The perpetrator of sexual abuse may not be the only party liable
for the harms caused to a victim of abuse. In other blogs, we have
considered the issue of
vicarious liability it relates to other entities including
school boards and
clergy. Today, we will look at the issue of
"bystander" liability for sexual abuse.
A "bystander" is an individual whom it is alleged knew or
ought to have known about sexual abuse at the time it occurred, but
failed to intervene to stop the abuse or otherwise to protect the
victim.Alleged bystanders are frequently parents or other close
relatives.In other words, bystanders are grownups who were supposed
to protect children (or other vulnerable individuals)in their care
but failed to do so.
Claims against bystanders are usually framed in terms of negligence
or breach of fiduciary duty.These are causes of action that require
there to be an existing relationship in which the bystander is
obligated to consider, and in some cases protect, the interests of
the victim.
In Antrobus v. Antrobus, 2015 BCCA 288, the British Columbia Court
of Appeal considered the case of a woman named Linda. Linda sued
her parents, and her aunt and uncle, claiming each of these adults
failed to protect her from sexual abuse at the hands of her
grandfather.
The abuse at issue in this case is alleged to have taken place in
1960. Linda's grandfather, the perpetrator of the abuse, died
in 1976. The trial took place in 2014, nearly 40 years after his
death and 64 years after the abuse occurred.
The case turned on whether or not Linda's parents, aunt, and
uncle knew the grandfather was a pedophile and failed to take
reasonable care to protect Linda from danger. The trial judge
dismissed the claim against the aunt and uncle, but held that the
parents knew the grandfather was a pedophile and found them liable
in negligence and for a breach of fiduciary duty.
The parents appealed, arguing the trial judge applied the wrong
standard of care for bystander parents who had not committed the
actual abuse. The parents also argued the judge erred in holding
them liable for a breach of fiduciary duty in the absence of a
finding that they put their own interests ahead of those of their
daughter. Finally, the parents appealed the factual finding that
they knew the grandfather was a pedophile.
The trial judge found the abuse suffered by Linda was far more
serious than what her parents testified she described to them?, and
this finding was not challenged on appeal. However, while the
content of Linda's disclosure was disputed, it was agreed by
all parties that as a result of Linda's disclosure of abuse,
her parents did not permit the grandfather to see Linda
again.
The British Columbia Court of Appeal held there were a number of
palpable and overriding errors in the trial judge's findings of
fact, and concluded the parents did not know the grandfather was a
pedophile.
A negligence claim turns on the foresee ability of harm. In
determining the foresee ability of harm, the court observed the
proper question to ask is whether a reasonable person, having the
background and capacity for understanding the particular defendant,
would have appreciated the risk. In this case, given the parents
were not aware the grandfather was a pedophile, it was not
foreseeable that he would abuse Linda. If a bystander parent does
not have actual knowledge of wrongdoing, he or she may only be held
liable in negligence if the parent is willfully blind as to the
existence of wrongdoing. There was no evidence of willful blindness
in this case.
The Court of Appeal also observed that in considering whether harm
is foreseeable, a defendant must be judged by the standards of the
time in which the events took place. In this case, it concluded
that even if a different answer might be arrived at based on
today's standards, it was reasonable in the year 1960 for
parents to allow a child to spend unsupervised time with a
long-lost grandparent. The court concluded that given the state of
the parents' knowledge, it could not be said they were
negligent in allowing their daughter to visit with her
grandfather.
The Court of Appeal also dismissed the breach of fiduciary duty
claim, on the basis that the parents did not put their own
interests ahead of those of their daughter. The primary basis for
parental breach of fiduciary duty is a breach of trust, and a
violation of the duty to be loyal to the child. InK.L.B. v. British
Columbia, 2003 SCC 51, the Supreme Court of Canada gave the example
of a parent who, "wanting to avoid trouble for herself and her
household, turns a blind eye to the abuse of a child by her
spouse."In this case, there was no evidence the parents put
their own interests ahead of those of their daughter. To the
contrary, the fact that the parents immediately stopped all contact
with the grandfather after Linda disclosed abuse was considered
evidence of their obvious concern for Linda's well being.
This case highlights the many difficulties inherent in litigation
for historical sexual abuse. However, it also highlights positive
developments in this area of law, including the fact that standards
for parents and guardians have evolved over time as society has
developed a better understanding of the impact of sexual abuse and
the risks relating to when abuse may occur. It is likely that these
developments will assist victims of more recent sexual abuse in
recovering compensation from bystanders who, in the face of actual
knowledge of a problem or potential problem, or turning a blind eye
to such a problem, fail to discharge their obligations to protect
young and vulnerable individuals to whom they owed duties from
harm.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
