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University of Technology Sydney Law Research Series |
Last Updated: 10 April 2017
TORT LAW REFORM TO IMPROVE ACCESS TO COMPENSATION FOR
SURVIVORS OF INSTITUTIONAL CHILD SEXUAL ABUSE
ALLISON
SILINK* AND PAMELA
STEWART**
I INTRODUCTION
The Australian Royal Commission into Institutional Responses to Child Sexual
Abuse (‘Royal Commission’) was established
in early 2013 and the
extent of historical and continuing child sexual abuse in institutional contexts
in Australia is coming to
light through its work. The Royal Commission has also
emphasised the difficulties which many survivors of such sexual abuse
(‘survivors’)
have had in obtaining redress or tortious compensation
for their abuse. The Royal Commission has recently delivered a report on redress
and civil litigation which is final in relation to these issues: Redress and
Civil Litigation Report.[1] The
Commissioners concluded that:
We are satisfied that our society’s failure to protect children across a number of generations makes clear the pressing need to provide avenues through which survivors can obtain appropriate redress for past abuse. It also highlights the importance of improving the capacity of the civil litigation systems to provide justice to survivors in a manner at least comparable to that of other injured persons so that those who suffer abuse in the future are not forced to go through the experiences of those who have sought redress to date.[2]
To address this need to provide avenues of redress and improve the
capacity of civil litigation to provide justice to survivors, the
Royal
Commission has recommended the implementation of a national redress scheme which
would include monetary payments to survivors
of past institutional child
sexual abuse (‘past abuse
survivors’),[3] and other
statutory reforms. For example, the scheme would introduce new statutory
liabilities for institutions which would provide
avenues for civil compensation
for future survivors of institutional child sexual abuse (‘future abuse
survivors’), but
not for past abuse
survivors.[4]
Whatever reform
results, tort law will clearly continue to play an important role in providing
access to civil compensation for both
past and future survivors. Either it will
be the only option available (for future survivors to whom the redress scheme
will not
apply, or for all survivors if a redress scheme is not
implemented)[5] or it may be a
preferred course for some survivors. Civil proceedings in tort can lead to
remedies in damages which are real and
substantial, and can have a very
significant vindicating effect for a
plaintiff,[6] affirming the
survivor’s story and punishing perpetrators and responsible institutions.
There is also the prospect of awards
of compensation in amounts potentially far
greater than those which may be available under a redress scheme. There are also
identified
drawbacks of tort law as a means of compensation. Chief among these
are the costs and delays of the litigation process, the difficulty
of assessing
damages for future needs, and the uncertainties inherent in the court process
with the possibility of adverse costs
orders.[7] Additionally, in cases
concerning severe personal trauma, the difficulties faced by plaintiffs in
cross-examination and the possibility
of re-traumatisation cannot be
ignored.[8] However, for some
survivors it is unlikely that there will be a choice as to the avenue for
compensation, and civil litigation may
be their only option.
This article
examines existing avenues for survivors to seek tortious compensation from
institutions and options for reform. Under
current Australian law, there are
numerous procedural and doctrinal obstacles to such compensation over and above
the ordinary risks
and burdens of
litigation.[9] The recommendations of
the Royal Commission with respect to civil litigation are designed to provide
clearer avenues to compensation
for survivors than exist at common law. This is
a much needed area of reform given the current state of the common law. We
consider
the nature and scope of the Royal Commission’s proposed reforms
to institutional liability and additional options for reform.
We take the
need for improved access to redress and justice through civil litigation
identified by the Royal Commission as the starting
point for this analysis.
Options for reform arise in the context of a range of interconnected issues: the
Royal Commission has made
recommendations with respect to new statutory
liabilities, nomination of proper defendants, and the removal of limitation
periods
among other things. It is not possible to consider any one issue in
isolation from the others, so this article also addresses a range
of relevant
matters to locate the main issues with respect to tortious compensation from
institutions in this broader context.
We note that some survivors
are also members of the Stolen Generations and to that extent this article
addresses some of the issues
identified in the Bringing Them Home
Report as making civil process daunting or impossible for Stolen Generations
members,[10] who face similar legal
and procedural obstacles to compensation for abuse
suffered.[11] But there are
also very different and significant legal impediments facing Stolen
Generations members in establishing tortious causes
of action
for historical removal of children that was, at the time, legally
authorised.[12] The Royal Commission
did not consider that its Letters Patent enabled it to consider redress for
Stolen Generations members other
than in respect of institutional child sexual
abuse.[13] Accordingly, the
discussion which follows is limited to remedies for institutional child sexual
abuse, though some issues are equally
relevant to claims by Stolen
Generations members in respect of other forms of historical mistreatment or
abuse.
This article is in four parts. Part II examines the current
limitations to establishing institutional liability for historical abuse
at
common law in Australia, and compares the Royal Commission’s proposed
statutory liabilities with developments at common
law in other jurisdictions
which have addressed the same issues. The desirability of statutory reform to
the common law in the Australian
context is examined and the importance of a
uniform package of reforms is also discussed. Part III of the article explores
the applicability
of aspects of civil liability
legislation[14] in Australian
jurisdictions to child sexual abuse cases and the case for including in any
reform package provisions which exclude
their operation to such cases. Part IV
focuses upon the difficulties which survivors face in identifying proper
defendants in cases
where abuse occurred in faith-based institutions where there
is no corporate entity that holds property that would be available to
satisfy a
judgment. It considers the Royal Commission’s recommendation to deal with
this issue[15] and other possible
approaches to reform. Part V briefly considers the effect of statutory
limitation periods on civil proceedings
in relation to historical child sexual
abuse, the Royal Commission’s recommendations and legislative developments
to date.[16]
II BASIS OF INSTITUTIONAL LIABILITY IN THE ABSENCE OF
FAULT BY THE INSTITUTION
At common law in Australia, the basis upon which an institution can be made
liable in tort to compensate survivors is currently unclear
in the absence of
fault on the part of the institution. An understanding of the current state of
the common law, and the developments
which have occurred at common law in other
jurisdictions such as Canada and England, is necessary to fully appreciate the
intent
and scope of the Royal Commission’s proposed reforms, and
alternative options for reform. Accordingly, this Part examines the
common law
in Australia and other jurisdictions, and against that background, analyses the
proposed reforms to institutional liability.
There are two common law
doctrines that survivors could potentially use to bring such an action:
vicarious liability or a non-delegable duty to ensure reasonable care
is taken. These are examined below.
A Vicarious Liability under Australian
Law
Vicarious liability in tort imposes strict liability upon a defendant for the
negligence or intentional wrongdoing of another in the
absence of fault by the
defendant. Under current law in Australia, there are two important inquiries in
the application of vicarious
liability, both of which can give rise to
difficulties for survivors. One is establishing a relevant relationship between
the abuser
and defendant, most commonly an employment relationship. Here there
is a further inquiry, which is whether the impugned act was done
‘in the
course of employment’. This inquiry is used to establish the sufficiency
of the connection between the tortious
conduct and the employment to justify
imposing vicarious liability.
1 The ‘Course of
Employment’ Test
The ‘course of employment’
test[17] provides that in addition
to liability for authorised acts, an employer may also be liable for wrongful
and unauthorised acts if
they are so connected with authorised acts that they
may be regarded as modes, although improper modes, of doing them.
However, according to this test, the employer is not responsible if the
unauthorised and wrongful act is not so connected
with the authorised act as to
be a mode of doing it, but is an independent
act.[18]
Determining when
intentional wrongdoing[19]
amounts to an improper mode of doing an authorised act is notoriously
difficult. Nonetheless, the ‘course of employment’
test remains an
essential inquiry under Australian law. In
Deatons[20] it was
interpreted so that intentional wrongdoing can only give rise to vicarious
liability if it was
‘incidental’[21] to the
employment, in the sense of being done in ‘furtherance of the
master’s interests’, or in ostensible pursuit
of the
employer’s business, or in apparent execution of authority which the
employer holds the employee out as
having.[22] The difficulty in
characterising deliberate, criminal sexual abuse of a child by an employee of an
institution in this way is obvious.
Vicarious liability for child sexual abuse
was considered by the High Court in New South Wales v Lepore
(‘Lepore’),[23]
discussed in more detail below. However, the reasons of the Court in
relation to vicarious liability were varied with no clear ratio.
Deatons
was not overruled, despite some suggestion that vicarious liability could
arise in respect of child sexual abuse in an institutional
context. This has
left survivors facing considerable uncertainty as to whether a claim relying on
vicarious liability will be successful
or not under Australian
law.
2 Vicarious Liability Only in Respect of
‘Employees’
Another significant limitation of
vicarious liability at common law is that traditionally, it is limited to
employees and does not
extend to wrongdoing of independent
contractors.[24] This is a deeply
entrenched limit on the scope of vicarious
liability.[25] However, there are
also longstanding criticisms of
it.[26] Professor Atiyah once noted
that changing work practices might require this dichotomy between employees and
contractors to be revisited.[27] The
more employers contract out work to avoid tax and employment consequences, or
vicarious liability, the greater the impact on
potential compensation through
vicarious liability. Further, poorly resourced or underinsured contractors (who
may be cheaper to
engage) may be unable to meet any liability to a plaintiff
harmed by their work done at the request of the employer. In Northern
Sandblasting Pty Ltd v
Harris,[28] and in
Hollis v Vabu Pty Ltd,[29]
McHugh J agreed with Professor Atiyah’s arguments and favoured development
of the law. To date this has been a minority view
in the High Court. These
issues are however increasingly relevant to this debate, as in the sectors
involved in working with children,
significant responsibilities are frequently
contracted out.
Other working relationships can be difficult to
pigeonhole as relationships of employment. Foster care is a well-known example
that
is usually not an employment relationship with the institution with
responsibility for the child, so falls outside the scope of vicarious
liability.
There are particular issues within the context of religious
organisations[30] where the
relationship of a priest or religious official to the parish or diocese or other
church entity often falls outside the
traditional employment paradigm. In a
number of recent English and Canadian decisions dealing with the liability of
the church for
sexual abuse by priests, courts have found relationships
‘akin to’ employment which sufficed for the purposes of establishing
the vicarious liability of the church or diocesan
body.[31] These developments
acknowledge that strict adherence to the form of traditional employment
relationships would be unduly limiting
of the public policy justifications for
vicarious liability. These issues are equally apposite to claims brought by
survivors against
the clergy in Australia.
3 Developments in
Vicarious Liability in Other Jurisdictions
In Canada and in
England the traditional ‘course of employment’ test has been relaxed
so that focus is now placed upon
different criteria to demonstrate a sufficient
connection between the wrongdoing and the employer. The result is that
institutional
liability for child sexual abuse can be established in a manner
which is not available under Australian law.
In Canada, in
Bazley,[32] the Supreme Court
of Canada found that a residential facility, The Children’s Foundation,
was vicariously liable for sexual
abuse of children by an employed childcare
worker. Justice McLachlin (for the Court) held that courts should ‘openly
confront
the question of whether liability should lie against the employer,
rather than obscuring the decision beneath semantic discussions
of “scope
of employment” and “mode of
conduct”’.[33] Instead,
the Court focused on identifying whether the wrong was ‘closely and
materially related to a risk introduced or enhanced
by the
employer’.[34] Without this,
it was held that vicarious liability ‘serves no deterrent purpose, and
relegates the employer to the status of
an involuntary
insurer’.[35] It was held that
public policy requires a ‘strong connection between what the employer was
asking the employee to do ... and
the wrongful act’, so that it can be
said that ‘the employer significantly increased the risk
of the harm by putting the employee in his or her position and requiring him to
perform the assigned
tasks’.[36]
A new test
was proposed. Firstly, the court should consider if any precedent concerning
very similar facts exists to resolve the
question.[37] If not, the next step
is to determine whether vicarious liability should be imposed in light of
the broader public policy rationales which underpin vicarious
liability.[38] The Court posed a
number of factors to assist in determining whether an employer had created a
material increase in the risk of harm
occurring. These included: (a) the
opportunity that the enterprise afforded the employee to abuse his or her power;
(b) the extent
to which the wrongful act may have furthered the employer’s
aims; (c) the extent to which the wrongful act was related to friction,
confrontation or intimacy inherent in the employer’s enterprise; (d) the
extent of power conferred on the employee in relation
to the victim; and (e) the
vulnerability of potential victims to wrongful exercise of the employee’s
power.[39]
Similar
development of vicarious liability has also taken place in England. In Lister
v Hesley Hall Ltd the House of Lords held that an institution might be held
vicariously liable for child sexual abuse by an employee if there was a
‘close connection’ between the abuse and the employment.
However, the reasons for judgment in that case varied
considerably[40] and were criticised
for lacking sufficient guidance as to when liability should
arise.[41] The Supreme Court
clarified the test in Catholic Child
Welfare[42] and again
more recently in Mohamud v WM Morrison Supermarkets
plc.[43] In Catholic
Child Welfare, Lord Phillips held that vicarious liability is imposed where
the defendant has used the abuser to further its own interests and put
the
abuser in a position which has ‘created or significantly enhanced the risk
that the victim or victims would suffer the
relevant
abuse’.[44] In Mohamud,
the Supreme Court approved Lister and Catholic Child Welfare and
held that ‘[t]he cases in which the necessary connection has been found
... are cases in which the employee used or misused
the position entrusted to
him in a way which injured the third
party’.[45] This is now
substantially the same as the law in Canada.
These developments have
replaced the traditional form of the ‘course of employment’ test
with a broader range of factors
than those applied under the Deatons
test, to determine the sufficiency of the connection between the abuse and the
institution/employer to justify vicarious liability.
B Non-delegable Duty of Care
The non-delegable duty is a personal duty to ensure that reasonable care is
taken.[46] It has been described as
a ‘sub-species of negligence
law’.[47] Recognised
categories have involved ‘a person being so placed in relation to another
as “to assume a particular responsibility
for [that other person’s]
safety” because of the latter’s “special dependence or
vulnerability”’.[48] In
certain circumstances (such as schools vis-a-vis
students,[49] employers vis-a-vis
employees,[50] and hospitals
vis-a-vis patients)[51] the law
recognises a duty to ensure that reasonable care is taken and liability
for functions integral to this positive duty cannot be delegated, even if the
tasks are delegated to an independent
contractor.[52] Any negligence on
the part of an independent contractor in fulfilling such a duty will be sheeted
home to the principal.[53] No other
common law jurisdiction has applied a non-delegable duty to impose liability for
institutional child sexual abuse. However,
it has been considered by the High
Court in Australia, and has influenced the Royal Commission’s
recommendations,[54] so it warrants
consideration.
