II BASIS OF INSTITUTIONAL LIABILITY IN THE ABSENCE OF FAULT BY THE INSTITUTION At common law in Australia, the basis upon which an institution can be made liable in tort to compensate survivors is currently unclear in the absence of fault on the part of the institution. An understanding of the current state of the common law, and the developments which have occurred at common law in other jurisdictions such as Canada and England, is necessary to fully appreciate the intent and scope of the Royal Commission’s proposed reforms, and alternative options for reform. Accordingly, this Part examines the common law in Australia and other jurisdictions, and against that background, analyses the proposed reforms to institutional liability.
There are two common law doctrines that survivors could potentially use to bring such an action: vicarious liability or a non-delegable duty to ensure reasonable care is taken. These are examined below.
