I Introduction
The status quo of bringing legal action for sexual abuse against institutions may not be optimistic for the victims. This essay examines the legal difficulties surrounding vicarious liability in institutional abuse claims by analysing relevant case laws and discussing important legal principles. Additionally, it reflects on the recent law reform in New South Wales regarding the ‘Ellis Defence’ and the significance of the new bill in helping victims protect their rights.
II Legal Difficulties
A Status Quo of Sexual Abuse
Institutional child sexual abuse involves intentional criminal act by organizations-associated individuals. Therefore, we examine vicarious liability for this type of tort based on the relationship between the individual tortfeasor and the associated institution, rather than on fault. [1] Identifying vicarious liability is thus the primary challenge for the victims.
Secondly, according to Hansard, many survivors of sexual abuse in Australia face difficulties in seeking recovery through litigation. These difficulties include ‘the very nature and impact of institutional abuse against the survivor’s ability to seek damages through existing avenues.’ [2] Such difficulties arise from the imbalance of legal powers. Institutions may pressure victims to accept inadequate remedies due to legal vulnerabilities. Furthermore, it often takes many years for survivors to expose such abuse. For example, the average time is 23.9 years, [3] hindering extension requests.
B Major Issues of Sexual Abuse Claims
1 Approach to Identify Vicarious Liability
(a) The Closeness Test
Lord Toulson addressed that ‘the test for holding an employer vicariously liable for the tort of his employee has troubled the courts for many years’. [4] Different jurisdictions use varied tests to determine vicarious liability.
The High Court of Australia in Prince pointed out that ‘the traditional method of the common law of confining liability, in order to reflect some balance between competing interests, is the requirement that the employee’s wrongful act be committed in the course or scope of employment.’ [5] Courts often adopt Salmond’s three tests to determine if conduct occurred ‘in the course of employment.’
Salmond’s Test
Salmond’s test consists of two distinct elements: the tort ‘(a) is authorised by the principal (the employer); (b) is an unauthorised act ‘so connected’ with authorised acts that they may be regarded as modes, albeit improper modes, of doing those authorised acts.’ [6]
For a victim, arguing that the tort occurs ‘in the course of employment’ will be particularly challenging, as this raises an issue with the ‘close connection’ test adopted in many UK cases like Lister, [7] and Mohamud. [8]
Apparently, the most controversial argument revolves around the connection between unauthorised acts (usually abuse) and authorised acts. For example, when considering Lister, Judges must analyze the closeness of the connection and whether ‘the connection be sufficient to make it fair and just to impose liability’; this principle, reaffirmed in Mohamud, illustrates that the court should not treat the fairness as a principle. [9] In Mohamud, to hold the employer liable, the ‘causal sense’, represented by ‘unbroken sequence of events’ and ‘seamless episode’, [10] is the key factor to establish the ‘closeness of the connection.’ [11]
However, judges in Prince questioned whether such a ‘close connection’ can be justified as a ‘fairness’ to impose vicarious liability. [12] Additionally, although UK courts has applied this test for over a decade and it is ‘firmly rooted in justice’, [13] Lord Dyson commented that it is nevertheless ‘imprecise’, given that ‘the imprecise concepts of fairness, justice and reasonableness are central to the law of negligence.’ [14]
(b) Policy Reason to Expand Liability
Judges in Canada have considered alternative approaches. Frustrated by Salmond’s test, McLachlin J considered the policy reasons to establish vicarious liability in Bazley v Curry. The principle behind such a decision can be found in Hollis v Vabu , which states that ‘the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy.’ [15]
Taking legal action against a non-profit institution is challenging for a victim. This difficulty materialized in Bazley , where the employer of the tortfeasor Curry is the Children’s Foundation, a non-profit organization. The Foundation argued that the legal authorities should exempt the non-profit organization from vicarious liability because it is a non-profit institution, which is contrary to ‘commercial enterprises’.[16] However, McLachlin J stressed that if we must make the choice ‘between two faultless parties then it is fairer to place the loss on the party that introduced the risk and had the better opportunity to control it.’ [17] Her Honour went on further to point out,
‘’The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts, it is fair that the person or organisation that creates the enterprise and hence the risk should bear the loss.’’ [18]
