In brief:

While many historic child abuse cases are in relation to adults associated with an organisation, an increasing area of claims against institutions involves allegations of child on child sexual and physical abuse. The alleged perpetrator could be another student, a resident of a particular home or institution, a family member, or even a child of an employee adult.

The recent changes in the law relating to historic child abuse actions envisage adult perpetrators associated with an institution, however in practice this has extended the remit of historic claims to sexual and/ or physical assault by another person under 18 years old.
Although anecdotally we have seen a rise in these claims, to date we are not aware of a judgment in this area.

Institutional Liability

 Vicarious liability is unlikely to be established in a case involving "child on child" offending, as someone under the age of 18 is unlikely to have been an employee. Although the law on vicarious liability is in flux and expanding, establishing to the relevant standard that a perpetrator child had been placed in a special role by the particular institution, and that they had the authority, trust, power and ability to achieve intimacy with the claimant, is unlikely to apply (see Prince Alfred College v ADC (2016) HCA 37).
Rather, the majority of these claims focus on whether the institution failed in their direct duty of care to the claimant. This is often referred to as a "systems" case. In looking to establish a liability against an institution for the actions of a child, the claim is likely to be framed in a way that asserts there were no systems and procedures to keep the claimant safe from the alleged assault, or if there were policies, procedures or oversight, that the systems in place were inadequate which was how the assault was able to take place.
In assessing the systems of an institution, a Court will need to look to the standards of the time and what constituted adequate supervision. At issue will also be the connection to the institution and the case specific circumstances in which the alleged events occurred. Was the institution aware or on notice? Of relevance will also be what was known about child abuse at the time, the people involved, risk factors and whether any contemporaneous disclosures were made.

Child Perpetrator Responsibility and Liability

Complicating these cases in the era of increasing litigation (particularly in Victoria) is that the alleged child perpetrator, often around the same age of the claimant, may be alive, available to give evidence or potentially a survivor of abuse themselves. Accordingly, defendant institutions will need to give careful consideration on whether to join an alleged child perpetrator to a proceeding, including in respect to any claim for contribution.

Perpetrators of abuse can be found criminally and civilly responsible for their actions. However, unlike in the criminal law where there is a concept of 'the age of responsibility', the common law of negligence does not have a (strictly) equivalent concept. Rather, what needs to be shown is that the child perpetrator did not act in the way a reasonable person should have. Although a defendant's age is a factor that can be taken into consideration in determining the level of care and foreseeability, (see McHale v Watson (1966) 115 CLR 199) it does not totally abrogate responsibility, particularly in circumstances such as abuse where the infliction of harm was inappropriate and intentional. In other words, the Court will need to consider whether a reasonable child of that age would sexually or physically assault another child.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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