NSW Releases Consultation Paper On Child Abuse Civil Litigation Reforms
Monday 24 July 2017 @ 11.34 a.m. | Torts, Damages & Civil Liability
The NSW Department of Justice has issued a consultation paper for issues raised by the Royal Commission into Institutional Responses to Child Sexual Abuse about civil litigation reform. The consultation paper deals with three major issues: expanding the duties of institutions to prevent child abuse; ensuring that survivors can easily identify a proper defendant to civil claims; and requiring institutions to have insurance cover for child abuse. Public submission on issues raised in the consultation paper are open until 5pm on 4 September 2017.
In a media release announcing the release of the paper, NSW Attorney General Mark Speakman said:
“The feedback of survivors, victims' groups, legal stakeholders, institutions and the community will help shape how NSW addresses child abuse and its devastating consequences…
The consultation paper seeks submissions on the benefits and challenges of the Royal Commission's recommendations and the impact they would have on survivors and institutions responsible for the care of young people. This is about ensuring that civil justice is accessible for survivors.”
NSW has already introduced some of the reforms recommended by the Royal Commission, including removing limitation periods in civil claims for child abuse.
Issues Covered
The Consultation Paper sets out an overview of Royal Commission recommendations and potential issues in a roadmap at page 12 of the report:
To introduce a new non-delegable duty of care to prevent institutional child abuse for particular institutions which provide services for children:
a) Particular institutions (see 5.6) would be subject to a new non-delegable duty of care to children over which they have care, supervision or control, to prevent institutional child abuse
b) Institutions could be liable for intentional, criminal abuse
c) Those institutions would be personally liable for the actions of all persons associated with the organisation, regardless of whether the institution itself is at fault
To reverse the onus of proof for child abuse claims, by requiring an institution to prove that it took ‘reasonable steps’ to prevent the abuse in order to avoid liability
a) All institutions would be responsible for the actions of all persons associated with the organisation – not just employees
b) Institutions could be liable for intentional, criminal abuse
c) In order to avoid liability, institutions would be required to prove that they had taken reasonable steps to prevent abuse from occurring
To require institutions with associated property trusts to nominate a proper defendant to child abuse claims, with sufficient assets to meet any liability arising from proceedings
a) Institutions with associated property trusts which cannot be sued (for example, unincorporated associations) will be required to nominate a defendant which is able to be sued for child abuse
b) The nominated defendant must have sufficient assets to meet a claim
c) If the institution failed to nominate a defendant, any property trust associated with the institution would be deemed to be a defendant
To require all institutions responsible for the care of children to have insurance, including cover for institutional child abuse claims, in order to be eligible for funding
Government funding would be withheld from all institutions responsible for the care of children unless insurance is obtained to cover future abuse claims.
The Paper also asks people to consider how child abuse is defined and goes into further depth on the topics outlined above. There are 44 discussion questions listed in Appendix 1 of the Report.
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