I Introduction
The status quo of bringing legal action for sexual abuse against the institution might not be optimistic for the victims of abuse. This essay examines the legal difficulties for vicarious liability in institutional abuse claims by analysing relevant case laws as well as discussing important legal principles. This essay also reflects on the recent law reform in New South Wales with respect to ‘Ellis Defence’ and the significance of the new bill for helping the victims protect their rights.
II Legal Difficulties
A Status Quo
The underlying problem regarding institutional child sexual abuse, as a form of an intentional criminal act, means that it usually was committed by an individual who was associated with certain organizations. The vicarious liability as to this type of tort is therefore examined based on the relationship between the individual tortfeasor and the associated institution, instead of based on fault. [1] Hence, identifying vicarious liability is the primary challenge for the victims.
Secondly, according to Hansard, many difficulties the survivors of sexual abuse in Australia have encountered in seeking recovery through litigation may include ‘the very nature and impact of institutional abuse against the survivor’s ability to seek damages through existing avenues.’ [2] In the first place, such difficulties arise from the imbalance of legal powers, be it a church, or a non-profit organization, the nature of the institution might push the victims ‘without a strong legal position’ to accept the unjust and insufficient remedies due to lacking proper defendant; besides, it usually takes many years for survivors to expose such abuse, for example, the average time is 23.9 years, [3] which leads to an obvious obstacle to applying for the extension of time.
B Major Issues
1 Approach to Identify Vicarious Liability
(a) The Closeness Test
As Lord Toulson addressed, ‘the test for holding an employer vicariously liable for the tort of his employee has troubled the courts for many years.’ [4] In determining vicarious liability, different jurisdictions have employed different tests or approaches.
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] This is particularly true as the courts are inclined to adopt Salmond’s three tests to determine whether the conduct is committed ‘in the course of employment.’
Salmond’s test contains two distinct elements, namely, 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, although improper modes, of doing those authorised acts.’ [6]
For a victim, it will be especially hard to argue that the tort occurs ‘in the course of employment,’ as this raises an issue with the ‘close connection’ test which has been adopted in many UK cases like Lister, [7] and Mohamud. [8]
Apparently, the most controversial argument falls on the issue of the connection between unauthorised acts (usually abuse) and authorised acts. The closeness of the connection between the two, and the further requirement such as whether ‘the connection be sufficient to make it fair and just to impose liability,’ are to be observed by the Judges when considering Lister, whose principle has been reaffirmed in Mohamud, although the fairness not to be treated 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 still questioned whether such a ‘close connection’ can be justified as a ‘fairness’ to impose vicarious liability. [12] Additionally, although this test has been applied by UK courts for over a decade as it’s ‘firmly rooted in justice’, [13] Lord Dyson commented that such a test 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
Alternatively, other approaches have been considered by Judges in Canada. Frustrated by Salmond’s test, McLachlin J considered the policy reasons to establish the vicarious liability in Bazley v Curry, the principle behind such a decision can be found in Hollis v Vabu 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]
It is challenging for a victim to take legal action against a non-profit institution. Such difficulty has materialized in Bazley where the employer of the tortfeasor Curry is the Children’s Foundation which is a non-profit organization. The Foundation argued that the non-profit organization should be exempt from being imposed vicarious liability due to its nature of being a non-profit institution which is contrary to ‘commercial enterprises,’ [16] but McLachlin J stressed that ‘if the choice must be made 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 should be noted that, although Bazley established the ‘enterprise risk’ by addressing ‘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 abandon 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 ruled ‘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, also this might force the enterprise to choose its employees prudently when creating a position entrusting someone. Unfortunately, this approach based on policy reason is not considered in Australia, [22] which can be evidenced by Lepore. [23]
(c) The Nature of Employee’s Responsibility
In Australia, the central issue is to investigate ‘the nature of the employee’s responsibilities.’ [24]
The High Court in Prince has established a more specific approach to evaluate the ‘special role’ appointed to the employee and the employee’s position against the victim, [25] which may include the assessment of ‘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, such legal principles might be hard to put to test. David Seeman emphasized that such a relationship, or the 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’, instead of 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 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 as a well-known case, refers to a legal precedent, also 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 out of child abuse claims. [32] 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 is because traditionally Churches and States are independent 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]
Furthermore, in Sweeney, judges said that vicarious liability should be examined in a context where the tortfeasor’s conduct is expected to benefit his employer and only on such 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’.
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 Prince demonstrates, the absence of necessary evidence makes the court’s decision impossible, and this also affected 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 started to claim several decades later. To bring the proceedings, the victim might need to seek an extension of time which often constitutes a barrier to the 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 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 (M C Livesey QC) also expressed concern, regarding both objective evidence and subjective memories, that:
‘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 manifested in Ellis v Pell. In the cross-examination, both Ellis’ belief and awareness of the sexual abuse suffered had been questioned as to 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]
These cases and different opinions indicate the complexity of dealing with sexual abuse suffered in childhood. Quite often, when the evidence (including the death of witnesses) is lost, the authenticity of the victim’s memories or the awareness of such psychological injury could be inquired 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 such complexity may be more related to damages, it is embedded in the entire legal process or dispute resolution process. In his journal, Mr. Ellis addressed that the courageous victims may have had painful experiences of ‘not being believed, being punished for speaking out, and/or being judged for being fragile or mentally unwell’. [47] Such ‘moral difficulties’ may prejudice the victims to access legal resources fairly and reinforce the psychological trauma. Such a ‘crisis of trust’ requires extra effort input by both the victims and legal practitioners, considering the trust in the intimate relationship had been abused in the initial trauma.
III Law Reform – New Legislation
The promising sign is the royal commission has promoted some legal reforms on civil litigation in relation to 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]
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, and this also ensures 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 suffered 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 amount of ‘historical cases’, the road ahead of the victims to seek recovery remains dark.
IV Conclusion
This paper has compared several critical approaches to identifying vicarious liability concerning child sexual abuse. Australian approach appears to be a narrow test without too much concern for the policy. The court’s discretionary power plays an important role to determine liability. This essay also considered an equally important issue as to the proper defendant in the religious bodies when seeking recovery in relation to vicarious liability. Ultimately, unless statutory law provides a better solution to solve the legal issue arising from systematic sexual abuse, survivors of sexual abuse would still have to face many difficulties as vicarious liability can be said to be a classic legal field substantially ruled by common law.
(END)
[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.
[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.
[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.