C The High Court: New South Wales v
Lepore
In Lepore[55] the High
Court considered institutional liability for sexual abuse of children by
teachers in primary schools. Appeals were brought
from the Supreme Court of New
South Wales (Lepore v New South
Wales)[56] and the Supreme Court
of Queensland (Rich v
Queensland)[57] and were heard
together. Both vicarious liability and the non-delegable duty of care were
considered by the High Court.
In the proceedings below in Lepore v New
South Wales, in the New South Wales Court of Appeal, Mason P (with whom
Davies AJA agreed) held that the scope of the non-delegable duty ‘extends
to ensuring that [the children] are not injured physically at the hands of an
employed teacher (whether acting negligently or
intentionally)’.[58] Justice
Heydon dissented.[59] His Honour
noted that the teacher’s alleged conduct was ‘not aptly
characterised as a failure to take reasonable
care’.[60] In the Queensland
proceedings, Rich v Queensland, the Court of Appeal declined to follow
the New South Wales Court of Appeal’s decision with respect to the scope
of the non-delegable
duty.
In the High Court, the majority (McHugh J
dissenting) rejected the application of the non-delegable duty to child sexual
abuse in
an institutional
context.[61] Justices Gummow and
Hayne held that the extension of the non-delegable duty to such intentional acts
would ‘remove the duty
altogether from any connection with the law of
negligence’.[62] Chief Justice
Gleeson (with whom Callinan J
agreed)[63] observed that:
Intentional wrongdoing, especially intentional criminality, introduces a factor of legal relevance beyond a mere failure to take care. Homicide, rape, and theft are all acts that are inconsistent with care of person or property, but to characterise them as failure to take care, for the purposes of assigning tortious responsibility to a third party, would be to evade an issue.[64]
Only McHugh J, in dissent, accepted that a non-delegable duty could apply
to intentional wrongdoing as well as negligent conduct and
therefore ought to
apply to sexual abuse.[65]
In
relation to the scope of vicarious liability, there was no clear
ratio.[66] The High Court
considered the developments which had by then taken place in Canada and England,
but there was no clear majority support
for developing the law in a comparable
way. Justices Gummow and Hayne in a joint judgment, and Callinan J, held that
sexual abuse
could not be regarded as falling within the ‘course of
employment’ for the purposes of vicarious liability under any
circumstances, maintaining the traditional scope of the
test.[67] Chief Justice Gleeson and
Gaudron J seemed to accept that it could in certain circumstances, but for quite
different reasons.[68] Justice
McHugh did not need to decide the issue as he would have applied a non-delegable
duty of care. Only Kirby J found that the
law of vicarious liability should be
developed to address such claims in a manner comparable to the developments in
Canada and England.[69]
Chief
Justice Gleeson reasoned that:
where the teacher-student relationship is invested with a high degree of intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment.[70]
This suggests that abuse by a person holding responsibilities which
include intimate contact with children could give rise to vicarious
liability. However, the scope for liability was still limited by the requirement
to characterise the abuse
as occurring within the course of
employment.[71] For example, Gleeson
CJ noted that the maintenance of discipline by a teacher is clearly within the
employment responsibilities of
a teacher, so that if the alleged misconduct
could be regarded as excessive or inappropriate chastisement, this might
give rise to vicarious
liability.[72] However, if the
conduct of the teacher was found to be ‘so different from anything that
could be regarded as punishment that
it could not properly be seen as other than
merely sexually predatory behaviour, then, in relation to such conduct, the
plaintiff
would have no case based on vicarious
liability’.[73] This is
consistent with Deatons in requiring the abuse to be characterised as
occurring within the course of employment rather than accepting that the
relevant connection
could be established by the factors applied in
Bazley.
Justice Gaudron reasoned that vicarious liability should
only arise in respect of deliberate criminal acts where the person against
whom
liability is asserted is estopped from asserting that the person whose acts are
in question was not acting as his or her servant,
agent or representative when
the acts occurred.[74] However, her
Honour gave no indication whether such a principle limited liability to acts
arising in the Deatons sense, or otherwise.
Subsequent case law
demonstrates different interpretations of the judgments in Lepore and is
not easily reconciled.[75]
Therefore, in Australia, reform to create, or clarify, a cause of action for
institutional liability for deliberate sexual battery
of a child is essential if
survivors are to be able to bring proceedings against the relevant institution
for compensation.
D The Royal Commission’s Recommendations for New Statutory Duties
The Royal Commission has recommended the introduction of two new
statutory liabilities, both of which are to have prospective operation
only, to
provide a cause of action for survivors of child sexual abuse in
Australia.[76] One is a statutory
non-delegable duty of care upon certain institutions. The other is a statutory
liability upon all institutions
for child sexual abuse unless the institution
establishes that it took reasonable care to prevent the abuse. These are
examined below.
1 A Non-delegable Duty
In its
Report, the Royal Commission recommended that:
State and territory governments should introduce legislation to impose a non-delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution.[77]
It is proposed that it should apply to certain institutions
only.[78] These include residential
facilities for children, school or day care facilities, disability or health
services or religious organisations
or other facilities operated for profit
having care, supervision or control of children for a period of time. It is not
proposed
that the duty apply to foster care or kinship care on the basis that
the institution that arranges these forms of care does not have
the degree of
supervision or control over the home environment to justify the imposition of a
non-delegable duty.[79] Nor is it
proposed that the duty would apply to community not-for-profit or volunteer
institutions offering cultural, social and
sporting
activities.[80] The Commission noted
that these institutions do not provide particularly high-risk services and so
excluding these organisations
is designed to avoid discouraging valuable
cultural, social and sporting association in the community, particularly as the
risk of
liability or the cost of insurance might force such organisations to
cease providing these
services.[81]
It is clear
from the discussion in the Redress and Civil Litigation Report that the
proposed duty is modelled upon the minority view in Lepore and is
intended to be a statutory form of the common law non-delegable
duty.[82] A statutory form of
institutional liability for child sexual abuse would undoubtedly provide a clear
pathway for future abuse survivors
to establish liability and entitlement to
damages. However, we make three observations with respect to the form and scope
of the
proposed statutory non-delegable duty:
These issues are considered below.
(a) The
Scope of the Proposed Non-delegable Duty
The proposed statutory non-delegable duty has no comparable provision or
common law counterpart in other common law jurisdictions.
Accordingly, it can
only be compared with the scope of vicarious liability in other jurisdictions.
In making that comparison, the
proposed statutory non-delegable duty may be
broader in scope in two respects.
Firstly, the proposed duty is intended
to apply to a greater range of workers than historically within the scope
of vicarious liability. The Royal Commission has proposed that the institutions
subject to the
proposed duty may be liable for the acts of ‘members or
employees’ defined broadly to cover almost any working
relationship:
An institution’s ‘members or employees’ should be defined
broadly to include persons associated with the institution,
including officers,
office holders, employees, agents and volunteers. It should include persons
contracted by the institution. It
should also include priests and religious
[sic] associated with the
institution.[83]
As discussed
earlier, vicarious liability remains limited to liability for acts of employees.
The proposed statutory extension of
the range of persons for whom an institution
may be liable effectively bypasses these historical limitations to the
relationships
to which vicarious liability applies. Of course, the non-delegable
duty of care at common law is not subject to this limitation and
already applies
to independent contractors. There is much to commend the application of any
proposed statutory duty to a broader
range of workers who may be engaged or
utilised by an institution in the care of children than the limited scope of
vicarious liability
at common law given the increasing diversity of working
relationships.[84]
Secondly,
the proposed duty may be broader in scope than vicarious liability as
developed in Canada and England. This can be illustrated by example. If an
institution employs a worker
in an area with no or very limited responsibility
for the care of children, such as a cleaner, gardener or office worker, and that
person sexually abuses a child in the care of the institution, will the
institution be liable?
This question has been considered directly in
Canada. There it has been held that public policy considerations require a
‘strong connection between what the employer was asking the
employee to do (the risk created by the employer’s enterprise) and the
wrongful act’,[85] in the
sense that ‘the employer significantly increased the risk of the
harm by putting the employee in his or her position and requiring him to perform
the assigned tasks’.[86] In
Bazley, McLachlin J observed that:
Where vicarious liability is not closely and materially related to a risk
introduced or enhanced by the employer, it serves no deterrent
purpose, and
relegates the employer to the status of an involuntary
insurer.[87]
The Court noted
that otherwise, liability would be unlikely to have a significant deterrent
effect as ‘short of closing the
premises or discharging all employees,
little can be done to avoid the random
wrong’.[88] In EB v Order
of the Oblates of Mary Immaculate of the Province of British
Columbia,[89] the Supreme Court
of Canada refused a claim to make the school vicariously liable for the sexual
abuse of a child by a baker who
was employed by the school. The school had given
the baker no responsibility for or authorisation to have contact with children.
It was held that ‘mere opportunity’ to abuse a child was not
sufficient to impose liability.[90]
The same policy question arises under English law and similarly requires a close
connection between the abuse and the employee’s
responsibilities to give
rise to liability.[91]
It is
not entirely clear whether liability under the proposed non-delegable duty would
extend to child sexual abuse by any person associated with the
institution, or whether it is intended that it should be limited to liability
for acts of persons with
specific responsibilities in relation to a child such
that it could be said that ‘the employer significantly increased the
risk
of the harm by putting the employee in his or her position and requiring him to
perform the assigned
tasks’.[92] Recommendation 89
contains no limitation, but the discussion in the Redress and Civil
Litigation Report in places suggests some limitation. The Report
states:
A non-delegable duty is a personal duty borne by the institution. It cannot
be delegated. Where this duty is recognised, the institution
must ensure that
reasonable care is taken by those to whom it entrusts the performance of its
duty of care. Sexual abuse of a child
is the deliberate act of the perpetrator.
It is the antithesis of the taking of reasonable care. Where a person
associated with an institution fails to take reasonable care of a child in the
care and control of that institution,
by that person committing a criminal act
against the child a strict liability regime will impose liability on the
institution for
that
failure.[93]
If the
reference to ‘those to whom it entrusts the performance of its duty of
care’[94] means those
particular associates to whom responsibilities for the care and supervision of
children are given, it may end up with
a similar scope to the Bazley test
under vicarious liability. If so, liability would probably not arise in the
hypothetical scenario above. However, if the proposed
liability is drafted
without limitation, this may render the relevant institutions the insurers of
all harm arising from the ‘mere
opportunity’ that association with
the institution presents. The public policy justifications of any broader scope
than that
available in other common law jurisdictions ought to be clarified if
this is intended.
(b) Experience of Other Common Law Jurisdictions in
Vicarious Liability
As already discussed, other common law
jurisdictions have developed vicarious liability principles rather than the
non-delegable duty
of care to address institutional liability for child sexual
abuse. These developments in
Canada[95] and the United
Kingdom[96] have been approved by
the Court of Final Appeal in Hong
Kong[97] and by the Court of Appeal
in Singapore.[98]
One
issue is whether Australian legislators should adopt a path of statutory reform
which follows more closely the common law developments
in Canada and England,
rather than modelling it upon a development to common law non-delegable duty
which has not in fact been adopted
previously in Australia or elsewhere. The
reason for considering a statutory duty modelled upon this existing, expanded
form of vicarious
liability is this. As Lord Neuberger P noted in FHR
European Ventures LLP v Cedar Capital Partners LLC, it is desirable for common
law jurisdictions ‘to lean in favour of harmonising the development of the
common law round the
world’.[99] In Hasler v
Singtel Optus Pty Ltd Leeming JA endorsed the remark of Lord Neuberger P,
and observed that ‘[t]here is frequently much to be learnt from the
experience
of other jurisdictions whose legal systems share a common
ancestor’.[100] It may be of
value to legislators and courts applying any proposed duty, to have recourse to
the experience of other common law countries
in the same context. For example,
in Bazley the Court considered the factors relevant to determining the
sufficiency of the connection[101]
and set out specific factors relevant to determining whether an employer had
introduced or significantly exacerbated the specific
risk of sexual abuse by the
nature of the responsibilities given to the
employee.[102] Such prior judicial
experience with the same or similar issues may be of assistance to Australian
courts.
(c) A ‘Subspecies’ of Negligence: Contentious
Application of Non-delegable Duties to Criminal Intentional
Wrongdoing
The non-delegable duty has been previously described as a
‘sub-species of negligence
law’[103] and this raises a
further issue with describing the proposed statutory duty by reference to this
common law duty. Whether the tort
of negligence can extend to intentional
wrongdoing is not settled.[104]
However, the application of a negligence-based duty to criminal
intentional wrongdoing is particularly contentious and was rejected by a
majority of the High Court in
Lepore.[105] As already
noted, in Lepore Gleeson CJ (with whom Callinan J
agreed)[106] expressed concern
that criminally intentional conduct introduced a ‘factor of legal
relevance’ which took it outside
the scope of the duty of care in
negligence and the non-delegable
duty.[107] If the proposed
statutory non-delegable duty were to include such criminally intentional
conduct, there is the potential for it to
influence the development of the
common law doctrine through the process of analogical reasoning by which courts
have regard to statutory
context in the development of common
law.[108] As noted by Leeming JA
writing extra-curially:
In short, statutes are an under-appreciated component in the academic
literature on the Australian legal system: their role lies not
merely in stating
norms of law, but in influencing judge-made law and as a critical driver of
change and restraint in the Australian legal
system.[109]
Civil
compensation for negligence extending to criminally intentional conduct
would be a profound shift in tort law. This is not to suggest that change to the
common law would necessarily
occur, or that if it did, it would happen directly
or abruptly or immediately. It is merely to flag that there is the potential for
influence upon the common law from such statutory development.
At the end
of the day, both common law doctrines of vicarious liability and the
non-delegable duty achieve the same purpose of imposing
strict liability for the
acts of another in the absence of fault on the part of the defendant. Both have
limitations at common law
which impact on the availability of tortious
compensation in institutional child sexual abuse cases. A new statutory duty in
the
form of a non-delegable duty as proposed is of course possible. However,
framed as a ‘non-delegable duty’ it would lack
coherence with other
common law jurisdictions and there are no apparent advantages to using this form
to achieve the desired aim
of imposing strict liability upon certain
institutions for child sexual abuse (with or without limitation upon the
circumstances
of such abuse).
