New Legislation may extend liability for Child Abuse to organisations that are not subject to existing child protection regimes. Are you prepared?
New laws passed by the Queensland Parliament are set to give victims of institutional child abuse greater access to claims against institutions. The laws were announced in late 2019 and will come into operation soon. Broadly speaking, there are three new mechanisms that the new laws create in order to give victims greater access to claims against institutions. Those three mechanisms are:
– the creation of a new duty held by an institution to prevent child abuse coupled with a reversal of the onus to prove a breach of that duty in certain circumstances;
– the removal of limitation periods for any claim for loss or damage caused by serious physical or psychological abuse that occurred when the claimant was a child; and
– a set of rules that enable a claimant to commence proceedings against a person, trustee or body corporate on behalf of an institution that was responsible for abuse of the claimant.
The effect of each set of mechanisms and some of the practical consequences that organisations may face are discussed below.
Mechanism 1: The Creation of a New Duty
The new laws introduce a new duty. An institution responsible for providing activities, programs or services of a kind that gives people opportunities to have contact with children must take ‘all reasonable steps to prevent the abuse of a child’ under its care or supervision ‘by a person associated with the institution’. If abuse occurs, the institution is presumed to have breached this duty unless it proves that it took all reasonable steps to prevent the abuse.
These provisions create two significant issues that all organisations should consider if they conduct activities or provide services that are likely to put their employees in contact with children.
The first issue is that this duty is imposed on more than just institutions that provide services to children and who would hold a responsibility to ensure that volunteers or workers hold current blue cards. The duty is imposed on an ‘institution’. An ‘institution’ as defined as ‘an entity that provides an activity, program or service of the kind that gives an opportunity for a person to have contact with the child’. By contrast, a church, club or association is only required to ensure that its workers or volunteers have Blue Cards if their usual work is likely to include ‘providing services directed mainly towards children’ or ‘conducting activities mainly involving children’.
The definition of ‘institution’ created by the new laws is worded so broadly that it includes organisations with activities that are not oriented towards children and who would not need to ensure that their workers have Blue Cards. It then makes the organisation responsible to prevent child abuse of any child under its ‘care, supervision, control or authority’ whether or not its workers are subject to the screening requirements of the Blue Card regime.
The second issue is that these laws treat an institution as liable for any abuse inflicted upon a child unless it can prove that it took all reasonable steps to prevent that abuse. This is in contrast to the ordinary position that a claimant must prove that any injury or damage suffered by them occurred because a person did something they ought not to have done, or failed to do something they ought to have,
In determining whether an institution took all reasonable steps to prevent child abuse, the court can take into account the nature of the institution, the amount of resources available to it, the relationship between the institution and the child and (the position in which the institution placed person in relation to the child). It would seem, then, an organisation that is not oriented toward working with children would not be expected to meet the standard of an organisation that is. That it should not be assumed, given the wording of the provisions, that an organisation will be excused from liability only because its primary activities are not oriented toward working with children.
It is imperative, therefore, that any institution that is likely to give people opportunities to have contact with children, whether it is an institution that is covered by an existing child protection regime ought not, carefully consider what steps it should take to ensure the prevention of child abuse and retention of adequate records to prove that it took those steps for as long as it may be exposed to liability. Any organisation that holds this duty and fails to retain its records puts itself at risk of being unable to defend claims for child abuse. As discussed in the following, the organisation must retain its records permanently because the new law also removes certain limitation periods within which the claimant must commence proceedings.
Mechanism 2: The Removal of Limitation Periods
Many organisations based in Queensland that are subject to historical child abuse claims will be aware that the Queensland Parliament passed laws removing the limitation period of 3 years (upon reaching adulthood) that applied to claims made by victims of childhood sex abuse. This law removes the three-year limitation period firstly for claims arising from ‘serious physical abuse’ and secondly for claims arising from ‘psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child’.
The term ‘serious physical abuse’ is not defined by this legislation. Unlike in other states of Australia that have permitted claims for ‘physical abuse’, the Queensland Parliament has added the qualifier ‘serious’ to the definition. This definition would seem to exclude a class of claims for physical abuse that do not meet an undefined standard of ‘seriousness’. At this stage, neither the Act itself nor any of the explanatory materials released by Parliament offer further insight.
Looking to the use of similar terms in other contexts and in other jurisdictions, we anticipate that acts of physical abuse would be considered ‘serious’ for the purpose of this provision in at least the following circumstances:
– if a child is physically abused for a sustained period of time in a manner which is likely to be developmentally harmful to the child;
– if any physical abuse inflicted on a child involves indecency of a nature that is likely to cause ongoing harm to the child; and
– if an adult wilfully or recklessly inflicts significant physical injury, harm or suffering to a child, especially in circumstances where that abuse results in grievous bodily harm or wounding.
Until the courts have had the opportunity to consider and determine disputes over the provisions, it will be difficult to give clear guidance as to what behaviour the definition of serious physical abuse is intended to capture.
The fact that the provisions link psychological abuse to sexual abuse or serious physical abuse means that in many circumstances psychological abuse will not stand alone as a claim that a victim can bring against an institution. In ordinary circumstances a victim is able to recover compensatory damages for a psychological injury caused by sexual abuse (or, indeed, under the new legislation for serious physical abuse). It is difficult, at this stage, to predict what added benefit the cause of action for psychological injury is likely to have given is entirely contingent on a victim having suffered sexual abuse or serious physical abuse. It is nonetheless a new claim the victims can expect to bring without an organisation raising a limitation period in defence.
The new legislation, having created a cause of action and removed the limitation period for bringing causes of action then includes provisions that ensure a proper defendant can be identified by a claimant in most circumstances, as discussed in the following.
Mechanism 3: Attribution of Liability
The final set of mechanisms put in place by the new laws are contained in provisions that enable victims to claim against incorporated associations or bodies for which property is held on trust. Because of the legal nature of charitable and community organisations historically, many victims have been prevented from pursuing their claims because nobody is available to be a defendant. The new provisions make the following allowances for claims:
– a victim with a claim against an unincorporated association that subsequently incorporated can bring a claim against the corporate entity even if the corporate entity did not exist at the time of the abuse;
– a victim with a claim against a former officeholder of an unincorporated association can bring a claim against a current officeholder of the unincorporated association as a proxy for the former officeholder; and
– a victim can make a claim directly against an unincorporated association and the unincorporated association may nominate a person, with that person’s consent, to be a defendant for the purposes of the claim made against the unincorporated association.
In cases where a nominee is not named by an unincorporated associations, a claimant may request the court to make orders for the disclosure of details of any trust property available to the institution and for the appointment of the trustee of any such trust as the nominee of that institution.
Defendants who are appointed as proxies or nominees are entitled to access the assets of the institution, including the assets of any trust, to satisfy any liability pursuant to a judgement or settlement agreement in an abuse claim. Proxies are excused from personal liability and the liability of trustees appointed as nominees is limited to the value of the trust property from which the trustee is entitled to be indemnified.
These provisions mean that organisation should prepare for the possibility of claims to be bought for incidents over which they had no control, have no records and cannot anticipate. If possible, any and all records should be located and any individuals who had direct knowledge of any incidents should be contacted in case information is required concerning claims. It may otherwise be difficult for institutions to anticipate their liabilities and ensure they are able to meet them.
For further assistance or enquiries ascertaining whether your organisation needs to prepare for the legislative changes, we invite you to contact Chris Mills of our office here.