Morrison, Andrew --- "Institutional responses to child sexual abuse: recent developments" [2017] PrecedentAULA 74; (2017) 143 Precedent 42

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INSTITUTIONAL RESPONSES TO CHILD SEXUAL ABUSE

RECENT DEVELOPMENTS

By Dr Andrew Morrison RFD SC

This article discusses recent developments in Australian law in respect of limitation periods in sexual abuse claims,^[1] and recent significant authorities on the opportunities to sue at common law.

LIMITATION PERIODS

The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), reviewing some thousands of cases following interviews with victims, concluded that the average time from last abuse to first reporting was around 22 years.^[2] An Anglican Queensland survey produced similar results.^[3] Limitation regimes in Australia vary enormously from state to state but it would be fair to say that Queensland is towards the tougher end of the spectrum. By legislative amendment, first Victoria^[4] and then New South Wales (NSW)^[5] have amended their limitation periods so as to grant an unlimited period for the bringing of claims of this nature.

In Victoria, the wording is ‘sexual abuse, physical abuse and associated psychological abuse’ and the wording in NSW is similar, with the addition of the word ‘significant’ preceding ‘physical abuse’.

With effect from 11 November 2016, the Queensland Parliament legislated to remove limitation periods for sexual abuse victims.^[6] The Government accepted a submission that all defendants should be subject to the changed limitation regime and not just institutions. However, the Queensland legislation does not extend to physical abuse or psychological abuse. To this extent, the legislation falls into line with Victoria and NSW. However, the Queensland legislation does not extend to physical abuse or psychological abuse.

It is most unclear what this means. If, for example, a child is beaten during the course of a rape, it seems at least arguable that the beating forms part of the rape and the limitation period would be extended for the whole occurrence. But what if the child had been repeatedly beaten on previous occasions so as to be coerced into assenting to the sexual abuse? What about the associated psychological trauma? On one view, these matters are so associated with the sexual abuse that a court would have to take them into account in assessing damages. On another view, they might be distinguished. The artificiality of distinguishing between sexual and physical and associated psychological abuse is obvious and is a significant defect in what is proposed. In any event, it may well be that at law once the plaintiff has a valid cause of action in respect of sexual abuse, it would be perfectly open to plead and claim for physical and associated psychological abuse during the same period on the basis that they are sufficiently connected in time and sufficiently related in respect of cause of action so as to give rise to a right to pursue the further claim without an extension of time being required.

In respect of Victoria, NSW and Queensland, the court has the power to deny an extension of time by staying proceedings where injustice should lead to a stay. In my view this is not identical with the heavy onus placed on an applicant for extension of time under the High Court decision in Brisbane South Regional Health Authority v Taylor.^[7] Lapse of time will not invariably make a fair trial impossible. The onus on a defendant seeking a stay will be heavy, given that the legislation is intended to remedy an injustice itself caused by the abuse. The delay was in the ordinary case, a consequence of (directly or indirectly) the abuse. As recognised by the Royal Commission, the substantial delays in bringing many of these claims often relates to fear or shame on the part of the claimant, due to the unique nature of the psychological injuries this type of abuse can give rise to. Many will also have disclosed their experiences when they happened, only to be disbelieved or threatened. The defendant bears a substantial onus and courts are likely to be loathe to stay proceedings even if some witnesses have died or some documents have disappeared, particularly in circumstances where those factors are themselves a consequence of the defendant’s tort. Moreover, criminal proceedings on the much higher onus of proof commonly proceed in respect of matters going back 50 years and more. There have been recent criminal convictions in South Australia (SA), for example, in respect of abuse at a Salvation Army institution in the early 1960s. Against this background, the prospects of a stay are not likely.

Nevertheless, a stay was granted in Connellan v Murphy [2017] VSCA 116 under this provision, but in highly exceptional circumstances and the Court emphasised that it would be a rare case where a remedy was denied.

There have also been developments in other jurisdictions.