It is not strictly necessary to use either
of the existing common law duties as the form for the imposition of such strict
liability,
but a statutory liability based on an expanded vicarious
liability would avoid any potential difficulty with applying a
negligence-based liability to criminally intentional wrongdoing and would give
courts closer comparison with existing common law case law for reference in
considering institutional liability in this context.
The limitations of
vicarious liability with respect to a requirement for an employment relationship
can be removed in the manner
proposed by the Royal Commission regardless of
whether the form of liability more closely resembles common law vicarious
liability
or a non-delegable duty.
2 Statutory Liability with a
Reverse Onus of Proof
The Royal Commission has recommended that
irrespective of whether a non-delegable duty of care is imposed on certain types
of institution
by statute, legislation should be introduced to make all
institutions liable for child sexual abuse by a broad range of
associates ‘unless the institution proves it took reasonable steps to
prevent the
abuse’.[110]
Recommendation 91 of the Redress and Civil Litigation Report
states:
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.[111]
Significantly,
this proposed statutory liability would apply to all institutions including
community, not-for-profit and volunteer
organisations as well as organisations
administering foster care or kinship care. Some of these types of organisations
have traditionally
not fallen within the scope of vicarious liability at common
law (for example foster care)[112]
and so statutory inclusion would assist in providing causes of action which are
not presently available at common law. It would also
apply to those
organisations to which the Commission’s proposed non-delegable duty of
care would apply. There is no doubt that
the proposed statutory vicarious
liability would assist survivors of future abuse to establish institutional
liability, but again,
it leaves existing survivors without any improvement of
their current
position.[113]
Recommendation
91 is in essence proposing a statutory form of vicarious liability that is not
strict. This is something unknown to
the common law, though not unknown in
statute law. There are two important features of this proposed
duty.
Firstly, there is no apparent requirement for any particular
connection between the abuse and the institution beyond the requirement
for the
abuser to be an ‘associate’ of the
institution.[114] If so, the
recommended provision has a much broader scope than vicarious liability at
common law. For example, under this proposed
liability, a sporting club may be
liable for abuse by a cleaner or person such as the baker in EB v Order of
the Oblates of Mary Immaculate of the Province of British Columbia (unless
the defence of having taken reasonable steps to prevent abuse can be
raised).[115] This would be of
considerable advantage to survivors, but it has significant public policy
implications.
As discussed in relation to the scope of the non-delegable
duty, under Canadian and English vicarious liability, public policy has
required
balancing the interests of survivors in having a defendant to sue on the one
hand, against ‘[foisting] undue burdens
on business
enterprises’[116] rendering
them ‘involuntary
insurers’[117] for all
sexual abuse on the other. Courts in Canada and England considering the public
policy questions have found that liability
for all child sexual abuse is
not justified and so liability is limited to circumstances where the institution
has ‘significantly increased the risk of harm by putting the
employee in his or her position and requiring him to perform the assigned
tasks’.[118] This is not to
say that the same public policy issues could not be debated and resolved
differently in Australia. For example, it
may be determined that the existence
of the proposed defence, discussed below, renders it fair to expand the scope of
this second
liability. However, these issues will need to be fully addressed by
legislators considering the implementation of reforms, as where
the defence
cannot be raised, the scope of the liability is significantly
broader.
Secondly, this new statutory liability may be avoided upon proof
by the institution that it took reasonable care to prevent abuse,
effectively
creating a defence to vicarious liability that is unknown to the common law.
These reforms appear[119] to be
based upon provisions in the Commonwealth and Victorian discrimination
legislation[120] which provide
that where an employee or agent acting in the course of their employment
contravenes the Act, then the employer or
principal will be vicariously liable
unless it can establish that it took reasonable precautions to prevent the
contravention.[121] The difference
is that liability under these provisions is limited, as is common law vicarious
liability, by the twin requirements
of an employment relationship and a
sufficient connection with the employment.
The proposed defence, or
so-called reverse onus of proof, is a significant advantage to
institutions which does not exist at common law. The implication of the proposed
defence appears to
be that if the institution does not take reasonable
precautions to prevent sexual abuse, then it is fair that it is made liable for
any abuse. Conversely, if an institution
does take reasonable steps
(whatever they might be) to prevent abuse it will escape liability, even if the
nature of the responsibilities
given to the perpetrator would be accepted in
other jurisdictions as having significantly increased the risk of sexual abuse
occurring,
and therefore warranting the imposition of vicarious liability. It
may result in finding or denying vicarious liability where, on
the same facts, a
different result would be likely in other common law jurisdictions.
The
Royal Commission recognised that what are reasonable steps for an institution to
take to avoid child sexual abuse will vary depending
upon the type of
institution and the position and responsibility of the abuser within the
institution. More active steps toward precaution
might be expected of a
for-profit institution than a community-volunteer institution. These questions
will depend on many individual
circumstances but will no doubt involve complex
factual issues such as reasonable foreseeability of risk, and the kinds of
matters
typically relevant to a finding of
negligence.[122] The Royal
Commission recognised that institutions are in a far superior position to
plaintiffs to be able to prove the precautions
taken to prevent abuse, having
relatively easy access to records and
witnesses.[123] Yet, inevitably
the survivor plaintiff would bear an evidentiary onus which may be difficult to
discharge.
The Commission recognised that its recommendation, if adopted,
may lead to increased insurance premiums for institutions but that
it would also
potentially engender higher standards of care, governance and risk mitigation
within institutions.[124] The
social benefit of encouraging all institutions to do more to reduce the risk of
child sexual abuse goes without saying. However,
the uncertainty as to what
would constitute reasonable steps to prevent abuse may be of concern, especially
to small community groups.
The interrelationship between the two proposed
liabilities is not entirely clear. Presumably, institutions to which both the
non-delegable
duty and the statutory liability apply may be liable under the
former even in circumstances in which the defence can be raised to
the latter.
However, when would those institutions be liable under the second statutory duty
and not liable under the non-delegable duty? One answer might be that the
non-delegable duty is limited in scope to acts of abuse by persons
with
responsibility for child care. If abuse by a non-childcare worker, such as a
cleaner, does not fall within the scope of the
non-delegable duty, it might
still fall within the scope of the statutory liability. In such circumstances,
an institution to which
the non-delegable duty applies could be liable under the
second statutory liability if it cannot make out the defence that it took
reasonable steps to prevent abuse.
E Dual Vicarious Liability: Reform to Impose Liability upon More than One Institution
Under Australian common law, it is not possible for two parties to be
vicariously liable for a defendant’s
wrong.[125] The position is
otherwise in England.[126] In
Catholic Child
Welfare,[127] Lord Phillips
approved the dicta of Rix LJ in Viasystems (Tyneside) Ltd v Thermal Transfer
(Northern) Ltd that what the court looks for is ‘a situation where the
employee in question ... is so much a part of the work, business or
organisation
of both employers that it is just to make both employers answer for his
negligence’.[128]
Lord
Phillips held that the relationship of the tortfeasor with each defendant
determines whether the defendant is
liable.[129] In that case, the
diocesan bodies responsible under statute for managing a residential school for
boys left it to ‘the Institute’,
a lay Roman Catholic order, to
nominate a headmaster and appoint the teachers from brother members of the
Institute. The brothers
entered into contracts with the diocesan bodies but it
was the relationship of the brothers with the Institute which enabled their
placement as teachers in the school. Lord Phillips held that it was ‘fair,
just and reasonable’ for vicarious liability
for child sexual abuse by
brother teachers to be shared by the two
defendants.[130]
In Day
v The Ocean Beach Hotel Shellharbour Pty
Ltd,[131] Leeming JA noted
that there were statutory forms of dual vicarious liability under Australian
law,[132] but that short of
legislative reform, the acceptance of dual vicarious liability would have to
come from the High Court.[133] The
issue was not addressed by the Royal Commission in its Report. However, as has
been recognised in England, there is no persuasive
reason why the law should not
be reformed to permit a court to find more than one defendant vicariously liable
for institutional
child sexual abuse in circumstances where the abuser is part
of the ‘work, business or organisation’ of more than one
institution.
F The Argument for Statutory Reform Rather than Common Law Development
As already noted, the Royal Commission recommends statutory reform to
bring clarity and certainty to the availability of compensation.
The reasons
which support statutory reform to the basis of institutional liability currently
provided by the common law of tort,
as opposed to leaving it to be developed by
the courts, are considered briefly here.
1 Unpredictability of
Common Law Reform
First and foremost, there is simply no
guarantee that common law development will occur at all in Australia, or with in
any predictable
time frame. The High Court last considered these issues in
Lepore in 2003.[134] That
decision had no clear ratio, contributing to the problems faced now. There are
fixed criteria to meet before the High Court
will grant special leave to appeal
and particular criteria to satisfy before it will reconsider its earlier
decisions.[135] The case needs to
be the appropriate vehicle to determine the issues with the relevant question
‘in dispute’. Courts
are restricted to deciding only the issues in
the case before the court.[136]
All these factors stand in the way of timely change to the common law by the
courts. This is a particular burden for elderly and
unwell
survivors.
2 Advantages of Legislative Reform
The
legislature on the other hand is not limited by the circumstances of any
particular court case so reforms can be introduced more
quickly and
comprehensively. Legislative provisions are capable of having a normative effect
on practices and systems, an issue of
considerable significance with respect to
the alteration of institutional practices in response to notification of child
sexual abuse,
or the employment or management of staff in high risk positions.
The law reform process is also capable of being consultative in
a way that is
not open to the
judiciary.[137]
As has been
pointed out in Morgans v Lauchbury, creating a special rule for a
particular class of case in the context of a common law principle is generally
the function of the
legislature.[138] A stand-alone
statutory regime would also avoid unintended consequences which might result
from reforms that were enacted as amendments
to existing civil liability
legislation.[139]
3 Precedent
for Statutory Reform of Tort Law and Vicarious
Liability
Legislative intervention in the common law of tort is
not new,[140] and has since the
19th century been used in various discrete areas to extend tortious
liability,[141] or in some
instances to augment the common law by way of statutory
schemes[142] or
codes.[143] It is also noteworthy
that there are precedents for specific statutory reforms to the common law of
vicarious liability.[144] In these
circumstances, there are strong reasons to consider statutory reform in
Australia to provide a comprehensive package of
reforms to assist
survivors.
4 Uniformity
One of the important
opportunities that law reform would offer is the prospect that uniform
statutory reform could be introduced in all states and territories, by
agreement of the
Attorneys-General.[145] Survivors
should have the same rights and options regardless of the jurisdiction in which
compensation is sought or in which abuse
occurred. Statutory reforms to the
common law of tort are, of course, constitutionally within the powers of state
and territory Parliaments
rather than the federal Parliament. However, it is to
be hoped that there would be cooperation between all state and territory
Attorneys-General
in order to achieve a national uniform approach to these
reforms.
G Prospective or Retrospective Reform?
Consideration must be given to the critical question of whether reforms
to impose institutional liability should be prospective only
or given
retrospective operation. The Royal Commission has stipulated that its proposed
statutory reforms should have prospective
application
only.[146]
The law has an
appropriate and abiding caution with respect to retrospective law reform, which
sits uneasily with the rule of law.
It is considered to be potentially
prejudicial to parties who may have arranged their affairs based upon the state
of the law at
the time and has particular significance in relation to criminal
liability.[147] However, there are
several reasons why exceptional consideration should be given to retrospective
reform of civil liability of institutions
for child sexual
abuse.
The most significant reason is that if comparable changes
were made to the common law by the courts, they would have retrospective
effect
anyway, as acknowledged by the Royal
Commission.[148] In the United
States Supreme Court in Kuhn v Fairmont, Holmes J observed that
‘[j]udicial decisions have had retrospective operation for near a thousand
years’.[149] This has
already occurred in other jurisdictions that have clarified the scope of
vicarious liability. However, the Royal Commission
suggests that legislation
should be enacted to avoid the likelihood that Australian courts go down
a similar path.[150] The Royal
Commission reasoned that retrospective application was not appropriate because
‘relevant institutions would face
potentially large and effectively new
liability for abuse that has already
occurred’,[151] and that
retrospective insurance would be in all likelihood unaffordable, and referred to
‘the burden that retrospective change
would impose on insurers or
institutions that will not have insured against this
liability’.[152] These
issues are undeniable. However, the Royal Commission did not explain why they
warrant a different approach in Australia to
other common law jurisdictions
which have already expanded vicarious liability with retrospective
effect.
With respect to difficulties in defending proceedings arising
from significant effluxion of time from the date of alleged abuse, courts
have
the power to stay any proceedings in which prejudice could be established.
However, without retrospective operation for institutional
liability, a
significant proportion of the claims of those survivors who might be in a
position to bring proceedings would be unmaintainable.
Retrospective reform to
limitation periods alone as proposed by the Royal Commission will be of very
limited utility to existing
survivors if they have no sustainable cause of
action. They will be in the same position they are now.
The Royal
Commission’s recommendations assume the implementation of a national
redress scheme, which would certainly afford
some financial compensation to
survivors of past abuse. On one level, this appears to reduce the need for
retrospective reform. However,
there is no guarantee that the redress scheme
will be implemented in the manner proposed by the Royal Commission, and even if
it
is, the justification for denying retrospective reform by statute which could
be achieved in a similar manner by common law development
is not clear. This is
particularly so where in other common law jurisdictions, survivors of past abuse
already have access to such
retrospective action.
Another issue for
legislators to consider is that it is not necessary to limit consideration of
retrospectivity to the particular
statutory reforms proposed by the Royal
Commission. An option would be the implementation of a statutory vicarious
liability for
survivors of past abuse in a manner comparable to the vicarious
liability imposed in other common law jurisdictions with retrospective
operation, even if other reforms such as the proposed duty and statutory
liability are enacted with prospective operation only. This
would give
Australian survivors of past abuse comparable rights to those which exist
currently in other jurisdictions; not greater,
but not less, as is currently
proposed by the Commission.
