Finally, the Limitation Act 2005 and Civil Liability Act 2002 (“Acts”) came into effect on 1 July 2018.
These Acts now empower survivors of historical child sexual abuse to bring civil proceedings for damages in respect of such abuse.
Prior to these changes to the legislation, survivors of historical child sexual abuse could not bring an action in court claiming compensation for injuries suffered due to the abuse. This was because the limitation period to bring these claims was 3 years from the date of abuse and most historical abuse occurred more than 3 years ago.
Prior to the changes to these Acts, survivors of historical abuse brought their claims against institutions and settled those claims by way of a settlement agreement in exchange for a sum of money by way of compensation for the abuse.
These settlement agreements presented a bar to survivors of historical abuse to bring an action in Court, however, these settlement agreements and the compensation that they referred to, in most cases, were not reflective of the abuse that the survivors of historical abuse endured.
These settled claims clearly favoured the institution and/or perpetrator responsible for the abuse.
To remedy this injustice survivors of historical sexual abuse that settled their claim and signed a settlement agreement may now seek leave of the Court to set aside the settlement agreement and to bring an action in Court against the responsible perpetrator/entity.
A number of the applications seeking leave of the Court have been dealt with by the District Court and there is so far one published judgment: JAS v Trustees of the Christian Brothers [2018] WADC 169 delivered on 11 December 2018.
In the JAS v Trustees of the Christian Brothers decision, seven relevant matters were considered and these were as follows:
- The settlement agreement had to be related to historical sexual child abuse as defined by the said Limitation Act.
- When the survivor of historical sexual abuse entered into the settlement agreement, the limitation period of 3 years had already passed and therefore, they could not bring an action in Court against the responsible perpetrator and/or entity.
- Whether it was just and reasonable for an order of the Court to be made granting leave to the survivor of historical sexual abuse to commence an action in Court.
- At the time the survivor of historical sexual abuse entered into the settlement agreement, the claim was statute barred which meant that his/her bargaining position was curtailed and he/she had no choice but accept what was offered without what was necessarily being a reflection of his/her proper entitlement to compensation if successful.
- The survivor of historical sexual abuse entitlement to compensation, had never been decided on the actual merits of his/her claim.
- Any payments that have already been made to the survivor of historical sexual abuse has to be deducted from any compensation awarded by the Court.
- The perpetrator and/or institution is not financially disadvantaged by having made the payment under the settlement agreement.
As a result of this case, survivors of historical abuse that entered into a settlement agreement to receive compensation prior to as of 1 July 2018, may ask the Court for leave to set aside the settlement agreement and commence a claim for damages for personal injuries suffered as a result of the historical sexual abuse.
