LIMITATION PERIODS ABOLISHED IN CHILD ABUSE CASES
The Labour Government is to be commended for abolishing limitation periods in child abuse cases. Hopefully this is the first of a tranch of legislative amendments to be introduced which will make it easier for victims of child abuse to pursue civil claims for damages in the courts.
The Limitation of Actions Amendment (child abuse) Bill 2015 has been introduced into Parliament (http://www.parliament.vic.gov.au/legislation/1824-bills-this-week) and is likely to be passed as this is an issue which has bipartisan support. This Bill will come into force by proclamation at a date to be fixed or on 1 September 2015 at the latest.
The Bill abolishes limitation periods in child abuse cases and applies to all actions regardless of the point in time that the relevant act or omission which has resulted in death or personal injury is said to have occurred.
The negligent act must have been in relation to a minor at the relevant time and involve physical or sexual abuse. Time limits are abolished in relation to claims for psychological abuse only where the psychological abuse arises out of the acts or omissions that resulted in the physical or sexual abuse. In other words, the amendments do not apply with respect to claims for pure psychological injuries based for example on emotional abuse only.
The words physical, sexual and psychological abuse are not defined in the Act and will be determined by a court.
The long stop limitation period is abolished in wrongful death claims where the death was caused by sexual or physical abuse but a limitation period of three years from the date of the “discoverability” of the cause of action applies. S 27 F of the Limitations of Actions Act applies in that a dependent would have 3 years from the date of death, or from when a dependent became aware that the death was caused by the fault of the defendant.
A court will still have power to summarily dismiss or permanently stay proceedings where the lapse of time has such a burdensome effect on the Defendant that a fair trial is not possible.
It appears that the amendments will apply to all claims which have not previously been settled including those that are currently in the courts if they have not settled before 1 September 2015 or when the legislation is proclaimed, whichever is earlier.
Sadly these legislative amendments are too late for people who have settled their claims and who have likely discounted heavily for the risks posed by the statute of limitations. Victims are calling on Institutions to either re-open settled matters or to agree to allow claimants to have their day in court, even where releases finalising all rights have been signed.