Extended civil liability for institutional physical abuse

On 2 March 2020, a number of key legislative changes came into force in Queensland that will have significant implications for institutional liability for child abuse claims, increasing liability for both historical physical abuse and reversing the onus of proof for future abuse related claims.

The most recent amendments in the Civil Liability and Other Legislation Amendment Act 2019 follow changes, which commenced 1 March 2017, to the Civil Liability Act 2003 (the CLA) and the Limitations of Actions Act 1974 which removed the limitation period for civil liability institutional sex abuse claims

Serious Physical Abuse

The definition of "abuse" in the CLA has been extended, as it relates to the duty of institutions to prevent child abuse, to mean "sexual abuse or serious physical abuse of the child" and otherwise to also mean "psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child." [emphasis added]

Duty of care and reversal of the onus

A new section 33D has been added to the CLA which imposes an express duty on an institution to:

"take all reasonable steps to prevent the abuse of a child by a person associated with the institution while the child is under the care, supervision, control or authority of the institution."

Critically, this amendment reverses the onus of proof, providing that an institution will be taken to have breached its duty unless it can prove that it took "all reasonable steps" to prevent the abuse (CLA, section 33E(2)). Matters relevant in deciding whether the institution took all reasonable steps are set out at new section 33E(3) and include the nature of the institution, the resources available to the institution, the relationship between the institution and the child, and the extent to which the institution gave persons authority or an ability to achieve intimacy with the child.^[1]

Persons defined to be associated with an institution has broad application and will, depending on the type of institution, include an officer, office holder, representative, leader, owner, member, employee, agent, volunteer, contractor of the institution or a minister if religion / religious leader (section 33C).

While the majority of provisions in the Act apply retrospectively, the express duty of institutions to prevent the abuse of a child and the reversal of the onus of proof applies from 2 March 2020 onwards.

Statute of Limitations

Sections 11A of the Limitations Act removes the limitation period for civil actions for damages for personal injury as a result of child sexual abuse.

Consistent with the amendment to the definition of abuse as outlined above, the Act amends the definition of "abuse" in section 11A to extend to "sexual abuse or serious physical abuse of the child" or "psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child." [emphasis added]

It follows that the limitation period for civil liability of an institution for serious physical abuse has now been removed and, because of the amendment to the CLA, a survivor of serious physical abuse can apply to the Court to set aside a prior settlement or judgement that was affected by the now abolished limitation period.

Apologies

Part 1A of the CLA allows a person to make an apology about a matter without that apology being construed or used as an admission of liability. Relevantly, these provisions do not apply to civil liability of a person for an unlawful sexual assault, other unlawful sexual misconduct or unlawful intentional act done by the person with the intent to cause personal injury.

The amending legislation amends the CLA to clarify that the exception in Part 1A does not apply to an apology made by or on behalf of an institution in relation to the abuse of a child by a person associated with the institution and that the protections under Part 1A apply to such an apology.

Implications for institutions

Onus reversal

If institutions have not already done so, they will be required to have in place clear written risk management policies and compliance processes to ensure they are in a position to prove that they are taking all reasonable steps to prevent the serious physical and sexual abuse of a child. Noting there is no limitation period, those risk management policies and proof of compliance should be well documented and stored (indefinitely) for the purposes of proving the institution has discharged its duty.

Conduct that may amount to "serious physical abuse"

The Act does not provide any definition for the term "serious physical abuse". Accordingly, guidance on what that term is taken to include will need to be provided, in time, by the courts.

How that term is ultimately interpreted will determine the scope and extent to which institutions may now be exposed to civil claims for serious physical abuse. The question will be particularly complex in respect of historical physical abuse claims given past practices of corporal punishment and in circumstances where it remains lawful in Queensland for a person in the place of a parent, or for a schoolteacher or master to use "such force as is reasonable" to discipline, correct, manage or control a child or pupil (Criminal Code Act 1899 (Qld), section 280).

Insurance implications

These reforms will likely raise the following issues:

• where the limitation period for serious physical abuse to a child has now been abolished, was relevant "occurrence based" insurance policies in place at the time of the abuse or does the institution hold "claims made" insurance for such claims;
• if the institution's liability insurance is "occurrence based", it will be necessary to conduct searches and locate insurance going back many decades to cover the period in respect of which claims could arise and check the terms of the insurance to assess whether the insurance would respond to claims arising from intentional physical abuse claims including what was, effectively, institutionally condoned corporal punishment;
• if insurance is "claims made", an institution should review its records to identify any past historical allegations or knowledge of physical abuse as the institution may have a duty to disclose to its insurer and notify the potential for future claims to made arising from those allegations; and
• the insurance should be reviewed to assess whether it responds to claims arising from intentional physical abuse claims including what was, effectively, institutionally condoned corporal punishment.

Similar legislative changes have been introduced in Victoria and New South Wales. Accordingly, institutions should review their child safety policies and compliance practices having regard to the onus of proof reversal, complete searches for any relevant insurance and seek legal advice to review the terms of those policies to identify any gaps in cover for potential abuse claims.

^[1] CLA, section 33E(3). Additionally, the Parliament Legal Affairs and Community Safety Committee Report in respect of the new legislation notes that this list is inclusive, and further relevant factors may be identified, based on the circumstances of each case. We note that the factors in respect of the position of the person relative to the child (generally) mirror the principles set out in Prince Alfred College Incorporated v ADC [2017] HCA 37 in respect of an employer's vicarious liability for abuse perpetrated by an employee. ^{Back to article}