LANDMARK SCHOOL ABUSE CASE
Rush J has found the Adass Israel School Inc directly and vicariously liable for the acts of the former school principle who sexually assaulted the Plaintiff, Hadassa Erlich between 2003 and 2006.
His Honour Justice Rush said the evidence demonstrated that the ‘school is in every sense a religious school” where students were completely isolated from everything beyond the community they were in. The Plaintiff’s evidence, which was not contested, was that Leiffer (the Principal) touched the Plaintiff on the breasts, sucked her breasts and digitally penetrated her. This abuse occurred at the Principal’s home, at the school and at school camps.
The Judge found that the school was directly liable for the Principal’s acts because “Her control and authority within the school (was) unrestrained and unrestricted. In that sense her misconduct was the misconduct of the school and the school is directly liable for her conduct.”
The Judge also found that the teacher student relationship was such that the Principal used her power and intimacy to commit sexual abuse and that the connection between the sexual assaults and the employment was such that to “make it just to treat such contact as occurring in the course of employment” and therefore the school was also vicariously liable for the Principal’s conduct.
The finding of vicarious liability generally requires that for an act to be considered within the course of employment, it must either be authorized, or be intimately connected, to an authorised act. The High Court found in Lepore v NSW  HCA 4 (6 February 2003) that the school in that case was not vicariously liable for the illegal conduct (sexual assaults) of its employee. However the door was left open for vicarious liability to be found where the “empowerment of the employee materially increased the risk of the sexual assault and hence the harm.” Certainly the facts of this case would seem to support that the Principal had complete power and control and was essentially unsupervised thereby substantially increasing the risk of harm.
The other interesting aspect of the Erlich case is that exemplary damages (which are awarded to punish the defendant) were awarded against the school (and the principal) not in relation to the abuse itself but in relation to the school’s conduct when the sexual assaults were revealed. The evidence was that the school board arranged for the Principal to leave the country (and reimbursed the cost of the flights for her and her family) despite being aware of at least 8 separate allegations of sexual misconduct involving Leiffer and girls at the school in addition to the initial complaint. Further, the allegations were not reported to the police (despite mandatory reporting legislation being in place).
Rush J found that the facilitating of Leiffer’ s urgent departure was “likely motivated by a desire to conceal her wrongdoing and confine and isolate the conduct and its consequences to within the Adass community.”
Finally, an award of nearly $1.3 million was made which is likely the highest award of damages in a sexual abuse case in this state.
This is a decision which will strike terror into the hearts of government and non-government schools, particularly those schools who have been the subject of public hearings before the Royal Commission into Child Abuse where there have been findings, or are likely to be findings, that the school either knew of the sexual abuse and failed to act or where steps were taken to conceal the abuse once the allegations emerged.
Whilst this is clearly a very important case in the area of civil litigation for child sex abuse, this case might be distinguished on the basis that it would be unusual to find the level of power and control that the Principal had in a very orthodox Jewish school as compared to more mainstream schools.
FAIRBRIDGE SETTLEMENT RESULTS IN $24,000,000 PAYOUT.
We previously wrote about a class action involving victims of historical abuse finally being certified in the NSW courts and being allowed to proceed. (see blog dated dated 9 July 2014)
One hundred and fifty victims of abuse have now settled their claims for $24,000,000. The claims were brought by child migrants who alleged they suffered physical, sexual and emotional abuse at the Fairbridge Farm School. This settlement will result in an average payment to claimants of $160,000 although it is likely that there will be legal costs to be paid out of the settlement sum. The claims were brought against the Fairbridge Foundation, the NSW and Commonwealth Governments. The compensation monies will be paid into a fund. The Foundation and NSW Government have offered apologies to the victims. It appears that at this stage the Abbott Government will not be part of the apology. (http://www.sbs.com.au/news/article/2015/06/29/record-payout-fairbridge-abuse-victims)
The action was launched in the courts 6 years ago. No doubt that the preparations to launch the case commenced some years before then. Whilst the settlement is a victory for the claimants and all victims of historical abuse, the long fought struggle and no doubt the financial and emotional toll on the claimants could have been largely avoided had a national redress scheme been in place which could have determined the claims in a timely and cost effective manner. Further claimants had until 24 July 2015 to come forward. Depending on the number of additional claimants who have joined the action, individual payments may be reduced. Application will be made to have the settlement approved in August in the NSW Supreme Court. (http://www.centralwesterndaily.com.au/story/3178739/six-year-struggle-ends-with-24m-settlement-for-fairbridge-children/)
The Abbott Government has advised the Royal Commission it will not participate in or establish a National Redress Scheme. This is extremely disappointing. Tony Abbott should show leadership in this area as did Australia’s former Prime Minister Julia Gillard who established the Royal Commission into Child Abuse in 2012.
ROYAL COMMISSION PUBLIC HEARING ON YOUTH TRAINING CENTRES IN VICTORIA
The Royal Commission (RC) into Child Abuse has announced that it will hold a public hearing in Melbourne from Monday 17 August 2015 with respect to a number of Victorian Government run institutions such as Turana Youth Training Centre, Winlaton Youth Training Centre and Baltara Reception Centre between the 1960s and early 1990s. (http://www.childabuseroyalcommission.gov.au/media-centre/media-releases/2015-07/public-hearing-into-victorian-state-run-youth-trai)
The RC will typically call evidence as to the experiences of the former residents of these institutions and the responses of the institutions and their staff to any complaints that were made.
The RC has also announced that it will be looking into past and current policies and procedures of Victoria Police and the Department of Health and Human Services (and its predecessors) and any related matters.
Having investigated hundreds of claims relating to historical child abuse in Victorian orphanages and state run institutions, it is expected that the RC will find evidence of systemic abuse, a failure to deal with complaints, a lack of process which allowed victims of abuse to complain and a culture of blaming the victim.
Any person or institution who believes that they have a direct and substantial interest in the scope and purpose of the public hearing has been invited to lodge a written application for leave to appear at the public hearing by 3 August 2015. The RC will determine who will be called to give evidence on the basis of whether the applicant has a “substantial and direct interest in appearing”. No doubt the RC will also be calling witnesses based on evidence given at private hearings and on the basis of documents that have been subpoenaed.
The Victorian Government has come a long way in how it deals with claims for institutional abuse. We have developed a protocol whereby it is not necessary to issue proceedings in a court of law to pursue a claim and the vast majority of claims settle out of court. The Victorian Government has committed to implementing all of the recommendations of the Betrayal of Trust Report which was produced following a parliamentary inquiry into the responses to complaints of child abuse by religious and non-Government institutions. It has already effectively abolished time limits in child abuse cases (see our blog of 27 April 2015) and it has announced that it will be establishing a redress scheme and a consultation paper on this issue is expected shortly. No doubt the RC’s public hearing into these state run institutions will help inform the Victorian Government’s ongoing policy decisions in this area.