After Waterhouse: Vicarious Liability and the Tort of Institutional Abuse

16 Pages Posted: 4 Apr 2006  

Margaret Isabel Hall

Thompson Rivers University - Faculty of Law

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

Suggested Citation

Hall, Margaret Isabel, After Waterhouse: Vicarious Liability and the Tort of Institutional Abuse. Journal of Social Welfare and Family Law, Vol. 22, No. 2, pp. 159-173, 2000. Available at SSRN: https://ssrn.com/abstract=894115

Margaret Isabel Hall (Contact Author)

Thompson Rivers University - Faculty of Law ( email )

900 McGill Road
Kamloops, British Columbia
Canada
604 518 3136 (Phone)

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