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ANALYSING INSTITUTIONAL LIABILITY FOR CHILD SEXUAL ABUSE IN ENGLAND AND WALES AND AUSTRALIA: VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND STATUTORY INTERVENTION

Published online by Cambridge University Press:  24 September 2018

Paula Giliker
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Abstract

This paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.

Keywords

tort lawinstitutional child sexual abusevicarious liabilitynon-delegable duties
Type
Articles
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The Cambridge Law Journal , Volume 77 , Issue 3 , November 2018 , pp. 506 - 535
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Copyright © Cambridge Law Journal and Contributors 2018 

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Footnotes

*

Professor of Comparative Law, University of Bristol.

The author would like to thank the TC Beirne School of Law, University of Queensland, for its support as a visiting researcher in 2017 and the University of Bristol for its award of a University Research Fellowship. The author would, in particular, wish to thank Kit Barker, John Bell, Prue Vines, Allison Silink, Keith Syrett and the University of Bristol Private and Commercial Law discussion group and the anonymous reviewers for the Cambridge Law Journal for their helpful feedback. Any errors remain the responsibility of the author.

References

1 Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 A.C. 1.

2 Armes v Nottinghamshire CC [2017] UKSC 60, [2018] A.C. 355.

3 Prince Alfred College v ADC [2016] HCA 37, (2016) 258 C.L.R. 134.

4 For its terms of reference, see <https://www.iicsa.org.uk/terms-reference>. The Chair is supported by a panel of three independent experts, a Victims and Survivors Consultative Panel, and other expert advisers. See generally, IICSA, Report of the Internal Review (December 2016) which examined the Inquiry's ways of working and how it could deliver its work in a timely, inclusive and transparent way.

5 IICSA, Report of the Internal Review, p. 4. See also IICSA, Interim Report of the Independent Inquiry into Child Sexual Abuse (April 2018).

6 For its terms of reference, see <https://www.childabuseroyalcommission.gov.au/about-us/terms-of-reference>.

7 Royal Commission, Final Report: Preface and Executive Summary (Commonwealth of Australia 2017)Google Scholar, submitted to the Governor-General of Australia on 15 December 2017.

8 See e.g. Australian Final Report, ibid., Recommendation 6.6; IICSA, Interim Report, para. 6.3: “Clearly, it is crucial that institutions do all they can to ensure that those working or volunteering within them are suitable for the work they do and do not represent a risk to children.”

9 Royal Commission, Redress and Civil Litigation Report (Commonwealth of Australia 2015)Google Scholar (2015 Report).

10 See Recommendations 89 and 91.

11 Cox v Ministry of Justice [2016] UKSC 10, [2016] A.C. 660 (negligent dropping of kitchen supplies) and Mohamud v WM Morrison Supermarkets P lc. [2016] UKSC 11, [2016] A.C. 677 (racist assault on a supermarket customer).

12 Barclays Bank Plc. v Various Claimants [2018] EWCA Civ 1670, at [41], per Irwin L.J.

13 See generally Miers, D., “Compensating Deserving Victims of Violent Crime: The Criminal Injuries Compensation Scheme” (2014) 34 L.S. 242Google Scholar.

14 Claimants are expected to apply for compensation as soon as it is reasonably practicable for them to do so, normally not later than two years after the crime occurred. While special provision is made for abuse cases, Sugarman reports that the time limit for bringing applications continues to be a hurdle in cases involving historic sexual abuse: N. Sugarman, “The Criminal Injuries Compensation Scheme 2012 and Its Impact on Victims of Crime” [2016] JPI Law 231, at 233.

15 See Ministry of Justice, The Criminal Injuries Compensation Scheme 2012 (London 2012), paras. 25–27Google Scholar. This is a real problem for victims of abuse whose suffering may have led them to seek solace in drugs or into other criminal activities. See Lewis, P., Delayed Prosecution for Childhood Sexual Abuse (Oxford 2006), 24CrossRefGoogle Scholar, who notes evidence that sexually abused children typically suffer from higher rates of serious medical, psychological and social problems during adulthood than adults who were not abused as children.

