By: Patrick Thompson and Gemma Burke

Close to 10 years after the Royal Commission handed down its final report, civil claims for damages arising from child abuse remain a contested, difficult, but important area of law. As more claims are advanced that push against the margins, obtaining clear guidance from the Courts is critical to practitioners on both sides. We have assembled a collection of case notes of interest that we think are of potential significance in the years ahead.

Some of these cases conclusively settle questions that have been open for years, including what is ‘sexual abuse’ for the purposes of the extension of the limitation period (Anderson) and what is a claim ‘founded on or arising from sexual abuse’ for the purposes of the law requiring non-incorporated organisations to nominate a proper defendant (RWQ).

Some of these cases raise more questions than they answer:

• The long-awaited decision in GLJ has unsettled established understandings of the law with respect to permanent stays and caused a level of disquiet at least in one intermediate appellate Court (see our summary of CM). It remains to be seen how deep-rooted that decision is (noting that a bench of five was divided in GLJ, and that one member of the majority has now left the Court). Practitioners now keenly await the next High Court decision in this area in the appeals from Willmot and RC, which will be heard together.
• On another front, the question of vicarious liability for non-employees has not been decisively resolved. A religious institution was found vicariously liable for the actions of a priest in DP, but the High Court’s decision in Schokman suggests at least some members of that Court might want to dispense with ‘true’ vicarious liability in this area of law altogether, and deal with it by way of non-delegable duties. Whether this notion will find favour will be determined in the upcoming appeal in DP.
• The very high jury verdicts coming out of Victoria in Kneale and TJ upset established understandings of what these cases are worth, and are out of step with comparable awards in other jurisdictions. An appeal is coming, however practitioners are left with less certainty (and clashing expectations between both sides) in the meantime.
• The RWQ decision also raises the spectre of a potential wave of new claims advanced by secondary victims. It is now clear that those claims are not barred by the ‘proper defendant’ statutes, but it remains to be seen how the Courts will impose control mechanisms to draw a line against indeterminate liability. Further cases in this area are all but certain.

We expect (or hope) that 2024 will be a year of clarifying some of these matters.

While these reported decisions (and others) are of critical importance, we should also not lose sight of the fact that practitioners on both sides spent most of 2023 helping their clients to make reasonable compromises, and settling cases without litigation or trial. That continues to be the most appropriate, victim-focused, cheapest and conflict-free method of dealing with such cases. The greatest benefit of the reported decisions is to clarify the law and allow practitioners to continue to achieve such outcomes in the vast majority of claims.

Wotton + Kearney acts for the defendant in four of these cases.

We hope you take away some useful learnings from these cases, and please get in touch if you’d like to discuss anything further.