It’s worth noting that, although Bazley established the concept of ‘enterprise risk’ by stating that ‘where the employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community, the employer may justly be held vicariously liable for the employee’s wrong,’[19] it didn’t completely discard the elements in Salmond’s test such as ‘authorization’, ‘power’, or ‘strong connection’, etc. Instead, it aimed at finding ‘a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom.’ [20]
McLachlin’s approach is governed ‘under the principle of social justice which goes back to Holt’s principle,’ [21] it might help the victim because the ‘risk’ is objectively foreseeable, and it might compel the enterprise to choose its employees prudently when entrusting someone with a position. Unfortunately, this policy-based approach is not considered in Australia, [22] as evidenced by Lepore. [23]
(c) The Nature of Employee’s Responsibility
In Australia, the central issue is investigating ‘the nature of the employee’s responsibilities.’ [24]
The High Court in Prince has established a more specific approach to evaluating the ‘special role’ assigned to the employee and the employee’s position against the victim, [25] which may include assessing ‘authority, power, trust, control and the ability to achieve intimacy.’ [26] To satisfy the ‘sufficiency of the connection’ proposed by Gleeson CJ in Lepore, [27] there should be an assessment of the degree of intimacy and power between relationships. [28]
However, putting such legal principles to the test might be challenging. David Seeman emphasized that such a relationship, or intimacy, needs to be investigated ‘in the context of the perpetrator’s role within the institution’, [29] In his opinion, it is the ‘actual role’, rather than any formal job description, that may determine the outcome. [30] But to assess the ‘actual role’, the court would need to conduct a retrospective investigation, though not required, to restore the original scenario. Unfortunately, even though the relevant evidence may be obtained from any possible avenue, it is still impractical to carry out such assessments as cases of this kind usually occurred many decades ago.
2 Identify Proper Defendants
(a) The Closeness Test
Survivor of child sexual abuse often encounters distress when suing an institution like the Church or its associated entities. Unlike the Church in Canada or the US, which can be sued ‘as a statutory corporation,’ the church in Australia seems to be able to avoid its duty of care. [31]
Ellis Defence
The Ellis Defence, a well-known case, refers to a legal precedent, as well as a legal loophole, which allowed the Catholic Church to avoid being sued as a legal entity by transferring its assets to the trustees to escape the liability arising from child abuse claims. [32] The New South Wales Court of Appeal held that ‘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.’ [33]
(b) Lacking Proper Defendants
It was an arduous journey for a victim like Ellis to deal with the Church hierarchy to seek recovery. This was because traditionally Churches and States operated independently of each other. Under the protection of the Trust Property Act, [34] ‘rules of ecclesiastical law do not translate automatically into contractual, trust or other secular rules.’ [35] Even if certain abuse occurred within such religious bodies, the court would not treat it as being ‘amounting to an enforceable contract’, or sometimes ‘it was open to such religious bodies…to resort to the courts to uphold or enforce proprietorial claims.’[36] Unfortunately, neither statute nor common law could provide absolute protection to victims against the religious institution, especially because ‘Roman Catholic Church in a particular place would appear to have a much more complex structure.’ [37]
Closing the Loophole
Furthermore, in Sweeney, judges stated that vicarious liability should be examined in a context where the tortfeasor’s conduct is expected to benefit his employer, and only on such a basis it is possible to satisfy the elements like ‘representative’, ‘delegate’ or ‘agent’. [38] It is hard to argue that a Trustee would gain benefit from any individual abuser’s misconduct according to this principle.
In 2018, both Houses passed the Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2018, which aims at closing the loophole of ‘Ellis defence’.
“Pay the Damage”
Hansard explains that the new bill stipulates that any unincorporated association must nominate an appropriate defendant whose entity can be sued in the State to nullify the Catholic Church or whose trust with adequate assets can suffice the order as to child abuse against that unincorporated association.[39] This is to ensure that there will always be a defendant who can ‘pay the damage’ and the court can also assign a suitable defendant in the absence of the nominated defendant. [40]
This amendment is certainly a breakthrough in solving the conflict between religious institutions and secular legal bodies regarding vicarious liability.