16 See <www.bbc.co.uk/news/uk-33707529>. See also Macleod, who comments on the use of blamelessness and behaviour as eligibility criteria: Macleod, S., “Criminal Injuries Compensation Scheme” in Macleod, S. and Hodges, C. (eds.), Redress Schemes for Personal Injuries (Oxford 2017) 508Google Scholar.

17 CICA and Ministry of Justice, Criminal Injuries Compensation: A Guide (March 2014).

18 The number of potential claimants in the 2015 Report was estimated at 60,000: Royal Commission, 2015 Report, p. 33.

19 This includes situations where the Commonwealth employed minors, delivered activities for children, delivered state functions in the Australian Capital Territory and the Northern Territory before self-government, held children in detention or was a guardian. In addition to this cut-off date, applicants must be born before 30 June 2010, an Australian citizen or permanent resident and not already received a court-ordered payment from the institution: <https://www.nationalredress.gov.au/applying/who-can-apply>.

20 See BBC News, “Catholic Church Joins Sex Abuse Compensation Scheme”, 30 May 2018, available at <https://www.bbc.co.uk/news/world-australia-44298275>.

21 If they wish, survivors will also have the opportunity to tell their personal story about their experience to a senior representative of the responsible agency, and to receive direct personal acknowledgement and response

22 See <http://www.rirb.ie/>. The total awards made up to 31 December 2016 amount to €969.9 million. The average value of award is €62,250, the largest award being €300,500: RIRB Annual Report (2016).

23 $150,000 is also less than the $200,000 cap recommended by the Royal Commission in its 2015 Report (see Royal Commission, 2015 Report, Recommendation 19).

24 See Degeling, S. and Barker, K., “Private Law and Grave Historical Injustice: The Role of the Common Law” (2015) 41 Monash U.L.Rev. 377, at 395–397Google Scholar, who argue that such schemes can learn much from the common law.

25 Goudkamp, J. and Plunkett, J., “Vicarious Liability in Australia: On the Move?” (2017) 17 O.U.C.L.J. 162, at 166Google Scholar.

26 Simanowitz, A., “Accountability” in Vincent, C., Ennis, M. and Audley, R.J. (eds.), Medical Accidents (Oxford 1993), ch. 14Google Scholar.

27 See Priel, D., “A Public Role for the Intentional Torts” in Barker, K. and Jensen, D. (eds.), Private Law: Key Encounters with Public Law (Cambridge 2013)Google Scholar.

28 See R. Lewis, “Strategies and Tactics in Litigating Personal Injury Claims: Tort Law in Action” [2018] JPI Law 113.

29 P. Case, Compensating Child Abuse in England and Wales (Cambridge 2007), 37, who stresses the therapeutic and compensatory capacities of tort litigation for the abused claimant.

30 See e.g. JGE v English Province of Our Lady of Charity [2012] EWCA Civ 938, [2013] 1 Q.B. 722 (priest deceased); Maga v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2010] EWCA Civ 256, [2010] 1 W.L.R. 1441 (priest disappeared presumed deceased); A. v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB) (ministerial servant deceased).

31 A good example may be found in the leading Irish case of O'Keeffe v Hickey [2009] IESC 39. Here, prior to the vicarious liability claim, the abuse victim had instituted civil assault proceedings against Hickey (the school principal who had abused her). She was awarded more than €300,000 in compensation, but, as the Irish Supreme Court noted in Hickey, she had been unable to recover much, if any, of the award from the now retired teacher. See O'Mahony, C., “State Liability for Abuse in Primary Schools: Systemic Failure and O'Keeffe v. Hickey” (2009) 28 Irish Educational Studies 315CrossRefGoogle Scholar.

32 Hall, M., “The Liability of Public Authorities for the Abuse of Children in Institutional Care” (2000) 14 IJLPF 281, at 298Google Scholar.

