Limitation Periods for Bringing Child Abuse Claims to be Removed in NSW

Thursday 18 February 2016 @ 10.57 a.m. | Crime | Torts, Damages & Civil Liability

On 16 February 2016, NSW Attorney General Ms Gabrielle Upton (the AG) introduced the Limitation Amendment (Child Abuse) Bill 2016 into the NSW Parliament which will permit child abuse actions to be brought at any time without regard to any limitation period under the current Limitation Act 1969 (NSW) (the Limitation Act). This is the second proposed piece of legislation addressing this issue to have been introduced into the NSW parliament, with a similar Bill the Limitation Amendment (Child Abuse Civil Actions) Bill 2015 being introduced by the Shadow Attorney General in October 2015 and which was further negatived on second reading on 12 November 2015.

Similar legislation has also been enacted in Victoria (which abolished limitation periods in civil child abuse matters) as of 1 July 2015 - see the Limitation of Actions Amendment (Child Abuse) Bill 2015 (Vic) and see New VIC Limitation of Actions Amendment (Child Abuse) Bill 2015.

Object of Proposed Changes and Detail of provisions

The proposed legislation amends the Limitation Act 1969 to provide that there is to be: "no limitation period for an action for damages that relates to death or personal injury resulting from child abuse" (a child abuse action).

In the proposed amendments child abuse is defined to mean:

" . . . abuse perpetrated against a person when the person is under 18 that is sexual abuse, serious physical abuse, or other abuse perpetrated in connection with sexual abuse or serious physical abuse".

The proposed legislation is to commence on the date it receives royal assent. Schedule 1 clause [2] of the proposed law allows a child abuse action to be brought at any time without regard to any limitation period under the Limitation Act.

The proposed amendments remove existing time limitations on the commencement of child abuse actions but do not seek to create any new causes of action or liability. Further, they are not limited to actions against the perpetrator of child abuse but extend to any action that relates to death or personal injury resulting from child abuse (for example an action founded on the negligence or vicarious liability of a person other than the perpetrator).

The point regarding actions founded on negligence or vicarious liability is important to note as it raises the possibility of the amendments' application to health professionals or hospitals and similar institutions given the proposed laws ". . . extend to any action that relates to death or personal injury resulting from child abuse" (thus not just limited to actions against a perpetrator). Further, the proposed amendments do not effect the power of a court to stay or dismiss proceedings where the court has determined that the lapse of time in bringing an action has resulted in it not being possible to have a fair trial.

In speaking to the Bill, the AG pointed out that the Bill resulted from the "... extensive work undertaken by the Government ..." including community consultation by way of a discussion paper released in January 2015 on limitation period reform options" and that the reform was also a response to the recommendations coming from the Federal Government's - Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) - particular the Royal Commission's final report released in September 2015 dealing with "redress and civil litigation".

The Bill is, according to the AG, focused on Chapter 14 of the Royal Commission's report which addressed the barrier posed by limitation periods and recommended that:

"State and Territory governments legislate . . . remove any limitation periods that apply to a claim for damages resulting from child sexual abuse; that such amendments should be retrospective in effect and apply regardless of whether or not a claim was subject to a limitation period in the past; that the amendments should expressly preserve the courts' existing jurisdictions and powers to stay proceedings; and that the amendments should be implemented as soon as possible, even before the royal commission's recommendations in relation to the duty of institutions and identifying a proper defendant are implemented."

The proposed legislation is said by the AG in her speech to the Bill to ". . . deliver[s] on all of those recommendations of the Royal Commission."

Limitations Reforms Considered to be a Start to More General Reform

The AG indicated that NSW Government was closely considering all of the Royal Commission recommendations delivered in the September 2015 report, of which only four related specifically to limitation periods, and went on to say that the Government "... has been closely considering all of the commission's recommendations". Of the remaining recommendations, the AG and the NSW Government support the Royal Commissions recommendation for a "single national redress scheme" saying:

"In particular, the Government supports the royal commission's keystone recommendation for the establishment of a single national redress scheme. A redress scheme will provide a less traumatic alternative to civil litigation for survivors. At the Law, Crime and Community Safety Council meeting in November the New South Wales and Victorian governments moved a motion urgently calling on the Commonwealth to give effect to the royal commission's recommendation for a single national redress scheme. Last month the Commonwealth Government announced it would lead the development of a "nationally consistent" approach to redress."

The recommendation for a national redress scheme has been one the NSW Government has supported consistently since the opposition tried to introduce its version of the proposed legislation in 2015 and it is not surprising to see the AG restate that support.

The proposed legislation is expected to pass with support from all parties in the NSW Parliament.

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