On 23 October 2019, the Queensland Government passed the Civil Liability and Other Legislation Amendment Act 2019 (the Act), with significant implications for child abuse claims against organisations. The reforms remove the limitation periods for survivors to commence civil action for all types of child abuse, reverse the onus of duty of care and set out the liability for unincorporated institutions and defunct institutions. The reforms are in response to the recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). We are likely to see further legislative changes as states continue to demonstrate their commitment to child safety.
Background
The Royal Commission made several recommendations regarding the civil liability of organisations. In particular, it noted that it was often difficult for individuals to commence and be successful in claims against organisations. This was for several reasons, including that the burden was on the individual to prove that the organisation breached its duty of care, the fact that unincorporated institutions could escape liability despite having assets in a separate trust (as noted in the important case by John Ellis), and limitation periods failing to align with the average time it took for child survivors to commence claims.
In response, several states introduced legislative reform. Victoria and New South Wales both passed legislation to reverse the burden of proof in relation to duty of care, meaning that if a person associated with an organisation abused a child, the organisation would be presumed to have breached its duty of care unless it could prove it took all reasonable steps to prevent the abuse. Both states have also removed the “Ellis defence” and required unincorporated institutions to nominate an entity capable of being sued and with assets to take its place in child abuse claims. Western Australia and the ACT have also passed similar legislation. Most states have also removed the limitation period for child sexual abuse claims.
Changes under the Act
The Act amends several existing acts including the Civil Liability Act 2003 (Qld), Civil Proceedings Act 2011 (Qld) and Personal Injuries Proceeding Act 2002 (Qld). The key changes under the Act include:
- Duty of care – the Act sets out a clear duty of care that applies to organisations 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. The burden of proof is also reversed where an institution will be taken to have breached its duty of care unless it can prove it took all reasonable steps to prevent the abuse.
- Unincorporated institutions – a person who experienced child abuse by a person associated with an unincorporated institution while under their care, supervision, control or authority will be able to start or continue a claim, notwithstanding that the institution is unincorporated. The Act also states that courts can make orders to require unincorporated institutions to identify any associated trusts and make orders that the trustee of the trust is nominated as the appropriate defendant where appropriate.
- Defunct institutions – the Act specifically states that liability for claims against defunct institutions will be transferred to the relevant successor of the institution. Relevant factors when considering if any institution is the relevant successor include if any merger or acquisition occurred, the new institution is a part of the old institution or there is some other relevant connection.
- Statute of limitations – for personal injury claims, the statute of limitation was removed for personal injury claims resulting from sexual abuse when the claimant was a child. The Act now extends this to claims resulting from sexual abuse, serious physical abuse or psychological abuse of a child perpetrated in connection with sexual abuse or serious physical abuse.
Implications of the Act
The Act has significant implications for institutions based in Queensland or with operations in Queensland. In relation to claims for historical abuse, institutions need to be aware that the Act will make it more likely that they will need to take responsibility for any liability of defunct institution that it may be associated with. Furthermore, unincorporated institutions will no longer be able to rely on the so called ‘Ellis defence’ that they cannot be sued as they are unincorporated or do not have assets. Trustees of trusts which hold assets for unincorporated institutions should be aware that courts can nominate them as defendants in child abuse claims. These will also be important considerations for any institutions considering mergers or acquisitions or even taking assets from defunct institutions, noting that it may mean they also take on any liability for historical claims.
Looking forward, the duty of care set out in the Act creates an expectation that institutions must be proactive in preventing child abuse by individuals associated with the institution. Institutions should be looking carefully at their recruitment strategies, policies and procedures and training.
Next steps for organisations
While the Act and its changes apply to institutions in Queensland, all organisations should note that similar changes have occurred in other states or are being considered. We recommend that organisations take the following next steps to align with their legal obligations and best practice.
- Ensure child safe recruitment – given the legally imposed duty of care and reversed burden of proof, ensuring the right people are in your organisation is critical. Organisations should be reviewing their recruitment practices and their monitoring of checks such as Working with Children Checks. We have set out some tips on child safe recruitment in our HR child safety checklist.
- Prioritise record keeping – record keeping will be fundamentally important if institutions intend to defend themselves against claims by demonstrating that they have taken all reasonable steps to prevent the abuse. This includes keeping records of training that you run and attendees, induction processes, policies and procedures and how the organisation responds to any child safety concerns.
- Embed child safety into your strategy – given the implications of the new Act, organisations should be thinking about their child safety in broader strategic discussions including when considering mergers and acquisitions. Consideration should be given to any liability that the organisation may be accepting if it becomes connected with another institution or defunct institution. Organisations may also wish to consider joining the National Redress Scheme.
For more information or assistance in aligning with your legal obligations, please do not hesitate to contact us.