The NSW Attorney General has recently introduced a Bill to NSW Parliament, removing the limitation period for an action for damages relating to death or personal injury resulting from child abuse.
Currently, limitation periods vary from between 3 and 12 years depending on when the act occurred, however research indicates that the average time for abuse victims to disclose is 22 years. The Bill also removes the 30 year limitation on bringing any claim.
The Bill, if passed, will be retrospective apply to all victims of abuse, no matter when it occurred. Those who have had claims settled or where the court has already determined the substantive issues in dispute will not be able to re-open them, except where their claim could not proceed due to the limitation period.
The amending legislation defines "child abuse" as abuse perpetrated against a person when the person is under 18 years of age; that is, sexual abuse, serious physical abuse, and/or other abuse perpetrated in connection with sexual or serious physical abuse. The threshold for removal of the limitation period is the sexual or serious physical abuse of a child or young person under the age of 18 years. If this threshold has been met, then other forms of abuse connected to the threshold abuse, such as psychological abuse or minor physical abuse, can be considered in determining the claim.
The amendments will however preserve the existing powers of a court to safeguard the right to a fair trial. They do not restrict a court from dismissing or staying proceedings where it determines that a fair trial is not possible; for example, where the passage of time has led to a loss of evidence capable of establishing a case to be tried. This will no doubt prove the greatest hurdle to claimants, and also Defendants, where the evidence is scarce.
The changes will not assist all victims, especially where the perpetrator is deceased or has no assets,. or where the organisation for whom they worked, no longer exists or has limited funds. In those cases, the very limited Victims Compensation scheme, may be the only avenue of redress. The changes will also impact institutions against whom claims are made, who may find themselves uninsured for many claims in respect of former staff or volunteers.
For advice on how the changes will affect claims or potential claims please contact one of our compensation experts on 1800 656 650.