III OPERATION OF CIVIL LIABILITY (TORT REFORM)
LEGISLATION
The potential
application of state and territory civil liability legislation to
survivors’ claims against institutions in the
tort of negligence is an
important consideration in respect of which the Royal Commission has made no
recommendations. This was no
doubt because the Royal Commission’s
recommendations were for statutory causes of action imposing institutional
liability for
deliberate conduct by others. Civil liability legislation across
Australian jurisdictions generally excludes causes of action in
respect of
deliberate conduct from the
legislation.[153] But given that
survivors of historical abuse will not have the benefit of any prospective
reform, consideration should be given to
the application of civil liability
legislation to historical claims which may be brought in battery or may depend
on causes of action
in negligence. There are various aspects of the civil
liability legislation[154] that,
because they are not uniform,[155]
would have differential effects on claims by survivors depending on the
jurisdiction in which claims were brought. Given the widespread
nature of
institutional child sexual abuse across Australia, it would be appropriate to
ensure that all claims would be decided on
the same common law principles. In
this Part we consider the civil liability provisions most likely to affect
claims concerning institutional
child sexual abuse: those dealing with the
liability of public authorities, claims for psychiatric injury and the
restrictions on
damages.
A Public Authority Defendants
In most Australian
jurisdictions,[156] civil
liability legislation makes special provision with regard to the liability in
negligence of public
authorities.[157] However, there
are significant jurisdictional differences between them. Generally they restrict
the circumstances in which public
authorities will be subject to a duty of care
and set out principles which the courts must consider on the issues of
imposition of
a duty of care on an authority, or breach of a duty of care by an
authority.[158] It has been
judicially recognised that in some cases these provisions produce the same
result as the application of common law
principles,[159] but that is not
so in all cases.
It will be the case that some institutional defendants
in negligence claims for child sexual abuse will be public authorities within
the definitions in the civil liability statutes. In New South Wales for example,
the definition of a public or other authority includes, among others, a
government department, a public health organisation or a public or local
authority constituted by or under
an
Act.[160] Notably, the New South
Wales provision would include government and non-government
schools.[161] In order to avoid
differential treatment of institutional defendants which are statutory
authorities, it would be desirable to ensure
that the relevant civil liability
legislation does not apply to institutional defendants in cases of child sexual
abuse.
B Psychiatric Injury
In most cases of child sexual abuse, the plaintiff’s damage
consists of psychiatric harm. Survivors of institutional child sexual
abuse may
wish to claim against an institution in the tort of negligence. In all
Australian jurisdictions[162]
except Queensland and the Northern Territory, civil liability legislation
governs claims in respect of negligently inflicted psychiatric
injury.[163] The provisions have
some application to all cases of psychiatric harm, whether pure mental harm or
mental harm that is consequent
on physical injury. While the legislation is not
uniform across jurisdictions, generally the effect is to restrict recovery for
pure
mental harm to recognised psychiatric
illness[164] and to limit the duty
of care not to cause mental harm to instances where it was foreseeable that a
person of normal fortitude might
suffer a recognised psychiatric illness if
reasonable care were not
taken.[165] The legislation is not
radically different from the Australian common law concerning the duty of care
not to cause mental harm,[166] but
it must necessarily include some subtle differences which will inevitably depend
on future judicial interpretation of the
provisions.[167]
In the
case of consequential mental harm it would be necessary under the legislation
for the plaintiff to establish a duty of care
in respect of the mental harm
independently of any duty of care in respect of the physical injury on which the
mental injury is consequent:
a separate duty of care in respect of the
consequential mental harm.[168]
This is not the case at common law where only one duty of care in respect of the
physical injury need be established. At common law
the chief issues for
determination in relation to a consequential mental injury would be questions of
causation and
remoteness.[169]
Differential
treatment of Australian plaintiffs could be avoided by ensuring that state and
territory civil liability legislation
does not apply to claims in respect of
psychological injury caused by institutional child sexual abuse.
C Restrictions on Damages
Civil liability legislation imposes severe limitations on personal injury
damages. The legislation excludes certain causes of
action[170] and in New South Wales
for example, the exclusions include cases where liability arises from ‘an
intentional act that is done
by the person with the intent to cause injury or
death or that is sexual assault or other sexual misconduct committed by the
person’.[171] So in New
South Wales, a plaintiff’s claim in respect of a sexual battery against a
perpetrator will not be subject to the
very significant restrictions on personal
injury compensatory damages imposed by Part 2 of the New South Wales Act or the
prohibition
on the award of exemplary, punitive and aggravated damages in
section 21 of the New South Wales legislation which applies in respect
of
negligent conduct alone. In Tasmania, Victoria and Western Australia the
position is similar to that in New South
Wales.[172]
An important
issue is whether the restrictions imposed by the legislation would apply in a
case where an institutional defendant is
sued on the basis that it is
vicariously liable for a deliberate sexual battery committed by another. A claim
against that other
person is clearly excluded from the operation of the
legislation in New South Wales by virtue of section 3B(1)(a). The wording of
the
section might suggest that only the liability of the perpetrator is excluded
because of the reference to ‘an intentional
act that is done by the
person ... that is sexual assault committed by the
person’.[173] The New
South Wales Court of Appeal interpreted the section in Zorom Enterprises Pty
Ltd v Zabow[174] and held that
section 3B(1) ‘does not differentiate in its operation between direct and
vicarious liability’ and applies
to exclude the operation of the Civil
Liability Act 2002 (NSW) where a defendant is vicariously liable for
the intentional tort of an
employee.[175] The position in
other Australian jurisdictions may remain somewhat uncertain.
In a
negligence claim for breach of a duty of care by a survivor against an
institutional defendant, the substantial restrictions
on personal injury
compensatory damages imposed by the civil liability legislation would apply.
Various Australian jurisdictions
restrict compensatory damages by imposing caps
on damages for economic and non-economic loss, gratuitous services, and interest
as
well as thresholds for general
damages.[176] These would produce
major inconsistencies and inequality resulting in under-compensation in many
cases and differential compensation
among survivors across
Australia.[177] The problem would
be obviated by a clear statutory statement to the effect that a relevant state
or territory civil liability enactment
will not apply in respect of any claim
(be it in trespass to person, negligence, or any other cause of action) for
damages by survivors
of institutional child sexual abuse. Common law principles
concerning assessment of damages should apply to these cases.
D Aggravated and Exemplary Damages Should Be Available in Child Sexual Abuse Cases
Consideration should be given to the availability of aggravated and
exemplary damages for several reasons. Child sexual abuse is an
egregious abuse
of human rights.[178] The conduct
of perpetrators and those institutions that took few if any precautions against
abuse, and in many instances ignored
credible reports of abuse, was
reprehensible, with the gravest consequences for victims. The common law courts
have long recognised
that a ‘right must be supported by an effective
sanction’.[179]
Survivors
are able to pursue aggravated and exemplary damages awards in trespass to person
claims for sexual battery and other intentional
torts against perpetrators.
Though without statutory reform, aggravated and exemplary damages will not
ordinarily be available in
some states against institutional defendants where
the cause of action is in the tort of negligence, because of tort reform
legislation.[180]
Aggravated
damages are a form of general damages awarded as compensation for
‘high-handed, malicious, insulting or
oppressive’[181] treatment
or victimisation by
humiliation[182] or emotional
distress.[183] Aggravated
damages are provided as compensation for intangible as well as substantive
injury caused by the circumstances and manner
of the defendant’s
wrongdoing.[184] Exemplary damages
are punitive in nature. Whereas aggravated damages focus on factors such as
humiliation, embarrassment, shame,
and emotional distress of the plaintiff,
exemplary damages focus on the culpable behaviour of the defendant and are
awarded as punishment,
retribution and
deterrence.[185] Exemplary damages
may be awarded where a defendant’s conduct is ‘high-handed,
insolent, vindictive or malicious’
or where the defendant has displayed a
‘contumelious disregard of the plaintiff’s
rights’.[186] The sexual
abuse of a child in an institution is such a grievous human rights abuse that
common law principles might very often indicate
the imposition of punitive
damages. Exemplary damages have been awarded in many different tortious causes
of action in Australia
including in cases of
battery[187] and false
imprisonment.[188] The High Court
has held that an award of both aggravated and exemplary damages is allowable and
does not constitute a ‘double
punishment’ where the quantum of each
is not disproportionate, because the two are different in
kind.[189]
The High Court
has explicitly held that the purpose of exemplary damages is to punish and deter
a defendant.[190] Accordingly, an
award of exemplary damages may not be made where a defendant has already been
convicted and subjected to a ‘substantial’
punishment for a criminal
offence arising from the same conduct for which exemplary damages are sought.
That would be a double
punishment.[191] The situation is
uncertain, however, where there is only the possibility of later criminal
prosecution which has not been commenced
or where a prosecution is not concluded
at the time of a civil trial. There is also the possibility that a civil court
might consider
whether a non-custodial sentence is ‘substantial’ so
as to preclude the imposition of an exemplary damages
award.[192] Justice Kirby has held
that an award of exemplary damages is discretionary so that a criminal
conviction does not automatically bar
an award. It must however be taken into
account given that the object of exemplary damages is to punish a
defendant.[193]
Where an
institutional defendant is vicariously liable for the deliberate tortious
conduct of the perpetrator, exemplary and aggravated
damages should, on current
authority, be available against the institution in most
states.[194] However, such damages
will not be available against institutional defendants in respect of negligence
liability. Legislative reform
allowing an award of aggravated and/or exemplary
damages on common law principles against institutions in cases of negligently
inflicted
child sexual abuse would be necessary given the present restrictions
under state legislation.
Whether it would be appropriate to legislate
retrospectively to enable the award of aggravated and exemplary damages on
common law
principles for past abuse claims in the tort of negligence is a
difficult question. To do so would increase potential liability of
institutions
very significantly where the number of maintainable claims would increase in the
event that suggested reforms regarding
abolition of limitation periods and
identification of defendants were implemented. The possibility of such damages
awards in respect
of future cases would be a powerful deterrent and incentive
for institutions to ensure as far as possible that future child sexual
abuse
does not occur.
E Apologies
There is increasing recognition of the value of an apology in civil
proceedings especially where the plaintiff has suffered an abuse
of human
rights.[195] At common law the
courts do not have power to order apologies, but an apology can be given on
settlement of a claim. The present
common law position is that admissions of
regret or apologies will not automatically constitute admissions of
liability.[196] Parliaments
clearly acknowledge the merit of an apology as one in a suite of remedies in a
range of civil proceedings.[197]
In most Australian jurisdictions an apology in a claim in the tort of negligence
is not admissible as an admission of
liability.[198]
The Royal
Commission has not recommended court-ordered apologies but has recommended that
institutions should provide direct personal
responses to survivors, including an
apology, on request by a
survivor.[199] A statutory
requirement for apologies in cases of institutional child sexual abuse might be
considered. While a court-ordered apology
might not have the same value as a
genuine apology freely given, a court- or statute-mandated apology would serve a
worthwhile purpose
in providing to a survivor a statement of acknowledgement and
regret for abusive treatment.
IV IDENTIFYING A PROPER DEFENDANT WITH ASSETS TO MEET A
CLAIM
A Faith-Based Institutions with Statutory Property Trusts
The Royal Commission’s Report details the disproportionate numbers
of abuse cases in faith-based
institutions.[200] One of the
major impediments to claims by these
plaintiffs[201] is identifying any
corporate entity in existence at the time the abuse occurred and still existing
that has assets available to meet
a judgment. In many instances survivors were
abused in institutions that were unincorporated associations though they were
part of
a mainstream church and conducted by clergy or other religious personnel
or lay members of the church. While there existed a hierarchical
church
authority and while institutions were situated on church real estate, there was
no corporate structure and no legal relationship
of responsibility between
church corporations or trusts and the institution or church members responsible
for the abuse.[202]
It
seems manifestly unjust that survivors of abuse in faith-based institutions have
no opportunity to recover compensation at common
law from long-established
religious groups having very significant assets. Yet, those assets are
unavailable to meet a judgment and
the religious group cannot be made a party to
litigation because of its lack of corporate personality. These same churches
have the
benefit of perpetual succession in relation to property ownership under
state and territory
legislation.[203]
The
decision of the New South Wales Court of Appeal in Trustees of the Roman
Catholic Church v Ellis
(‘Ellis’)[204]
illustrates the difficulties facing survivors of child sexual abuse by persons
associated with unincorporated religious bodies. In
that case the plaintiff
joined as a defendant the Trustees of the Roman Catholic Church for the
Archdiocese of Sydney, a statutory
body corporate with perpetual succession
established under the Roman Catholic Church Trust Property Act
1936 (NSW).[205] The
plaintiff’s case was that the Trust owned the church property for the
Archdiocese of Sydney including the church premises
at Bass Hill where the
plaintiff was sexually abused by the parish priest and that ‘as the
permanent corporate entity or interface
between the spiritual and temporal sides
of the Church [it was] legally responsible for the Acts and omissions of the
Archbishop
and his
subordinates’.[206] The
evidence was that the Trustees had no role in the appointment or oversight of
priests.[207] The
plaintiff’s claim against the Trustees failed in the Court of Appeal where
it was held that the statutory recognition of
the Trust as capable of being sued
in its corporate name did not render the Trust a defendant ‘responsive in
law to any and
every claim for legal redress that a person might wish to bring
against a Catholic in the
Archdiocese’.[208]
Furthermore, it was held that the fact that the Trustees held property for and
on behalf of ‘the Church’ did not render
the property available to
meet any liability ‘associated with Church
activities’.[209]
If
survivors are to be afforded a remedy in tort it should be a straightforward
matter for them to identify and sue a corporate entity
that has the financial
capacity to meet claims. A potential solution to this problem would be
legislation making church property
trusts the proper defendants to claims for
child sexual abuse for which the church is alleged to be liable, and to make
that proper
defendant liable for the tortious conduct of the perpetrators of the
abuse and also for the negligent failures of the faith-based
institutions to
protect children in their care. The assets of the church property trusts should
be made available to meet liability
of the church in respect of any claim for
institutional child sexual abuse.