33 See D & F Estates Ltd. v Church Commissioners for England [1989] A.C. 177, 209. Exceptionally an employer may also be found to be directly liable where the tortfeasor is the mind and will of the institution so that it can be said the acts of the abuser are the acts of the institution itself (doctrine of attribution): Erlich v Leifer [2015] VSC 499, at [91], per Rush J.

34 Hoyano, L. and Keenan, C., Child Abuse (Oxford 2007), 286–298Google Scholar.

35 Ibid., at p. 283.

36 See e.g. SB v NSW [2004] VSC 514; S. v The Corporation of the Synod of the Diocese of Brisbane [2001] QSC 473. It remains unclear to what extent there is also a common law duty to report abuse to the police once the institution is made aware of its existence: see New South Wales v DC [2017] HCA 22.

37 Morgan, P., “Distorting Vicarious Liability” (2011) 74 MLR 932, at 945CrossRefGoogle Scholar.

38 See Roe v Minister of Health [1954] 2 Q.B. 66, 84.

39 Blackwater v Plint [2005] SCC 58, at [15] (emphasis added).

40 Ibid., at paras. [14]–[15].

41 Prince Alfred College [2016] HCA 37, (2016) 258 C.L.R. 134.

42 A, DC v Prince Alfred College Inc [2015] SASC 12, at [146], per Vanstone J.

43 See the work of Foley, T., “Institutional Responses to Child Sexual Abuse: How a Moral Conversation with Its Lawyers Might Contribute to Cultural Change in a Faith-Based Institution” (2015) 18 Legal Ethics 164CrossRefGoogle Scholar; Holmes, V., “Compounding the Abuse: Lawyers for the Catholic Church in the Ellis Case” (2014) 17 Legal Ethics 433CrossRefGoogle Scholar; and (in the US context) Lytton, T.D., Holding Bishops Accountable (Cambridge MA 2008)Google Scholar.

44 In the recent vicarious liability case of Barclays Bank Plc. [2018] EWCA Civ 1670, for example, following the death of the alleged abuser in 2009, his son and daughter had cleared all his old paperwork from the family home and destroyed it.

45 Royal Commission, Interim Report Vol 1: What We Are Learning about Responding to Child Sexual Abuse (2014) Ch 5, 158.

46 A. v Hoare [2008] UKHL 6, [2008] 1 A.C. 844. See F. Burton, “Limitation, Vicarious Liability and Historic Actions for Abuse: A Changing Legal Landscape” [2013] JPI Law 95.

47 Stubbings v Webb [1993] A.C. 498.

48 See Trustees of Roman Catholic Church v Ellis (2007) 70 NSWLR 565, [2007] NSWCA 117. For a comparative discussion, see Gray, A., “Extending Time Limits in Sexual Abuse Cases: A Critical Comparative Evaluation” (2009) 38 C.L.W.R. 342Google Scholar.

49 See A. Inglis, “Institutional Child Abuse: Limitation After A v Hoare” [2009] JPI Law 284.

50 Royal Commission, 2015 Report. Prior to the proposed changes, a child only had until they turned 21 years of age (in most cases) to make a claim for damages for personal injury as a result of sexual abuse. See also Mathews, B., “Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice” (2003) 11 T.L.J. 218, at 221Google Scholar, who argued that the statutory time limits put adult survivors of abuse in an invidious position where most would be incapable of bringing their action within the time set.

51 Ibid., at pp. 52–53; Recommendations 85–88. This will be subject to the need for a claimant to prove his or her case on admissible evidence and the court's power to stay proceedings in the event that a fair trial is not possible.

52 Limitation of Action Act 1974 (Qld), s. 11A, as amended by the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016.

53 Limitation Act 1969 (NSW), s. 6A, as amended by Limitation Amendment (Child Abuse) Act 2016 (NSW). See also Limitation of Actions Amendment (Child Abuse) Act 2015 (Vict), Justice and Community Safety Legislation Amendment Act 2016 (No 2) (ACT), the Limitation Amendment (Child Abuse) Act 2017 (NT), Limitation Amendment Act 2017 (Tas) and Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA).

