WELCOME REFORMS FOR VICTIMS OF CHILDHOOD SEXUAL ABUSE

In very general terms, the law as it currently stands in Queensland requires a claim for damages for personal injuries to be brought within three years of the cause of action arising or, in the case of a child, by their 21^st birthday.  Applications to extend the limitation period, while possible, are notoriously difficult and often unsuccessful.

The restrictions imposed by existing limitation periods have been identified by the Royal Commission into Institutional Responses to Child Sexual Abuse as being particularly problematic for, and operating against the interests of, victims of child sexual abuse.  Amendments to the limitation legislation have already been passed in New South Wales and Victoria and are on foot in Western Australia.

On 16 August 2016 the Queensland Government tabled the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016 (“the Bill”).

The Bill provides that:

An action for damages relating to the personal injury of a person resulting from the sexual abuse of the person in an institutional context when the person was a child:

(a) may be brought at any time; and

(b) is not subject to a limitation period under an Act or law or rule of law.

            (emphasis added)

The amendments are retrospective in effect.  They also afford a claimant who previously failed in a limitation extension application, or otherwise had his or her claim dismissed by a court on the ground that the statutory limitation period had expired, to now bring a claim.[1]

The Bill defines “institutional context” as sexual abuse which:

1. happens:

                      i.        on the premises of an institution; or

                     ii.        where activities of an institution take place; or

                    iii.        in connection with the activities of an institution; or

2. is engaged in by an official of an institution in circumstances, including circumstances involving settings not directly controlled by the institution, in which the institution has, or the institution’s activities have, (whether by act or omission) created, facilitated, increased, or contributed to—

                      i.        the risk of sexual abuse of children; or

                     ii.        the circumstances or conditions giving rise to the risk of sexual abuse of children; or

3. happens in any other circumstances in which an institution is, or should be treated as being, responsible for persons having contact with children.

(emphasis added)

It further defines:

·         “Institution” to mean ”an entity (whether existing or no longer existing, whether or not incorporated, and however described) that provides or provided activities, facilities, programs or services of any kind that gives or gave an opportunity for a person to have contact with a child”; and

·         “official of an institution” as including:

(a)  a representative (however described) of the institution or a related entity; and

(b)  a member, officer, employee, associate, contractor or volunteer (however described) of the institution or a related entity; and

(c)  a person who provides services to, or for, the institution or a related entity, including, for example, a member, officer, employee, associate, contractor or volunteer (however described) of an entity; and

(d)  any other person who would be considered as, or should be treated as if the person were, an official of the institution.

Given the expansive definitions, it is hard to conceive an institution, whether public or private, which would not come within their ambit.  Indeed, it is arguable that these definitions encompass situations where, for example, a person is abused in foster care on grounds that the institution which placed the child in the care facilitated the circumstances giving rise to the risk of abuse. 

The draft Bill does not, however, appear to cover situations where, for example, a child is abused in their own home by a family member or friend.

In its current format, the Bill appears to give rise to two important anomalies.

The first is in respect to claimants who have already settled claims and signed releases foregoing the right to further pursue a claim.

Many of these claimants are likely to have settled for an amount that did not fully reflect the loss and damage they had suffered.  This was because they would, in essence, have been “buying the risk” that they may not have succeeded in an application to extend the limitation period or were accepting their claim was statute barred.

In respect to the second anomaly, let us assume that, decades ago, a child was subjected to separate acts of sexual and physical abuse while living in an orphanage.  That person may now be left in a position where they are time-barred from seeking damages for the physical abuse but can pursue an entitlement to seek damages for the sexual abuse.

For some, this may not present an issue.  However, real injustice might arise if, for example, there is medical evidence that both the sexual and physical abuse materially contributed to the onset of a psychological condition.  A claimant in that position might not recover any damages if they are unable to “disentangle” the two types of abuse and show that the sexual abuse would have caused the condition, irrespective of the physical abuse.

The Queensland Government has published an Issues Paper which identifies the need to consider the definition of “abuse” and “institution” and calls for comment and submissions.   Given the Victorian and New South Wales parliaments addressed these issues and included other forms of abuse in their amending legislation, it could be asked why further discussion is necessary here? 

Also, although Whole-of-Government Guidelines for responding to child sexual abuse claims propose that payments made under the Forde Enquiry Redress Scheme will not prevent claimants pursuing a claim now, the Issues Paper does not identify the need to consider the position of claimants who have, potentially, under-settled their claims because of existing statutory limitation periods. 

Nonetheless, the Bill is an important first step for childhood victims of sexual abuse and advocates for the reform of institutional abuse claims.

Steve Herd – Partner, MurphySchmidt Solicitors

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[1] this includes provision for a court, provided it considers it just and reasonable to do so, to take into account any amounts paid, or payable, as damages or costs under the judgment.