The Royal Commission’s
Consultation Paper suggested that legislation conferring the benefit of
succession to property owned by religious bodies could be amended to provide
that liability of the religious body for institutional child sexual abuse could
be met from the assets of the trust. Further, the
trust could be made the proper
defendant to claims of child sexual abuse against the religious
body.[210]
A non-government
Bill introduced in the New South Wales Parliament in 2014 provides an example of
the type of provision that would
ensure that a plaintiff would have the
opportunity to sue in respect of abuse suffered in a faith-based institution
where there is
no corporate defendant having available assets to meet a
judgment. The Roman Catholic Church Trust Property Amendment (Justice for
Victims) Bill 2014 (NSW)[211]
dealt specifically with the Catholic Church. In summary, it provided that a
plaintiff claiming damages for sexual abuse by a member
of the Church’s
clergy (or other person related to the Church) while the plaintiff was in the
care of the Church could join
as a defendant to proceedings the body corporate
established under the Roman Catholic Church Trust Property Act 1936 (NSW)
and the trustees of Church trust property. Further, a body corporate established
under the Roman Catholic Church Communities’ Lands Act 1942
(NSW) which employed the abuser or that was trustee of land of a community to
which the abuser belonged could be joined as a defendant.
These corporations and
their trustees were to be jointly and severally liable as if they were the
abuser.[212] The provisions were
to apply retrospectively.[213] The
Bill further provided that judgment debts for sexual abuse by Church clergy,
officials or teachers could be required to be paid
from trust
funds.[214] While the New South
Wales Bill dealt solely with liability of the Catholic Church, a general
provision of this type would be appropriate
to all cases of faith-based
institutions.
The final recommendations of the Royal Commission on this
issue do not go so far as to recommend that in all cases, property trusts
are to
be the ‘proper defendants’ to proceedings against faith-based
organisations. Rather, the Commission has recommended
a kind of default setting
whereby if any institution with which a property trust is associated fails to
nominate a proper defendant
with sufficient assets to meet a claim when a
survivor wishes to litigate, then the property trust is the proper defendant. In
such
circumstances the liability of the institution could be met from the assets
of the trust.[215] While the
Commission’s recommended legislation would achieve the desired result, it
relies on compliance by religious organisations.
If they were reluctant or tardy
to nominate a suitable entity as defendant, plaintiffs would be disadvantaged by
delay and procedural
difficulties. Legislation making church or religious
property trusts the ‘proper defendant’ from the outset is the surest
way to preclude the problems illustrated by Ellis.
B Difficulties in Identifying a Proper Defendant in Institutions Other than Faith-Based Institutions
The Royal Commission’s recommendation concerning the nomination of
proper defendants applies to institutions with which property
trusts are
associated. However, there would be many unincorporated institutions or
associations having no association with property
trusts. Under the legislation
recommended by the Royal Commission, they would not be subject to any
requirement to nominate proper
defendants. There are many institutions or
associations which are smaller and less hierarchically organised than their
faith-based
counterparts, but which are no less responsible for the wellbeing of
children in their care or control. In such cases, the lack of
a corporate entity
to sue is, however, only the threshold problem. Many associations (particularly
small interest groups or sporting
or other clubs) may have no assets which would
be available to meet a judgment, even if there were an entity to be
sued.
One approach would be to require that in future such entities carry
insurance or self-insure with declared assets against claims for
civil liability
for child sexual abuse by employees or associates or volunteers. Such a proposal
was considered by the Royal Commission
in its Redress Consultation
Paper[216] and a similar
solution has also been proposed by the Parliament of Victoria Family and
Community Development Committee in its Betrayal of Trust
Report.[217]
The Royal
Commission accepted that there may be ‘some merit’ in the Victorian
Parliament Family and Community Development
Committee’s recommendation
that, where the Victorian Government funds non-government organisations or
provides tax exemptions
or other entitlements, the government consider requiring
them to be incorporated and adequately
insured.[218] The Commission was
ultimately persuaded that compulsory incorporation and insurance of small
community organisations would potentially
deter people from forming small
associations, thereby ‘losing the various sporting, cultural and other
activities they provide
in the
community’.[219] For this
reason the Royal Commission declined to recommend that any organisations
should be required to
incorporate.[220] The Royal
Commission did however suggest that where unincorporated bodies receive direct
or indirect government funding to provide
children’s services, they might
be required to
insure.[221]
To ensure
access to compensation by survivors, the preferable approach would be to require
incorporation of bodies which undertake
responsibility for the physical welfare
or spiritual, psychological or emotional guidance of children. This is
especially so in the
case of organisations that are funded by government or
provided with tax exemptions and other entitlements. Exemptions could be allowed
for small organisations (sporting and other clubs with small memberships, for
example). The requirement for compulsory incorporation
and insurance could be
limited to specific types of organisations which provide particular types of
children’s services, as
was suggested by the Royal Commission in its
Redress Consultation
Paper.[222]
A statutory
requirement for incorporation of at least some of these non-government
organisations would ensure that survivors have
the capacity to easily identify
and sue a corporate entity. The Royal Commission did not discuss the reasons why
such a proposal
could not be framed in a way that provided the benefits of
incorporation and insurance, but it was apparently to avoid deterring
desirable
social activities among sporting and smaller associations.
V STATUTORY LIMITATION PERIODS
The threshold issue for
most survivors wishing to pursue a claim at common law is the expiration of a
limitation period, which is
a major obstacle. It is well documented that many
survivors take many years to disclose their
abuse.[223] The Royal Commission
found that the average time taken by those who attended its sessions to disclose
their sexual abuse was 22 years
from the date of the
abuse.[224]
A Limitation Periods for Personal Injury
All Australian states and territories impose limitation periods for
claims in respect of personal
injury.[225] Following the
recommendations of the Ipp
Report[226] in 2002, some
Australian jurisdictions[227]
enacted limitation provisions that generally follow the recommendations, though
they are not uniform.[228] Broadly
speaking, pursuant to these provisions the limitation period of three years
commences upon the date of ‘discoverability’
of the cause of action
with a ‘long-stop’ period of 12 years running from the date of the
event on which the claim is
based. In some instances the courts have discretion
to extend the long-stop period to the expiry of a period of three years from
the
date of discoverability. Limitation periods may be suspended during any
incapacity of the plaintiff, including minority or
disability.[229] Though, it should
be noted that in New South Wales and Victoria the provisions concerning children
are particularly severe with the
limitation period continuing to run during
minority in most cases where a child has a parent or guardian, except where
minors were
injured by the parent, guardian or close associate of the parent or
guardian.[230] Under present
limitation legislation around Australia, plaintiffs whose claims are statute
barred need to persuade a court that it
is just and reasonable to grant an
extension of time in which to bring
proceedings.[231]
There are
important rationales for the imposition of limitation periods: that delays in
commencing proceedings lead to loss of evidence;
that it may be oppressive to
defendants to allow distant past claims to be maintained; that defendants should
be able to arrange
their affairs without indefinite uncertainty concerning
potential liability; and that public interest requires that disputes should
be
settled expeditiously.[232] Yet
the law must maintain a balance between the rights of defendants and those of
plaintiffs[233] so that the
limitation period does not operate to shut out claims unjustly.
B Effect of Limitation Periods in Institutional Child Sexual Abuse
Numerous cases illustrate the potency of the limitation defence and the
frequency with which it is employed against plaintiff survivors
of childhood
sexual abuse.[234] In Ellis v
Pell[235] the plaintiff was
successful in obtaining an extension of time in which to sue the second
defendant.[236] Mr Ellis was
required to provide much detailed evidence of his psychiatric injury and he was
cross-examined for more than three days
during the
hearing.[237] The cases illustrate
how arguments about limitation periods can be hard-fought by defendants and
distressing for claimants. It is
also clear that the institutional childhood
sexual abuse cases offer little guidance as to the likely outcome.
The
impact of statutory limitation periods on child sexual abuse cases is
disproportionate to other civil claims because of the particular
circumstances
of adult survivors of child sexual abuse who so often are unable to disclose
their abuse or to seek compensation for
many years afterwards. Further, the
psychiatric injuries caused by the abuse are the very reason that the survivors
have been unable
to commence proceedings earlier: effectively the defendants are
a significant cause of the delay. In very many cases of institutional
child
sexual abuse, adult plaintiffs will need to make successful applications for
extension of limitation periods before any issue
in the substantive causes can
be tried.[238] The process is
expensive, uncertain, carries a high risk of an unfavourable costs order and
takes a further emotional and psychological
toll upon a likely already fragile
plaintiff survivor.
A common argument against removing limitation periods
entirely is the risk that delay will prejudice the ability of a defendant to
defend proceedings where critical evidence has been lost or key witnesses are no
longer available. Yet, the removal of the limitation
period would not abrogate
the statutory power of courts to stay, by order, any proceedings before the
court, either permanently or
until a specified
day.[239] Supreme courts have
inherent power to stay proceedings which are an abuse of
process[240] permanently where
there cannot be a fair trial due to delay in commencing the
proceedings.[241] This inherent
power of the courts mitigates any concern about disadvantage to institutional
defendants.[242]
C Legislative Reforms to Date
In some Australian legislatures there is now recognition that the demands
of justice for survivors of child sexual abuse require alteration
to existing
statutory limitation regimes. In New South Wales the Limitation Amendment
(Child Abuse) Act 2016 (NSW) removes altogether the limitation period
for damages claims for death or personal injury arising from child abuse. The
Act
defines ‘child abuse’ as abuse perpetrated against a person
under 18 years of age, that is sexual abuse, serious physical
abuse, and/or
other abuse perpetrated in connection with sexual or serious physical
abuse.[243] Importantly, the Act
preserves any inherent jurisdiction of the courts including the court’s
powers to stay proceedings where
a defendant would be unduly prejudiced by
delay. In Victoria, the Limitation of Actions Amendment (Child Abuse) Act
2015 (Vic) retrospectively removes limitation periods for causes of action
for damage resulting from physical or sexual abuse (and consequent
psychological
damage) when the plaintiff was a
minor.[244]
D The Royal Commission’s Recommendation
The Royal Commission has recommended that state
and territory governments should retrospectively remove limitation periods in
respect
of all claims for personal injury resulting from institutional childhood
sexual abuse.[245] This
recommendation is consistent with the approach in other Australian and overseas
common law jurisdictions.[246]
There is no limitation period in relation to criminal prosecution for the abuse
which causes the injuries for which adult survivors
seek compensation. It has
been argued that this anomaly should be a persuasive factor enabling survivors
to bring civil claims out
of
time.[247]
The removal of limitation periods altogether[248] is a straightforward and effective method of providing plaintiffs with a pathway to a tortious remedy. It obviates the need for expensive and uncertain interlocutory proceedings where defendants plead the limitation defence and seek to have proceedings struck out. Plaintiffs would not be required to provide evidence of their psychological damage at the interlocutory stage, and defendants’ legal attention would shift to the merits of the substantive case rather than a limitation defence. Existing judicial powers to order the stay of proceedings, or to strike out or dismiss claims without prospects of success, provide protection to defendants against prejudicial litigation in respect of distant past events.
VI COMMON LAW RIGHTS UNDER A REDRESS SCHEME
Finally, we consider whether, if a redress
scheme is implemented, survivors of past abuse should retain their common law
rights if
they receive payment under the scheme. The Royal Commission has
recommended that a single national redress scheme be established
by the
Australian government with the cooperation of states and
territories.[249] The Royal
Commission recommends that an applicant receiving a payment pursuant to the
scheme be required to release the scheme and
the contributing government and the
relevant institution from any further liability for the
abuse.[250] The applicant would be
required to sign a deed of release and would be provided with limited
fixed-price legal advice funded by the
scheme before accepting the scheme offer
and signing the release.[251] Of
course, it is a basic tenet of the common law that a person should not be
compensated twice for a single loss and clearly double
recovery should be
prohibited. But it is not necessary to require survivors effectively to make an
election between a claim against
a redress scheme and a common law claim to
avoid double compensation. A fairer arrangement would be to require a
survivor who had
obtained a payment under a redress scheme to refund the payment
upon subsequent recovery of common law damages in respect of the
same abuse for
which the scheme payment was
received.[252]
The
Royal Commission was persuaded that survivors should be required to give up
their common law rights because the scheme was seen
as an alternative to
litigation rather than an addition to it. Given that the Commission has
stated that the payments pursuant to
the proposed redress scheme
‘should not attempt to be fully compensatory or to replicate common law
damages’,[253] there is an
apparent contradiction where receipt of a payment under the scheme
would extinguish a claimant’s common law right
to sue for damages,
especially as the scheme would not offer sums comparable in value to common law
damages.[254]
The Royal
Commission was further influenced by the practical consideration of increasing
the likelihood that institutions and insurers
would respond favourably to the
proposal for a scheme if payments extinguished common law
rights.[255] Such an approach
may be pragmatic but it does not necessarily best serve the interests of
fairness for survivors of abuse.
The Commission emphasised the likely
increased costs to the scheme if common law rights were preserved because
the Actuaries Institute
had submitted that the costs of
‘no-fault schemes’ increased where common law entitlement
coexisted.[256] In the context of
recommending a universal scheme for disability care and support, the Australian
Productivity Commission emphatically
stated that avoidance of double
compensation involves ‘significant, unavoidable administrative
complexities and high
costs’[257] where an injured
person receives financial compensation for injury as well as having access to
taxpayer-funded social welfare services.
But the redress scheme proposed
for survivors of institutional child sexual abuse is not a
universal ‘no-fault liability scheme’ in the same category
as the National Disability Insurance Scheme or workers compensation
schemes or
motor accident compensation schemes. It is an entirely different
species of smaller scheme that is not to be entirely
funded by government. It
will provide single payments of limited financial redress to a finite
number of victims of past wrongdoing,
as well as some counselling and
psychological services. It is envisaged that the scheme will eventually
close,[258] with the number of
potential claimants estimated at 60
000.[259] In this context the
arguments concerning efficiency, complexity of administration and the high
expense of avoiding double compensation
are not so persuasive because the scale
is much reduced. Any administrative and cost burden
of avoidance of double compensation could
be borne by the scheme
rather than eliminated altogether by requiring survivors of abuse to forego
their common law rights. In the
event of a common law judgment or settlement,
double compensation would be avoided by a refund or set-off arrangement in
respect
of any prior redress scheme payment and the plaintiff/applicant would
cease to be eligible for counselling and psychological services
through the
redress scheme.