54 See e.g. Limitation of Action Act 1974 (Qld), s. 11A(5) and Limitation Act 1969 (NSW), s. 6A(6).

55 Hope, Lord, “Tailoring the Law on Vicarious Liability” (2013) 129 L.Q.R. 514, at 525Google Scholar. See also former UK Supreme Court justice, Phillips, Lord, “Vicarious Liability on the Move” (2015) 45 H.K.L.J. 29Google Scholar.

56 Salmond, J., The Law of Torts, 1st ed. (London 1907), 83Google Scholar (later found in Heuston, R. and Buckley, R., Salmond and Heuston on the Law of Tort, 21st ed. (London 1996), 443Google Scholar).

57 Lister v Hesley Hall Ltd. [2001] UKHL 22, [2002] 1 A.C. 215.

58 See Trotman v North Yorkshire CC [1999] L.G.R. 584.

59 Lister [2001] UKHL 22, [2002] 1 A.C. 215, at [28], per Lord Steyn.

60 Mohamud [2016] UKSC 11, [2016] A.C. 677.

61 Ibid., at paras. [44]–[45], per Lord Toulson.

62 Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 A.C. 1.

63 See Lord Reed in Cox [2016] UKSC 10, [2016] A.C. 660, at [24].

64 See JGE [2012] EWCA Civ 938, [2013] Q.B. 722. It also extends to ministerial servants: The Trustees of the Watchtower Bible and Tract Society and Others [2015] EWHC 1722 (QB).

65 Cox [2016] UKSC 10, [2016] A.C. 660.

66 Armes [2017] UKSC 60.

67 Cox [2016] UKSC 10, [2016] A.C. 660, at [24], per Lord Reed.

68 Barclays Bank Plc. [2018] EWCA Civ 1670, at [61], per Irwin L.J.

69 Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 A.C. 1, at [35], per Lord Phillips.

70 Armes [2017] UKSC 60, at [63].

71 Ibid., at paras. [62], [63].

72 See Giliker, P., “Vicarious Liability in the Supreme Court” (2017) 7 UK Supreme Court Yearbook 152Google Scholar; Ryan, D., “Close Connection and Akin to Employment: Perspectives on Fifty Years of Radical Developments in Vicarious Liability” (2016) 56 I.J. 239Google Scholar.

73 See John Doe v Bennett [2004] 1 SCR 436 (relationship test) and Bazley v Curry [1999] 2 SCR 534 (course of employment test).

74 S. Deakin, “The Evolution of Vicarious Liability”, Allen & Overy Annual Lecture, University of Cambridge, 8 November 2017, 8.

75 New South Wales v Lepore [2003] HCA 4, (2003) 212 C.L.R. 511.

76 Prince Alfred College [2016] HCA 37, (2016) 258 C.L.R. 134.

77 See Hambly, H. Luntz D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., Torts: Cases and Commentary, 8th ed. (Chatswood NSW 2017), 17.1.3Google Scholar.

78 Market Investigations v Minister of Social Security [1969] 2 Q.B. 173, 185, per Cooke J.

79 Stevens v Brodribb Sawmilling (1986) 160 C.L.R. 16, 29, per Mason J. See also 671122 Ontario Ltd. v Sagaz Industries Canada Inc [2001] SCR 983, 204 DLR (4th) 542, at [47], per Major J. for the position in Canada.

80 Hollis v Vabu [2001] HCA 44, (2001) 207 C.L.R. 21.

81 Ibid., at para. [93]; see also Scott v Davis [2000] HCA 52, (2000) 204 C.L.R. 333, at [34].

82 Sweeney v Boylan Nominees Pty Ltd. [2006] HCA 19, (2006) 226 C.L.R. 161. See also Scott [2000] HCA 52, (2000) 204 C.L.R. 333.

83 Day v The Ocean Beach Hotel Shellharbour Pty Ltd. [2013] NSWCA 250, (2013) 85 NSWLR 335, at [14], quoting Sweeney [2006] HCA 19, (2006) 226 C.L.R. 161, at [12], [33].