C Miscellaneous Issues
During the litigation, the victims also have at least two problems: the onus of proof and the extension of time. As demonstrated by Prince, the absence of necessary evidence renders the court’s decision impossible, and this also affects the decision on whether the plaintiff ‘could have a fair trial on the issue of liability.’ [41]
Obviously, many victims suffered sexual abuse as a child and only began to make claims several decades later. To initiate proceedings, the victim might need to seek an extension of time, which often constitutes a barrier to litigation because many victims might be unable to obtain relevant evidence. The High Court in Prince explained the rationale behind the law of limitation periods, stating that the right of a party to take legal action should be limited because it is necessary to ‘repress the community members to perpetually defend litigation for historical allegations.’ [42]
The High Court, represented by M C Livesey QC, also expressed concern regarding both objective evidence and subjective memories:
‘Delay in the prosecution of legal rights erodes the quality of justice because, amongst other things, it is productive of unfairness and prejudice. Evidence is invariably lost or diluted; witnesses die or cannot be found; memories fade or are reconstructed’, [43]
A similar concern regarding memories was evident in Ellis v Pell. During the cross-examination, both Ellis’ belief and awareness of the sexual abuse suffered had been questioned, regarding the impact on Ellis’ life. [44] However, B W Walker SC in Prince stressed that the absence of some evidence may only impact ‘on damages, not liability. ’[45]
The Complexity of Child Sexual Abuse
These cases and different opinions indicate the complexity of dealing with sexual abuse suffered in childhood. Quite often, when the victim lost the evidence (including the death of witnesses), people may question the authenticity of the victim’s memories or the awareness of such psychological injury as well. In Ellis v Pell, Mr. Ellis indicated that ‘the abuse was manifesting itself directly physically but was not then named or known consciously and only with talk and resultant awareness could the symptoms be understood and begin to move from physical sensations into consciousness.’ [46]
While complexity may pertain more to damages, it permeates the entire legal process. In his journal, Mr. Ellis addressed that the courageous victims may have had painful experiences of ‘no one believing them, people punishing them for speaking out, and/or judging them for being fragile or mentally unwell’. [47] Such ‘moral difficulties’ may prejudice the victims access legal resources fairly and reinforce the psychological trauma. The ‘crisis of trust’ demands additional effort from victims and legal practitioners, acknowledging the betrayal in the initial trauma.
III Law Reform – New Legislation
The royal commission has spurred some legal reforms on civil litigation concerning the above issues. This includes ‘imposing statutory duties on institutions, extending the vicarious liability to non-employees such as a contractor or a volunteer, and identifying a defendant to sue and pay damage;’ reforms also ‘removed limitation periods for survivors to launch civil claims regardless of when the sexual abuse happened.’ [48]
Prospective and Retrospective
In Hansard, while the Statutory Liabilities imposed on institutions only apply prospectively, which means under this category only the child abuse that occurred after the enactment of law reform could hold the organisations accountable, the reform of proper defendant can apply both prospectively and retrospectively, ensuring the legality for the victims to sue ‘a proper defendant with sufficient assets to satisfy a claim.’ [49]
In cases like Prince or Ellis, the survivors of child sexual abuse usually endured long-term psychological or emotional harm, which negatively affected their work and life. [50] The amendment recognizes and extends the harm to ‘psychological and emotional harm suffered as a result of the sexual or physical abuse.’ [51] The pity is, due to the statutory reform being only prospective, such an extent is only helpful to the abuse that occurred after the commencement of new bill in damages assessment. [52] For a large number of ‘historical cases’, the road ahead for the victims to seek recovery remains dark.
IV Conclusion
This paper has compared several critical approaches to identifying vicarious liability concerning child sexual abuse. The Australian approach appears to be a narrow test without too much concern for policy. The court’s discretionary power plays an important role in determining liability. This essay also considered an equally important issue regarding the proper defendant in religious bodies when seeking recovery in relation to vicarious liability. Ultimately, unless statutory law provides a better solution to resolve the legal issues arising from systematic sexual abuse, survivors of sexual abuse would still have to face many difficulties, as legal authorities consider vicarious liability a classic legal field substantially governed by common law.
(END)
Footnote
Part 1
[1] Julia Davis et al, Connecting with Tort Law (Oxford University Press, 2nd ed, 2020) 638.