The Commonwealth has issued a Legal Services Direction not to plead a defence to a time-barred child abuse claim and not to oppose any extension of time, with effect from 4 May 2016. That direction ceases to apply after 30 April 2019.^[8] In the ACT, legislation currently before the Legislative Assembly proposes to extend the limited removal of limitation periods in institutional child abuse claims to all child abuse claims. However, child abuse is defined as sexual abuse and does not appear to extend to physical or psychological abuse.^[9] In the Northern Territory, legislation currently before the Parliament proposes to remove the limitation period in identical terms to the NSW legislation, being sexual abuse, serious physical abuse and associated psychological abuse.^[10] In SA, legislation is currently before the Parliament to remove limitation periods for sexual abuse in an institutional context. This is the most restrictive extension in Australia.^[11] Yet the Government has shown little inclination to progress even this small step. In Tasmania, the relevant legislation is the Limitation Act 1974. In November 2016, the Tasmanian Government announced its intention to remove time limits for survivors of child sexual and physical abuse and has now circulated draft legislation in these terms for comment. In Western Australia, legislation is currently before the Parliament to remove all limitation periods for child sexual abuse claims but without mention of physical abuse and psychological sequelae.^[12] It is to be hoped that a more inclusive decision may be forthcoming from the new administration.

DEVELOPMENTS IN THE LAW ON VICARIOUS LIABILITY

The recent case of Prince Alfred College Incorporated v ADC (Prince Alfred)^[13] is remarkable in several respects. The plaintiff, who was 12 years old and a boarder at Prince Alfred College, where Dean Bain was employed as a housemaster. He was sexually abused in his dormitory by Bain and sued for resulting psychological injuries. The plaintiff failed at first instance before Vanstone J in the Supreme Court of SA.^[14] He succeeded on appeal in establishing vicarious liability but not direct negligence (by a majority) in the Full Court of the Supreme Court of SA.^[15] The defendant appealed successfully to the High Court.^[16]

At first instance, Vanstone J accepted that the appropriate approach was that of Gleeson CJ in State of NSW v Lepore,^[17] who found that vicarious liability was possible where the injury was caused by a criminal act. While the relationship between a boarding housemaster and a boarding student would be closer than that of a day student and teacher, the ordinary relationship was not one of intimacy.

Vanstone J held that sexual abuse was so far from being connected to the teacher’s proper role that it could be neither seen as an authorised mode of performing an authorised act nor in pursuit of the employer’s business, nor in any sense within the course of employment, one of which would be needed to establish vicarious liability. Vanstone J was of the view that the school did not create or enhance the risk of sexual abuse, and thus was not vicariously liable for the injuries that were caused by the abuse.

On appeal, the majority in the Full Court, Kourakis CJ and Peek J would not have found the school negligent in respect of the appointment of the teacher as a housemaster or supervision of him (Gray J dissenting). However, the Court unanimously found the school vicariously liable, applying the Gleeson CJ version of the ‘close connection’ test.

In the High Court, the Court (French CJ, Kiefel, Bell, Keane and Nettle JJ) held that the school’s appeal should be allowed on the basis that the plaintiff should not have been granted an extension of time under the Limitation Act given the extraordinary delay and given that a fair trial on the merits was no longer possible. The Court went on to express a view as to whether or not criminality precluded vicarious liability. The decision in Lepore was analysed. No basis was said to be shown for disturbing the decision that non-delegable duty of care was not an appropriate remedy. The Court considered the decisions of the House of Lords in Lloyd v Grace, Smith & Co^[18] and Morris v CW Martin & Sons Ltd.^[19] It was said that those cases were decided by reference to the position in which the employer had placed the employee vis-à-vis the victim.^[20] The Court went on to analyse the Canadian decisions in Bazley v Curry^[21] and Jacobi v Griffith,^[22] and referred to John Doe v Bennett^[23] and EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia,^[24] where reference was made to ‘power, trust or intimacy with respect to the children’. The analysis of the United Kingdom cases included Lister v Hesley Hall Ltd.^[25]

