A Public Authority Defendants In most Australian jurisdictions,155 civil liability legislation makes special provision with regard to the liability in negligence of public authorities.156 However, there are significant jurisdictional differences between them. Generally they restrict the circumstances in which public authorities will be subject to a duty of care and set out principles which the courts must consider on the issues of imposition of a duty of care on an authority, or breach of a duty of care by an authority.157 It has been judicially recognised that in some cases these provisions produce the same result as the application of common law principles,158 but that is not so in all cases.
It will be the case that some institutional defendants in negligence claims for child sexual abuse will be public authorities within the definitions in the civil liability statutes. In New South Wales for example, the definition of a public or other authority includes, among others, a government department, a public health organisation or a public or local authority constituted by or under an Act.159 Notably, the New South Wales provision would include government and non-government schools.160 In order to avoid differential treatment of institutional defendants which are statutory authorities, it would be desirable to ensure that the relevant civil liability legislation does not apply to institutional defendants in cases of child sexual abuse.
