The Historical Abuse of Children in State Care: 30 years On - Vicarious Liability and the Public Law Response

Abstract

This paper discusses the public-private divide from the perspective of the vicarious liability of the state for torts committed by its employees or agents and specifically considers three Court of Appeal cases involving historic sexual and physical abuse of children in care. These cases are; S v Attorney-General, W v Attorney-General and A v Roman Catholic Archdioceses of Wellington. All of these cases involve events which took place some 30 to 40 years ago, when there were different societal views about the state's role in the care of abandoned, abused and neglected children, when professionals had less sophisticated ways of assessing risk and a poorer understanding of the life time effects of sexual abuse on children. The purpose of this paper is to tease out, in the context of these historical claims, the 'equality principle' between public and private law remedies in tort, to examine the theories that underpin negligence liability and to consider judicial justification for extending the state's liability for the wrongs of others. The discussion then moves on to consider whether these tortuous claims against the slate influenced government accountability for these historical wrongs. It will consider the public law response and the strategies which have been developed in response to these claims.