A change has been proposed, which may see NSW schools subject to continuing liability for child abuse claims. The NSW Government has released a Discussion Paper (the Paper) to seek community views in relation to amending the Limitation Act 1969 (NSW) (the Act) to address the barriers to litigation currently experienced by victims of child abuse. The Paper, available on the NSW 'Have Your Say' website, has been released in light of the evidence gathered to date by the Royal Commission into Institutional Responses to Child Abuse. It also comes at a time when there has been a spate of inquiries in relation to the handling of historical sexual abuse claims by non-government schools.

Although the recommendations of the Royal Commission are not due to be published until December 2017, the Paper is a proactive step by the NSW Government which may result in faster legislative change after the Royal Commission's Final Report is released.

How limitation periods work

Under the Australian legal system, people who have suffered harm due to the negligence of others can seek compensation for their injuries through court proceedings. If a child suffered abuse while at an institution such as a school, they must establish that the institution breached the duty of care owed to them, being the duty to provide education in a safe environment.

However, current legislation limits the right to bring such claims if they are brought outside of a limitation period. Statutes such as the Act, exist in all States and Territories and set the maximum time periods that restrict the ability of abuse victims to claim in court proceedings. In NSW, the Act prescribes 3 different time periods for personal injury claims, depending on when the wrongful act occurred. These time periods range from between 3 and 12 years.

Courts have the discretion to extend a maximum time period where exceptional circumstances exist, although the evidentiary process involved in obtaining an extension can have a significant emotional toll for victims, dissuading them from pursuing this avenue.

How limitation periods disadvantage victims of child abuse

The Paper refers to the 'well documented' fact that many victims of child sexual abuse do not disclose their experiences, or act on them, until decades after the abuse, if ever. Our previous article referred to the Royal Commission's finding that on average, the timing between an incident of abuse and a subsequent claim is 22 years. The reasons for this delay are varied but, as stated in the Paper, are 'frequently connected to the injuries caused by the abuse'. Depression, post-traumatic stress and other mental conditions are all injuries resulting from abuse that can create barriers for victims who, as adults, can recognise that events in their past were actually 'wrongs'.

However, the application of statutory limitation periods to child sexual abuse claims means that even when a victim decides to initiate proceedings, their claims may be prevented from being heard and access to compensation is denied.

Now the NSW government is trying to facilitate child abuse victims' access to justice by proposing changes to the limitation periods prescribed in the Act. The Daily Telegraph quotes the NSW Attorney-General Brad Hazzard as saying 'people who have suffered at the hands of others sometimes take 20, 30 years just to build up the courage to be able to say anything ... it’s a bit strange that there’s a limitation in the law that says you can’t bring proceedings'.

The options

The Paper sets out 4 different options for reforming the Act. These include removing limitation periods entirely in claims relating to child sexual abuse and removing limitation periods where there has been a conviction for child sexual assault (currently the limitation periods can prevent a civil claim being initiated even though criminal charges can succeed).

If any form of amendment to the Act is supported by the public, further questions arise including:

• how wide should the amendment be (e.g. should they apply to causes of action other than child sexual abuse such as serious physical abuse of a child?); and
• should an amendment apply retrospectively (so that claims can be initiated even if the abuse occurred before the amendments are passed by Parliament).

The Paper also discusses the impact such changes will have such as whether they will result in an increase in compensation claims and whether they will result in changes to insurance premiums.

A fact sheet is also available.

What's next?

The period for submitting comments on the Paper ends on Tuesday 10 March. Even if the Government does decide to reform the Act on the basis of the public feedback it receives, it makes it clear in the Paper that it must also consider the recommendations of the Royal Commission and their impact before introducing change. This means that victims of child abuse will be waiting until the end of 2017, at least, when the Final Report is released, before any change can occur.

In the meantime, the Department of Education and Communities is bound by the NSW Government Guiding Principles for Government Agencies Responding to Civil Claims for Child Sexual Abuse, which dictates how it must handle claims in relation to sexual abuse at government schools. It says that 'State agencies should not generally rely on limitation periods as a defence'.

In contrast, although non-government schools in NSW can waive their right to rely on a limitation period in the Act, this is not mandatory, and they are still able to use it to defend claims by former students.