84 Trustees of Roman Catholic Church (2007) 70 NSWLR 565, [2007] NSWCA 117.

85 Ibid., at paras. [53]–[54], per Mason P. Technically, however, the NSW Court of Appeal left the question open whether a priest could be an employee (at [32]).

86 Tan, D., “A Sufficiently Close Relationship Akin to Employment” (2013) 129 L.Q.R. 30, at 34Google Scholar.

87 Prince Alfred College [2016] HCA 37, (2016) 258 C.L.R. 134.

88 Ibid., at para. [80].

89 Following the HCA's decision in Farah Constructions v Say-Dee [2007] HCA 22, (2007) 230 C.L.R. 89, lower courts will be bound by “seriously considered dicta” of the High Court: see paras. [134], [158]. For criticism, see Harding, M. and Malkin, I., “The High Court of Australia's Obiter Dicta and Decision-Making in Lower Courts” (2012) 34 Syd.L.Rev. 239Google Scholar.

90 Subsequent case law had struggled to apply Lepore in the absence of a clear ratio and had been criticised by commentators for failing to provide a single test capable of determining the course of employment in the sexual abuse context: see e.g. Wangmann, J., “Liability for Institutional Child Sexual Assault: Where Does Lepore Leave Australia?” (2004) 28 MULR 169Google Scholar; and Vines, P., “Schools’ Responsibility for Teachers’ Sexual Assault: Non-Delegable Duty and Vicarious Liability” (2003) 27 MULR 612Google Scholar. For the struggles of the Australian courts, see Ffrench v Sestili [2006] SASC 44; Sprod v Public Relations Orientated Security Pty Ltd. [2007] NSWCA 319; Blake v J R Perry Nominees Pty Ltd. [2012] VSCA 122; Withyman v NSW [2013] NSWCA 10.

91 See Prince Alfred College [2016] HCA 37, (2016) 258 C.L.R. 134, at [81].

92 Deatons v Flew [1949] HCA 60. Deatons in turn was regarded as unjust and wrongly decided in Mohamud [2016] UKSC 11, [2016] A.C. 677, at [30].

93 Prince Alfred College [2016] HCA 37, (2016) 258 C.L.R. 134, at [81].

94 Ibid., at para. [46]. See also the speech of Chief Justice S. Kiefel, “The adaptability of the common law to change”, Brisbane 24 May 2018.

95 See e.g. D. Ryan, “From Opportunity to Occasion: Vicarious Liability in the High Court of Australia” [2017] C.L.J. 14, at 17. Goudkamp and Plunkett argue that the analysis is overly focused on terminology at the expense of content and that a test of “authority, power, trust, control and the ability to achieve intimacy” is likely to make little sense in relation to negligence claims, “Vicarious Liability in Australia”, p. 167. This is true, but it is not clear that the test would apply in this context.

96 Bazley v Curry (1999) 174 DLR (4th) 45, 61. See also See Deakin, S., “Enterprise-Risk: The Juridical Nature of the Firm Revisited” (2003) 32 I.L.J. 97Google Scholar; and Brodie, D., Enterprise Liability and the Common Law (Cambridge 2010)CrossRefGoogle Scholar.

97 Commonwealth of Australia, Review of the Law of Negligence: Final Report (Canberra 2002)Google Scholar. See Davis, R., “The Tort Reform Crisis” (2002) 25 UNSWLJ 865Google Scholar; Cane, P., “Reforming Tort Law in Australia: A Personal Perspective” (2003) 27 MULR 649Google Scholar.

98 Goudkamp and Plunkett, “Vicarious Liability in Australia”, p. 168.

99 Bryan, M., “Almost 25 Years On: Some Reflections on Waltons v Maher” (2012) 6 J.Eq. 131, at 134Google Scholar.

100 Sweeney [2006] HCA 19, (2006) 226 C.L.R. 161, at [11].

101 The Pass of Ballater [1942] P 112, 117, per Langton J.

102 Jones, M.A. (ed.), Clerk and Lindsell on Torts, 22nd ed. (London 2017), para. 6–60Google Scholar.

103 Armes [2017] UKSC 60, at [31]–[32].

104 For example, employers’ liability (Wilsons and Clyde Coal Co. Ltd. v English [1938] A.C. 57) or the rule in Rylands v Fletcher (1868) LR 3 HL 330.

