Dear Colleagues;

I thought it may be of general interest to mention, for those who haven’t seen it previously, that on 1 July 2017 new legislation in the State of Victoria commenced dealing with liability for organizational child abuse. The amending Bill is here and the amended Wrongs Act 1958, now containing Part XIII, can be seen here . The legislation broadly originates in some recommendations of a Victorian inquiry into organisational child sexual abuse.

In general terms, the legislation “imposes a duty of care that forms part of a cause of action in negligence” (s 91), a duty specified as “to take care that in the circumstances of the case is reasonable to prevent the abuse of a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation” (s 91(2)). It then goes further by providing that where abuse by an associated person has been proven, then there is a “reversal of onus” at the breach stage, so that the organisation will be deemed to be in breach “unless the relevant organisation proves on the balance of probabilities that it took reasonable precautions to prevent the abuse in question”- s 91(3).

Some brief comments:

• “relevant organisations” are those with care of children, but under the definition of the term in s 88, at para (b), the term does not include entities that are not capable in law of being sued, unless that entity has under s 92 nominated an “associated legal person” to be sued. It seems clear that this refers to the major religious denominations, in particular the Roman Catholic Church and the Anglican Church (and possibly others)- as to which the Ellis decision in 2007 held that they could not be held liable as a whole, as they were unincorporated. I assume that the political judgment has been made that public opinion will require these churches to make a s 92 nomination (perhaps of some existing property trust or a special fund). Smaller churches which are usually incorporated under associations incorporation legislation will be picked up by para (a) of the definition.
• Note that these changes do not impact on the law of vicarious liability. The action dealt with is an action against the organisation for “personal negligence” in failing to prevent harm, and is not vicarious liability for battery etc by an employee. The aim however seems to be to make it easier to succeed in a negligence claim against the organisation. (There is a definition of “associated individual” in s 90 which includes priests and clergy, but it does not deem them to be employees.) However, note that under s 90(1)(d) an “associated” person would seem to include a foster carer (but again, there is no automatic vicarious liability, it will still be a question whether reasonable care was taken.)
• There is a defence under s 91(6) if the abuse occurred “in circumstances wholly unrelated to that individual's association with the relevant organisation”, which will obviously raise some tricky questions.
• The liability is not retrospective generally, it will apply to abuse occurring after 1 July 2017.

Many will also be aware that there is a wider Royal Commission inquiry into these matters currently underway in Australia, and it will be interesting to see how its final recommendations cohere with this Victorian change.

Regards

Neil

 

 

 

 

NEIL FOSTER

Associate Professor

Newcastle Law School

Faculty of Business and Law

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