The final report of the Royal Commission into Institutional Responses to Child Sexual Abuse on redress and civil compensation was released in September.
Royal Commission’s recommendations
It’s recommendations include establishing a national redress scheme by 2017 and removing legal barriers to civil claims for compensation for survivors of child sexual abuse.
The Commonwealth Government has responded by agreeing to take a lead role in facilitating the creation of a national redress scheme with the support of the NSW and Victorian Governments that would be funded proportionately by institutions where abuse occurred.
A national redress scheme is not intended to replace civil claims for compensation but it will be an option available for claiming support and modest monetary compensation.
An important legal barrier for victims of child sexual abuse to succeed in civil claims for compensation is the limitation period. Currently in NSW claims for personal injury including for child sexual abuse must be made within 3 to 12 years of the date of the abuse. Survivors of child sexual abuse do not disclose the abuse for an average of 22 years.
The Royal Commission has called for State Governments to remove limitation periods as soon as possible.
Victoria has now completely removed the limitation period for claims for personal injury from the physical or sexual abuse of a minor.
The NSW Government recently failed to support legislation introduced by the Labor Opposition to remove the limitation period in this State.
Attorney General Gabrielle Upton has however committed the NSW Government to introduce legislation to remove the limitation period next year.
Another legal barrier to succeeding in civil claims for child sexual abuse involving an institution is where the institution is not found to be legally responsible for criminal acts of its employees or others associated with it.
Two recent Australian cases have found that schools were liable for child sexual abuse of students by members of their staff.
In A, DC v Prince Alfred College Inc, the Full Court of the South Australian Supreme Court found the school vicariously liable for the abuse because of the “close connection” between its housemaster and the opportunity to abuse, given the relative power, intimacy and authority he had at the school.
In Erlich v Leifer & Anor, Judge Jack Rush in the Supreme Court of Victoria found the school liable for the abuse of a student by a principal as the student-teacher relationship involved a high degree of power and intimacy that was used by the principal to commit the sexual abuse.
Although there is more work to be done, as Dr Hugh McDermott, Member for Prospect, put it recently in the NSW Legislative Assembly “The march toward justice has come a long way.”