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Changes to Civil Liability

In response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, a range of amendments have been made to the Civil Liability Act 2002 (NSW). These sections are prospective, applying only to offences occurring after 26 October 2018.  

Statutory duty to prevent child abuse (s6F): This imposes a duty of care on any organisation that has responsibility for a child, requiring that the organisation take reasonable precautions to prevent any associated individual from perpetrating child abuse against a child in connection with the organisation. For the purposes of this section, ‘associated individual’ is defined broadly to include any officer, employee, volunteer, contractor or religious leader. If a person associated with the organisation commits a child abuse offence against a child in connection with the organisation, the organisation will be presumed to have breached this duty unless it can prove that reasonable steps were taken.

In response to this new duty, we recommend that churches undertake risk assessment in relation to all associated individuals, not just those in child-related work. We also recommend that the church retain documentary evidence of all such risk management.

Vicarious liability for child abuse perpetrated by employees s6H: This new section clarifies that organisations will be liable for abuse perpetrated by employees (including volunteers) in certain circumstances. This vicarious liability had previously been a contentious issue. The new section means that court will consider authority, trust and ability to achieve intimacy in determining whether the employee’s role provided the occasion for abuse.In response to this clarification, we recommend that all positions have clear role descriptions and that additional screening and monitoring measures are implemented for any role that may provide an opportunity for intimacy with persons under 18.

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