Liability of Educational Institutions for Child Abuse

Abstract

If a teacher abuses a student, is the school authority liable in damages to the student? Over the past 20 years, courts in Australia and England have invariably treated this as a question of vicarious liability. In this paper, I argue that this approach is wrong and disruptive of the principled development of the law of torts. In cases of institutional child abuse, breach of a non-delegable duty of care is the more appropriate ground of liability. The prevailing approach in Australia and England reflects a continuing confusion about and between these two quite distinct forms of liability. This confusion has meant that, in Australia, abuse victims have been denied compensation while, in England, the doctrine of vicarious liability has had to be seriously distorted in order to provide a remedy.