Nearly all institutional abuse civil claims for compensation are pursued as against an institution or other organisation. That is, a survivor’s civil claim aims to hold an institution (or other organisation) responsible for the actions of the individual that perpetrated the abuse (usually a staff member).

This is primarily because an individual perpetrator is unlikely to have assets sufficient to fulfil any judgment made against them. This may also occur for other reasons including difficulties identifying the perpetrator or finding out same is deceased.

This article will aim to provide survivors with information as to the legal principles applying to civil claims for compensation when trying to hold an institution responsible for the actions of an individual who perpetrated incidents of child sexual and/or serious physical abuse.

Vicarious liability is a legal principle by which one party (such as an institution) can be held responsible for the actions of another person (such as one of its staff members). Most commonly in injury law matters, the principles of vicarious liability apply when an injured claimant tries to hold an employer responsible for the actions of one of its employees which has resulted in their suffering an injury and financial loss.

The application of vicarious liability in institutional abuse cases in Australia is a developing legal area. Employers are not automatically held responsible for the actions of their employees when they perpetrate incidents of abuse.

The Courts have indicated a willingness to attach responsibility to an employer whose employees provide care and supervision in the context of a residential facility. However, there still remains uncertainty as to how the Courts will assess vicarious liability in the context of day facilities (such as schools without boarding facilities and youth groups/centres).

Justice Rush in the decision of Elrich v Leifer & Anor [2015], found a school could be held vicariously liable for incidents of child sexual abuse perpetrated by one of its headmistresses. It was noted that the abuse occurred in the context of an orthodox Jewish school. Further, the abuse was perpetrated by the Head of Jewish Studies. The perpetrator’s seniority coupled with the paramount importance given to religious studies in the orthodox community meant that she was held in high esteemed and considered very trustworthy. As such, the Justice Rush considered the school was vicariously liable for the headmistresses actions (when perpetrating the incidents of abuse) as the relationship ‘was invested in a high degree of power and intimacy’ which was used by the headmistress abused to perpetrate the abuse.

The case of Prince Alfred College Incorporated v ADC [2016] has provided the clearest direction as to how the Courts in Australia will assess vicarious liability in institutional abuse cases. The Prince Alfred case involved a 12 year old boarding student who had been victim to prolonged abuse by an assistant boarding housemaster in the 1960’s. The survivor’s civil case went through a number of appeals during the legal process and was eventually granted special leave to be determined by the High Court. Whilst the High Court decision also dealt with ancillary issues involving time limitations, this article will only focus on comments made with respect to vicarious liability.

Those comments were as follows:

the appropriate enquiry is whether Bain’s role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain’s apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment”.

Ultimately the Court suggested the relevant approach is to assess each case, based on its facts and evidence, the nature of the relationship between the employee and the victim. The Court indicated that special attention needed to be given to the power and responsibility assigned to the employee in their role.

However, the Court indicated that a mere “proximity” to children which could afford an opportunity to perpetrate an incident of abuse is insufficient of itself to attract vicarious liability. The majority Justices in the Prince Alfred decision then outlined what it termed as “the relevant approach” for helping to determine whether vicarious liability should be found in institutional sexual abuse claims.

The Court considered the “relevant approach” was to:

“to consider any special role that the employer assigned the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim.

It is noted that the above stated characteristics (of authority, power trust etc) may be more easily identified in residential facilities that endeavour to provide a “home like” environment. It is noted that employees in such facilities are responsible for a range of ‘intimate’, parent-like duties such as making sure children bathe, go to bed, general discipline and adherence with schooling and recreational activities.

It is noted that the imposition of quasi-parental duties (that require some degree of intimacy) have been seen by the Courts as significant in the assessment of vicarious liability in institutional abuse cases.

Further, the Courts have also taken into consideration, characteristics of employment that place an employee in a position of intimacy and power over a child arising from a parent-like or role model relationship which could enhance the risk an employee could abuse same. Accordingly, the more an employer encourages an employee to hold a position of respect and authority which a child should emulate and obey, the risk (of the power being abused) is enhanced.

The Courts have made it clear that the “relevant approach” provided in the Prince Alfred decision is general one. They indicate that same cannot provide any precise principles with which to assess vicarious liability in view of the numerous and varying circumstances in which child sexual abuse may be perpetrated.

As evident from the above, the application of vicarious liability in institutional abuse cases in Australia is far from settled, although some guidance was provided in the Prince Alfred decision. There is no doubt future cases will continue to provide clarity in this area.

Do you need help?

We recognise that survivors of childhood abuse are strong individuals who deserve the right to seek compensation for the harm they have suffered. We also understand that it can be difficult to know which pathway is the right one to choose. It is important to speak with a lawyer who is experienced in institutional abuse matters prior to accepting any offer of settlement.

Turner Freeman has a number of lawyers located throughout Australia with experience in institutional abuse. We invite survivors to contact our institutional abuse lawyers in Sydney on (02) 8222 3333 for a confidential and obligation free discussion to help inform them as to their rights and legal options.