It seems extraordinary that the Court’s discussion stops at that point, prior to the High Court decision in Lepore, when the law in the United Kingdom has been expanded enormously by subsequent decisions in cases such as Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church (Maga),^[26] JGE v The English Province of Our Lady of Charity and the Trustees of the Portsmouth Roman Catholic Diocesan Trust (JGE),^[27] The Catholic Child Welfare Society & Ors (Appellants) v Various Claimants (FC) and the Institute of the Brothers of the Christian Schools & Ors (Respondents) (Various Claimants)^[28] and, most recently, the important Supreme Court decision in Cox (Respondent) v Ministry of Justice (Appellant).^[29] The failure to mention these important decisions may be a reflection of a failure on the part of counsel to draw them to the Court’s attention, as appears also to have been the case in the Full Court in SA. However, if that is the case, it reflects an extraordinary lack of research on the part of all concerned.

Ultimately, the Court decided that much of the evidence relating to the housemaster’s position of power had been lost.^[30] On that basis, the questions of power and intimacy could not be determined.

Given the in loco parentis authority of a housemaster over boys under his care, that seems a somewhat surprising basis on which to decide that an extension of time should not have been granted. Who else would have been legally entitled to enter a child’s dormitory after lights out? Presumably, evidence could and should have been called, going back to the 1960s, as to the power and authority of housemasters in that school at the time and in boarding schools generally. The failure to do so appears to justify the refusal of the extension of time. Yet the position of a housemaster has not changed and such evidence would be readily available.

However, the Court, by implication, appears to have adopted the approach taken by Gleeson CJ in Lepore and, as a consequence, determined that criminality of itself does not defeat vicarious liability. The appropriate question, then, is whether the authority placed the abuser in such a position of power and intimacy as to make it just to hold the institution liable to the victim for the consequences of the abuse.^[31]

A separate judgment by Gageler and Gordon JJ agreed that an extension of time should not have been granted but adopted the Canadian approach in Bazley v Curry and Jacobi v Griffiths. They at least referred to the more recent English decision in Various Claimants.^[32]

It was to have been hoped that this case would have advanced beyond the decision in Lepore but the High Court does not even consider employment-like cases given that the case it was concerned with involved true employment. These issues will require revisiting in the near future, hopefully with the more recent English cases under consideration.

Australia therefore still lags behind most of the common law world in applying the close connection test to vicarious liability, but at least there is now a basis for recovery without fault on the part of the institution. Clearly, the issue will have to be revisited in the High Court. See the recent paper by Dr James Goudkamp and James Plunkett, ‘Vicarious Liability in Australia: On the Move?’^[33]

VICARIOUS LIABILITY AND THE CATHOLIC CHURCH

In Trustees of the Roman Catholic Church v Ellis (Ellis),^[34] the Church argued that its trustees do not employ priests and the current bishop or archbishop was not responsible for them. In any event, the unincorporated association known as the Catholic Church was too amorphous to be capable of being sued by the traditional actions against unincorporated associations. This argument was accepted by the NSW Court of Appeal (CA), creating what has since become known as the Ellis defence and leaving Mr Ellis with no remedy for the abuse he suffered.

In the United States, Canada and Ireland, the courts have treated the Catholic Church as a corporation sole, making it liable to suit in abuse or negligence cases. That does not appear to be so in Australia. PAO, BJH, SBM, IDF and TMA v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Ors^[35] affirmed the Ellis defence, four years later in 2011.

