Although difficult to cover in a brief note, it seems possible that the newly inserted Part XIII of the Wrongs Act 1958 (Victoria) may have application to some health care organisations, if they meet the definition of  being organised to exercises care, supervision or authority over children (under age 18) whether as part of their primary functions or activities or otherwise. An example might be an adolescent mental health care facility.

The amendment to the Wrongs Act flows from the Wrongs Amendment (Organisational Child Abuse) Act 2017.

Duty

Apparently not retrospective (see section 93), the purpose of the amending Act is to impose a duty of care that forms part of a cause of action in negligence on certain organisations exercising care, supervision or authority over children to prevent the physical abuse or sexual abuse of those children committed by individuals associated with those organisations: See section 91.

Onus

Section 91(3) states that in a proceeding on a claim against a relevant organisation for damages in respect of the abuse of a child under its care, supervision or authority, on proof that abuse has occurred and that the abuse was committed by an individual associated with the relevant organisation, the relevant organisation is presumed to have breached the duty of care referred to in subsection (2) unless the relevant organisation proves on the balance of probabilities that it took reasonable precautions to prevent the abuse in question.

Defence

Section 91(6) provides that the section 91(2) duty does not apply to abuse of a child committed by an individual associated with a relevant organisation in circumstances wholly unrelated to that individual’s association with the relevant organisation.

Definitions

Abuse is defined to mean physical abuse or sexual abuse (being sexual assault or other sexual misconduct): Section 88.

A relevant organisation means an entity (other than the State) organised for
some end, purpose or work that exercises care, supervision or authority
over children, whether as part of its  primary functions or activities or
otherwise: Section 88.

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