The NSW Parliament has recently removed the limitation period that applies to all damages claims for child abuse. The Limitation Amendment (Child Abuse) Act 2016 implements the recommendations of the Royal Commission regarding Institutional Responses to Child Sexual Abuse.

Recommendation from the Royal Commission

The Royal Commission found that limitation periods act as a substantial barrier to child abuse victims bringing legal action, for sexual and serious physical child abuse.

Bill Unsuccessful at First

On 15 June 2015, the Limitations Amendment (Child Abuse Civil Actions) Bill 2015 was introduced to amend the Limitation Act 1969 (NSW).

Although similar to the Victorian legislation, this first proposal was defeated in NSW.

Bill’s Reintroduction, Success and Effect

The recommendations were reintroduced into NSW Parliament with the Limitation Amendment (Child Abuse) Bill 2016 on 16 February 2016. The Bill was passed by both houses on 9 March 2016.

Effective from 17 March 2016, the main operative provision was a new Section 6A inserted into the Limitations Act 1969 (NSW). The new section, states that no limitation period exists for civil actions relating to child abuse. The legislation is retrospective, removing the limitation period for child abuse regardless of when it took place.

Claimants can only overcome the limitation period hurdle if:

• the child abuse occurred while the victim was under 18 years of age; and

• sexual abuse or serious physical assault; or

• other abuse that is “connected” to the sexual abuse or serious physical assault.

It also appears that where the abuse covered a number of years, the limitation period would only be lifted for abuse that occurred before the victim was 18, not for subsequent abuse.

There is a general principle that issues cannot be re-litigated once decided or settled. However, these changes permit an action that would have previously been barred by the limitation period.

The Bill features a safety condition for the Court. Section 6A(6) prevents the removal of the limitation period if it goes against the Court’s jurisdiction or power, such as the right to preserve a fair trial for the defendant. It is anticipated that this power will not be used regularly.

Contact Peter McNamara if you require advice about claims that arise against your organisation by persons who were under 18 years of age.