VII CONCLUSION
Survivors of
institutional child sexual abuse have long been faced with procedural and
doctrinal hurdles making proceedings for compensation
arising from extremely
difficult circumstances only harder and more uncertain. There is now the
opportunity for governments to implement
reforms to clarify and reform the law.
It will be up to the governments of Australia to agree on the form of
institutional liability
and additional measures to ensure better institutional
practices and greater accountability for the future. To deliver effective
and
meaningful reform the preferable course is for the implementation of a
package of specific, uniform legislative reforms. Reforms which provide
for the retrospective removal of limitation periods, a clear basis
for
institutional liability, dual vicarious liability, consequential amendments to
civil liability provisions, and the introduction
of reforms to address the
identification of proper defendants in faith-based institutions and other
unincorporated associations,
would ameliorate the most significant hurdles that
currently stand in the way of compensation from institutions for child sexual
abuse.
The Royal Commission’s recommendations for statutory
liability aim to clarify the cause of action on which survivors can claim
compensation from institutions. This is much-needed reform given the current
state of the common law of tort. The proposed extension
of liability to a
greater range of workers associated with institutions would be a significant and
advantageous development for Australian
law. However, there are unanswered
questions about the form and scope of the proposed statutory liabilities. That
said, these are
matters which can be resolved in drafting the reforms: the more
pressing concern will be the collective political will to ensure
that statutory
reforms to institutional liability will be passed. However, unless some
substantive reforms are given retrospective
operation, the reforms will assist
future victims only. There is a strong argument to be made that Australian
survivors of past abuse
should not be worse off than survivors in other common
law jurisdictions.
* PhD, Lecturer, Faculty of Law, University of Technology Sydney.
** LLB, LLM, Senior Lecturer, Faculty of Law, University of Technology Sydney.
The authors would like to thank Emeritus Professor Terry Carney, Sydney University, for his comments and insights on an earlier draft of this article. They also thank the anonymous referees for their helpful suggestions.
1 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) (‘Redress and Civil Litigation Report’).
[2] Ibid 5.
[3] The proposed redress scheme is intended to be a national scheme funded by relevant institutions with state and federal government funding as a last resort. It is estimated that it would cost approximately $4.3 billion, modelled on meeting claims by up to 60 000 existing survivors: ibid 33. The Turnbull Government has announced that it will ‘lead the development of a national approach to redress’ and that it will ‘soon’ commence discussions with the states and territories: George Brandis and Christian Porter, ‘Developing a National Approach to Redress for Survivors of Institutional Child Sexual Abuse’ (Joint Media Release, 29 January 2016).
[4] Redress and Civil Litigation Report, above n 1, 6.
[7] Richard L Abel, ‘A Critique of Torts’ (1990) 37 UCLA Law Review 785; John Smillie, ‘The Future of Negligence’ (2007) 15 Torts Law Journal 300; Terence G Ison, The Forensic Lottery: A Critique of Tort Liability as a System of Personal Injury Compensation (Staples Press, 1967); Peter Cane, Atiyah’s Accidents, Compensation and the Law (Cambridge University Press, 7th ed, 2006); Productivity Commission, Disability Care and Support: Inquiry Report, Report No 54 (2011) vol 1, ch 17.
[9] The perpetrator may be deceased, imprisoned or bankrupt so prospects of recovering compensation can be very low. Therefore, avenues for compensation from the institution in which the abuse occurred become an important alternative.
[10] Bringing Them Home Report, above n 5, ch 14.
[11] The most serious of those obstacles are: the effects of limitation statutes (Cubillo v Commonwealth [No 2] [2000] FCA 1084; (2000) 103 FCR 1 (‘Cubillo’); Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 (‘Williams’)); evidentiary problems (Cubillo [2000] FCA 1084; (2000) 103 FCR 1; Williams (1994) 35 NSWLR 497) though the plaintiff overcame many of these obstacles and was successful in State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331); and establishing vicarious liability (Cubillo [2000] FCA 1084; (2000) 103 FCR 1).
[12] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1; Cubillo v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455; Williams v Minister, Aboriginal Land Rights Act 1983 [1999] NSWSC 843; (1999) 25 Fam LR 86. See generally Tony Buti, ‘Removal of Indigenous Children from Their Families: The Litigation Path’ (1998) 27 University of Western Australia Law Review 203; Antonio Buti, ‘The Stolen Generations and Litigation Revisited’ [2008] MelbULawRw 13; (2008) 32 Melbourne University Law Review 382; Randall Kune, ‘The Stolen Generations in Court: Explaining the Lack of Widespread Successful Litigation by Members of the Stolen Generations’ [2011] UTasLawRw 2; (2011) 30 University of Tasmania Law Review 32.
[13] Redress and Civil Litigation Report, above n 1, 5.
[14] Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA).
[15] Redress and Civil Litigation Report, above n 1, 511, recs 94–5.
[16] Ibid 459, recs 85–8.
[17] Also referred to as the ‘Salmond’ test, referring to its articulation in Salmond on Torts in 1907. This was also the standard test in Canada: see Canadian Pacific Railway Co v Lockhardt [1942] AC 591 (before it was expanded in Bazley v Curry 1999 CanLII 692 (SCC); [1999] 2 SCR 534 (‘Bazley’)), and in England: see Trotman v North Yorkshire County Council [1999] LGR 584(‘Trotman’) (Trotman was overruled by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215 where the scope of the ‘course of employment’ test was reconsidered).
[18] R F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts (Sweet & Maxwell, 21st ed, 1996) 443; Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 (‘Deatons’).
[19] Such as theft, fraud, and physical assault.
[20] [1949] HCA 60; (1949) 79 CLR 370.
[21] Ibid 378 (Latham CJ).
[22] Ibid 381 (Dixon J); approved and applied in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, 537 [46] (Gleeson CJ), 591–2 [231] (Gummow and Hayne JJ) (‘Lepore’). See also Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354, 360 [21] (Basten JA).
[23] [2003] HCA 4; (2003) 212 CLR 511.
[24] Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, 44–5 [57] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
[25] Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; (2013) 85 NSWLR 335, 341 [14] (Leeming JA).
[26] See, eg, P S Atiyah, Vicarious Liability in the Law of Torts (Butterworths, 1967) 333.
[27] Ibid.
[28] (1997) 188 CLR 313, 366–7.
[29] [2001] HCA 44; (2001) 207 CLR 21, 53–4. Justice McHugh also referred to Justice Colin Phegan, ‘Employers’ Liability for Independent Contractors in Tort Law’ (2000) 4 Judicial Review 395, who said that this case brings into sharp relief the ‘ramifications for vicarious liability law of the progressive vertical disintegration of employment’: at 420.
[30] See especially Trustees of the Roman Catholic Church v Ellis (‘Ellis’) [2007] NSWCA 117; (2007) 70 NSWLR 565.
[31] See, eg, Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1, 17 [47] (Lord Phillips) (‘Catholic Child Welfare’), approved and discussed in Cox v Ministry of Justice [2016] UKSC 10; [2016] 2 WLR 806, 814 [24] (Lord Reed SCJ) (Lord Neuberger P, Baroness Hale DP, Lord Dyson MR and Lord Toulson SCJ agreeing). In Canada see, eg, John Doe v Bennett [2004] 1 SCR 436, 449 [27] (McLachlin CJ).
[32] 1999 CanLII 692 (SCC); [1999] 2 SCR 534.
[33] Ibid 559 [41].
[34] Ibid 556 [36].
[35] Ibid.
[36] Ibid 560 [42] (emphasis in original). While this might appear to be attributing blame to the institution, the Court did not find wrongdoing by the institution or require it to found the claim based on vicarious liability. Instead, references to the fact that the employer ‘increased the risk of harm’ go to determining the threshold or circumstances in which it is just and fair to impose liability on the institution for the tortious wrongdoing of its employee in the absence of personal fault for the particular tort in question. However, the creation of risk can also lead to direct liability: see EB v Order of the Oblates of Mary Immaculate of the Province of British Columbia [2005] 3 SCR 45, 64 [27] (Binnie J).
[37] Bazley 1999 CanLII 692 (SCC); [1999] 2 SCR 534, 545 [15].
[38] Ibid.
[39] Ibid 560 [3]. These principles in relation to vicarious liability have been approved by Canadian courts in numerous cases subsequently: see, eg, Jacobi v Griffiths [1999] 2 SCR 570; Blackwater v Plint [2005] 3 SCR 3.
[40] [2002] 1 AC 215, 227 [20] (Lord Steyn) (‘Lister’) (emphasis added). In so doing it overruled ST v North Yorkshire County Council [1999] LGR 584. In this case, Butler-Sloss LJ held that sexual assaults were ‘far removed from an unauthorised mode of carrying out a teacher’s duties’: at 591. Chadwick LJ also found that it was ‘impossible to hold that the commission of acts of indecent assault can be regarded as a mode – albeit an improper or unauthorised mode – of doing [what he was employed to do]’: at 592–3.
[41] In Canada, in Jacobi v Griffiths [1999] 2 SCR 570, decided concurrently with Bazley, the Supreme Court reached the opposite result to that in Bazley, leading some to question how easily the new test can be applied. In Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366, Lord Nicholls observed that the ‘close connection’ test, applied in Lister v Hesley Hall Ltd ‘focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm of employer rather than the third party who was wronged’: at 377–8 [25]. See also Paula Giliker, ‘Making the Right Connection: Vicarious Liability and Institutional Responsibility’ (2009) 17 Torts Law Journal 35.
[42] [2012] UKSC 56; [2013] 2 AC 1.
[43] [2016] UKSC 11; [2016] 2 WLR 821 (‘Mohamud’).
[44] Catholic Child Welfare [2012] UKSC 56; [2013] 2 AC 1, 26 [86]–[87].
[45] Mohamud [2016] UKSC 11; [2016] 2 WLR 821, 835 [45] (Lord Toulson SCJ).
[46] Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258, 271 (Mason J); Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 686–7 (Mason J). See also Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313.
[47] John Murphy, ‘The Liability Bases of Common Law Non-delegable Duties – A Reply to Christian Witting’ [2007] UNSWLawJl 4; (2007) 30 University of New South Wales Law Journal 86, 99.
[48] Lepore [2003] HCA 4; (2003) 212 CLR 511, 551 [99] (Kirby J).
[49] Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258.
[50] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672.
[51] Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542.
[52] Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537, 583 [23] (Lord Sumption SCJ).
[53] See, eg, Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258.
[54] Redress and Civil Litigation Report, above n 1, 490.
[55] [2003] HCA 4; (2003) 212 CLR 511.
[56] [2001] NSWCA 112; (2001) 52 NSWLR 420.
[57] [2001] QCA 295; (2001) Aust Torts Reports 81-626.
[58] Lepore v New South Wales [2001] NSWCA 112; (2001) 52 NSWLR 420, 432 [61].
[59] Ibid 443 [109]. His Honour noted the submission made that such a duty as proposed would render the employer liable if say, a nurse decided to carry out an ad hoc euthanasia in a hospital, or if a teacher murdered a student, or if senior counsel’s clerk shot his receptionist.
[60] Ibid 443 [107].
[61] See Lepore [2003] HCA 4; (2003) 212 CLR 511, 535 [38] (Gleeson CJ), 601 [265] (Gummow and Hayne JJ), 624 [339] (Callinan J).
[62] Ibid 601 [266].
[63] Ibid 624 [340].
[64] Ibid 531–2 [31].
[65] Ibid 571–2 [161].
[67] Lepore [2003] HCA 4; (2003) 212 CLR 511, 594 [239] (Gummow and Hayne JJ), 625 [342] (Callinan J).
[68] Ibid 546 [74] (Gleeson CJ), 561 [130] (Gaudron J).
[69] Ibid 620 [324].
[70] Ibid 546 [74].
[71] Ibid.
[72] Ibid 547 [78].
[73] Ibid.
[74] Ibid 561 [130].
[76] Redress and Civil Litigation Report, above n 1, 77, rec 89. See also at 489–91.
[77] Ibid.
[78] Ibid 490.
[79] Ibid 493.
[80] Ibid.
[81] Ibid 491.
[82] Ibid 488–93.
[83] Ibid 493.
[84] See also Ewan McKendrick, ‘Vicarious Liability and Independent Contractors – A Re-examination’ (1990) 53 Modern Law Review 770; Hugh Collins, ‘Independent Contractors and the Challenge of Vertical Disintegration to Employment Protection Laws’ (1990) 10 Oxford Journal of Legal Studies 353.
[85] Bazley 1999 CanLII 692 (SCC); [1999] 2 SCR 534, 560 [42] (McLachlin J) (emphasis added).
[86] Ibid (emphasis in original).
[87] Ibid 556 [36].
[88] Ibid 561 [42] (McLachlin J).
[90] (2005) 258 DLR (4th) 385, [40], approved in EB v Order of the Oblates of Mary Immaculate of the Province of British Columbia [2005] 3 SCR 45, 52 [3] (Binnie J).
[91] Catholic Child Welfare [2012] UKSC 56; [2013] 2 AC 1, 26 [86]–[87] (Lord Phillips).
[92] Bazley 1999 CanLII 692 (SCC); [1999] 2 SCR 534, 560 [42] (McLachlin J), quoted in Catholic Child Welfare [2012] UKSC 56; [2013] 2 AC 1, 22 [64] (Lord Phillips).
[93] Redress and Civil Litigation Report, above n 1, 490 (emphasis added).
[94] Ibid.
[95] Bazley 1999 CanLII 692 (SCC); [1999] 2 SCR 534.
[96] Lister v Hesley Hall Pty Ltd [2002] 1 AC 215; Catholic Child Welfare [2012] UKSC 56; [2013] 2 AC 1.
[97] Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd [2002] HKLRD 884.
[98] Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2011] SGCA 22.
[99] [2014] UKSC 45; [2015] AC 250, 273 [45].
[100] [2014] NSWCA 266; (2014) 87 NSWLR 609, 626 [71].
[102] These included: whether ‘an employee is permitted or required to be alone with a child for extended periods of time’; supervising activities such as bathing or toileting or permitting physical contact with intimate body zones; putting the employee in a position of intimacy with and power over the child (which ‘may enhance the risk of the employee feeling that he or she is able to take advantage of the child and the child submitting without effective complaint’); encouraging ‘the employee to stand in a position of respect’ and encouraging the child to emulate or obey: 1999 CanLII 692 (SCC); [1999] 2 SCR 534, 561–2 [43]–[44] (McLachlin J).
