ABOLITION OF STATUTE OF LIMITATIONS IN HISTORICAL CHILD ABUSE CLAIMS

Victims of child abuse have welcomed the Coalition’s commitment to implement recommendation 26.3 of the Betrayal of Trust report to abolish limitation periods in historical child abuse claims. A draft bill has been prepared and the current Government is seeking responses by 5th December 2014. 

Currently limitation periods apply in all civil litigation. This means that legal proceedings must be filed within a certain period of time. The effects of child abuse are such that limitation periods have been particularly harsh given that many victims of child abuse will not disclose their abuse until many years have elapsed after the events.

The current legislation relating to time limits in child abuse claims is harsh, complex and poorly understood. The discussion paper issued by the Attorney General states that the current legislation provides that child abuse civil claims must be brought by the earliest of:

six years from the date on which the cause of action is “discoverable” by the plaintiff; or12 years from the date of the alleged abuse, known as the long stop limitation period.

If the alleged abuser is parent/guardian or close associate, the cause of action is deemed to be discoverable when the plaintiff turns 25 with a long stop limitation period of 12 years. This means that depending on when the abuse occurred, plaintiffs can bring their claims between the ages of 31 and 37. However transitional provisions mean that claimants can only have the benefit of the more generous provisions if their abuse occurred before May of 2003 when the legislation was amended. This means that for most victims of historical child abuse, the old limitation period applies which depending on the age of the plaintiff and when the abuse occurs required that proceedings be issued by age 21 or age 24 at the latest.

The draft bill applies to past as well as future claims of abuse and applies regardless of the age of the plaintiff and when the abuse occurred. This is a very welcome change to the current harsh, confusing and complex laws that victims of abuse have had to contend with.

Unfortunately, the coalition government failed to introduce this legislation in the current term. Indeed, none of the recommendations of the Betrayal of Trust report relating to reform of civil laws which will enable victims to have a fair opportunity to access justice in the civil courts have been implemented.

Whilst all major parties have agreed in principle to implement the recommendations of the Betrayal of Trust report, it is disappointing that victims will have to await an election and are still left with uncertainty. Having said that, the coalition government is to be commended for committing to implementing recommendation 26.3 in its entirety and without equivocation.

http://www.justice.vic.gov.au/home/safer+communities/protecting+children+and+families/limitation+of+actions+amendment+%28criminal+child+abuse%29+bill+2014+-+exposure+draft

Law Institute Victoria Accredited Personal Injury Specialists

product   

Melbourne office (03) 9686 6610
Level 1, 239 Park Street
SOUTH MELBOURNE VIC 3205

Hobart office (03) 6270 2206
Address Level 3, 85 Macquarie Street
Hobart Tasmania 7000

©. All rights reserved.