The Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021 (SA) (Amendment Act) received assent on 9 December 2021 and was due to commence on proclamation. On 28 July 2022 the South Australian Government notified the public that the Amendment Act would come into operation on 2 August 2022.

In summary, the Amendment Act amends the Civil Liability Act 1936 (SA) (Civil Liability Act) to:

• create a positive duty on child-related institutions to take all reasonable steps to prevent sexual or serious physical abuse, or psychological abuse related to sexual or serious physical abuse, of a child by a person associated with the institution while the child is under its care, supervision, control or authority
• reverse the onus of proof in relation to abuse claims against child-related institutions, so that – if a court finds that a person associated with the institution abused a child while the child was under its care, supervision, control or authority – the court will presume that the institution breached this duty unless the institution proves that it took all reasonable steps to prevent the abuse
• codify and expand the definition of vicarious liability so that an institution will be vicariously liable for abuse committed by an employee if the apparent performance by the employee of a role in which the institution placed the employee supplied the occasion for the abuse to occur, and the employee took advantage of that occasion to abuse the child
• assist in identifying a proper defendant against whom litigation may be commenced
• enable the setting aside of previous settlements.

How Does This Affect a School’s Duty of Care and Potential Liability for Child Abuse?

Section 50E of the Civil Liability Act imposes a duty of care on a school, as a child-related organisation, to:

• take all reasonable steps
• to prevent the abuse of a child
• by a person associated with the school
• while the child is under the school’s care, supervision, control or authority.

If a victim of sexual abuse, serious physical abuse or psychological abuse related to sexual abuse or serious physical abuse (alleged to have occurred at the school or to have involved school staff, volunteers or contractors) brings a negligence claim against the school, and the court finds that a person associated with the school abused the child, section 50F of the Civil Liability Act reverses the onus of proof. The court will presume that the school breached its duty of care unless the school can prove that it took all reasonable steps to prevent the abuse.

Whether or not a school took all reasonable steps will be assessed by a court in accordance with considerations set out in the Civil Liability Act and case law. In determining whether a school took reasonable steps to prevent the abuse, a court may take into account any of the following:

• the nature of the school
• the resources reasonably available to the school
• the relationship between the school and the child
• whether the school had delegated the exercise of authority, power or control over the child to another person
• the level of control that the school had over the individual who perpetrated the abuse, including the extent to which the position gave them an ability to achieve intimacy with the child or gain the child’s trust
• the probability that the abuse would have occurred if precautions against a risk of abuse had not been taken
• the burden of taking precautions to avoid the risk of abuse
• the social utility of the activity that created the risk of abuse
• whether the school complied with any applicable standard in respect of child safety.

The following records may assist in demonstrating reasonable steps taken by a school to prevent the child sexual abuse, serious physical abuse or psychological abuse related to sexual abuse or serious physical abuse of its students:

• copies of the school’s child protection and child safety policies and procedures, including in particular child safety codes of conduct, policies and procedures for internal reporting of child safety incidents and concerns, and policies and procedures for internal investigations of child safety incidents and concerns involving staff, volunteers and contractors
• records that document actions taken by the school in response to specific child safety incidents and concerns
• records that document the child protection training provided to and completed by the school’s staff, volunteers and contractors
• records that document the school’s child safety risk management strategies and their implementation
• records that document reviews of and improvements to the school’s child safety policies, procedures, work practices and systems.

What Should Schools Do?

As quoted in a previous School Governance article, commentators on similar reforms in New South Wales, Matisha Panagoda and Martin Slattery of Carroll & O’Dea Lawyers said:

“There are already many regulations to ensure best practice is implemented in the operation of institutions that operate facilities where children are in their care. The reverse onus of proof will simply require that they maintain adequate policies, procedures, codes of conduct and training and will now need to maintain comprehensive records to demonstrate that reasonable precautions were taken to prevent child abuse from occurring from time to time.”

Schools in South Australia undoubtedly take their duty to protect children in their care very seriously, and therefore should already be taking “all reasonable steps” to protect their students from abuse. Schools, however, must be able to demonstrate this by having well documented policies and processes that are reviewed and improved on a regular basis, and by creating and maintaining records of child safety incidents and concerns, child protection training and risk management strategies to prevent child abuse by staff, volunteers and contractors.

Authors

Karen Zeev

Karen is a Legal Content Consultant, Child Safeguarding at CompliSpace. Karen has worked at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in the Reportable Conduct Directorate, and at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer where she was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has a background as a commercial litigation lawyer and holds a bachelor’s degree in Arts/Law (Hons).

Deborah de Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.