[2] New South Wales, Hansard, Legislative Assembly, 26 September 2018 (CIVIL LIABILITY AMENDMENT (ORGANISATIONAL CHILD ABUSE LIABILITY) BILL 2018), https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/’HANSARD-1323879322-103787
[3] Ibid.
[4] Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, at 50.
[5] Prince Alfred College v ADC (2016) 258 CLR 134, at 40.
[6] Sir John William Salmond, The Law of Torts: A Treatise on the English Law of Liability for Civil Injuries (London Stevens and Haynes, 3rd ed, 1912) 81-83; Also see Prince Alfred College v ADC (2016) 258 CLR 134, at 42.
[7] Lister v Hesley Hall Ltd [2002] 1 AC 215.
[8] Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.
[9] Lister v Hesley Hall Ltd [2002] 1 AC 215, at 98; Prince Alfred College v ADC (2016) 258 CLR 134, at 67-68.
[10] Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, at 47.
[11] Prince Alfred College v ADC (2016) 258 CLR 134, at 72.
[12] Ibid75.
[13] Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, at 53.
[14] Ibid 54.
[15] New South Wales v Lepore (2003) 212 CLR 511, at 196; .Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 261.
[16] Bazley v Curry [1999] 2 SCR 534.
[18] Ibid31.
[19] New South Wales v Lepore (2003) 212 CLR 511, at 197; Bazley v Curry [1999] 2 SCR 534, at 267.
[20] Prince Alfred College v ADC (2016) 258 CLR 134, at 59; Bazley v Curry [1999] 2 SCR 534, at 79.
Part 2
[21] Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, at 45.
[22] Prince Alfred College v ADC (2016) 258 CLR 134, at 59.
[23] New South Wales v Lepore (2003) 212 CLR 511.
[25] Prince Alfred College v ADC (2016) 258 CLR 134, at 81.
[26] Ibid
[27] New South Wales v Lepore (2003) 212 CLR 511, at 74.
[28] Ibid.
[29] David Seeman, “The law on vicarious liability: recent developments” [2017] PrecedentAULA 73; (2017) 143 Precedent 38. http://www.austlii.edu.au/au/journals/PrecedentAULA/2017/73.html
[30] Ibid.
[31] Andrew Morrison RFD SC, ‘The Ellis Defense – How the catholic church evades liability’ (2014) (124) Focus on Children and the Law 15, 16.
[32] Ibid.
[33] Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117, at 47.
[34] Roman Catholic Church Trust Property Act 1936.
[35] Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117, at 42.
[36] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, at 64.
[37] Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117, at 41.
[38] Sweeney v Boylan Nominees Pty Ltd (2003) 227 ALR 46, [2006] HCA 19, at 13.
[39] New South Wales, Hansard, Legislative Council, 17 October 2018 (CIVIL LIABILITY AMENDMENT (ORGANISATIONAL CHILD ABUSE LIABILITY) BILL 2018),
https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/’HANSARD-1820781676-77677
[40] Ibid.
Part 3
[41] Prince Alfred College v ADC (2016) 258 CLR 134, at 85.
[42] Prince Alfred College v ADC (2016) 258 CLR 134, page 138.
[43] Ibid.
[44] Ellis v Pell [2006] NSWSC 109, para 25- 27.
[45] Prince Alfred College v ADC (2016) 258 CLR 134, page 140.
[46] Ellis v Pell [2006] NSWSC 109, at 42.
[47] John Ellis, Helping Heal Sins of the Past, Law Society of NSW Journal, https://lsj.com.au/articles/helping-heal-sins-of-the-past/ .
[48] New South Wales, Hansard, Legislative Assembly, 26 September 2018 (CIVIL LIABILITY AMENDMENT (ORGANISATIONAL CHILD ABUSE LIABILITY) BILL 2018), https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/’HANSARD-1323879322-103787
[49] Ibid
[50] Prince Alfred College v ADC (2016) 258 CLR 134, para 15-24.
[51] New South Wales, Hansard, Legislative Assembly, 26 September 2018 (CIVIL LIABILITY AMENDMENT (ORGANISATIONAL CHILD ABUSE LIABILITY) BILL 2018), https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/’HANSARD-1323879322-103787
[52] Ibid.