Limitation Period Changes Foreshadowed for Child Sexual Abuse Claims

Following on from the release of the interim report of the Royal Commission into Child Sexual Abuse in July 2014, NSW has released a discussion paper on 23 January 2015, indicating that they may lift the time limit in which survivors of child sexual abuse can sue for damages in civil claims.

Background to the Issue

The terms of reference of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) require consideration of the extent to which victims of child sexual abuse have achieved justice under the existing civil litigation system, and whether reforms are required. The evidence gathered by the Royal Commission to date suggests that many victims have been unable to pursue civil compensation, and of those who have, many have found the process of civil litigation to be traumatic. The NSW Government is looking at possible measures to address the barriers to litigation that victims of child sexual abuse may experience. 

Many victims of child sexual abuse do not disclose their experiences or act on them until decades after the abuse, if ever. For example, the Royal Commission’s Interim Report states that, based on private sessions held between 7 May 2013 and 30 April 2014, the average time for a victim to disclose the sexual abuse was 22 years, with men taking longer than women.

There are already two exceptions to the general statutory limitation periods in NSW. These include:

• The specific exception that removes the application of the Limitation Act to dust diseases claims; and
• The general exceptions in the Limitations Act that suspend the limitations period while a person is under a ‘disability’ (as a minor or due to physical or mental incapacity) or because of a latent injury. 

Neither of these are currently applicable to child sexual abuse claims. Under the NSW Statute of Limitations people abused as children currently have between three and 12 years from the time of the offence to launch a civil claim.

Proposed Reforms

In the discussion paper, the NSW Government proposes legislating one of the following reforms:

• removing limitation periods from causes of action based on child sexual abuse;
• reversing the presumption, so that limitation periods only apply to causes of action based on child sexual abuse if the defendant is able to demonstrate that the proceedings could have been commenced earlier;
• clarifying that the statutory exception for ‘disability’ includes psychological distress caused by child sexual abuse;
• removing the operation of limitation periods to causes of action based on child sexual abuse in circumstances where there is a criminal conviction based on the same or substantially similar facts; or
• amending the post-2002 provisions relating to minors so that all minors are subject to the same exception, regardless of the characterisation of the perpetrator. 

Reaction to Discussion Paper

The NSW Attorney General Brad Hazzard said the Royal Commission had uncovered widespread claims about abuse and the legal barriers survivors face in pursuing justice many years after the crime:

The president of Adults Surviving Child Abuse, Cathy Kezelman, welcomed the discussion paper:

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Limitation periods in civil claims for child sexual abuse - Discussion Paper of 23 January 2015 - as reproduced in TimeBase LawOne

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