligence will effectively be superseded by the right of action based on vicarious liability (without the need to establish fault on the part of the institution). Section 6H provides that where an organisation placed its employee (including priests and volunteers) in a position to commit child abuse, the court is to have regard to whether the organisation gave the person:
‘(a) authority, power or control over the child, or
(b) the trust of the child, or
(c) the ability to achieve intimacy with the child.’
This vicarious liability provision is expressly prospective.
The terms of s6H are identical to the common law position as stated by the High Court in Prince Alfred College Inc v ADC  HCA 37 at :
‘… 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’.
Section 6H does nothing for past or future victims that the common law does not already provide. Indeed, it does nothing for past victims. The best that can be said is that s6H(3) preserves the common law in regard to vicarious liability.
The new ss6I, 6J, 6K, 6L, 6M and 6N, together with ss6O and 6P, enable proceedings to be brought against an unincorporated association, and for the enforcement of proceedings against the assets of an associated trust. These provisions are expressly retrospective. Section 6O(e) expressly limits an organisation’s liability to that it would have had if the organisation had legal personality.
This raises the question as to whether individuals who are not employees, but who are associated with organisations, including priests and volunteers, are caught. Sections 6E and 6G — which apply to priests and volunteers and those in employment-like circumstances — give rise to vicarious liability on the part of the organisation. These changes are only prospective.
Accordingly, one critical element of the Ellis defence is resolved only prospectively and the Attorney-General’s suggestion that he was giving relief to survivors is manifestly wrong. The provisions on vicarious liability add nothing to the common law.
In the UK, it is well-established that an individual does not have to be an employee, but merely acting for the organisation: Catholic Child Welfare Society v Various Claimants  UKSC 56 at [86) per Lord Phillips (Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agreeing): Armes (Appellant) v Nottinghamshire County Council (Respondent)  UKSC 60: Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church  EWCA Civ 256: JGE v The English Province of Our Lady of Charity and the Trustees of the Portsmouth Roman Catholic Diocesan Trust  EWHC 2871 (QB).
The High Court has not yet clearly addressed the issue of employment-like claims. It is unclear what view the High Court will take. See, for example, Scott v Davis  HCA 52 , where Gleeson CJ said that temporary management can give rise to vicarious liability without employment, but Hayne J  said this is only if the person delegating the task stipulates that he or she will have the right to control the way in which it is performed.
In the English Supreme Court, it is clear, even in non-child abuse cases, that employment-like situations give rise to vicarious liability: Cox (Respondent) v Ministry of Justice (Appellant)  UKSC 10. The Canadian courts have taken a similar view: John Doe v Bennett  1 SCR 436 at 446 and EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia  3 SCR 45.
The Royal Commission preferred non-delegable duty to vicarious liability despite the High Court decision in NSW v Lepore (2003) 212 CLR 511, which preferred vicarious liability because non-delegable duties may be delegable. In Armes v Nottinghamshire County Council  EWCA Civ 1139, the English Supreme Court considered the leading non-delegable duty case of Woodland v Essex County Council  UKSC 66, but preferred vicarious liability to give those abused in foster care a remedy against the County Council, which appointed the foster parents.
In Mohamud v WM Morrison Supermarkets plc  UKSC 11, an employer was found liable for an assault by an employee on a customer. The remedy lay in vicarious liability. Lord Toulson (Lord Neuberger, Lady Hale, Lord Dyson and Lord Reed agreeing)  poured scorn on the High Court decision in Deatons Pty Ltd v Flew (1949) 79 CLR 370 in respect of an unprovoked attack by a barmaid on a customer, where the action failed. Lord Toulson said:
‘… it surely cannot be right that the measure of the company’s responsibility should depend on whether she was the head barmaid or an assistant. The customer would have no knowledge of what were the exact limits of her responsibility’.
It is not clear whether the High Court will review its decision in Deatons Pty Ltd v Flew in the light of the leading English and Canadian authorities. In the meantime, it is most uncertain whether the Prince Alfred College decision will extend to employment-like cases, including priests and volunteers.
Victoria, Queensland and Western Australia have legislated to set aside settlements, and Tasmania has indicated it intends to do so. New South Wales and South Australia lag behind in providing justice to victims of settlements inflicted when there was little prospect of success in respect of limitation periods and/or vicarious liability.
Edited version of a paper delivered at the 2019 Australian Lawyers Alliance National Conference, Port Douglas, Qld, 24–26 October 2019.
Dr Andrew Morrison RFD SC has been practising as a barrister since 1976 and was appointed Senior Counsel in 1993. He has been commissioned as a Queen’s Counsel in Tasmania and Western Australia. He is a former Chair of the NSW Bar Common Law Committee and has previously been on the Board of the Motor Accidents Authority. He is the spokesperson for the Australian Lawyers Alliance in respect of the Royal Commission into Institutional Responses to Child Sexual Abuse. He has served as an acting District Court Judge. He is a co-author of Thomson Reuter’s Personal Injury Law Manual NSW. He holds the rank of Colonel in the Army Reserve.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).