105 Woodland v Essex CC [2013] UKSC 66, at [23], per Lord Sumption. For a comparison of UK and Australian law, see Foster, N., “Convergence and Divergence: The Law of Non-Delegable Duties in Australia and the United Kingdom” in Robertson, A. and Tilbury, M. (eds.), Divergences in Private Law (Oxford 2016), 119ffGoogle Scholar.

106 Kondis v State Transport Authority [1984] HCA 61, (1984) 154 C.L.R. 672 (employers’ liability).

107 Ibid., at p. 687. See also Murphy, J., “The Juridical Foundations of Common Law Non-Delegable Duties” in Neyers, J.W., Chamberlain, E. and Pitel, S.G.A., (eds), Emerging Issues in Tort Law (Oxford 2007)Google Scholar; cf. R. Stevens, “Non-Delegable Duties and Vicarious Liability” in the same text. See also Burnie Port Authority v General Jones Pty Ltd. [1994] HCA 13, (1994) 179 C.L.R. 520, 551: “the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.”

108 Woodland [2013] UKSC 66, at [7] (emphasis added). Note, in particular, the five defining features identified by Lord Sumption, at [23]. Lord Sumption noted also a second category of non-delegable duties which consists of a large, varied and anomalous class of cases involving inherently hazardous activities and dangers on the public highway.

109 Ibid., but not in relation to the intentional torts of a teacher: Lepore (2003) 212 C.L.R. 511.

110 Commonwealth v Introvigne [1982] HCA 40, (1982) 150 C.L.R. 258, at [26]–[32], per Mason J. and [5], per Murphy J.; Woodland [2013] UKSC 66; Fitzgerald v Hill [2008] QCA 283.

111 Albrighton v Royal Prince Alfred Hospital [1980] 2 N.S.W.L.R. 542; Introvigne [1982] HCA 40, (1982) 150 C.L.R. 258, 270, per Mason, J., with whom Gibbs, C.J. agreed; Ellis v Wallsend District Hospital (1989) 17 N.S.W.L.R. 553Google Scholar. Recent English case law has extended this non-delegable duty to health care provision to detainees in an immigration centre: GB v Home Office [2015] EWHC 819 (QB); cf. Razumas v MoJ [2018] EWHC 215 (QB) which distinguished GB due to its different legislative backdrop.

112 See Gleeson C.J. in Lepore (n 109) at [36].

113 Armes (NA) v Nottinghamshire CC [2015] EWCA Civ 1139, [2016] 2 W.L.R. 1455.

114 Armes [2017] UKSC 60, at [50]. See also Baroness Hale in Woodland [2013] UKSC 66, at [33].

115 Fleming, J.G., The Law of Torts, 9th ed. (Sydney 1998), 434Google Scholar.

116 Williams, G., “Liability for Independent Contractors” (1956) 14 C.L.J. 180, at 186CrossRefGoogle Scholar.

117 Morgan, J., “Liability for Independent Contractors in Contract and Tort: Duties to Ensure that Care is Taken” (2015) 74 C.L.J. 109, at 120CrossRefGoogle Scholar. Cf. state legislation such as the Civil Liability Act 2002 (NSW), s. 5Q, which treats non-delegable duties as equivalent to vicarious liability

118 See Beuermann, C., “Conferred Authority Strict Liability and Institutional Child Sexual Abuse” (2015) 37 Syd.L.Rev. 113Google Scholar.

119 Deakin, S., “Organisational Torts: Vicarious Liability versus Non-Delegable Duty” (2018) 77 C.L.J. 15, at 18CrossRefGoogle Scholar.

