The Royal Commission’s finding into Institutional Abuse of children in care show survivors are reluctant to speak up about their experiences – they may not do so for 40 years following abuse.

The delay in reporting is due to a raft of matters, including guilt, fear and shame of reporting those traumatic occurrences.  The consequences are notoriously lifelong.  Because of the delays inherent in reporting, the Royal Commission recommended, and now all States and Territories have accepted, the need for legislative change to time limits to start claims.

But the recommendations did not stop there.  The Royal Commission also examined the duty owed by an institution: to take all reasonable steps to prevent the serious physical, psychological, and sexual abuse of a child.  This duty encompasses persons associated with the institution, specifically whilst the child is under their care, supervision, control, or authority.

Establishing Liability

In a negligence case, a claimant is required to prove that the institution:

  1. Owed them a duty of care;
  2. Breached that duty of care;
  3. Caused them damage or injury.

Additionally, vicarious liability can attach.  This is where a relationship between the act of abuse and the functions of the institution who is liable can be established.  For example, an employer can be held liable for the act of abuse committed by an employee, even a criminal act, if the act of the employee is committed during the course of the employee’s employment.

Another legal theory differentiates between two types of duties, those that are delegable to others and those that are not.  A non-delegable duty is one where a person cannot discharge their duty by entrusting the responsibility to another, therefore the authority in charge will be held liable. The Commission recommended that institutions should be held liable for the acts of abuse by employees, even if those acts were deliberate or criminal.

Proving Direct Liability

The liability of an institution in negligence may arise due to their actual knowledge, or knowledge of which they ought to have been aware, that the perpetrator has already engaged in abuse.  In cases where knowledge cannot be proven, it may be that liability can be established by proving, in the circumstances, either reasonable care was not taken, or there was no proper system of risk-screening and checking implemented.

For the purposes of both the non-delegable duty and the imposition of liability, a recommendation was made to implement a reverse onus for the persons associated in the employ of an institution.  Here, this would shift the burden to the organisation to show that it took all reasonable steps to prevent the abuse.  This will apply to recent acts of abuse. In terms of proving either, the burden of proof is less than that of a criminal case, rather it must be proven that on the balance of probabilities the act of abuse occurred.

Get in touch with us

At Turner Freeman, we have specialist institutional abuse lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our lawyers are located across Australia including offices in Brisbane, Gold Coast, Sunshine Coast, North Lakes, Logan and Ipswich. Contact us today on 13 43 63.