The NSW Court of Appeal has overturned a first instance decision in which a childcare centre was found to be vicariously liable for child sexual abuse by a non-paid worker.

The infant plaintiffs, Child B and Child D, attended Little Pigeon childcare centre between 2008 and late 2010 where it is alleged that they were sexually abused by the father of the owner. This individual was not employed by Little Pigeon but was a 1% shareholder and also undertook unpaid work at the centre.

The primary judge held that the perpetrator made various admissions of inappropriate sexual conduct during his interview with police, including kissing and putting his hand down Child 1’s pants. At the time, and as a result of police investigations, Child 2 came forward with allegations of abuse. No charges were pursued to trial.   It is noted that neither Child 1 nor Child 2 were parties to this proceeding.

A claim was brought against Little Pigeon and its owner on the basis that they were negligent and vicariously liable for the perpetrator’s assaults. The primary judge found that the assaults had occurred as alleged. In reaching this conclusion, the Court had regard to the admissions made by the perpetrator which purportedly established that he had a tendency for inappropriate sexual conduct with children in his care, the hearsay evidence of disclosures made by Child 1 to her mother and the evidence of Child 2, which suffered from inconsistencies. Further, neither of the infant plaintiffs were cross-examined, although audio-visual recordings and transcripts of their police interviews were entered into evidence. The trial judge held that Child 1 was “unavailable” to give evidence.

The primary judge found the Defendant liable on each of the causes of actions pleaded, including that that Little Pigeon and its owner were negligent and vicariously liability for the perpetrator. The primary judge stated that whilst not paid for his work, he often attended the centre for over 12 hours a day and was fully integrated into the business, performing the same functions as other paid employees and wearing the same uniform; which enabled him to have close unsupervised contact with children and thus the opportunity to perpetrate the abuse. 

The NSW Court of Appeal overturned the decision and provided guidance on common evidentiary issues presenting in abuse claims. The Court of Appeal made the following key findings:

• The disclosure of abuse made by Child 1 to her mother and the Police were hearsay and deemed inadmissible. There was no evidence relating to reasonable steps taken to “secure the attendance” of the witness nor the service of a subpoena.
• The primary judge had erred in her Honour’s conclusion that Child 2’s disclosures had met the required standard of proof. The disclosures were marked by inconsistency, reinforced by an inability to cross-examine Child 2.
• The disclosures made by Child B were 'brittle' and 'insufficiently reliable'. They did not satisfy the burden of proof and should not have been relied upon as tendency evidence to support other claims.
• The perpetrator did not admit, in his police interview, to “kissing the children”, nor putting his hand down Child 1’s pants, contrary to the primary judge’s findings. It follows that such evidence should not have been admitted as tendency evidence in the proceedings.
• In circumstances where the owner learned of the charges against her father after his police interview, his alleged “admissions” were not admissible against her. NSW evidentiary laws required the identification of a “common purpose” at the time the impugned admissions were made, and such “admissions” could not have been made in furtherance of a common purpose, which had yet to have been realised.
• The unchallenged evidence of Little Pigeon’s policies and procedures, and lack of any internal complaints regarding the perpetrator’s conduct meant that the primary judge erred in concluding there was insufficient supervision of the perpetrator’s contact with children. Therefore, the owner and Little Pigeon were not directly liable to the plaintiffs in negligence.
• There was no sound reason for imputing vicarious liability to the owner in circumstances where Little Pigeon’s status as the perpetrator’s employer was a basis for its vicarious liability. The Court of Appeal noted that the principle of dual vicarious liability has not been adopted in the common law of Australia.

Although this is a Commonwealth decision, it does demonstrate the difficulties faced by claimant solicitors in terms of relying on evidence (particularly hearsay evidence) from an infant claimant. Often an initial disclosure and information will be provided by a child to a parent or carer, but over time child claimants will be unable to repeat the allegations or provide further detail. It is vital that evidence is secured early on which if in the UK would be via an ABE police video interview. 

It will often be difficult for a civil claim to succeed where there has not been a successful prosecution against the alleged perpetrator. Generally speaking, a claim is more likely to succeed where a child is older and/or there are multiple claimants who are able to provide consistent accounts of their experiences.