120 Royal Commission, 2015 Report, p. 55.

121 Ibid., Recommendations 89–93.

122 Ibid., at p. 491.

123 Ibid., at p. 493. Contrast the views in Armes [2017] UKSC 60 discussed above in relation to vicarious liability.

124 Royal Commission, 2015 Report, pp. 493–494.

125 Recommendations 91–92. Persons associated with the institution would include the institution's officers, office holders, employees, agents, volunteers and contractors.

126 Royal Commission, Final Report: Beyond the Royal Commission, vol. 17 (Commonwealth of Australia 2017), 26–27.

127 See Wrongs Amendment (Organisational Child Abuse) Act 2017, inserting ss. 88–93 into the Wrongs Act 1958 (Vic). The Victorian Government has stated, however, that its measures were influenced not only by the Royal Commission but also by the state's own inquiry – Family and Community Development Committee, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (Victoria 2013)Google Scholar.

128 Much will depend on how strong the presumption in favour of liability will be in practice. The Commission merely comments that the steps that are reasonable for an institution will vary depending upon the nature of the institution and the role of the perpetrator in the institution: Royal Commission, 2015 Report, p. 494. See Silink, A. and Stewart, P., “Tort Law Reform to Improve Access to Compensation for Survivors of Institutional Child Sexual Abuse” (2016) 39 U.N.S.W.L.J. 553Google Scholar.

129 Royal Commission, Final Report, pp. 28–29. In June 2018, the NSW government announced its intention to introduce measures which would reverse the onus of proof and require institutions to prove they took reasonable measures to prevent abuse.

130 See Budiselik, W., Crawford, F. and Chung, D., “The Australian Royal Commission into Institutional Reponses to Child Sexual Abuse: Dreaming of Child Safe Organisations?” (2014) 3 Social Sciences 565–583CrossRefGoogle Scholar. The Federal system in Australia means that it is for state and territory governments to decide whether they wish to implement the Commission's recommendations.

131 Tofaris, S., “Vicarious Liability and Non-Delegable Duty for Child Abuse in Foster Care: A Step too Far?” (2016) 79 M.L.R. 871, at 890CrossRefGoogle Scholar (emphasis added).

132 Royal Commission, 2015 Report, p. 56. Consider, for example, the attempt in s. 90, Wrongs Act 1958 (Vic), to define an individual “associated” with a relevant organisation.

133 Submissions published on institutional responses to child sexual abuse in out-of-home care: 18 July 2016. Cf. the position in the UK and New Zealand: Armes [2017] UKSC 60; S. v Attorney-General [2003] 3 N.Z.L.R. 450.

134 Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study No. 1 (Commonwealth of Australia 2014), 1–57. We could also raise questions of interpretation: for example, would the Boys’ Brigade (a Christian foundation) be included as a religious organisation or excluded as not-for-profit organisation?

135 Armes [2017] UKSC 60, at [50]–[51] (majority). See also Lord Hughes who dissented on the issue of vicarious liability but not that of non-delegable duties, at [75].

136 Armes [2017] UKSC 60, at [49]. Cf. K.L.B. v British Columbia [2003] SCC 51, [2003] 2 SCR 403 (which did also conclude that the case for extending vicarious liability to the relationship between governments and foster parents had not been established).

137 Stevens, “Non-Delegable Duties”, p. 361. See also Stevens, R., Torts and Rights (Oxford 2007), 122–123CrossRefGoogle Scholar.

138 The classic starting point for this much debated topic is Letang v Cooper [1965] 1 Q.B. 232. Markesinis and Deakin, for example, argue that the functions of negligence and trespass torts differ fundamentally in practice: Deakin, S., Johnston, A. and Markesinis, B., Markesinis and Deakin's Tort Law, 7th ed. (Oxford 2013), 360CrossRefGoogle Scholar. For differences between Australia and England and Wales, see Handford, P., “Intentional Negligence: A Contradiction in Terms” (2011) 32 Syd.L.Rev. 29Google Scholar.

139 Deakin, “The Evolution of Vicarious Liability”, p. 7.

140 Tofaris, “Vicarious Liability”.

141 See Tan, D., “For Judges Rush in Where Angels Fear to Tread” (2013) 21 T.L.J. 43Google Scholar; Beuermann, “Conferred Authority”.

