Child Abuse Claims No Longer Time Barred

New South Wales victims of child abuse are no longer barred from making a claim against the perpetrators of the abuse after the NSW Parliament amended the Limitation Act 1969.  This follows similar action in Victoria in 2015 and now in Queensland in 2016 (read more about the Queensland Bill). 

The NSW Parliament has considered and adopted some of the suggestions put forward by the Royal Commission into Institutional Responses to Child Sexual Abuse in Australia. Studies show that many child abuse survivors do not come forward and report abuse claims for years after it has taken place, if ever. Removing the limitation period for claims of this sort will increase the ability for victims of child abuse to seek compensation.

The changes are not restricted to actions against the perpetrator of the abuse. There is now no time limit on bringing any claim that relates to death or personal injury from child abuse. This means that claims against charities, schools and other not-for-profits based on negligence of the organisation or its employees cannot be time barred.

"There is now no time limit on bringing any claim that relates to death or personal injury from child abuse."

‘Child abuse’ means any of the following which have been perpetrated against someone under the age of 18:

1. Sexual abuse
2. Serious physical abuse
3. Any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse.)

Serious physical abuse (whether sexual or otherwise) is not defined, although Parliament indicated that it intends serious physical abuse to include non-accidental physical contact with a child that could cause injury. This could take the form of a number of relatively minor episodes over a period of time, or one serious event or instance of misconduct.

Because Parliament has not defined serious physical abuse, it will be up to the courts to do so. When defining a term, courts generally give the term its plain, ordinary meaning. They may also consider how other jurisdictions have defined the term. The ‘plain and ordinary’ meaning of a term is the meaning the words carry to a reasonable person having all the background knowledge which is reasonably available. However, courts can only decide the cases before them and are generally reluctant to go beyond what needs to be decided. Therefore, the courts may develop a definition over time as they consider the facts of each case. Accordingly, it may be some time before we have a settled definition of serious physical abuse.

Finally, the changes extend to existing claims, including those cases where the time limit may have expired and previously prevented a child abuse survivor from commencing a court action. Furthermore, claims may be brought even if a judgment has been given previously if the judgment barred the claim on the ground that the limitation period had expired. In other words, if your organisation successfully defended a claim in the past on the basis that the limitation period had expired, the claimant may now make another claim. 

Contact b%B0%A6%EE%AE%BAk%BC%B6%DD%CCUor b%BA%A6%EC%AD%B7%B9%96%8A%DD%D7%A4%C1bif you have any questions about how these changes could affect you.