New laws expected to make it easier for survivors of child sexual abuse to sue organisations, including the Catholic Church and other religious organisations

The NSW Government has proposed new laws designed to impose civil liability on organisations for child sexual and physical abuse in certain circumstances and allow survivors to sue major religious organisations such as the Catholic and Anglican churches for abuse.

The Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2018 has been introduced as part of the NSW Government’s response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

The NSW Government has also opted into the National Redress Scheme, removed time limits for civil claims involving child abuse and changed criminal laws relating to child sexual offences and the sentencing of offenders.

The new Bill proposes three main changes:

  1. Duty of organisations to prevent child abuse: organisations that supervise or care for children will have a statutory duty to prevent child abuse by persons associated with the organisation. The onus of proof will also be reversed. Instead of the survivor bearing the onus, organisations would need to prove that it took reasonable precautions to prevent the abuse. This duty will only apply to abuse that happened after the law starts.
  1. Vicarious liability for acts of employees and a person ‘akin to an employee’: organisations will be vicariously liable in certain circumstances for acts of child abuse committed by its employees, volunteers and contractors, including priests and religious brothers. This law will only apply to abuse that happened after the law starts.
  1. Unincorporated associations can be sued: court proceedings will be able to be brought against unincorporated associations such as ‘the Catholic Church’, which was previously not possible because they did not exist in a legal sense. 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 priest because the Catholic Church was an unincorporated association that could not be sued. This law will apply to abuse that happened before or after the law starts.

The proposed laws are likely to clarify the liability of organisations for child sexual abuse occurring in the future. By clarifying the position and reversing the onus in cases involving allegations of negligence, the new laws might encourage organisations and their insurers to develop and implement appropriate measures more proactively, to ensure children in their care are afforded greater protection. When coupled with the new failure to report and failure to protect offences, it is hoped that the legal framework designed to protect children will be vastly improved.

In saying this, the legal position for survivors of historical child sexual and physical abuse will not change in the same way that it will future claims. While survivors of historical abuse may soon be able to commence proceedings against religious institutions, the circumstances in which those types of organisations could be held liable for abuse committed by its employees and non-employees remains uncertain.

As the author said in his evidence in Case Study 25 before the Royal Commission into Institutional Responses to Child Sexual Abuse, the ability to litigate cases involving clerical sexual abuse may path the way for courts to more fully consider the circumstances in which these types of organisations might be liable for abuse committed by its non-employees.

Turner Freeman Lawyers encourages survivors to obtain independent legal advice on their rights to compensation. Turner Freeman Lawyers has experienced male and female personal injury lawyers who specialise in institutional abuse cases and we can offer you legal advice about your potential options.