142 Arguably Lord Hobhouse's judgment may be seen as supporting non-delegable duty analysis: Lister [2001] UKHL 22, at [54]–[55].

143 See e.g. Razumas [2018] EWHC 215 (QB). For uncertainties which remain post-Woodland, see George, R., “Non-Delegable Duties of Care in Tort” (2014) 130 L.Q.R. 534Google Scholar; Giliker, P., “Vicarious Liability, Non-Delegable Duties and Teachers: Can You Outsource Liability for Lessons?” (2015) 31 P.N. 259Google Scholar.

144 See McBride, N.J. and Bagshaw, R., Tort Law, 6th ed. (Harlow 2018), 842–843Google Scholar; Weir, T., An Introduction to Tort Law, 2nd ed. (Oxford 2006), 112–113CrossRefGoogle Scholar.

145 Barclays Bank Plc. [2018] EWCA Civ 1670. Irwin L.J, at [46], further questions whether, in the light of the later decisions of Cox and Mohamud, Woodland could now have been argued on the basis of vicarious liability.

146 To use the well-known phrase of Lord Phillips in Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 A.C. 1, at [19]. See also Lord Reed in Cox [2016] UKSC 10, [2016] A.C. 660, at [1].

147 See Lord Sumption in Woodland [2013] UKSC 66, at [23], who sets out the defining features of the Woodland non-delegable duty.

148 Cox [2016] UKSC 10, [2016] A.C. 660, at [29].

149 Silink, A., “Vicarious Liability of a Bank for the Acts of a Contracted Doctor” (2018) 34 P.N. 46, at 46Google Scholar.

150 See e.g. Kafagi v JBW Group Ltd. [2018] EWCA Civ 1157; Bellman v Northampton Recruitment Ltd. [2016] EWHC 3104 (QB), [2017] I.C.R. 543 (on appeal); but not all: Various Claimants v Wm Morrisons Supermarket Plc. [2017] EWHC 3113 (QB), [2018] I.R.L.R. 200.

151 See Trustees of Roman Catholic Church (2007) 70 NSWLR 565, [2007] NSWCA 117. See also Ireland: Hickey v McGowan [2017] IESC 6, at [52]. The Royal Commission has recommended that state and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings: (a) the property trust is a proper defendant to the litigation, and (b) any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust: Recommendation 94. So far only Victoria has legislated (in a slightly different form).

152 Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 A.C. 1, at [33].

153 C. McIvor, “Vicarious Liability and Child Abuse” (2013) 29 P.N. 62, at 63.

154 Deakin, “The Evolution of Vicarious Liability”, p. 9.

155 E.g. Morgan, P., “Certainty in Vicarious Liability: A Quest for a Chimaera?” (2016) 75 C.L.J. 202CrossRefGoogle Scholar.

156 See Michael v Chief Constable of South Wales [2015] UKSC 2, [2015] A.C. 1732; CN v Poole BC [2017] EWCA Civ 2185, [2018] 2 W.L.R. 1693.

157 See Collins, H., “Independent Contractors and the Challenge of Vertical Disintegration to Employment Protection Laws” (1990) 10 O.J.L.S. 353CrossRefGoogle Scholar; Prassl, J., The Concept of the Employer (Oxford 2015)CrossRefGoogle Scholar.

158 Hollis [2001] HCA 44, (2001) 207 C.L.R. 21.

159 Some Australian commentators have been positive. Crawford, for one, has argued that it provides greater certainty than had previously existed in Australia (or indeed is found in the UK and Canada): Crawford, H., “A Step in the Right Direction?” (2017) 24 T.L.J. 179Google Scholar.

160 Zweigert, K. and Kötz, H., An Introduction to Comparative Law, 3rd ed. (Oxford 1998), 223Google Scholar.

161 Prince Alfred College [2016] HCA 37, (2016) 258 C.L.R. 134, at [46].

162 Bazley [1999] 2 SCR 534.