Removal of Limitation Periods
The Royal Commission into Institutional Responses to Child Sexual Abuse (“Royal Commission”) resulted in a detailed report which, amongst other things, provided recommendations to better protect children against sexual abuse and alleviate the impact of abuse on children.
As part of attempting to alleviate the impact of the abuse, the Royal Commission made recommendations pertaining to the time limitations that apply to civil claims for compensation arising as a result of injuries suffered due to childhood sexual abuse.
Post 2002, injury law claims mostly require an injured person to make a claim within three years from the date of discoverability (that is, the date that the injured person knew or ought to have known that they had an actionable legal claim). If a claim is not filed within the Courts before the expiration of this period, an injured person can be statute barred from making a claim for compensation.
The final Royal Commission report made four recommendations in respect of limitation laws, namely:
- All state and territory governments to remove limitations for personal injury claims relating to sexual abuse of a person in an institutional context when that person was a child;
- That the removal of the limitation period have retrospective effect;
- That the removal of limitation periods should expressly preserve the relevant Courts’ powers to Stay proceedings (which is a ruling that halts further progress of a legal matter); and
- That the removal of the limitation periods be implemented as soon as possible, even if it means implementation of same prior to other recommended law reforms.
Since the Royal Commission’s final report, every jurisdiction in Australia has removed limitation periods in respect of child sexual abuse claims. However, it should be noted that the amendments have not been uniform. Some jurisdictions have also extended the type of abuse for which limitation periods no longer apply, per the below table:
|NSW||Sexual abuse and serious physical abuse|
|ACT||Sexual abuse (including being witness to sexual abuse)|
|NT||Sexual abuse, serious physical abuse and psychological abuse arising from same|
|SA||Sexual abuse, serious physical abuse and psychological abuse related to same|
|TAS||Sexual abuse, serious physical abuse and psychological abuse arising from same|
Prior to the removal of limitation periods, it was extremely difficult for survivors to pursue compensation for the harm they suffered as a result of childhood abuse. Despite same, many survivors still pursued institutions for compensation resulting in compromised (reduced value) claims on account of the fact that their matters were statute barred and would ultimately be unsuccessful if pursued at trial.
Court Applications to set aside prior settlement agreements (QLD and WA only)
As above, the legislative amendments for childhood sexual abuse matters vary from state to state. Whilst some states have simply removed the limitation period, some have gone further to enact legislation that allows survivors to apply to the Court to set aside the terms of prior settlement agreements. Legislative provisions in Western Australia and Queensland permit a survivor to apply to the Court to have a prior settlement agreement set aside. The legislation requires the Court be satisfied that it would be “just and reasonable” to set aside the terms of the prior settlement agreement.
The Western Australian decision of JAS v Trustees of the Christian Brothers permitted a survivor to set aside the terms of their prior settlement agreement (where they had received a nominal sum of $2,000.00 in compensation) and secure a further sum of $100,000 from the institution.
However, an attempt by a Queensland survivor to set aside the terms of a prior settlement agreement resulted in a very different outcome in the matter of TRG v The Board of Trustees of the Brisbane Grammar School. The Court dismissed the survivor’s Application to set aside the terms of their prior agreement. Specifically, the Court considered that the time limitation issue had not had a material impact upon the value of the survivor’s claim at the time it was determined.
Notwithstanding the above, the Queensland and Western Australian legislation permits survivors who previously accepted a compromised settlement sum to apply to the Court to have same set aside and allow them the opportunity to finally have their matters decided on their merits. However, as per the above decision, it should not be expected that the Court will automatically agree to set aside the terms of the prior settlement agreement.
Do you need help?
We recognise that survivors of childhood abuse are strong individuals who deserve the right to seek compensation for the harm they have suffered. We also understand that it can be difficult to know which pathway is the right one to choose. It is important to speak with a lawyer who is experienced in institutional abuse matters prior to accepting any offer of settlement.
Turner Freeman has a number of lawyers located throughout Australia with experience in institutional abuse. We invite survivors to contact our Sydney office on (02) 8222 3333 for a confidential and obligation free discussion to help inform them as to their rights and legal options.