Following on from recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), the Queensland Parliament recently passed amendments to the Limitation of Actions Act 1974 (the Act) extinguishing the limitation period for child sexual abuse claims, extending the recommendations of the Royal Commission on this issue.
The limitation period for personal injuries sustained by a minor is 3 years after the date of majority (i.e. age 21 years). After that, the cause of action is statute barred. The amendments originally outlined in the first draft of the bill contemplated extinguishing the limitation period in circumstances involving child sexual abuse occurring in the “institutional context”. This was defined broadly to include a range of circumstances where an entity (whether existing or no longer existing) provided activities, facilities or services of any kind, or gave a person the opportunity to have contact with a child.
However, the final bill extended the changes further, inserting a new section 11A into the Act that extinguishes the limitation period retrospectively for all child sexual abuse claims, regardless of the context in which the abuse occurs. The explanatory notes to the bill state that:
“…the trauma of abuse perpetrated within the family is of equal magnitude to that perpetrated in an institutional context… the rights of access to justice should be equally shared between victims of non-institutional and institutional abuse.”
As such, child sexual abuse occurring in the non-institutional context, such as in the home or family context, is also picked up by the amendments.
Furthermore, ancillary provisions are included that give the court powers to set aside previous settlements (or judgments, where they pertained to statute-barred matters) in relation to child sexual abuse claims, on the grounds that it is just and reasonable to do so. The court may then adjudicate on a previously settled claim, albeit taking into consideration any amounts already paid under the earlier settlement.
Parties involved in such matters will need to give consideration to the potential impacts of these retrospective changes, most notably, the potential for previous settlement agreements to be set aside, removing any certainty associated with those earlier agreements. This may have wider-reaching impacts within the insurance industry, potentially re-opening claims that had previously been settled or resolved over an indefinite period of time.