A duty of care is a legal obligation to take reasonable steps to not cause foreseeable harm to another person or their property. A duty of care is breached when someone is injured because of the action (or in some cases, failing to act) of another person or institution when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way. 

When looking to commence an abuse claim, it is important to first establish what duty of care was owed to the plaintiff by the defendant. There are two types of liability arguments a plaintiff can make in respect of the Defendant, being direct and indirect liability arguments. 

Direct liability arguments are arguments that the Defendant, either by their own action or omission breached the duty of care they owed to the plaintiff and as a result the plaintiff suffered an injury.  

The indirect liability arguments are based on the principles of vicarious liability. Vicarious liability is where an employer is found to be liable for the actions of its employees/agents/servants. The common law of Australia has been slow to clearly identify the type of factual situations which would (or would not) attract vicarious liability in an institutional abuse setting. The majority of the High Court in a recent case (Prince Alfred College v ADC [2016] 258 CLR 133) said that in considering liability in a case of this type, the relevant approach is to consider any special role that the employer/organisation has assigned to the employee/agent and the position in which the employee/agent is thereby placed vis-à-vis the victim. Please also read our article ‘Abuse Law: What is vicarious liability?’ for further information regarding vicarious liability: https://littleslawyers.com.au/abuse-law-what-is-vicarious-liability/

In determining whether the apparent performance of such a role may be said to have provided not only an opportunity but also the occasion for the commission of the wrongful act, particular features may be taken into account, including the perpetrator’s authority, power, trust, control and ability to achieve intimacy with you. The question of liability in this case requires consideration of whether the Defendant took all steps they ought to have reasonably taken in relation to the plaintiff’s care.  

This article will take a focus on the duty of care owed in foster care circumstances, sporting associations, in college and universities, and individual perpetrator circumstances.  

Foster Care - Can the Department be held vicariously liable for the tortious conduct of foster carers upon a child who is placed in their care?

As of 30 June 2016, the Royal Commission into Institutional Responses to Child Sexual Abuse reported “…there were 46,448 children in statutory out-of-home care throughout Australia – up from 25,454 children in 2006 and 13,979 in 1996. Currently more than eight out of every 1,000 children are not living at home with their parents”. 

In the UK case of Armes v Nottinghamshire County Council [2017] UKSC 60, the Supreme Court found that the local authority was vicariously liable for the abuse suffered by the plaintiff perpetrated by her foster parents. In reaching its conclusions, the Court applied a two stage test adopted in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC, being:  

1. Whether the relationship is one that is capable of giving rise to vicarious liability; and 

2. Whether the acts were connected to that relationship in such a way as to give rise to vicarious liability (applying a “close connection” test). 

In the New Zealand case of S v Attorney General [2003] NZCA 149, the court categorised foster parents as ‘agents’ and at [69] provided “…such abuse was sufficiently connected with the purpose of parenting for which the placements were made, even though it was absolutely contrary to the intentions of the department”. 

The case of ABCD v Bird & Ors [2020] NSWSC 1379 concerned the sexual abuse of two infants at a childcare centre from about 2008 to 2010 by a volunteer worker, ‘Bird’. Supervision of Bird was required in carrying out his duties, but this supervision did not occur. The Court found that Bird, despite not being paid a wage, was an employee of the Centre. In doing so, the Court had regard to, inter alia: 

– The actual roles which the organisation assigned Mr Bird, which placed him in a position of considerable power and trust, which he abused; 

– That those roles gave Mr Bird the opportunity to have the close contact with children which witnesses described; 

– The authority Mr Bird was given by effectively being left unsupervised when he had such contact, which he also abused; 

– This lack of supervision permitting him to not only achieve intimacy with his young victims, but to control them while committing the wrongful acts he admitted and his victims disclosed; and 

– It was Mr Bird’s performance of the roles he was given, which created the occasion for his wrongful act. 

Sporting Associations

In accordance with Williams v Hursey [1959] HCA 51 at [20] to [23], unincorporated associations lack a distinct legal personality and, therefore, cannot sue or be sued. However, Case Study 39 of the Royal Commission notes that one of the key drivers of child protection policies in sport in Australia is the Australian Sports Commission (ASC), an incorporated Commonwealth entity within the Department of Health. The ASC is responsible for the funding of National Sporting Organisations (NSOs). 

Recognised NSOs must comply with relevant Commonwealth, state and territory legislation, including child protection and anti-discrimination legislation. They must also adopt, implement and enforce a member protection policy or similar framework that addresses issues relating to harassment, discrimination, child abuse and codes of behaviour, to the satisfaction of the ASC. The ASC also requires all persons within an NSO including those using the facilities and those apart of the broader sporting community to keep people safe from harm.

Sections 33D and 33E of the Civil Liability Act 2003 define the duty of institutions to “…take all reasonable steps to prevent the abuse of a child by a person associated with the institutional while the child is under the care, supervision, control or authority of the institution”. The onus of proof is reversed onto the institution who must prove that “…the institution took all reasonable steps to prevent the abuse.” 

College & Universities

In SMA v John XXIII College & Anor (No 2) [2020] ACTSC 211, the plaintiff was a student of a College when she willingly participated in an alcohol fuelled event known as “Pub Golf” and consumed a considerable amount of alcohol on the College grounds (on campus). Once intoxicated, College officials instructed the plaintiff and other extremely intoxicated participants to leave the campus. The plaintiff did so despite being in a vulnerable state. Later that evening, the plaintiff was sexually assaulted by another student and participant of the Pub Golf event. 

The direction of the College to leave the campus premises was a breach of duty as the plaintiff was already a foreseeably vulnerable person when she was directed to leave the premises and in directing the students to leave, the College knew of the risk of harm to students of further intoxication. 

Individual Perpetrators

The sexual abuse perpetrated by an individual adult perpetrator upon a plaintiff child would succeed at common law for breach of duty but also battery or trespass to the person – examples of this are shown in GGG v YYY [2011] VSC 429 and Perry v Kinnear & Ors (No 5) [2021] NSWDC 145. 

Furthermore, a child can be liable for the consequences of their wrongful acts if they are “old enough to know that … [their] … conduct was wrongful – that is to say if, in the common phrase … [they were] … old enough to know better” – see McHale v Watson [1964] HCA 64, at [5]. 

Please read our article ‘Abuse Law: Individual Perpetrator Claims’ for further information regarding individual perpetrator claims: https://littleslawyers.com.au/abuse-law-individual-perpetrator-claims/

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim, please reach out to the author, Emily Wright, and Littles Lawyers today. 

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