However, the archbishops of Melbourne and Sydney, Archbishop Denis Hart and Archbishop Anthony Fisher, were announced by the Hon Justice Peter McClellan AM on 15 July 2015 to have stated publicly that it is the “agreed position of every bishop and every leader of a religious congregation in Australia that we will not be seeking to protect our assets by avoiding responsibility in these matters” and that “anyone suing should be told who is the appropriate person to sue and ensure that they are indemnified or insured so that people will get their damages and get their settlements”.^[36]

This would seem to be a reversion to the pre-Ellis position, where the Church accepted that its trustees were the appropriate body to be sued whether in respect of sexual abuse by clergy or negligence injuring pupils attending parochial schools (18.5 per cent of the Australian school population). Francis Sullivan of the Truth, Justice and Healing Council issued a media release in May 2015, calling for legislation to implement the right to sue, saying, “If a survivor wants to take a claim to court, then at the very least they must have an entity to sue.”^[37]

The NSW legislation is the Roman Catholic Church Property Trust Act 1936 (NSW) as amended. In Queensland, the relevant legislation is the Roman Catholic Church (Corporation of the Sisters of Mercy of the Diocese of Cairns) Land Vesting Act 1945 (Qld) and the Roman Catholic Church (Incorporation of Church Entities) Act 1994 (Qld). This legislation, while not identical, is relevantly similar to that in other states and territories.

Prior to the Ellis decision, the Catholic Church in Australia accepted that the trustees who hold all the property of the Catholic Church in each diocese or archdiocese are the appropriate body to sue. That remains the case in England and Wales, where the Catholic Church accepts that its trustees are its secular arm.

It might have been thought that the archbishops’ undertakings and the comments from Francis Sullivan indicated a reversion to that position. Regrettably, however, it would seem that some elements of the Catholic Church have recanted. In late 2015, the Archdiocese of Sydney issued on its website a document entitled ‘The Ellis Decision – a Re-statement of the Law’, saying ‘There is no such thing as the “Ellis defence”. The Ellis Decision did not create new law.’^[38]

‘While the Court found that the body corporate was not responsible for the assistant priest, it did not set up a so-called ‘Ellis defence’ or any new law. This decision is consistent with the longstanding rule of law that you cannot be liable for the criminal actions of others unless you are directly or indirectly responsible for supervising their conduct, and there has been negligence or other actionable conduct.’^[39]

Francis Sullivan issued a further press release, in which it was said that the Church should assist victims in finding someone to sue. The whole point of the Ellis defence is that there is no one to sue. In Ballarat it is understood that in actions brought against the Bishop of the Diocese by many victims of a notorious priest paedophile, defences have been filed denying vicarious liability.

It would appear that the Catholic Church, alone among churches and other non-government bodies in Australia, does not accept responsibility for its clergy or its lay members on the basis of vicarious liability. This means that if a child is injured by a teacher’s negligence in a parochial school, it is entirely at the whim of the local bishop as to whether or not he will offer up the trustees, who hold the school’s property, to be sued. This is wholly unacceptable. Legislative reform is required in all jurisdictions along the lines proposed in the Shoebridge Bill circulated in the NSW Upper House in 2014, which specifies that trustees can be held liable for claims against the Catholic Church related to sexual abuse.^[40] The NSW Government has issued a consultation paper and the ALA will make submissions in accordance with its best practice document, circulated to all governments and ALA branches.

OTHER CASES

In Erlich v Leifer & Anor,^[41] the plaintiff sued for psychiatric injury as a result of the sexual abuse by the first defendant/headmistress. The plaintiff attended an ultra-orthodox Jewish school from the age of 3 to 18. It was found that, over a period of about three years, she was sexually abused by the headmistress. The headmistress left the jurisdiction with the active assistance of the school community as soon as the allegations became known and has successfully resisted extradition from Israel. Rush J concluded that the school was vicariously liable because the relationship ‘was invested with a high degree of power and intimacy’ and the headmistress used that power and intimacy to commit sexual abuse.^[42] Rush J found that the plaintiff, as a result of the abuse, had suffered a major psychiatric illness with profound effects.^[43]

In Maga, the plaintiff, aged about 12 or 13 in 1975 and 1976, was sexually abused by Father Clonan. In the English Court of Appeal, Lord Neuberger MR (Longmore and Smith LJJ agreeing) upheld the trial judge’s finding that the claimant was not out of time to sue and that the finding of sexual abuse was supported by the evidence. He followed the Lister close connection test because Father Clonan obtained access to the boy through his clerical garb and youth work. Vicarious liability was therefore established.

