The Northern Territory Parliament last week passed amendments to the Personal Injuries (Liabilities and Damages) Act 2003 (NT) that give effect to a number of reforms recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse in its Redress and Civil Litigation Report. The amendments also introduce a scheme to govern civil claims brought by offenders in custody and change the maximum amount of damages for non-pecuniary loss.

Consistent with the Limitation Act 1981 (NT), "child abuse" is defined as sexual abuse, serious physical abuse and psychological abuse that arises from sexual or serious physical abuse. This definition is consistent with other jurisdictions such as Victoria and Queensland, but differs from New South Wales which refers more broadly to "connected" rather than "psychological" abuse.

Part 3A provides three important reforms:

1. the prospective imposition of a new statutory duty of care on all institutions that exercise care, supervision or authority over a child to take all reasonable steps to prevent child abuse by another child or any individual associated with the institution;

2. the extension of vicarious liability of institutions from employees to individuals akin to an employee; and

3. mechanisms to retrospectively allow for the nomination of a proper respondent with financial capacity for cases brought against unincorporated and now defunct institutions.

Part 4A introduces a similar scheme for offenders in custody which exists in NSW under Part 2A of the Civil Liability Act 2002 (NSW). Essentially, it limits the liability of a public entity defendant to an individual in custody in relation to the torts of battery, assault and false imprisonment. Whilst the scheme in NSW requires a minimum 15% whole person impairment before damages are available, the NT scheme caps the maximum ($15,300 at time of writing) a court can award for damages. Both schemes prohibit the awarding of aggravated or exemplary damages. This part does not apply to civil wrongs arising from child abuse of an offender. 

Overall these reforms, together with the ability for a Northern Territory Court to set aside a previous settlement (refer to section 54 Limitation Amendment (Child Abuse) Act 2017 (NT)), bring it into line with other jurisdictions and reflect learnings from the federal Royal Commission into Institutional Responses to Child Sexual Abuse. The restrictions for offenders in custody, however, have been met with resistance, particularly for their disproportionate impact on indigenous Australians and where they appear inconsistent with learnings from the Royal Commission into the Protection and Detention of Children in the Northern Territory.

Issues for institutions and insurers:

• The imposition of a new statutory duty of care on institutions reverses the usual onus of proof, meaning that institutions will now need to prove steps were taken to prevent child abuse. Institutions should carefully review policies and procedures to ensure that they adopt best practice measures and comprehensive records should be kept to demonstrate that reasonable precautions are taken to prevent child abuse occurring.

• Institutions and their insurers should review historic relationships with related unincorporated and now defunct institutions to determine whether they may be a successor organisation and could incur liability.