Under new laws recently introduced to the Victorian Parliament, child abuse victims will have a greater ability to bring compensation claims against organisations.

First tabled on November 22, the proposed laws will reverse the legal onus and create a presumption of liability, such that organisations including schools, will need to establish that they took "reasonable precautions" to prevent child abuse.

As the Bill is before Parliament, it is yet to be confirmed whether or not it will be enacted in its current form. However there are some key sections of the Bill that schools should be aware of in the event that the Bill is passed.

The Bill

The Wrongs Amendment (Organisational Child Abuse) Bill 2016 (Vic) (the Bill) (available here) proposes changes to the Wrongs Act 1958 (Vic). The Explanatory Memorandum explains that it was introduced in response to the 2013 Betrayal of Trust inquiry report (Report). Recommendation 26.4 of the Report suggested that the Victorian Government undertake a review of the Wrongs Act and identify whether any legislative amendment could be made to ensure organisations are held accountable and have a legal duty to take reasonable care to prevent criminal child abuse.

Previous responses to the Report included the introduction of the Child Safe Standards and criminal law reform. Refer to our Briefing Paper for more information on these topics: The New Victorian Child Safe Standards - A radical shift in your schools child protection obligations.

The Wrongs Act is the principal statute in Victoria governing claims for damages for economic and non-economic loss from negligence claims. Where negligence is established, damages can be awarded. Although it has traditionally not been considered a form of ''child protection legislation'', the proposed changes will mean that all schools should be aware of its effects and how they approach child abuse risk management.

The Bill will insert a new section into the Wrongs Act - "Part XIII: Organisational liability for child abuse." While there is no definition of "child abuse" key definitions include:

• abuse: means physical or sexual abuse;
• child: means a person under the age of 18 years;
• sexual abuse: means sexual assault or other sexual misconduct; and
• physical abuse: does not include a lawful use of force (summarised definition).

These definitions are similar to the those adopted by key pieces of child protection legislation in Victoria.  For example, under the Child Wellbeing and Safety Act 2005 (Vic), child abuse is defined to include:

• any act committed against a child involving a sexual offence or a grooming offence listed in the Crimes Act 1958 (Vic);
• the infliction of physical violence, serious emotional or psychological harm; and
• the serious neglect of a child.

The application of the Wrongs Act to child abuse claims adds this negligence-based piece of legislation to the existing group of child protection legislation in Victoria including the Crimes Act 1958 (Vic) and the Child Wellbeing and Safety Act 2005 (Vic) (which imposes civil penalties, as opposed to criminal punishment or compensation orders).

Liability of the organisation: Section 91

Section 91 of the Bill is the key section. This section imposes a duty of care that can form part of a cause of action in negligence against a school.

Section 91(2) of that Section states: "a relevant organisation owes a duty to take the care that in all the circumstances of the case is reasonable to prevent the abuse of a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation." A "relevant organisation" is defined to include an entity organised for some end, purpose or work that exercises care, supervision or authority over children...and is capable in law of being sued." Non-government schools would be considered relevant organisations under this definition.

An "individual associated with the relevant organisation" is an extensive definition and includes an individual who is:

• an officer, office holder, employee, owner, volunteer or contractor of the organisation;
• for religious organisations: a minister of religion, a religious leader, an officer or member of the personnel of the religious organisation; and
• the same persons above if they are at an organisation to which the relevant organisation has delegated its care supervision or authority over a child.

In other words, a broad group of people at a school (e.g. teachers, board members, volunteers) and similar people at an entity contracted by the school, would be considered to be an "individual associated with" the school under the new Section 91. As a result, a school owes a duty to students under their care to prevent child abuse by those persons.

Did the school take reasonable precautions?

Section 91(3) makes it clear that the onus of proof lies on a school to prove that it did not breach the duty of care established under section 91(2) - being the duty to prevent child abuse.  Section 91(3) states (in summary):

• the relevant organisation is presumed to have breached the duty of care referred to in section 91(2); unless
• it proves on the balance of probabilities that it took reasonable precautions to prevent the abuse in question.

This is a "reverse onus" of proof. This means that there is a presumption that an organisation has breached their duty of care unless they can establish they took reasonable precautions to prevent the alleged abuse.

"Reasonable precautions" is not defined in the Bill, which is likely intentional by Parliament to give courts discretion to determine the issue in the circumstances of each case. A note to section 91 states that the concept will vary depending on factors including but not limited to:

• the nature of the relevant organisation;
• the resources available to it;
• the relationship between the relevant organisation and the child;
• whether the relevant organisation had delegated the care, supervision or authority over the child to another organisation; and
• the role of the organisation in the perpetration of the abuse.

The Explanatory Memorandum suggests that this note gives courts non-exhaustive guidance on the factors that may affect "reasonable precautions". It is expected that courts will draw on the vast wealth of case law concerning negligence to determine what is and what is not "reasonable".

What does this mean for schools?

It is likely that Victorian schools are already experiencing ''legislation fatigue" given the fast pace of legislative reform in that State over the past 12 months with the introduction of the Child Safe Standards and new criminal offences. Refer to our Briefing Paper: The New Victorian Child Safe Standards- A radical shift in your schools child protection obligations. Further change will occur in 2017 with the introduction of the reportable conduct scheme (see our earlier article here).

In addition to legislative reform, various Victorian authorities such as the VRQA and CECV, have published comprehensive guidance notes on how to comply with the Child Safe Standards and other child protection laws.

For schools trying to achieve compliance with the Child Safe Standards and related child protection laws, this guidance should provide them with some level of comfort that they have taken "reasonable precautions" to prevent child abuse being committed by a person associated with the school.

There are numerous examples of courts looking to guidelines, particularly if there is an expectation of those guidelines being considered by organisations, in making a determination as to reasonableness and establishing a threshold of care.

That said, it is impossible to provide clear guidance on what "reasonable precautions" are without some form of judicial interpretation of the phrase in a court case.

Will other governments follow suit?

The law is intended to come into operation no later than July 1, 2017. At this stage only Victoria has taken steps to modify organisational liability in respect of child abuse claims. However, law firm Maurice Blackburn has urged other states and territories to follow the lead of Victoria, calling for a national approach to preventing and responding to future child abuse claims.

While the overall response to some of the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse has been lacklustre, there is a clear trend towards increasing the pressure on defendant organisations and simplifying the process of bringing child abuse proceedings. For example, limitation periods on child abuse actions have been removed in a number of States/Territories, including Queensland, Tasmania and the ACT, and NSW has tightened existing obligations for employers.

As a result, schools in Victoria and around the country should consider both their criminal and civil legal obligations and whether they would be affected by this change or an equivalent future shift in the legal burdens upon organisations.