In JGE v The English Province of Our Lady of Charity and The Trustees of the Portsmouth Roman Catholic Diocesan Trust,^[44] the preliminary issue was whether the Trustees of the Roman Catholic Church could be liable to the plaintiff for sexual abuse and rape by a Roman Catholic clergyman, now deceased. The abuse occurred when the plaintiff was a young child in a children’s home in Hampshire between 1970 and 1972, which was run by an arm of the Church. The defendant contended that the clergyman was not its employee and nor was the relationship akin to employment. It argued that the action should be struck out because vicarious liability could not arise. Significantly, however, the Roman Catholic Church in England and Wales accepted that its trustees stood in the shoes of the bishop for present purposes and accepted that, for the purposes of litigation, its trustees holding its property were its secular arm and were a proper defendant should vicarious liability arise. MacDuff J noted that the test of vicarious liability had changed to give precedence to form over function. Vicarious liability does not depend upon whether employment is technically made out. He noted that in Canada, the Supreme Court in Doe v Bennett & Ors^[45] held a bishop vicariously liable for the actions of a priest who had sexually abused boys within his parish. An appeal to the English Court of Appeal was dismissed.

The next case was Various Claimants.^[46]

At issue was who, if anyone, was liable for a large number of alleged acts of sexual and physical abuse of children at a residential institution for boys in need of care, originally operated by the De La Salle Institute, known as Brothers of the Christian Schools and operating as St William’s School. The appeal to the English Supreme Court required a review of the principles of vicarious liability in the context of sexual abuse of children. The claims were brought by 170 men in respect of abuse between 1958 and 1992. The Middlesbrough defendants took over the management of the school in 1973, inheriting the previous liabilities. They used a De La Salle brother as headmaster and contracted four brothers as employee teachers. The Middlesbrough defendants were held vicariously liable for the acts of abuse by those teachers, and this was not challenged on appeal.

However, the Middlesbrough defendants challenged the findings below that the De La Salle order was not vicariously liable for the actions of its brothers and therefore liable to contribute in damages. The Middlesbrough defendants’ appeal seeking contribution had been rejected by the Court of Appeal, but leave was granted to appeal to the Supreme Court.

Lord Phillips (with whom the other members of the Court agreed), noted the views on vicarious liability expressed in the Court of Appeal in JGE and the impressive leading judgment of Ward LJ.^[47] The following propositions were said by Lord Phillips to be well-established.

(i) It is possible for an unincorporated association to be vicariously liable for the tortious acts of its members.

(ii) One defendant may be vicariously liable for the tortious act of another defendant even though the act in question constitutes a violation of the duty owed and even if the act in question is a criminal offence.

(iii) Vicarious liability can even extend to liability for a criminal act of sexual assault: Lister v Hesley Hall.

(iv) It is possible for two different defendants to be each vicariously liable for the single tortious act of another defendant.^[48]

Lord Phillips held that the relationship between the De La Salle Institute and the brothers teaching at St William’s, though not one of employment, was capable of giving rise to vicarious liability. He referred to JGE, Maga and Lepore but not to the NSW CA decision in Ellis.

Lord Phillips concluded (with the concurrence of the balance of the Supreme Court):

‘Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.

These are the criteria that establish the necessary ‘close connection’ between the relationship and abuse.’^[49]

Accordingly, in England, Canada, Ireland and the United States, the Roman Catholic Church has accepted or been held liable through its Trustees for the criminal misconduct of priests or teachers. Only in Australia has a contrary view been taken in the Ellis decision. That decision sits ill with the views expressed in Lepore and is at odds with the rest of the common law world.

In Cox (Respondent) v Ministry of Justice (Appellant),^[50] Lord Reed (Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agreeing) held the Ministry of Justice liable for injury to a catering manager even though it did not employ the prisoner, who, while assisting in the kitchen, accidentally injured her. Lord Reed, quoting the words of Lord Phillips in the Various Claimants case, where he said, ‘The law of vicarious liability is on the move’, added ‘It has not yet come to a stop.’

