The way the South Australian Supreme Court has found an Adelaide school liable for child sexual abuse (CSA)may open a new door for victims to claim money from institutions.
The decision may also settle the legal debate over whether employers can be vicariously liable for crimes committed by a worker.
An ex-student is successfully claiming money from their school for at least 20 counts of sexual abuse by a boarding house master over an eight-month period in 1962.
The incident has left him with lifelong post-traumatic stress disorder and, while the attacker has been held criminally accountable, long-term financial support is what the ex-student needs most.
The decision will bind South Australian courts to automatically find vicarious liability where the relationship between the victim and attacker matches the facts ruled on by the Supreme Court.
In the judgment, Justice Peek extends vicarious liability to instances of sexual abuse where the employer has put the attacker in a role of power and intimacy.
And he found that employment as a boarding house master required the offender to put students to bed and provide the kind of emotional support that necessarily requires intimacy.
Duncan Basheer Hannon’s sexual abuse claims expert Matthew DeGregario says the reason victim’s lawyers want to rely on vicarious liability is because otherwise you need to prove the institution knew about the perpetrator and didn’t do anything.
“It becomes difficult for victims of child sexual abuse to overcome those evidentiary hurdles.”
And it is precisely because victims often only raise the abuse much later in life that vicarious liability lends itself to the CSA context.
As it is, the court always meets these claims by asking whether they can even run a fair trial given that passage of time.
DeGregario has routinely pleaded vicarious liability because its mention can improve the chance that a risk-averse employer will negotiate a settlement with the victim rather than go to trial.
But the Supreme Court’s decision is the first Australian ruling to turn that risk into a concrete reality for institutions.
“It will leave a small number of people making their claims in an advantageous negotiating position”
The decision puts the weight of the full court behind introducing vicarious liability as a legal pathway to recovering money from an attacker’s employer.
The strategy could be especially viable for CSA victims because vicarious liability sits apart from the usual need to prove the direct fault of an employer.
Instead, it is a policy-based recognition that employers are often more capable of paying for wrongdoing than an offending employee.
University of Sydney Senior Law Lecturer Dr Jane Wangmann has made submissions on civil liability to the Royal Commission into Institutional Child Sexual Abuse and says that some CSA victims prefer seeking this financial support through the civil system.
“If they’re successful, they’re likely to get a larger reward through the court system than a [state government] redress scheme.”
Only a handful of CSA victims may automatically benefit by sharing the relevant facts with the SA case, but DeGregario believes it is an important step forward by the South Australian judiciary.
“I would say that the justice system, as it is, is stacked against victims of child sexual abuse.”
The Royal Commission, responsible for alerting the Australian public to CSA as an institutional issue, agrees and supports writing vicarious liability for CSA into state laws as an option for civil reform.
More importantly, the Supreme Court decision may trigger a nationwide evolution in judicial practice by extending the common law reach of vicarious liability to CSA.
Vicarious liability finds ‘sufficient connection’ between a worker’s wrongful actions and the performance of their employment duties.
Before this decision, Australian courts had been unable to justify making that connection with a deliberately criminal act.
And by finding that connection with such a serious crime, the South Australian decision makes for a powerful statement on whether to apply vicarious liability in the criminal context.
This unresolved question sharply divided the High Court in NSW v Lepore and Dr Wangmann says it left a real lack of clarity around compensating CSA victims.
“We should expect more claims coming in this context and Lepore left lawyers and victims and defendants without any clear indication about how courts should approach this issue and how lawyers should give advice to their clients.”
DeGregario emphasises that the South Australian decision is not suggesting that vicarious liability applies to every act of sexual abuse.
“That’s not my understanding of what the full court decision stands for, it stands for vicarious liability in that particular factual circumstance.”
However, it is a strong invitation for the High Court to pass judgment on whether vicarious liability extends to criminal acts and what those criminal circumstances would have to be.
DeGregario says the High Court would be careful to connect vicarious liability only to specific crimes and in such a way that doesn’t expose employers to a floodgate of ad hoc claims for any criminal activity committed by their workers.
And the South Australian decision indicates that CSA in a residential school context is one criminal circumstance where employers should be exposed.
There are only a handful of previous successful civil claims for CSA in the state, but those decisions have awarded in the hundreds of thousands for ‘pain and suffering’.
According to DeGregario, if the ‘earning capacity’ of the victim has been impacted then this is the biggest factor in determining whether the payout becomes a very small or very large figure.
The ruling widens the financial prospects of South Australian CSA victims, but whether it will fundamentally change the principles of vicarious liability is ultimately up to the High Court.
Pickwickian 