Civil Liability Act 2002

This section imposes a duty of care that forms part of a cause of action in negligence.

An organisation that has responsibility for a child must take reasonable precautions to prevent an individual associated with the organisation who, by virtue of being associated with the organisation, has – authority, power or control over the child; or the trust of the child; or the ability to achieve intimacy with the child – from being able, by virtue of that authority, power, control, trust or ability, to perpetrate child abuse on the child.

In proceedings against an organisation involving a breach of the duty of care imposed by this section, the organisation is presumed to have breached its duty of care if the plaintiff establishes that an individual associated with the organisation – perpetrated child abuse on a child; and had, by virtue of being associated with the organisation – authority, power or control over the child; or the trust of the child; or the ability to achieve intimacy with the child; and was able, by virtue of that authority, power, control, trust or ability, to perpetrate the child abuse on the child – unless the organisation establishes that it took reasonable precautions to prevent the child abuse.

In determining for the purposes of this section whether an organisation took reasonable precautions to prevent child abuse, a court may take into account any of the following:the nature of the organisation; the resources reasonably available to the organisation; the relationship between the organisation and the child; whether the organisation delegated in whole or in part the exercise of care, supervision or authority in respect of the child to another organisation; the role in the organisation of the individual who perpetrated the child abuse; the level of control that the organisation had in respect of the individual who perpetrated the child abuse; whether the organisation complied with any applicable standards (however described) in respect of child safety; any matter prescribed by the regulations; any other matter that the court considers relevant.

In this section – child abuse, in relation to a child, means – sexual abuse, or physical abuse, of the child; and any psychological abuse of the child that arises from the sexual abuse or physical abuse – but does not include an act that is lawful at the time at which it occurs.