In DC v State of NSW^[51] and TB v State of NSW^[52] (TB v State of NSW and Quinn; DC v State of NSW and Quinn^[53]), each of the plaintiffs had a long history of being subjected to sexual abuse as young girls by their stepfather. Physical violence was also involved. In April 1983, the elder girl complained to YACS (predecessor of DOCS) about the abuse. She, her sister and her mother were interviewed and the YACS officer assessed that the abuse had occurred. The girls were charged with being neglected children but the stepfather was not reported to police. In September of that year, the stepfather admitted the abuse to the YACS officer, about which he was unrepentant. The YACS officer had sought to avoid the stepfather seeing the girls alone but was aware that he was regularly at their home. The girls, now women, sued in negligence, complaining that they suffered continued abuse through the failure to report to police. At the time of the original complaint, the stepfather had a history of sexually abusing children and was on bail for raping his son’s 15-year-old girlfriend, for which he was subsequently convicted. Many years later, he was charged and convicted in relation to sexual abuse of his two stepdaughters.

The plaintiffs succeeded by a majority on appeal, but the State of NSW obtained leave to appeal to the High Court. After hearing full argument, the HCA acceded to the respondent/plaintiffs’ application and revoked the appellant’s leave to appeal on the grounds that the case was now purely factual and raised no issue suitable for the High Court. Accordingly, the decision in favour of the plaintiffs in the NSW CA stands.^[54]

CONCLUSION

Clearly, there is still significant work to be done in some jurisdictions in respect of extending the limitation period to physical and associated psychological abuse, and in SA, in removing the restriction to abuse in an institutional context. Legislation is required to make the trustees of the Catholic Church liable for the conduct of clergy and volunteers in the same way as any other non-government organisation. The redress scheme is inadequate but might assist some victims if intergovernmental agreement can be achieved. The Commonwealth should use its power to remove charitable status from any recalcitrant institutions which might in turn make States more enthusiastic about being compensators of last resort. The High Court will have to reconsider the issue of vicarious liability in the light of the more recent English Supreme Court decisions relating to the application of the close connection test. The Government consultation paper gives an opportunity for NSW to lead the way.

Dr Andrew Morrison RFD SC is a Barrister at Wardell Chambers, Sydney, and is the ALA’s spokesperson on institutional responses to abuse and the Royal Commission. Andrew is a passionate advocate for the rights of those who have suffered injury and abuse within institutions. He represented the plaintiff in the High Court in State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511 and Mr Ellis in the case Ellis v Pell and the Trustees of the Roman Catholic Church for the Diocese of Sydney [2006] NSWSC 109; [2007] NSWCA 117; [2007] HCA 697. Andrew has appeared in a substantial number of cases in respect of sexual abuse of children within institutions. PHONE [phone] EMAIL [e-mail].

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^[1] I am particularly grateful to Anna Talbot, Vici Jacobs and Toks Ogundare at the ALA for their research into the status of legislation throughout all Australian jurisdictions.

^[2] Commonwealth, Royal Commission, Interim Report on Redress and Civil Litigation (2014) vol. 1, 158 [5.1].

^[3] Patrick Parkinson, Kim Oates, Amanda Jayakody ‘Study of Reported Child Sexual Abuse in the Anglican Church’ (May 2009) 5: ‘with an average delay of 23 years’.

^[4] Limitation of Actions Act 1958 as amended by Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) with effect from 21 April 2015.

^[5] Section 6A of the Limitation Act 1969 (NSW) has retrospectively removed all limitation periods for child sexual abuse or significant physical abuse and associated psychological sequelae. The amendments were assented to and commenced on 17 March 2016.

^[6] Limitation of Actions Act 1974 (Qld) as amended by the Sexual Abuse and Other Legislation Amendment Act 2016 (Qld), with effect 11 November 2016.

^[7] [1996] HCA 25; (1996) 186 CLR 541.

