By Georgia Allan of McNamara & Associates Solicitors
As the Royal Commission into Institutional Responses to Childhood Sexual Abuse draws to a close this year, it has been recognised that the average time for a survivor of child sexual abuse to disclose their abuse is twenty-two years.
In our legal system, it has been long established that the law requires any claim for personal injury to be brought within three years of the cause of action arising, or in the case of the child, by their twenty-first birthday. Any applications to extend the limitation period have traditionally been fraught with difficulties and are often unsuccessful.
In an effort to ensure survivors of child sexual abuse are not unfairly prevented from accessing compensation, the Royal Commission into Institutionalised Responses to Childhood Sexual Abuse in its Redress and Civil Litigation Report released in September 2015 recommended that all jurisdictions across Australia remove limitation periods for child sexual abuse as a matter of priority.
In Queensland, the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Act 2016 was passed in November 2016, with various Parts commencing on 1 March 2017.
This has had the effect of changing the Queensland legislation to read as follows:
LIMITATION OF ACTIONS ACT 1974 – SECTION 11A
No limitation period of actions for child sexual abuse
(1) An action for damages relating to the personal injury of a person resulting from the sexual abuse of the person when the person was a child
(a) may be brought at any time; and
(b) Is not subject to a limitation period under an Act or law or rule of law.
(2) This section applies whether the claim for damages is brought in tort, in contract, under statute, or otherwise.
So what do these legislative changes mean in the practical sense for survivors of childhood sexual abuse?
- The amendments are retrospective in effect. This means that Section 11A applies to an action for damages whether the right of action accrued before or after the commencement of that section.
- The amendments are restricted to sexual abuse and do not extend to physical abuse. In practice, however, it may be difficult to separate what effects are from sexual abuse, which could be pursued, and what effects are from physical abuse, which cannot be pursued.
- The changes extend to institutional and non-institutional abuse. This means that the act now covers situations where, for example, a child is sexually abused in foster care or in their own home by a family member or friend.
- An action may still be commenced, even where there has been a judgment dismissing the claim on the ground that the statutory limitation period had expired, if the Court decides it is just and reasonable to do so.
- Section 48 of the Transitional Provision for Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (the Act) also allows for an action to be commenced where previously it had been dismissed on the ground that a limitation period applying to the right of action had expired.
- An action may also be brought on a previously settled claim. Section 48 of the Act allows a claimant who has previously compromised their claim because of the limitation period to bring an application if a Court sets aside the agreement effecting the settlement on the grounds it is just and reasonable to do so.
- The Court still does, however, have the power to stay proceedings where injustice should lead to a stay of proceedings. The Court may take this decision if it believes the lapse of time has a burdensome affect on the Defendant that is so serious that a fair trial is not possible. It should be noted, however, the onus to prove that a Court should dismiss or stay proceedings due to the lapse of time, will in these circumstances, lie with the defendant.
It should be noted that these practical measures to remove the limitation period detailed above are but one step in civil litigation reforms necessary to enable access to civil litigation claims for survivors of childhood sexual abuse.
The Redress and Civil Litigation Report recommends the Federal Government establish a Redress Scheme. The three main components to the Redress Scheme are: firstly, a direct personal response to the survivor (though only if a survivor desires it); secondly, the provision of counselling and psychological care; and finally, the provision of monetary payments. It is hoped the Federal Redress Scheme will be up and running by early 2018.
Whilst the responses to the recommendations in the Redress and Civil Litigation Report and the changes in limitation period legislation are a welcome step to creating a more accessible civil litigation system for survivors of sexual abuse, it remains to be seen how these amendments will play out in practice.
For more information on the recommendations of the Royal Commission, see:
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