[103] Murphy, above n 47, 99.
[104] See Peter Handford, ‘Intentional Negligence: A Contradiction in Terms?’ [2010] SydLawRw 2; (2010) 32 Sydney Law Review 29; Robert Stevens, Torts and Rights (Oxford University Press, 2007) 122–3. See also Neil J Foster, ‘Vicarious Liability and Non-delegable Duty in Common Law Actions Based on Institutional Child Abuse’ (Speech delivered to Kelso Lawyers, Newcastle Club, 20 March 2015) <http://works.bepress.com/neil_foster/92> . On the other hand, in the context of civil liability reform, intentional torts were not considered to be within the scope of negligence: Panel of Eminent Persons, Review of the Law of Negligence: Final Report (2002) 27 [1.14] (‘Ipp Report’). See also the apparent rejection in Willams v Milotin [1957] HCA 83; (1957) 97 CLR 465, 470 (The Court). In Catholic Child Welfare [2012] UKSC 56; [2013] 2 AC 1, 21 [62], Lord Phillips also noted that ‘sexual abuse can never be a negligent way of performing such a requirement [of employment]’.
[105] [2003] HCA 4; (2003) 212 CLR 511.
[106] Ibid 624 [340].
[107] Ibid 532 [31].
[108] For more detailed discussion of analogical development of the common law by reference to statute, see J Beatson, ‘The Role of Statute in the Development of Common Law Doctrine’ (2001) 117 Law Quarterly Review 247; Andrew Burrows, ‘The Relationship between Common Law and Statute in the Law of Obligations’ (2012) 128 Law Quarterly Review 232; Justice Mark Leeming, ‘Theories and Principles Underlying the Development of the Common Law – The Statutory Elephant in the Room’ (2013) 36 University of New South Wales Law Journal 1002; Elise Bant, ‘Statute and Common Law: Interaction and Influence in Light of the Principle of Coherence’ [2015] UNSWLawJl 13; (2015) 38 University of New South Wales Law Journal 367; Sir Anthony Mason, ‘The Interaction of Statute Law and Common Law’ (2015) 27 Judicial Officers’ Bulletin 87, 91–3.
[109] Leeming, above n 108, 1002–3 (emphasis in original).
[110] Redress and Civil Litigation Report, above n 1, 495, recs 91–2. The recommendation is that all institutions should be liable for child sexual abuse by a broad range of persons including office holders, employees, agents, volunteers and contractors. For religious organisations, persons included would be religious leaders, officers and personnel of the religious organisation. See also: at 219.
[111] Ibid 495.
[112] In the United Kingdom, see, eg, S v Walsall Metropolitan Borough Council [1985] 3 All ER 294; in Canada, see, eg, KLB v British Columbia [2003] 2 SCR 403. See also Phillip Morgan, ‘Ripe for Reconsideration: Foster Carers, Context, and Vicarious Liability’ (2012) 20 Torts Law Journal 110.
[113] Redress and Civil Litigation Report, above n 1, 495, rec 93.
[114] As would be the case at common law in the jurisdictions which have expanded the application of vicarious liability beyond strict application of the ‘Salmond’ test: Catholic Child Welfare [2012] UKSC 56; [2013] 2 AC 1; Bazley 1999 CanLII 692 (SCC); [1999] 2 SCR 534.
[115] Heuston and Buckley, above n 18, 443.
[116] Bazley 1999 CanLII 692 (SCC); [1999] 2 SCR 534, 551 [26] (McLachlin J).
[117] Ibid 556 [36] (McLachlin J).
[118] Ibid 560 [42] (McLachlin J) (emphasis in original).
[119] The Royal Commission referred to Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-government Organisations (2013) 552, rec 26.4 (‘Betrayal of Trust Report’), which recommended that the Victorian Government consider, as an option for reform, reforms to the Wrongs Act 1958 (Vic) based upon vicarious liability in Commonwealth and Victorian discrimination legislation: Redress and Civil Litigation Report, above n 1, 474.
[120] Sex Discrimination Act 1984 (Cth); Equal Opportunity Act 2010 (Vic).
[121] Sex Discrimination Act 1984 (Cth) s 106; Equal Opportunity Act 2010 (Vic) ss 109–10.
[122] Often referred to as the ‘Shirt calculus’, referring to Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.
[123] Redress and Civil Litigation Report, above n 1, 494.
[124] Ibid.
[125] Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626, applied in Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; (2013) 85 NSWLR 335, 334–46 [23]–[33] (Leeming JA).
[126] See Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 710; [2006] 2 WLR 428.
[127] [2012] UKSC 56; [2013] 2 AC 1, 17 [43].
[128] [2005] EWCA Civ 710; [2006] 2 WLR 428, 453 [79].
[129] Catholic Child Welfare [2012] UKSC 56; [2013] 2 AC 1, 18 [45].
[130] Ibid 27 [94].
[131] [2013] NSWCA 250; (2013) 85 NSWLR 335.
[132] Ibid 344 [25]. Leeming JA referred to s 917C of the Corporations Act (Cth) as an example of a provision pursuant to which multiple holders of Australian financial services licences may be liable for the conduct of a single authorised representative.
[133] Ibid 346 [33].
[134] [2003] HCA 4; (2003) 212 CLR 511.
[135] See John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417, 438–9 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ); Matthew Harding and Ian Malkin ‘Overruling in the High Court of Australia in Common Law Cases’ [2010] MelbULawRw 17; (2010) 34 Melbourne University Law Review 519.
[136] See especially the discussion of these issues in Barbara McDonald, ‘Law Reform and Private Law: The Role of Legislation in Supplementing or Supplanting the Common Law’ (Paper presented at Fifty Years of the Law Commission: The Dynamics of Law Reform Now, Then and Next – An International Conference, United Kingdom Supreme Court, London, 10–11 July 2015).
[137] Ibid.
[138] [1972] UKHL 5; [1973] AC 127, 136–7 (Lord Wilberforce), 142–3 (Lord Pearson), 145–6 (Lord Cross), 151 (Lord Scarman), cited with approval in Scott v Davis (2000) 204 CLR 333, 340 [10] (Gleeson CJ).
[139] In this regard we note that the Ipp reforms which have been at least partially enacted in all Australian jurisdictions were not intended to address intentional torts including sexual battery: Ipp Report, above n 104, 1, rec 2 [2.2]–[2.3].
[140] For a comprehensive discussion see Barbara McDonald, ‘Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia’ [2005] SydLawRw 22; (2005) 27 Sydney Law Review 443.
[141] See, eg, statutory provisions which make contributory negligence a ground for reduction of damages instead of a complete defence which was formerly the case at common law: Law Reform (Miscellaneous Provisions) Act 1955 (ACT) pt 5; Law Reform (Miscellaneous Provisions) Act 1965 (NSW) pt 3; Law Reform (Miscellaneous Provisions) Act 1956 (NT) pt V; Law Reform Act 1995 (Qld) pt 3 div 3; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7; Wrongs Act 1954 (Tas) s 4; Wrongs Act 1958 (Vic) pt V; Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA); Law Reform (Contributory Negligence) Act 1945 (UK).
[142] Workmen’s Compensation Act 1897 (UK). Current Australian legislation is: Safety, Rehabilitation and Compensation Act 1988 (Cth); Seafarers Rehabilitation and Compensation Act 1992 (Cth); Workers Compensation Act 1951 (ACT); Workers Compensation Act 1987 (NSW); Workplace Injury Management and Workers Compensation Act 1998 (NSW); Workers Rehabilitation and Compensation Act 1986 (NT); WorkCover Queensland Act 1996 (Qld); Workers Rehabilitation and Compensation Act 1986 (SA); Workers Rehabilitation and Compensation Act 1988 (Tas); Accident Compensation Act 1985 (Vic); Workers’ Compensation and Injury Management Act 1981 (WA). There is also special legislation in some states dealing with particular types of industry or claim: see, eg, Workers’ Compensation (Dust Diseases) Act 1942 (NSW).
[143] For example, defamation law in Australian jurisdictions is partially codified: Civil Law (Wrongs) Act 2002 (ACT) ch 9; Defamation Act 2005 (NSW); Defamation Act 2006 (NT); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA).
[144] For example, it was formerly the position at common law that the performance of a police officer’s duties was in public service and not by reason of being an employee, so that at common law the state could not be held vicariously liable for tortious acts of a police officer. This was reversed by specific legislation introduced in all jurisdictions, albeit not simultaneously. See Australian Federal Police Act 1979 (Cth) s 64B; Law Reform (Vicarious Liability) Act 1983 (NSW) s 8; Police Service Administration Act 1978 (NT) s 148C; Police Service Administration Act 1990 (Qld) s 10.5; Police Act 1998 (SA) s 65; Police Service Act 2003 (Tas) s 84; Police Regulation Act 1958 (Vic) s 123; Police Act 1982 (WA) s 137. Note that the Australian Federal Police Act 1979 (Cth) also applies to the ACT: at s 5A.
[145] It would be desirable not to repeat the experience of the tort law reforms: see Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA). These statutes were enacted by Australian Parliaments in 2002–03 following the Ipp Report. Uniformity was unfortunately not achieved, though in some instances, similar but not identical provisions were enacted.
[146] Redress and Civil Litigation Report, above n 1, 495, rec 93.
[147] See, eg, Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachment by Commonwealth Laws, Interim Report No 127 (2015) 250.
[148] Redress and Civil Litigation Report, above n 1, 491.
[149] [1910] USSC 6; 215 US 349, 372 (1910). See also M L Friedland, ‘Prospective and Retrospective Judicial Lawmaking’ (1974) 24 University of Toronto Law Journal 170.
[150] Redress and Civil Litigation Report, above n 1, 491.
[151] Ibid 491–2.
[152] Ibid 491.
[153] In SA the legislation applies only to ‘accidents caused wholly or in part by negligence or some other unintentional tort’: Civil Liability Act 1936 (SA) s 51(a)(ii). In Queensland the Civil Liability Act 2003 (Qld) applies to ‘any civil claim for damages or harm’ so that apparently the intentional torts are not excluded though it has been argued that the relevant provisions can be interpreted otherwise: Tina Cockburn and Bill Madden, ‘Intentional Torts to the Person, Compensation for Injury and the Civil Liability Acts – Recent Cases and Contemporary Issues’ (2007) 18 Insurance Law Journal 1. Similar approaches apply in Civil Liability (Wrongs) Act 2002 (ACT) s 93; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 4(1). Provisions in Civil Liability Act 2002 (Tas) s 3B(1)(a); Wrongs Act 1958 (Vic) ss 28C(2)(a), 28LC(2)(a); Civil Liability Act 2002 (WA) s 3B(1) all take an approach similar to the NSW legislation excluding intentional acts done with intent to cause injury: Civil Liability Act 2002 (NSW) s 3B.
[154] The reform legislation was based on the recommendations of the Ipp Report, above n 104.
[155] Civil Liability (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA).
[156] Excepting SA and NT.
[159] Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360, 400 [188] (Campbell JA). For the common law principles, see Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1.
[160] Civil Liability Act 2002 (NSW) s 41.
[161] Pursuant to Civil Liability Regulation 2014 (NSW), non-government schools are prescribed as authorities to whom the relevant part of the Act applies.
[162] Following the recommendations of the Ipp Report, above n 104, 136 [9.5].
[163] See Civil Law (Wrongs) Act 2002 (ACT) pt 3.2; Civil Liability Act 2002 (NSW) pt 3; Civil Liability Act 1936 (SA) s 33; Civil Liability Act 2002 (Tas) pt 8; Wrongs Act 1958 (Vic) pt XI; Civil Liability Act 2002 (WA) s 5S.
[164] Civil Law (Wrongs) Act 2002 (ACT) ss 34(1), 35; Civil Liability Act 2002 (NSW) s 31; Civil Liability Act 1936 (SA) s 53(2); Civil Liability Act 2002 (Tas) s 33; Wrongs Act 1958 (Vic) s 72(1); Civil Liability Act 2002 (WA) s 5S(1).
[165] Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 2002 (NSW) s 32; Civil Liability Act 1936 (SA) s 33; Civil Liability Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) s 72; Civil Liability Act 2002 (WA) s 5S.
[166] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317. For commentary, see Peter Handford ‘Psychiatric Injury: The New Era’ (2003) 11 Tort Law Review 13; Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44.
[167] The High Court has already interpreted one of the NSW provisions (Civil Liability Act 2002 (NSW) s 30(2) relating to pure mental harm suffered by a plaintiff as a result of witnessing others ‘being killed, injured or put in peril’) as being narrower in scope than the common law: Wicks v State Rail Authority of NSW [2010] HCA 22; (2010) 241 CLR 60.
[168] Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 2002 (NSW) s 32; Civil Liability Act 1936 (SA) s 33; Civil Liability Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) s 72; Civil Liability Act 2002 (WA) s 5S.
[169] Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383; Kavanagh v Akhtar [1998] NSWSC 779; (1998) 45 NSWLR 588.
[170] Civil Liability (Wrongs) Act 2002 (ACT) s 93; Civil Liability Act 2002 (NSW) s 3B(1); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 4(1); Civil Liability Act 2003 (Qld) ss 4–5; Civil Liability Act 1936 (SA) s 51(a)(ii); Civil Liability Act 2002 (Tas) s 3B(1)(a); Wrongs Act 1958 (Vic) ss 28C(2)(a), 28LC(2)(a); Civil Liability Act 2002 (WA) s 3B(1).
[171] Civil Liability Act 2002 (NSW) s 3B(1)(a).
[172] Civil Liability Act 2002 (Tas) s 3B(1)(a); Wrongs Act 1958 (Vic) ss 28C(2)(a), 28LC(2)(a); Civil Liability Act 2002 (WA) s 3B(1).
[173] Civil Liability Act 2002 (NSW), s 3B(1)(a)(emphasis added).
[174] [2007] NSWCA 106; (2007) 71 NSWLR 354.
[175] Ibid 358–9 [13]–[14] (Basten JA) (McColl and Campbell JJA agreeing).
[177] Australian Lawyers Alliance, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, 28 February 2014, 23–5; NSW Bar Association, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, 31 March 2014, 5.
