After Waterhouse: Vicarious Liability and the Tort of Institutional Abuse

Abstract

As evidence of the extent of the abuse of children in residential care increases, our understanding of this terrible wrong has altered. These assaults are an institutional syndrome, at the same time that they are individual crimes;certain systems of institutional care are conducive to/foster abuse behaviour(acting as 'crucibles' rather than 'honeypots' for rogue paedophiles). A theory of vicarious (institutional) liability is appropriate if we understand a syndrome of institutional abuse in this way, as involving institutional responsibility in addition to individual fault. The recent decision of the Canadian Supreme Court in Bazley v Curry found a children's home vicariously liable for sexual assaults of an employee on the basis of responsibility through the creation of risk, ananalysis of and apportionment of liability which is appropriate to the special syndrome of institutional abuse, while encouraging deterrence and providing fair and practical compensation to victims. This analysis/liability is supported by an economic analysis of institutional child abuse and decision making in child protection.

Keywords: vicarious liability, institutional abuse, children,tort, sexual abuse

JEL Classification: k10,k13,k30,k42,l31