The NSW Government has proposed legislation that will bring about substantial change to the liability of organisations in respect of incidents of child abuse (both sexual and physical) and which will, if passed, require organisations to review their policies and guidelines that are relevant both where employees, and parties other than employees, engage and interact with children.
The Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2018 has come about as part of the NSW Government’s response to the Royal Commission into Institutional Responses to Child Sexual Abuse. The Bill follows similar changes proposed last year in Victoria. Other states and territories are expected to follow suit. The Bill will apply to any organisation, whether incorporated or not, and includes a public sector body, but not the State.
The Bill proposes three main changes:
- The creation of a statutory duty on organisations that supervise or care for children to prevent child abuse by persons associated with the organisation. In the event of a claim, the onus will then be on the organisation to prove that it did not breach the duty. Whether an organisation took reasonable precautions to prevent the abuse will depend on a range of factors, including the resources available to the organisation, the level of control over the person who perpetrated the abuse and, if relevant, observance of child safety standards (for example, the obtaining of a Working with Children Check). Depending on the organisation, and even though the Child Protection (Working with Children) Regulation 2013 provides an exemption for certain parent volunteers, it may be appropriate in the face of such a statutory duty to require all volunteers to obtain such a check.
- Vicarious liability with respect to employee conduct in this context is to be enshrined in statute (rather than as set out in the common law), and will be extended to also include a person akin to an employee. A person akin to an employee is likely to include a volunteer, a contractor, members of religious organisations and members of unincorporated associations. This extends the concept of vicarious liability as discussed by the High Court. You can read more about that case in our earlier blog.
- Court proceedings will be able to be brought against unincorporated associations (which was previously not possible as they do not have legal personality). The Court may make orders to enable this to occur, for example by directing management to exercise particular functions of the organisation. Equally, the unincorporated association may nominate a ‘proper defendant’ to respond to the claim. If it involves a public sector body, the State will be the proper defendant. Equally, if a proper defendant is not nominated, the court can appoint the trustees of an associated trust to be the proper defendant. This is intended to do away with the ‘Ellis defence’ – so named from the case of Trustees of the Roman Catholic Church for the Diocese of Sydney and Pell v John Ellis where Mr Ellis was unable to succeed in his claim for compensation for sexual abuse by a clergy member because an ‘unincorporated association cannot (at common law) sue or be sued in its own name because, among other reasons, it does not exist as a juridical entity‘.
Unlike the recent amendments to the Limitation Act 1969 (NSW) to extend the time for survivors of sexual abuse, which requires serious physical abuse or ‘connected abuse’ have occurred to commence proceedings, the Bill refers to ‘sexual or physical abuse’ – without a qualification that physical abuse need be ‘serious’.
For many organisations, the most important changes proposed by this Bill will be:
- organisations being vicariously liable for acts of child sexual and physical abuse perpetrated by volunteers and contractors, as well as its employees; and
- organisations bearing the onus to prove that reasonable precautions were taken to prevent the abuse from occurring.
To be prepared for the likely passage of the Bill into law, we recommend that your organisation consider the adequacy of policies relating to child safety, codes of conduct, pre-employment/pre-engagement screenings, training (provided to employees, contractors and volunteers) and also insurance coverage.