[178] Australia’s international law obligations (pursuant to the Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) and the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’)) include the provision of effective remedies for victims of human rights breaches. ICCPR art 2(3) provides that where a person’s rights have been violated, that person has a right to an ‘effective remedy’ including, where appropriate, compensation: Human Rights Committee, General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) [15]–[16].
[179] Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 655 (Gaudron and McHugh JJ), quoting Geoffrey Samuel, ‘The Right Approach’ (1980) 96 Law Quarterly Review 12, 14, quoted in Hill v Higgins [2012] NSWSC 270 [36] (Harrison J); New South Wales v Ibbett [2005] NSWCA 445, [90] (Spigelman CJ).
[180] Civil Liability Act 2002 (NSW) s 21; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 19; Civil Liability Act 2003 (Qld) s 52.
[181] Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, 1085 (Lord Reid).
[182] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 8 (The Court).
[183] New South Wales v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439.
[184] New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, 646–7 [29]–[32] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ).
[185] Gray v Motor Accident Commission (1998) 196 CLR 1, 7 [15] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71, 81 (Isaacs J).
[186] Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 129 (Taylor J).
[187] Henry v Thompson [1989] 2 Qd R 412; Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177.
[188] AW v New South Wales [2005] NSWSC 543. For commentary, see Cockburn and Madden, above n 153.
[189] New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, 648 [35]–[36] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ).
[190] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448.
[191] Gray v Motor Accident Commission (1998) 196 CLR 1, 13–14 [38]–[43] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[192] Ibid 14–15 [45], [48] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[193] Ibid 31–4 [92]–[98] (Kirby J).
[194] Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354, 358–9 [13]–[14] (Basten JA) (McColl and Campbell JJA agreeing), where the NSW Court of Appeal held that Civil Liability Act 2002 (NSW) s 3B(1) ‘does not differentiate in its operation between direct and vicarious liability’ and applies to exclude the operation of the Civil Liability Act 2002 (NSW) provisions restricting damages to vicarious liability for deliberate harm.
[196] Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317.
[197] See, eg, apology orders available pursuant to: Federal Court Act 1976 (Cth) s 23 (in federal anti-discrimination cases); Anti-Discrimination Act 1997 (NSW) s 108(2)(d); Privacy and Personal Information Protection Act 1998 (NSW) s 55(2)(e); Anti-Discrimination Act 1991 (Qld) s 209(1).
[198] Civil Law (Wrongs) Act 2002 (ACT) s 14; Civil Liability Act 2002 (NSW) s 69; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 13; Civil Liability Act 2003 (Qld) s 72; Civil Liability Act 1936 (SA) s 75; Civil Liability Act 2002 (Tas) s 7; Wrongs Act 1958 (Vic) s 14J; Civil Liability Act 2002 (WA) s 5AH.
[199] Redress and Civil Litigation Report, above n 1, 172, rec 5(c)(i). Where a survivor wants no direct contact with the institution, the Commission recommends that the operator of the recommended redress scheme should facilitate the provision of an apology by the institution: at 176, rec 6.
[200] Ibid 121, table 11.
[201] Particularly in relation to claims against the Catholic Church.
[202] Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation Paper: Redress and Civil Litigation (2015) 220–5 [10.4] (‘Redress Consultation Paper’). The Commission stated that it had not been given examples of difficulties in suing because of a lack of an appropriate corporate defendant in situations involving unincorporated associations other than faith-based organisations: at 223 [10.4]. See also Patrick Parkinson, ‘Child Sexual Abuse and the Churches: A Story of Moral Failure?’ (2014) 26 Current Issues in Criminal Justice 119, 132.
[203] See, eg, Anglican Church of Australia Trust Property Act 1917 (NSW); Christian Israelite Church Property Trust Act 2007 (NSW); Roman Catholic Church Trust Property Act 1936 (NSW); Anglican Trusts Corporation Act 1884 (Vic); Coptic Orthodox Church (Victoria) Property Trust Act 2006 (Vic); Presbyterian Trusts Act 1890 (Vic); Roman Catholic Trusts Act 1907 (Vic); The Salvation Army (Victoria) Property Trust Act 1930 (Vic).
[204] [2007] NSWCA 117; (2007) 70 NSWLR 565. This decision was followed in PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 1216. Separate plaintiffs who were students at Patrician Brothers Primary School at Granville had their cases heard with four other identical claims. All were unsuccessful for the same reasons.
[205] He also sued the Archbishop of Sydney and the alleged abuser who died in 2004 (after proceedings were commenced). It was held by the Court of Appeal that an action could not be maintained against the Archbishop in his personal capacity as he was not serving at the time of the abuse, he was not a representative of the Archdiocese and nor was he a corporate entity: Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565, 583 [78] (Mason P) (Ipp and McColl JJA agreeing). The proceedings were not continued against the estate of the deceased alleged abuser.
[206] These words were used by the judge at first instance who held that there was an arguable case against the Trustees: Ellis v Pell [2006] NSWSC 109, [73] (Patten JA).
[207] Ellis [2007] NSWCA 117; (2007) 70 NSWLR 565, 590 [120] (Mason P) (Ipp and McColl JJA agreeing).
[208] Ibid 590 [118] (Mason P) (Ipp and McColl JJA agreeing).
[210] Redress Consultation Paper, above n 202, 224 [10.4].
[211] A private member’s public Bill introduced by David Shoebridge MLC. The Bill lapsed on prorogation on 2 March 2015; it had lapsed previously on prorogation on 8 September 2014 and been restored to Business Papers on 9 September 2014. The Royal Commission referred to the Bill in its Report: Redress and Civil Litigation Report, above n 1, 501.
[212] There was provision for extension of the provisions to a plaintiff who was not at the time of the abuse under the care of the Church, but was so closely connected with the Church that it would be just to make the Church liable for the abuse, if proven: The Roman Catholic Church Trust Property Amendment (Justice for Victims) Bill 2014 (NSW) cl 18(2).
[213] Ibid cl 18.
[214] Ibid cl 19.
[215] Redress and Civil Litigation Report, above n 1, 511, recs 94–5.
[216] Redress Consultation Paper, above n 202, 224 [10.4].
[217] Betrayal of Trust Report, above n 119, 536.
[218] Redress and Civil Litigation Report, above n 1, 510.
[219] Ibid 511. See also Redress Consultation Paper, above n 202, 224 [10.4].
[220] Redress and Civil Litigation Report, above n 1, 511.
[221] Ibid.
[222] Ibid.
[223] These reasons include: infancy; debilitating psychological injury as a result of the abuse; lack of access to legal advice; ignorance of the link between the abuse and psychiatric illness; fear of retaliation; personal guilt; fear of not being believed; the possibility of retraumatisation associated with seeking civil remedy or complaint to criminal law enforcement authorities: see Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Interim Report (2014) 8 [5.1]; Patrick Parkinson, Kim Oates and Amanda Jayakody, ‘Breaking the Long Silence: Reports of Child Sexual Abuse in the Anglican Church of Australia’ (2010) 6 Ecclesiology 183, cited in Judy Cashmore and Rita Shackel, Responding to Child Sexual Abuse (May 2013) Australian Review of Public Affairs <http://www.australianreview.net/digest/2013/05/cashmore_shackel.html> .
[224] Redress Consultation Paper, above n 202, 204 [10.2]. See also figures for Queensland cases: Ben Mathews, ‘Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice’ (2003) 11 Torts Law Journal 218; and SA: Jan Breckenridge, Joan Cunningham and Karen Jennings, Cry for Help: Client and Worker Experiences of Disclosure and Help Seeking Regarding Child Sexual Abuse (2008) Relationships Australia <http://www.respondsa.org.au/wp-content/uploads/sites/8/2013/05/Cry-for-Help-Report_2008.pdf> .
[226] Ipp Report, above n 104, 87–97, recs 23–5.
[228] For discussion, see Peter Handford, ‘“Negligence, Nuisance or Breach of Duty” and “Disease or Disorder”: Personal Injury Limitation Periods in the High Court’ (2006) 14 Tort Law Review 125; Ben Mathews, ‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child by a Parent or Close Associate: New Jurisdictional Gulfs’ (2004) 12 Torts Law Journal 239; Mathews, ‘Limitation Periods and Child Sexual Abuse Cases’, above n 224.
[229] Limitation Act 1985 (ACT) s 36; Limitation Act 1981 (NT) s 36(1); Limitation of Actions Act 1974 (Qld) s 29; Limitation of Actions Act 1936 (SA) ss 45, 45A; Limitation Act 1974 (Tas) s 26; Limitation Act 2005 (WA) ss 30–3.
[230] Limitation Act 1969 (NSW) ss 50E, 50F; Limitation of Actions Act 1958 (Vic) ss 27I, 27J. See Mathews, ‘Post-Ipp Special Limitation Periods’, above n 228; Ben Mathews, ‘Assessing the Scope of the Post-Ipp “Close Associate” Special Limitation Period for Child Abuse Cases’ (2004) 11 James Cook University Law Review 63.
[231] Generally, the matters which the courts are required to consider on an application for extension are: the length of and reasons for the delay; any prejudice to the defendant by reason of lost evidence; the nature and extent of the plaintiff’s injury; any conduct of the defendant that induced the delay by the plaintiff; the plaintiff’s efforts to obtain medical, legal or other expert advice and the nature of advice received; the time when the cause of action was discoverable. See, eg, Limitation Act 1969 (NSW) ss 62A, 62B. In NSW there is the added requirement that a plaintiff must satisfy the Brisbane South onus by establishing that a fair trial is possible notwithstanding a prolonged delay and despite a presumed reduced capacity for witnesses to recall events: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 (‘Brisbane South’).
[232] Brisbane South [1996] HCA 25; (1996) 186 CLR 541, 552 (McHugh J); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 320 [218] (Callinan J); David Jackson, ‘The Legal Effects of the Passing of Time’ [1970] MelbULawRw 5; (1970) 7 Melbourne University Law Review 407, 409.
[233] Brisbane South [1996] HCA 25; (1996) 186 CLR 541, 553 (McHugh J).
[234] See, eg, Cranbrook School v Stanley [2002] NSWCA 290; Hopkins v Queensland [2004] QDC 21; SDW v Church of Jesus Christ of Latter-Day Saints [2008] NSWSC 1249 (applying Limitation of Actions Act 1974 (Qld)), where an extension of time was refused. In Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347, [107] (McColl JA), [134]–[143] (Basten JA), [155]–[156] (Bell JA), an extension of time under the Limitation of Actions Act 1936 (SA) was upheld in the NSW Court of Appeal. In Lloyd v Bambach [2005] NSWSC 80, an extension of time was granted.
[235] [2006] NSWSC 109. The third defendant (the plaintiff’s abuser) had died prior to the hearing and the plaintiff did not proceed against his estate. The Court held that the cause of action could not be maintained against Archbishop Pell and dismissed the motion in respect of the first defendant with costs.
[236] Ibid [95] (Patten AJ). The Court held that he had not become aware of the nature and extent of his injury until September 2001, though the abuse he suffered had ceased in 1979. The court exercised its discretion to grant an extension of time having concluded that it would be just and reasonable to do so because the evidence sufficiently established that there could be ‘a fair trial of the Plaintiff’s action albeit not a perfect one’.
[237] Australian Lawyers Alliance, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation Paper on Redress and Civil Litigation, 2 March 2015, 16 [46]. For a perspective from Mr Ellis himself, see John Ellis and Nicola Ellis, ‘A New Model for Seeking Meaningful Redress for Victims of Church-Related Sexual Assault’ (2014) 26 Current Issues in Criminal Justice 31.
[238] In NSW the issue of limitation periods can be determined together with other substantive issues at the hearing, or separately at an interlocutory hearing: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225, 229 [10] (Campbell JA). High Court authority is to the effect that generally, all issues should be determined in one hearing: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron and McHugh JJ).
[239] See, eg, Civil Procedure Act 2005 (NSW) s 67.
[240] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23.
[242] Indeed, the NSW Department of Justice made this very point in its Discussion Paper: ‘Given that long delays are typical in these cases, it may be preferable that a court’s decision to hear or not hear a claim is based on [the court’s power to stay proceedings], rather than on a technical issue regarding whether the statutory period has expired and whether any exceptions may apply’: NSW Government, Department of Justice, ‘Limitation Periods in Civil Claims for Child Sexual Abuse’ (Discussion Paper, January 2015) 11.
[243] Limitation Amendment (Child Abuse) Act 2016 (NSW) sch 1.
[244] Limitation of Actions Act 1958 (Vic) ss 27O–27P. The Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) was enacted in response to the Betrayal of Trust Report, above n 119. Similarly, in Canada most provinces and territories have legislated to alter limitation periods for cases of child sexual abuse and in many instances the limitation period has been removed altogether, though the legislation is not uniform. Alberta: Limitations Act, RSA 2000, c L-12; British Columbia: Limitation Act, SBC 2012, c 13; Manitoba: Limitation of Actions Act, CCSM 2014, c L-150; New Brunswick: Limitation of Actions Act, SNB 2009, c L-8.5; Newfoundland and Labrador: Limitations Act, SNL 1995, c L-16.1; Saskatchewan: The Limitations Act, SS 2004, c L-16.1; Yukon: Limitation of Actions Act, RSY 2002, c 139. For a discussion of the problems of non-uniformity of Canadian legislation and remaining unresolved issues, see Elizabeth Adjin-Tettey and Freya Kodar, ‘Improving the Potential of Tort Law for Redressing Historical Abuse Claims: The Need for a Contextualised Approach to the Limitation Defence’ (2010) 42 Ottawa Law Review 95.
[245] Redress and Civil Litigation Report, above n 1, 459, recs 85–8.
[246] Ibid 383–90, recs 63–5.
[247] Applications 861 and 864 (Unreported, District Court of Queensland, Botting DCJ, 21 June 2002), where the defendant had been convicted of sexual offences against the plaintiffs, yet the Court held that a 38-year delay in bringing proceedings was too prejudicial to the defendant.
[248] Redress and Civil Litigation Report, above n 1, 459, recs 85–8.
[249] Ibid 322–4, recs 26–30, 355, recs 43–7.
[250] Ibid 383–90, recs 63–5.
[253] Redress and Civil Litigation Report, above n 1, 222.
[257] Productivity Commission, above n 7, 814.
[258] Redress and Civil Litigation Report, above n 1, 358, rec 48. There is no fixed closing date.
[259] Ibid 33.
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