The Victorian Limitation of Actions Amendment (Child Abuse) Act 2015 became operative on 1 July 2015.
In essence, the amendments act to exclude child abuse from the operation of the limitation periods under that Act.
The amendments remove the 12-year long-stop limitation period for wrongful death actions in relation to child abuse brought by dependants of a deceased victim.
It will also have the effect that no limitation period will apply to a cause of action if the action:
‘Is founded on the death or personal injury of a person resulting from –
an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse; and
Psychological abuse (if any) that arises out of that act or omission.’
However, the judicial discretion to dismiss or stay proceedings where there is unfairness to the defendant has been expressly retained in the amending Act. For example it would still be considered unfair on a defendant institution to expect them to mount a defence when the organization closed many years ago and there were no longer any records available.
What does this means for Victims of child abuse?
These amendments are a major breakthrough for victims of child abuse in Australia and we could see the following changes;
a greater number of victims will now be eligible to seek compensation;
an increase in successful claims;
an increase in the fairness of settlement negotiations and the encouragement of defendants to focus on the merits of the case rather than limitation points; and
Lowered legal costs of both parties by not having to argue the limitation point.
Importantly a Discussion Paper published by the NSW Department of Justice in January stated:
“The changes to the application of limitation periods may also impact on the quantum of damages payable in claims. It is likely that the possibility of relying on a limitations defence has given defendants greater bargaining power in settlement negotiations, and may have resulted in matters, where the limitation point was raised, settling for lower damages then matters where it was not in issue. At this stage it is difficult to determine the impact on settlement amounts, and it is likely that this is an impact that will manifest over time.”
Will other states also consider reform?
The discussion paper mentioned above released in NSW, was implemented to gauge views from within the NSW community in regards to amending the Limitation Act 1969 NSW. This indicates that there is serious consideration as to whether NSW will also amend the Limitation Act.
The Royal Commission has encouraged National amendments so that there is consistency and transparency in how claims are dealt with, and that the Limitation argument is removed so that Defendants can’t use it to hide behind.
However, until such changes are implemented, Victoria still is the only state to abolish limitation periods in child abuse cases. In any event it is an encouraging step in the right direction for victims seeking justice and compensation, who have had claims barred by the Limitations Act.
Koffels is experienced in claims of this nature and we can provide advice and help to victims.