^[8] Australian Government, Legal Services Direction – time-barred child abuse claims, 4 May 2016.

^[9] Justice and Community Safety Legislation Amendment Bill 2017 (ACT).

^[10] Limitation Amendment (Child Abuse) Bill 2017 (NT).

^[11] Limitation of Actions (Institutional Child Sexual Abuse) Amendment Bill 2016 (SA).

^[12] Limitation Amendment (Child Sexual Abuse Actions) Bill 2015 (WA) to amend the Limitation Act 2005 (WA).

^[13] [2016] HCA 37.

^[14] [2015] SASC 12 (Vanstone J).

^[15] [2015] SASCFC 161.

^[16] [2016] HCA 37.

^[17] [2003] HCA 4; (2003) 212 CLR 511 at [40-54].

^[18] [1912] AC 716.

^[19] [1966] 1 QBE 716.

^[20] Prince Alfred, above note 14, at [56].

^[21] 1999 Can LII 692 (SCC); [1999] 2 SCR 534 at 559.

^[22] [1999] 2 SCR 570 at 610.

^[23] [2004] 1 SCR 436 at 446.

^[24] [2005] 3 SCR 45.

^[25] [2002] 1 AC 215 at 224.

^[26] [2010] EWCA Civ 256.

^[27] [2012] EWCA Civ 938.

^[28] [2012] UKSC 56.

^[29] [2016] UKSC 10.

^[30] Prince Alfred, above note 14, at [85].

^[31] Ibid, at [84].

^[32] [2012] UKSC 56 at 26.

^[33] (2017) 17 1 Oxford University Commonwealth Law Journal 162.

^[34] [2007] NSWCA 117.

^[35] [2011] NSWSC 1216 (Hoeben J).

^[36] Speech by the Hon Justice Peter McClellan AM to the Triennial Assembly of the Uniting Church in Australia, on 15 July 2015.

^[37] Truth, Justice and Healing Council, ‘Senior Church leaders commit to no Ellis Defence’ (Media Release, 22 May 2015).

^[38] Sydney Catholic Archdiocese ‘The Ellis Decision – A Re-statement of the Law’, [undated], available at <https//www.sydneycatholic_org/4/justice/royalcommission/ellis.asp>.

^[39] Ibid.

^[40] Roman Catholic Church Trust Property Amendment (Justice for Victims) Bill 2014 (NSW).

^[41] [2015] VSC 499 (Rush J).

^[42] Ibid, at [1-8].

^[43] Ibid, at [168]. General damages for pain and suffering etc were assessed at $300,000. Past economic loss, including superannuation, was allowed at $50,358 and future economic loss, including superannuation, was allowed at $501,422. It is worth noting that superannuation was allowed for past and future at 9 per cent of net rather than gross loss and no allowance was made for increasing rates of superannuation in the future. These calculations appear to be in error. Medical expenses were allowed in the sum of $16,641 after a reduction for the vicissitudes of life of 15 per cent. Such a reduction is, of course, contrary to High Court authority: Sharman v Evans [1977] HCA 8. The sum of $100,000 was awarded by way of exemplary damages against the school in the light of its conduct in assisting the headmistress and her family to leave the jurisdiction. The sum of $150,000 in exemplary damages was awarded against the headmistress personally.

^[44] [2011] EWHC 2871 (QB); [2012] EWCA Civ 938.

^[45] [2004] ISCR 436.

^[46] [2012] UKSC 56.

^[47] Ibid, at [19].

^[48] Ibid, at [20]. Note, however, at this point that in NSW, the Court of Appeal, without reference to the English Supreme Court decision, said in Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 at [697] that dual vicarious liability is not permissible at law.

^[49] [2012] UKSC 56 at [86] and [87].

^[50] [2016] UKSC 10.

^[51] [2016] NSWCA 198.

^[52] Ibid.

^[53] [2015] NSWSC 575 (Campbell J).

^[54] NSW v DC & Anor [2017] HCA 22 (14 June 2017).