I introduction

III OPERATION OF CIVIL LIABILITY (TORT REFORM) LEGISLATION

The potential application of state and territory civil liability legislation to survivors’ claims against institutions in the tort of negligence is an important consideration in respect of which the Royal Commission has made no recommendations. This was no doubt because the Royal Commission’s recommendations were for statutory causes of action imposing institutional liability for deliberate conduct by others. Civil liability legislation across Australian jurisdictions generally excludes causes of action in respect of deliberate conduct from the legislation.¹⁵² But given that survivors of historical abuse will not have the benefit of any prospective reform, consideration should be given to the application of civil liability legislation to historical claims which may be brought in battery or may depend on causes of action in negligence. There are various aspects of the civil liability legislation¹⁵³ that, because they are not uniform,¹⁵⁴ would have differential effects on claims by survivors depending on the jurisdiction in which claims were brought. Given the widespread nature of institutional child sexual abuse across Australia, it would be appropriate to ensure that all claims would be decided on the same common law principles. In this Part we consider the civil liability provisions most likely to affect claims concerning institutional child sexual abuse: those dealing with the liability of public authorities, claims for psychiatric injury and the restrictions on damages.